P. v. Gutierrez
Filed 6/13/13 P. v. Gutierrez CA2/7
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
THE PEOPLE,
Plaintiff and Respondent,
v.
MARIO GUTIERREZ,
Defendant and Appellant.
B241024
(Los Angeles
County
Super. Ct.
No. VA121790)
APPEAL from
a judgment of the Superior Court
of
County, Lori Ann Fournier, Judge. Affirmed.
Lisa
Holder, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Senior Assistant Attorney General, and Paul M. Roadarmel,
Jr., Deputy Attorney General, for Plaintiff and Respondent.
_______________________
Appellant
Mario Gutierrez appeals from the judgment entered following his conviction on
two counts of attempted criminal threats
(Pen. Code,
title="">[1]
664, 422). Gutierrez argues the
trial court erred in admitting evidence of his membership in a gang and his
alleged attempts to intimidate the complaining witnesses. Gutierrez also asserts the evidence was
insufficient to support each of his convictions because the prosecution failed
to prove he had a specific intent to communicate a criminal threat. We affirm.
I.
The Charges
The Los
Angeles County District Attorney filed a two-count information charging
Gutierrez in count one with making criminal threats against Emmanuel Gutierrez,
and in count two with making criminal threats against Angelica Brito (§ 422). As to each count, it was alleged that
Gutierrez had suffered one prior serious or violent felony conviction within
the meaning of section 667, subdivision (a)(1) and the “Three Strikes†law
(§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). Gutierrez pleaded not guilty to each count
and denied the enhancement allegations.
II.
The Evidence At Trial
On September 24, 2011, at about 6:15 p.m., Gutierrez and his brother, Emmanuel,
arguing in the living room of their residence in Huntington
Park. Earlier
that evening, Gutierrez and Emmanuel had consumed a few beers. Emmanuel’s girlfriend, Angelica Brito, and
their three-year-old daughter also resided in the home. The daughter was not at home at the time;
Brito was in her bedroom and went downstairs to see what was happening. Emmanuel was upset because he had seen one of
Gutierrez’s friends leaving the house.
Emmanuel told Gutierrez that he did not want Gutierrez bringing his friends
to the house because they were drug users.
Gutierrez and Emmanuel went outside
followed by Brito. As the two men
continued to argue, Gutierrez became increasingly angry and aggressive toward
Emmanuel. Gutierrez told Emmanuel, “I’m
going to kill you. I’m going to chop
your legs off.†Gutierrez then began
walking around in circles. He also
started punching Emmanuel’s car window and kicking his car door. As Emmanuel and Brito stood on the front
porch, Gutierrez walked in front of Brito, looked directly at her, and said,
“I’m going to kill your daughter.â€
Upon hearing Gutierrez’s statement
about her daughter, Brito became concerned because he had “never said anything
like that†before and she “wasn’t sure what he’s capable of doing.†Brito felt that she had to call the police at
that time because Gutierrez’s statement caused her to fear for her family’s
safety. She also was concerned the
argument between Gutierrez and Emmanuel might escalate into a physical
altercation. Brito was nervously dialing
911 when Emmanuel took the phone from her and reported Gutierrez’s threat to
the 911 operator. Emmanuel decided to
involve the police because he was fed up with Gutierrez and was also concerned
there might be a physical confrontation.
Gutierrez had been arrested for hitting Emmanuel in the past.
Huntington Park Police Department
Sergeant Eric Ault was the first officer to arrive on the scene. When Sergeant Ault approached Gutierrez in
the driveway and asked “what was going on,†Gutierrez immediately answered, “If
my brother tells you that I threatened to kill him, I didn’t do that.†Huntington Park Police Officer Saul Duran
arrived as Gutierrez was being detained in the driveway. While at the scene, Officer Duran spoke with
Emmanuel and Brito, both of whom appeared to be angry and upset. They reported to Officer Duran that Gutierrez
had threatened to kill Emmanuel and their daughter. They also told Officer Duran that they were
in fear for their own safety and the safety of their daughter due to
Gutierrez’s violent history.
