People v. Avila
| Citation | 151 Cal.Rptr.3d 314,212 Cal.App.4th 819 |
| Decision Date | 17 April 2013 |
| Docket Number | 2d Civil No. B232977 |
| Court | California Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Daniel AVILA, Defendant and Appellant. |
OPINION TEXT STARTS HERE
See6 Witkin, Cal. Procedure (5th ed. 2008) Proceedings Without Trial, § 556 et seq.
Eugene L. Huseman, Judge, Superior Court County of Ventura. (Super. Ct. No. 2010010591) (Ventura County)
Rudy Kraft, 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, Lawrence M. Daniels, Supervising Deputy Attorney General, Rene Judkiewicz, Deputy Attorney General, for Plaintiff and Respondent.
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.” 1
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.
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. 2
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,
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, “ ” 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 her body with lighter fluid. The deputy sheriff also discovered a fourth envelope, addressed to Deputy Public Defender Ellison and containing a threat to murder her.
In December 2008, appellant was charged with making criminal threats against his deputy public defender, Ellison. The trial court declared that Ellison had a conflict of interest, removed her as appellant's trial counsel and appointed new counsel to represent appellant. The new attorneys declared a doubt as to appellant's mental competency for trial. The trial court suspended all proceedings against appellant and appointed mental health professionals to examine him. At the subsequent competency hearing, the trial court found appellant incompetent to stand trial, suspended proceedings in all of the cases then pending against him and ordered appellant committed to Metropolitan State Hospital. We affirmed that order. (People v. Avila ( 2011) 191 Cal.App.4th 717, 119 Cal.Rptr.3d 657.)
Appellant continued to make threatening telephone calls while he was in the hospital. For example, in August and September 2009, Leventhal received multiple threatening phone calls from appellant. In one of these calls, appellant ranted for over 45 minutes about Leventhal, making ethnic slurs, indicating he knew inmates who had been charged with conspiring to murder Leventhal, and talking about his plans to kill Leventhal when he was released from custody. In other calls, appellant mentioned the college Leventhal attended and a city where he had once lived. Appellant also found the home telephone number of a colleague of Leventhal's and called the colleague at home. In addition, appellant left threatening voice mails for other deputy district attorneys.
The deputy public defenders to whom appellant had addressed envelopes testified that they did not take the threats seriously and did not feel frightened by them. Appellant acknowledged that he had been upset with Leventhal when he called the prosecutor but denied threatening Leventhal with death. With the exception of the one he mailed to deputy public defender Ellison, appellant claimed that he did not post any of the envelopes seized from his cell. The other envelopes were, he said, taken from a folder of privileged legal documents during a search.
Appellant testified he targeted female deputy district attorneys because he had heard that the women in that office were laughing at him and making fun of him. He wrote on the envelopes but did not intend to mail them. Appellant also acknowledged that he became more angry with the prosecutors and his defense counsel after the trial court, at Mr. Leventhal's request, declared him mentally incompetent. He did not like to be called a “schizo.”
Appellant contends his convictions of having violated section 76 must be reversed because he was incarcerated with no release date when he made the threats. Section 76, subdivision (a) provides that it is unlawful for any person to “knowingly and willingly threaten[ ] the life of, or threaten [ ] serious bodily harm to, any elected public official ... with the specific intent that the statement is to be taken as threat, and the apparent ability to carry out that threat by any means ....” (§ 76, subd. (a).) Subdivision (c) of the statute provides, “For purposes of this subdivision, the following definitions shall apply: [¶] (1) ‘Apparent ability to carry out that threat’ includes...
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