Eugene L. Huseman, Judge Superior Court County of Ventura (Super. Ct. No. 2010010591)
The opinion of the court was delivered by: Yegan, J.
CERTIFIED FOR PUBLICATION
We hold that an incarcerated defendant charged with threatening the life of or threatening serious bodily harm to an elected public official within the meaning of Penal Code section 76 need not have a "stated release date" to have the "apparent ability to carry out that threat."*fn1
Daniel Avila was convicted in a jury trial of six counts of making criminal threats (Pen. Code, § 422), and six counts of threatening elected public officials, here six deputy district attorneys. (§ 76.) The trial court sentenced appellant to prison for six years and four months for the section 422 offenses. (§ 654.) It stayed identical terms for the section 76 offenses. The abstract of judgment also includes an order that appellant have "no contact with" the victims of his threats.
Appellant does not attack the section 422 convictions or the sentence imposed thereon. He does contend that he did not violate section 76 as a matter of law because he was incarcerated when he made the threats and did not have "a stated release date." This contention is without merit. He meritoriously contends the "no contact" order must be stricken because it was not imposed by the trial court at the sentencing hearing.
Facts and Procedural History
In February 2005, appellant was arrested for and charged with multiple counts of computer fraud and identity theft based on harassing text messages he sent during his unsuccessful campaign for Thousand Oaks City Council. In connection with that case, appellant's computer was seized. A search of the computer revealed e-mails and diary entries advocating violence against named individuals and groups of people with certain political views.*fn2
The deputy district attorney prosecuting the case against appellant, Leventhal, learned that appellant had left voice mails threatening a third person and his family. In March 2006, Leventhal requested that the trial court increase appellant's bail. The trial court granted the motion and appellant, unable to post bail, was taken into custody. At the time, appellant possessed a firearm.
Appellant elected to represent himself. He then persuaded his mother to help him make three-way telephone calls, in violation of jail policy. In July 2008. Leventhal filed a motion requesting that the trial court revoke appellant's right of self-representation based on these rule violations. While that motion was pending, appellant made a three-way call to a staff member in the district attorney's office. During the call, appellant told the staff member that he was getting tired of Leventhal harassing his mother. Appellant said that, if the harassment did not stop, he would "deal with" Leventhal when he got out of jail. The next day, during a tape recorded phone call with his mother, appellant said, "If . . . Leventhal keeps harassing my mother and keeps subpoenaing her, when I get out, I will -- key word, will -- I will attempt to murder him at his house, and I do know where he lives . . . . Uh, I will murder him. This is a threat with the specific intent that it be taken as such . . . ."
Leventhal listened to the recording and felt scared and threatened. He knew that appellant had been diagnosed as a paranoid schizophrenic and believed that he was dangerous. Although appellant was in custody when he made the threatening statements, Leventhal knew that he could be released at any time, by posting bail or pleading guilty to the pending charges. Because appellant had already spent so much time in custody, guilty pleas would have resulted in his almost-immediate release.
In September 2008, the trial court terminated appellant's right of self-representation based on his persistent violations of the rule against three-way calling and his ongoing mental health issues. The trial court appointed the public defender to represent appellant.
In December 2008, a deputy sheriff working at the county jail retrieved five envelopes that had been "wedged in the doorway up by the window area" of appellant's jail cell door. One envelope was stamped, addressed to Deputy District Attorney Suttner, and had appellant's name and booking number written on it. The deputy sheriff testified that appellant had written on the envelope itself, " 'When I get out, I will, quote, "find you," unquote, I will, quote, "will rape you," unquote, and I, quote, "will murder you, " unquote, by stabbing you with a fishing knife and burning your body with a lighter fluid.' " On the other side of the envelope, appellant wrote, " 'This is a death threat to a deputy district attorney with the, quote, "specific intent," unquote, that you take it as such and to convey the gravity of purpose so you will remain in sustained fear for your life. You guys want to, quote, "falsely," unquote, call me a schizo, I'll start acting like one, quote, "immediately," unquote. [¶] I, quote, "challenge you," unquote, to file and consolidate a charge, bitch. Now this is what I call, quote, "substantial evidence," unquote, fuckers.' " The other four envelopes contained substantially similar messages and were addressed to other female deputy district attorneys.
The deputy sheriff had also retrieved other envelopes from appellant's cell door a few days earlier. One was addressed to the elected District Attorney Totten, " 'Satan,' " and included a threat to murder Superior Court Judge McGee. Appellant explained that he would shoot Judge McGee " 'with a shotgun at point-blank' " and then ignite " 'the natural gas main from the side of his house.' " Another was addressed to Deputy Public Defender Quest and also included a death threat. A third envelope was addressed to Deputy District Attorney Wold. Like the other envelopes, this one threatened to rape and murder the recipient and then to burn ...