Neither Sergeant Ault nor Officer
Duran observed any objective signs that Gutierrez was under the influence of
alcohol or drugs. His breath did not
smell of alcohol, his eyes were not watery or bloodshot, and he did not have an
unusual gait. Gutierrez was fairly
talkative, but appeared to be coherent and responded logically to
the officers’ questions. Sergeant
Ault spent 10 to 12 minutes with Gutierrez at the scene. Officer Duran observed Gutierrez at the
police station for approximately 15 minutes one-half hour to an hour after his
arrest. At that time, Gutierrez was
calm, quiet, and did not appear to be intoxicated. After being advised of his
Duran that he did not want to talk and simply wanted a court date.
While Gutierrez was in custody, he
called the family’s home and spoke with Brito.
During the call, he told Brito that “he would see [her] soon.†When Brito asked Gutierrez what he meant by
that statement and whether he would be released soon, he did not answer
her. Instead, he kept repeating, “I’ll see
you soon.†Brito was concerned about
Gutierrez’s intent in making the statement and discussed the call with
Emmanuel.
On November 9, 2011, a few weeks
after Gutierrez’s arrest, Probation Officer Gilbert Garay spoke with
Emmanuel on the telephone in the course of preparing a pre-plea report. Emmanuel told Officer Garay that Gutierrez
had been involved with gangs all of his life and had been in and out of
jail. He said that his family had tried
to help Gutierrez, but Gutierrez continued to bring drug users to their home
and was causing a serious problem. In
addition, Emmanuel stated that, since Gutierrez’s arrest, several people had
come on to the family’s property and attempted to get into their cars, which had
never before happened in the 11 years they had been at that residence. Emmanuel told Officer Garay that he believed
Gutierrez was sending these individuals to their home through his contacts in
jail because he was a gang member.
Emmanuel also described Gutierrez’s statement to Brito that he would see
her soon and told Officer Garay that he took that statement as a threat.
At trial, both Emmanuel and Brito
testified that Gutierrez was a drug user and that they believed he was under
the influence of drugs at the time he threatened Emmanuel and their
daughter. Emmanuel explained that he had
lived with Gutierrez for over 20 years and knew how he acted when he was under
the influence of drugs. According to
Emmanuel, when Gutierrez was on drugs, he tended to act erratically and speak
nonsensically. Although Brito had not
observed Gutierrez taking drugs, she had found his pipes and other drug
paraphernalia in the past. As described
by Brito, Gutierrez was a different person when he was on drugs. His facial expression would change, his eyes
would become red, and his fingers would start to twitch. He also tended to stutter and become very
aggressive. Neither Emmanuel nor Brito
had ever observed Gutierrez being violent or aggressive when he was sober.
On the night
of the incident, Brito noticed that Gutierrez was stuttering slightly and
repeating the same statements. She also
saw that his eyes were red and his fingers were twitching. Brito testified that she wanted Gutierrez to
be prosecuted and to remain in custody because “he really needs help with his
addiction, and that way I won’t have to deal with him or see him.†Emmanuel testified that he wanted Gutierrez
to get help for his drug problem, but “not to go to jail for something he
hasn’t done or is not capable of doing.â€
III.
Jury Verdict and Sentencing
The jury found
Gutierrez not guilty of the charged offenses of making criminal threats, but
guilty of the lesser included offenses of attempted criminal threats. In a bifurcated proceeding, the trial court
found the allegations that Gutierrez had suffered one prior serious or violent
felony conviction to be true. Gutierrez
was sentenced to a total state prison term of seven years and eight
months. He filed a timely
DISCUSSION
I.
Rulings on the Admission of Evidence
On appeal,
Gutierrez raises two arguments regarding the admission of evidence. First, he contends the trial court erred in
admitting evidence of his membership in a gang because such evidence was
inflammatory and overly prejudicial in the absence of any gang enhancement
allegation or proof the charged crimes were gang-related. Second, he claims the trial court erred in
admitting evidence of his alleged attempts to intimidate Emmanuel and Brito
from jail because such evidence was speculative, irrelevant, and unduly
prejudicial. Gutierrez also asserts that
the errors had the effect of depriving him of his constitutional right to due
process. We conclude that the trial
court did not abuse its discretion or violate due process in admitting the
challenged evidence.
