P. v. Tavares
Filed 3/14/13 P. v. Tavares CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
PEDRO ALEXANDER TAVARES,
Defendant and Appellant.
D061438
(Super. Ct.
No. SCN284105)
APPEAL from a judgment of the Superior
Court of
County, Runston G. Maino, Judge. Affirmed.
A jury convicted Pedro Alexander
Tavares of assault with a deadly weapon
and by means of force likely to cause great bodily injury (Pen. Code,
245, subd. (a)(1); count 1), making a
criminal threat (§ 422; count 2), and misdemeanor vandalism (§ 594,
subd. (a)(b)(2)(A); count 3).
Additionally, the jury found true that Tavares personally used a deadly
and dangerous weapon in the commission of the assault. (§§ 12022, subd.
(b)(1); 1192.7, subd. (c)(23).) The
trial court suspended imposition of sentence and placed Tavares on three years
of formal probation with a requirement he spend 365 days in local custody.
Tavares's sole argument on appeal
is that insufficient evidence supports
his conviction for making a criminal threat (count 2) because his statements to
the victim, Kathleen Reiff, and his gestures did not constitute a "threat"
within the meaning of section 422. We
affirm the judgment.
FACTUAL BACKGROUND
On July 22, 2010, at approximately 8:00 a.m., Reiff, a meter reader for San Diego Gas and
Electric, sought to park her company truck on Thunder
Drive in Oceanside. Reiff was reversing into a space when
Tavares's car pulled in behind her, blocking her ability to park. Reiff waved for Tavares to move, but he
initially laughed and ignored her before driving around Reiff's truck and
stopping next to her driver's side window.
Reiff testified Tavares leaned over and in a "very threatening,
very aggressive" and "brutal" voice said "something to the
effect of 'I am watching you.' 'I am
going to get you,' or 'I will get you, because I am watching you.' " Reiff testified Tavares had a "very
angry tone of voice," and she was fearful but did not tell him anything.
Immediately afterwards, Tavares
parked his car about half a block away and began walking towards Reiff's
truck. When he was directly across the
street from her, he formed a "v" with the index finger and ring
finger of his right hand and pointed at his eyes indicating he was watching
her. He next pointed his right index
finger at Reiff before making a throat-slashing motion with his left hand.
Tavares returned to his apartment
on Thunder Drive. His roommate observed him in the kitchen
appearing to be cocking and pumping an air rifle. Tavares was close to a window facing Reiff's
truck.
Two or three minutes after Tavares
left Reiff, she was still sitting in her truck and heard a popping noise. Her driver's side window imploded and glass
hit her in the face, chest and arms. She
screamed and dialed 911.
That morning, Tavares claimed to
Oceanside Police Officer Damon Smith that he had to move his car due to the
street sweeping, and Reiff took the parking spot he wanted as he was making a
U-turn. According to Tavares, he called
her a "bitch" because he was angry, parked his car elsewhere, and
returned to his apartment to shower.
Firearms examiner Anthony Paul
testified that striations on a small BB found on the floorboard of Reiff's car
indicated the BB had come from a pump or air gun. Paul testified that the damage to Reiff's
truck was consistent with someone firing a BB from an air gun from Tavares's
apartment window.
DISCUSSION
Tavares
contends that under section 422, insufficient evidence supported his conviction
because his conduct did not qualify as a threat. He argues we should analyze his gestures and
words separately. He contends his exact
words to Reiff are unknown because Reiff merely testified that he said "
watching you.' 'I am going to get you,'
or 'I will get you, because I am watching you.' " (Italics added.) Alternatively, Tavares contends the statement
Reiff attributed to him is ambiguous.
Tavares argues his "watching you" gesture followed by his
throat slashing gesture did not constitute a threat because he made no
accompanying verbal sounds.
"
'When a reasonable person would foresee that the context and import of the words
will cause the listener to believe he or she will be subjected to physical
violence, the threat falls outside First Amendment protection.' " (People
v. Toledo
(2001) 26 Cal.4th 221, 233, italics omitted.)
"In drafting the current version of section 422, the Legislature
limited the punishment for criminal threats to this type of unprotected
speech." (People v. Jackson
specific claim under the First Amendment of the federal Constitution warranting
independent review. Therefore, the First
Amendment is not implicated and we evaluate his sufficiency of the evidence
challenge under the substantial evidence test.