A.
Standard of Review
A trial court generally has broad
discretion concerning the admission of evidence. (People
v. Cole (2004) 33 Cal.4th 1158, 1197; People
v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)
When an objection under Evidence Code section 352 is raised, “the trial
court ‘must weigh the admission of [the challenged] evidence carefully in terms
of whether the probative value of the evidence is greater than the potentially
prejudicial effect its admission would have on the defense.’†(People
v. Cardenas (1982) 31 Cal.3d 897, 904.)
Evidence is overly prejudicial if it “uniquely tends to evoke an
emotional bias against a party as an individual, while having only slight
probative value with regard to the issues.†(People
v. Crittenden (1994) 9 Cal.4th 83, 134.)
“‘[A]n appellate court applies the
abuse of discretion standard of review to any ruling by a trial court on the
admissibility of evidence, including one that turns on the relative
probativeness and prejudice of the evidence in question. . . .’
[Citation.]†(People v. Jablonski (2006) 37 Cal.4th 774, 805.) “Where, as here, a discretionary power is
statutorily vested in the trial court, its exercise of that discretion ‘must
not be disturbed on appeal except
on a showing that the court exercised its discretion in an arbitrary,
capricious or patently absurd manner that resulted in a manifest miscarriage of
justice. [Citations.]’ [Citation.]†(People
v. Rodrigues, supra, 8 Cal.4th at
pp. 1124-1125.)
As a general
matter, application of the ordinary rules of evidence does not impermissibly
infringe on a defendant’s constitutional rights. (People
v. Lindberg (2008) 45 Cal.4th 1, 26; People
v. Kraft (2000) 23 Cal.4th 978, 1035.)
“To prove a deprivation of federal due process rights, [a defendant]
must satisfy a high constitutional standard to show that the erroneous
admission of evidence resulted in an unfair trial. ‘Only if there are no permissible inferences
the jury may draw from the evidence can its admission violate due process. Even then, the evidence must “be of such
quality as necessarily prevents a fair trial.â€
[Citations.] Only under such
circumstances can it be inferred that the jury must have used the evidence for
an improper purpose.’ [Citation.]†(People
v. Albarran (2007) 149 Cal.App.4th 214, 229.) Accordingly, “[t]he admission of relevant
evidence will not offend due process unless the evidence is so prejudicial as
to render the defendant’s trial fundamentally unfair.†(People
v. Falsetta (1999) 21 Cal.4th 903, 913.)
B.
Admission of the Gang Evidence
1.
Relevant Facts
At trial, defense counsel objected
to the introduction of any evidence regarding Gutierrez’s gang
affiliation. Defense counsel argued that
such evidence was irrelevant because the case arose out of a domestic dispute
and no gang enhancement allegation had been alleged. Defense counsel further asserted that the
victims’ vague belief that Gutierrez associated with gang members did not
provide an adequate foundation for such evidence. The prosecutor countered that the evidence was
relevant to Emmanuel’s fear that Gutierrez was continuing to harass him from
jail through his gang contacts. The
prosecutor also explained that Emmanuel and Brito recently had become reluctant
to cooperate, but previously had indicated that they knew of Gutierrez’s gang
involvement based on their familial relationships with him.
The trial court ruled as
follows: “I am going to allow the
witnesses to be questioned about the sustained fear aspect and element of the
crime. And if they believed Mr.
Gutierrez to be a gang member, then that goes to the sustained fear. Whether or not he actually is is a different
issue. But . . . it’s the victims’ state
of mind as to why they were afraid of him.
So . . . in terms of whether he is a gang member or not, that goes to
the weight of the evidence.†The trial
court also held that the evidence was probative on the issue of witness bias
and recanting of prior testimony.
Officer Garay testified at trial
about Emmanuel’s statements to him that Gutierrez had been involved with gangs
all of his life and may have been sending people to the family’s home to
intimidate them through his contacts with the gang. During her testimony, Brito was asked by the
prosecutor if she knew whether Gutierrez was a gang member and if she was
afraid of Gutierrez because of his gang
affiliation. Brito testified that
she was aware Gutierrez was a member of the Lynwood Rude Boys with the moniker
“Lefty.†She denied that Gutierrez’s
gang affiliation caused her any fear or affected her testimony in any way. During his testimony, Emmanuel was asked
about his statements to the probation officer concerning Gutierrez’s gang
involvement and suspected use of gang contacts to intimidate Emmanuel from
jail. Emmanuel was also asked whether he
feared Gutierrez because of his gang affiliation. Emmanuel testified that he did not recall
making any statements about Gutierrez’s membership in a gang to the probation
officer. He also stated that it “was
just a thought†that Gutierrez might be sending people to the house through
gang contacts, but denied it caused him any fear. On cross-examination, Emmanuel testified that
Gutierrez had not been involved in gangs for a very long time.
Following the
witnesses’ testimony, the trial court issued the following limiting instruction
to the jury: “[A]ny testimony that you
heard about whether or not Mr. Gutierrez was a member of a gang, anything about
a gang, anything about people coming by the house, the only reason you heard
that testimony was for a limited purpose.
It goes to whether or not these witnesses who testified were fearful
because of their thoughts. There is no
evidence that Mr. Gutierrez is a gang member.
That’s not for you to decide or whether or not people came to the house
because of him; it’s just what the people believed and how that affected
them. And it will be evidence you can
consider for that purpose. . . .â€
2.
Relevant Law
In cases not
involving a section 186.22 gang enhancement allegation, it generally has been
held that “evidence of gang membership is potentially prejudicial and should
not be admitted if its probative value is minimal.†(People
v. Hernandez (2004) 33 Cal.4th 1040, 1049.)
Gang evidence is not admissible where its sole relevance is to show that
a defendant has a criminal disposition or bad character. (People
v. Albarran, supra, 149
Cal.App.4th at p. 223; People v. Avitia
(2005) 127 Cal.App.4th 185, 192.) On the
other hand, “evidence of gang membership is often relevant to, and admissible
regarding, the charged offense. Evidence
of the defendant’s gang affiliation – including evidence of the gang’s
territory, membership, signs, symbols, beliefs and practices, criminal
enterprises, rivalries, and the like – can help prove identity, motive, modus
operandi, specific intent, means of applying force or fear, or other issues
pertinent to guilt of the charged crime.
[Citations.]†(
is logically relevant to some material issue in the case other than character
evidence, is not more prejudicial than probative, and is not cumulative. (People
v. Carter (2003) 30 Cal.4th 1166, 1194; People
v. Albarran, supra, at p. 223; People
v. Avitia, supra, at p.
192.)
3.
The Gang Evidence Was Properly Admitted
In this case, the trial court did
not abuse its discretion in admitting the evidence of Gutierrez’s gang
affiliation. To prove Gutierrez was
guilty of making criminal threats, the prosecution had to establish, among
other elements, that Gutierrez’s threats caused Emmanuel and Brito to be in
actual and reasonable sustained fear for their own safety or the safety of
their family. (§ 422;
630.) In the context of section 422,
“sustained fear†means a fear that continues for “a period of time that
extends beyond what is momentary, fleeting, or transitory. . . .The victim’s
knowledge of defendant’s prior conduct is relevant in establishing that the
victim was in a state of sustained fear.
[Citation.]†(
1149, 1156.)