(See, e.g., In re Ricky T.
(2001) 87 Cal.App.4th 1132, 1136; People
v. Mosley (2007) 155 Cal.App.4th 313, 322.)
" 'In
assessing the sufficiency of the evidence, we review the entire record in the
light most favorable to the judgment to determine whether it discloses 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. Reversal on this ground is unwarranted unless
it appears "that upon no hypothesis whatever is there sufficient substantial
evidence to support [the conviction]." ' " (People
v. Wilson
(2010) 186 Cal.App.4th 789, 804-805.)
The elements of a section 422 violation are: (1) defendant
willfully threatened to commit a crime that would result in death or great
bodily injury to another person; (2) he made the threat with the specific
intent that it be taken as a threat (whether or not he actually intended to
carry out the threat); (3) the threat, on its face and under the circumstances
in which it was made, was 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) the threat caused the person
threatened reasonably to be in sustained fear for his or her own safety; and
(5) the threatened person's fear was reasonable under the circumstances. (People v. Toledo,
also § 422.)
We need not decide whether Tavares's words to Reiff, standing
alone, constituted a threat, because here, the words did not stand alone. We analyze his words and gestures jointly
because they occurred minutes apart and related to one continuous
incident. We look to all the surrounding
circumstances to determine if there was substantial evidence to prove the elements
of making a criminal threat. (
59 Cal.App.4th 1333, 1340.) In
determining whether ambiguous language constitutes a violation of section 422,
the trier of fact may consider defendant's mannerisms, affect, and actions
involved in making the threat as well as subsequent actions taken by the
defendant. (People v. Solis (2001) 90 Cal.App.4th 1002, 1013.) Thus, a facially ambiguous communication can
qualify as a threat when its meaning is clarified by the surrounding
circumstances. (In re George T. (2004) 33 Cal.4th 620, 635.)
Reiff remembered the threat sufficiently to convey its
essential words and meaning to the jury.
It was for the jury to evaluate the credibility of Reiff's recollections
of Tavares's statements and whether they constituted a threat. We do not reweigh that determination on
appeal. (People v. Cochran (2002) 103 Cal.App.4th 8, 13.) During the incident, Tavares's demeanor was
aggressive and he used a "very threatening" and "angry"
tone of voice. Further, his statement
that he was going "to get" Reiff was made in the context of a parking
dispute, along with a "watching-you" and throat-slashing gesture
towards Reiff. He subsequently fired at
her with an air gun. (See, e.g.,
App.4th 1212 [defendant's activities after making vague threat of "I'll
get you" supported finding defendant intended those words to be taken as a
threat].) Taking into account the
surrounding circumstances, the jurors could reasonably conclude Tavares
communicated to Reiff that he was watching her and he would harm her. The message communicated was not ambiguous.
Tavares relies on People v. Franz (2001) 88 Cal.App.4th 1426,
1439, 1442 and argues a
threat must be "made verbally"; therefore, his
"watching-you" and throat-slashing gestures were not threats because
he did not accompany them with any utterance.
However, Tavares's contention fails in light of our analysis of his
words and gestures jointly as one continuous incident, including the
surrounding circumstances.
Tavares also argues that
"there was no prior relationship between [him] and Reiff which could
provide a context which would elevate [his] words into a threat." Case law acknowledges special relationships may
include prior disagreements, previous quarrels, or contentious, hostile or
offensive remarks to one another. (
relevant context for a threat, a prior or special relationship is not required
when other surrounding circumstances render meaning to the threat. (See People
v. Wilson, supra, 186 Cal.App.4th
at pp. 796-798 [failing to require a finding of a prior relationship
between the defendant and the victim].)
Further, a prior or special relationship serves to establish section
422's requirement that the threat cause the victim to be in a state of
sustained fear. (See e.g.,
1149, 1156 ["The victim's knowledge of defendant's prior conduct is
relevant in establishing that the victim was in a state of sustained
fear."].) However, Tavares in his
opening brief expressly disavowed any challenge to the effect the threat had on
Reiff. Therefore, the absence of some
special relationship here is not dispositive.
DISPOSITION
The
judgment is affirmed.
O'ROURKE, J.
WE CONCUR:
BENKE, Acting P. J.
AARON, J.
name="_ftn1" title="">[1] All further statutory references are to the Penal Code.