Here, the evidence pertaining to
Gutierrez’s gang affiliation was probative of whether the victims were in
actual and reasonable sustained fear of Gutierrez based on his threats, and
whether any fear experienced by the victims affected their testimony at
trial. As discussed, Officer Garay
testified that, when he spoke to Emmanuel a few weeks after the incident,
Emmanuel stated that he believed Gutierrez, a life-long gang member, was
sending people to the family’s home through his contacts with his gang. Officer Garay further testified that Emmanuel
appeared to be in fear for his safety at the time he reported these
concerns. The evidence was thus relevant
to establishing that Emmanuel’s fear of Gutierrez was not momentary, fleeting,
or transitory. The evidence was also
relevant to countering Emmanuel’s testimony that he was never afraid for his or
his family’s safety based on Gutierrez’s threats, and was merely concerned
about an imminent physical altercation with Gutierrez when he contacted the
police.
Gutierrez contends that the gang
evidence could not have been probative on the element of sustained fear because
both Emmanuel and Brito testified at trial that they did not believe Gutierrez
would carry out his threats to kill Emmanuel and their daughter, and were not
afraid of Gutierrez based on his gang affiliation. However, in speaking with Officer Garay,
Emmanuel specifically mentioned Gutierrez’s life-long gang involvement and his
concern that Gutierrez might be using his gang contacts to intimidate Emmanuel
from jail. Additionally, there was
evidence that, immediately after the incident, both Emmanuel and Brito told
Officer Duran that they were in fear for their own safety and the safety of
their daughter due to Gutierrez’s violent history. Given the victims’ prior inconsistent
statements to law enforcement about their state of mind, the evidence of
Gutierrez’s gang affiliation was relevant to demonstrating that his threats
caused them to be in a state of reasonable sustained fear despite their
subsequent testimony to the contrary.
The gang evidence was also relevant to evaluating the credibility of the
victims’ testimony and explaining their reluctance to testify against Gutierrez
at trial.
Furthermore, admission of the gang
evidence was neither unduly prejudicial nor did it render the trial
fundamentally unfair. The prosecutor’s
questions about Gutierrez’s gang affiliation were narrow in scope,
neutrally-phrased, and directed at establishing the foundation for the victims’
knowledge about whether Gutierrez was a gang member and the extent to which
such knowledge caused them fear. The
prosecutor only addressed Gutierrez’s gang affiliation in rebuttal after the
issue was raised by defense counsel.
Additionally, the trial court instructed the jury to consider the
gang evidence only for the limited purpose of evaluating the victims’ state of
mind, and reminded the jury of its limiting instruction during
followed this instruction. (
v. Coffman and Marlow (2004) 34 Cal.4th 1, 107.) The fact that the jury acquitted Gutierrez of
the charged offenses of making criminal threats, and instead convicted him of
the lesser included offenses of attempted criminal threats, further suggests that
the gang evidence did not have an inflammatory impact on the verdict.
The trial
court acted within its discretion and in accordance with due process in
concluding that the probative value of the gang evidence outweighed the
potential for undue prejudice.
C.
Admission of the Witness Intimidation Evidence
1.
Relevant Facts
At trial, defense counsel also
objected to the introduction of evidence concerning the alleged attempts to
intimidate Emmanuel and Brito while Gutierrez was in custody. Defense counsel argued that such evidence was
impermissibly speculative because Emmanuel had no basis for knowing that the
individuals he had observed outside his home had been sent by Gutierrez. Defense counsel further asserted that any
fear the victims may have felt based on such conduct was not probative of whether
Gutierrez’s charged threats caused them fear.
The prosecutor responded that he did not intend to use the evidence to
prove that Gutierrez had, in fact, sent people to intimidate the victims,
but rather to show that Emmanuel remained in a state of fear even after
Gutierrez was in custody. The prosecutor
also opined that Gutierrez’s statement to Brito that he would see her soon was
relevant to Emmanuel’s demeanor on the witness stand and his reluctance to
testify against Gutierrez due to fear for his family’s safety.
The trial court overruled defense
counsel’s objection and held as follows:
“I think the cases are clear that those inquiries are appropriate in
terms of recanting witnesses or witnesses who may have initially testified. So I am going to allow [the prosecutor] to
inquire of the witness, and whether or not he can prove up the statements is
another issue.†As discussed, the trial
court also issued a limiting instruction to the jury that it was not allowed
“to decide whether people came to the house because of [Gutierrez],†and that
such evidence was to be considered solely for the purpose of determining “what
the [witnesses] believed and how that affected them.â€
Brito
testified at trial about Gutierrez’s repeated statement to her on the telephone
that he would see her soon. She related
that she did not necessarily regard the statement as a threat, but she was “a
little†concerned because she did not know what Gutierrez meant by it and
whether he was upset that she and Emmanuel had contacted the police. Brito also testified that, on another
occasion while Gutierrez was in custody, an unidentified person broke into her
car as it was parked in the driveway.
Brito stated that she did not know if Gutierrez had sent anyone to the
family’s home, but she was not fearful that he had done so. In his testimony, Emmanuel admitted that he
told the probation officer about Gutierrez’s statement to Brito that he would
see her soon, but denied telling the officer that he perceived it as a
threat. Emmanuel also confirmed that he
told the probation officer about people coming onto the family’s property and
trying to break into their cars, but denied telling him that he believed those
people had been sent by Gutierrez.
2.
Relevant Law
Evidence of a
third party’s attempt to intimidate a witness generally is inadmissible to
prove a defendant’s consciousness of guilt unless the defendant authorized the
intimidation. (People v. Abel (2012) 53 Cal.4th 891, 924; People v. Williams (1997) 16 Cal.4th 153, 200). However, “‘[e]vidence that a witness is
afraid to testify or fears retaliation for testifying is relevant to the
credibility of that witness and is therefore admissible. [Citations.]
An explanation of the basis for the witness’s fear is likewise relevant to
[his or] her credibility and is well within the discretion of the trial
court. [Citations.]’ [Citations.]â€
(People v. Mendoza (2011) 52
Cal.4th 1056, 1084.) “For such evidence
to be admissible, there is no requirement to show threats against the witness
were made by the defendant personally or the witness’s fear of retaliation is
‘directly linked’ to the defendant.
[Citation.]†(
1142, disapproved on another ground in People
v. Rundle (2008) 43 Cal.4th 76, 151; see also People v. Mendoza, supra,
at p. 1084 [“evidence of a ‘third party’ threat may bear on the credibility of
the witness, whether or not the threat is directly linked to the
defendantâ€].) “It is not necessarily the
source of the threat ‑- but its existence -- that is relevant to the
witness’s credibility.†(
833, 870.)
3.
The Witness Intimidation Evidence Was Properly
Admitted
Here, the trial court acted within
its discretion in admitting the evidence of the threats allegedly directed at
the victims following Gutierrez’s arrest.
The credibility of Emmanuel and Brito, their general reluctance to
testify against Gutierrez, and the extent to which their testimony may have
been influenced by a fear of retaliation were critical issues in the case. While both Emmanuel and Brito informed
Officer Duran immediately after the incident that they were in fear for their
own safety and the safety of their daughter based on Gutierrez’s threats, they
told a different story at trial.
Although Brito testified at one point that she called the police because
Gutierrez’s threats caused her to fear for her family’s safety, she later
stated that she was never afraid that Gutierrez would carry out his threats and
was merely concerned that the verbal argument between Gutierrez and Emmanuel
might escalate into a physical altercation.
Emmanuel completely denied at trial that he was ever in fear for his or
his family’s safety due to Gutierrez’s threats, and claimed that he knew
Gutierrez was not capable of carrying them out.
Emmanuel further testified that he called the police solely because he
was fed up with Gutierrez’s drug habit and wanted to avoid a physical
confrontation. Evidence that Brito and
Emmanuel felt they were being threatened after they reported Gutierrez’s crimes
to the police was thus highly relevant to evaluating their credibility at
trial.
Gutierrez asserts that the evidence
of his statement to Brito that he would see her soon should have been excluded
because Brito and Emmanuel could only speculate that the statement was intended
to be a threat. However, the probative
value of the statement did not depend on Gutierrez’s intent in making it, but
on the victims’ perception of the statement as a threat and the impact such perception
may have had on their testimony. While
not necessarily regarding it as a threat, Brito testified that the statement
caused her concern about whether Gutierrez was angry that she and Emmanuel had
contacted the police and whether Gutierrez might soon be released from
custody. Although Emmanuel testified
that he did not view the statement as a threat because he did not hear it
firsthand from Gutierrez, Officer Garay recalled that Emmanuel specifically
told him that he did consider the statement to be a threat. Given the victims’ reluctance to testify
against Gutierrez at trial, the probative value of Gutierrez’s repeated
statement to Brito that he would see her soon substantially outweighed the
potential for prejudice.
For similar
reasons, the evidence relating to the victims’ concern about unidentified
individuals trespassing onto their property and trying to break into their cars
was also admissible. Contrary to
Gutierrez’s claim, the evidence was not impermissibly speculative simply
because the victims admitted they did not know whether Gutierrez had sent those
individuals to their home. Irrespective
of whether the alleged trespassers could be directly linked to Gutierrez, the
evidence was relevant to establishing that Emmanuel and Brito remained fearful
of Gutierrez several weeks after he had been taken into custody. Although both victims denied at trial that
the presence of these strangers on their property caused them any fear, Officer
Garay testified that Emmanuel did appear to be afraid for his family’s safety
when he reported these suspicious activities to him. Moreover, any potential for prejudice was
mitigated by the trial court’s limiting instruction to the jury that it was not
to decide whether Gutierrez actually directed anyone to the victims’ home but
was to consider such evidence for the sole purpose of evaluating the victims’
state of mind. In sum, because the
substantial probative value of the witness intimidation evidence outweighed any
potentially prejudicial effect, the trial court did not abuse its discretion or
violate due process in admitting the challenged evidence.
II.
Sufficiency of the Evidence Supporting the
Convictions
Gutierrez also challenges the
sufficiency of the evidence supporting his conviction. He specifically contends the evidence was
insufficient to support a finding that he intended his statements to be taken
as a true threat. Gutierrez claims the
only reasonable inference that could be drawn from the evidence was that his
statements were the result of an emotional outburst brought on by
intoxication. We disagree.
In assessing a claim of
insufficient evidence, “we review the whole record to determine whether any
rational trier of fact could have found the essential elements of the crime or
special circumstances beyond a reasonable doubt. [Citation.]
The record must disclose substantial evidence to support the verdict –
i.e., evidence that is reasonable, credible, and of solid value – such that a
reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt. [Citation.] In applying this test, we review the evidence
in the light most favorable to the prosecution and presume in support of the
judgment the existence of every fact the jury could reasonably have deduced
from the evidence. [Citation.] ‘Conflicts and even testimony [that] is
subject to justifiable suspicion do not justify the reversal of a judgment, for
it is the exclusive province of the trial judge or jury to determine the
credibility of a witness and the truth or falsity of the facts upon which a
determination depends. [Citation.] . . . [Citation.]’ [Citation.]
A reversal for insufficient evidence ‘is unwarranted unless it appears
“that upon no hypothesis whatever is there sufficient substantial evidence to
supportâ€â€˜ the jury’s verdict. [Citation.]â€
(People v. Zamudio (2008) 43
Cal.4th 327, 357.)
To prove that a defendant made a
criminal threat in violation of section 422, “the prosecution must
establish all of the following: (1) that the defendant ‘willfully threaten[ed]
to commit a crime which will result in death or great bodily injury to
another person,’ (2) that the defendant made the threat ‘with the specific
intent that the statement . . . is to be taken as a threat, even if there is no
intent of actually carrying it out,’ (3) that the threat -- which may be ‘made
verbally, in writing, or by means of an electronic communication device’ -- was
‘on its face and under the circumstances in which it [was] made, . . . so
unequivocal, unconditional, immediate, and specific as to convey to the person
threatened, a gravity of purpose and an immediate prospect of execution of the
threat,’ (4) that the threat actually caused the person threatened ‘to be in
sustained fear for his or her own safety or for his or her immediate family's
safety,’ and (5) that the threatened person’s fear was ‘reasonabl[e]’ under the
circumstances. [Citation.]†(
227-228.)
“[I]f a defendant, . . . acting
with the requisite intent, makes a sufficient threat that is received and
understood by the threatened person, but, for whatever reason, the threat does
not actually cause the threatened
person to be in sustained fear for his or her safety even though, under the
circumstances, that person reasonably could have been placed in such fear, the
defendant properly may be found to have committed the offense of attempted
criminal threat.†(People v. Toledo, supra,
26 Cal.4th at p. 231.) In the context of
section 422, “[a] threat is sufficiently specific where it threatens death or
great bodily injury. A threat is not
insufficient simply because it does ‘not communicate a time or precise manner
of execution, section 422 does not require those details to be expressed.’ [Citation.]â€
(People v. Butler (2000) 85
Cal.App.4th 745, 752.) Section 422 also
“does not require an intent to actually carry out the threatened crime. [Citation.]
Instead, the defendant must intend for the victim to receive and
understand the threat, and the threat must be such that it would cause a reasonable
person to fear for his or her safety or the safety of his or her immediate
family. [Citation.]†(People
v. Wilson (2010) 186 Cal.App.4th 789, 806.)
“‘[T]he determination whether a defendant intended his words to be taken
as a threat . . . can be based on all the surrounding circumstances and not
just on the words alone.’†(
1425, 1431.)
In this case, there was sufficient
evidence to support a finding that Gutierrez intended his statements to be
taken as a threat. “Evidence of
intoxication, while legally relevant,
may be factually unconvincing. ‘[A]s
with any evidence, the jury may give this testimony whatever weight it deems
appropriate in light of the evidence as a whole.’ [Citation.]†(People
v. Mendoza (1998) 18 Cal.4th 1114, 1134.)
Although Emmanuel and Brito both testified that they believed Gutierrez
was under the influence of alcohol or drugs at the time he made the threats,
neither of the officers who questioned Gutierrez that night observed any objective
symptoms of intoxication. As described
by the officers, Gutierrez appeared to be in full command of his
faculties. He did not have watery or
bloodshot eyes or an unsteady gait. He
also answered the officers’ questions in a clear and coherent manner. Office Duran, who spoke with Gutierrez at the
police station less than an hour after the incident, noted that Gutierrez was
calm and quiet. Upon being advised of
his Miranda rights, Gutierrez
unequivocally chose to exercise those rights and told Officer Duran that
he wanted a court date. From this
record, the jury reasonably could have found that to the extent Gutierrez
consumed any alcohol or drugs that evening, he was not so intoxicated that he
was unable to form the requisite intent.
The circumstances surrounding
Gutierrez’s statements further supported a finding that he intended to
communicate an actual threat. The words
he used were specific and unambiguous.
Gutierrez did not merely allude to an act of violence, but unequivocally
stated that he was going to kill Emmanuel and chop off his legs. After kicking and punching Emmanuel’s car
until he bled, Gutierrez then turned to Brito and told her that he was going to
kill her daughter. At that point, both
Brito and Emmanuel felt compelled to call the police. As Emmanuel was reporting the threat to the
911 operator, Gutierrez could be heard in the background repeating his
statement that he was going to kill Emmanuel.
When officers arrived on the scene shortly thereafter, Gutierrez told
them without prompting, “If my brother tells you that I threatened to kill him,
I didn’t do that.†Considering the
totality of the evidence presented, each of Gutierrez’s convictions for
attempted criminal threats was supported by substantial
evidence.
DISPOSITION
The
judgment is affirmed.
ZELON,
J.
We concur:
PERLUSS, P.
J. WOODS,
J.
name="_ftn1" title="">[1]
otherwise stated, all further statutory references are to the Penal Code.
name="_ftn2" title="">[2] For
clarity and convenience, and not out of disrespect, we refer to Emmanuel
Gutierrez by his first name.
