Opinion
B331043
02-08-2024
MICHELLE MENDOZA, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent. THE PEOPLE OF THE STATE OF CALIFORNIA, Real Party in Interest.
Martin Schwarz, Orange County Public Defender, and Alisha Montoro, Senior Deputy Public Defender, for Petitioner. No appearance for Respondent. Todd Spitzer, Orange County District Attorney, and Austin Deuel, Deputy District Attorney, for Real Party in Interest.
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS in mandate. Orange County Super. Ct. No. 22CF3751 Renee F. Korn, Judge. Petition denied.
Martin Schwarz, Orange County Public Defender, and Alisha Montoro, Senior Deputy Public Defender, for Petitioner.
No appearance for Respondent.
Todd Spitzer, Orange County District Attorney, and Austin Deuel, Deputy District Attorney, for Real Party in Interest.
SEGAL, ACTING P. J.
INTRODUCTION
At a preliminary hearing the People presented the testimony of an investigator with the Orange County Sheriff's Department who described the contents, and circumstances surrounding the creation, of several social media posts by Michelle Mendoza about a superior court judge. Based on that testimony, a magistrate held Mendoza to answer on the charge of threatening a judge, in violation of Penal Code section 76. The trial court denied Mendoza's subsequent motion under section 995 to set aside the information.
Undesignated statutory references are to the Penal Code.
In her petition for writ of mandate, Mendoza argues that the evidence at the preliminary hearing was not sufficient to hold her to answer. She argues that there was insufficient evidence she willingly threatened to cause serious bodily harm to the judge, that her statements on social media were protected under the First Amendment because they were not true threats of violence, and that there was insufficient evidence she specifically intended her statements to be taken as threats.
We issued an order to show cause. We conclude that, because the showing required to defeat a motion under section 995 is so low, the trial court did not err in denying Mendoza's motion. Therefore, we deny her petition.
FACTUAL AND PROCEDURAL BACKGROUND
A. The People Present Evidence at the Preliminary Hearing of Mendoza's Threats
In a felony complaint and a subsequent information, the Orange County District Attorney charged Mendoza with knowingly and willingly threatening the life of, or serious bodily harm to, a judge, in violation of section 76, subdivision (a). At the preliminary hearing, the People presented the testimony of Orange County Sheriff's Department Investigator Peter Ada. Investigator Ada, the only witness at the preliminary hearing, testified as follows:
The People initially filed the case in Orange County Superior Court. It was reassigned to Los Angeles County Superior Court, where the preliminary hearing occurred.
On July 15, 2022 Judge Sandy Leal contacted Investigator Ada in the Judicial Protection Unit to express concern about social media posts a litigant in her courtroom had posted expressing dissatisfaction with the judge. Judge Leal had presided over a civil case between that litigant, Michelle Diamsay Mendoza (whose former, married name was Prieto), and Mater Dei High School, a private Catholic school. Investigator Ada conducted a threat assessment investigation and discovered an account on an online video sharing social networking service with the username coachmdm18 that he concluded, based on a picture of Mendoza and the contents of the account, belonged to Mendoza.
On August 5, 2022 Investigator Ada spoke with Judge Leal's courtroom clerk, who said Mendoza had appeared in court for a hearing. The clerk said that, shortly after the hearing, she received a note with a handwritten message stating, "Judge Leal hates me." The note also had the hashtags #MichelleDiamsayMendoza and #CoachPrieto, along with a link to another picture and an account on a video sharing social networking service for coachmdm18. Below the line on the social media link were the words "Follow for more." Several hours later, a courthouse manager contacted Investigator Ada and said there were similar notes posted near the elevators on several floors of the courthouse.
On October 4, 2022 Investigator Ada was conducting a check of social media accounts when he came across a video on the account for coachmdm18. Investigator Ada watched the video, which depicted a person whom Ada identified in the courtroom as Mendoza. According to Investigator Ada, in the video Mendoza stated: "I do not have a restraining order from Sandy Nunes Leal." And: "If I did, I would not be able to scream at her across an entire football field to tell her exactly how much she deserves sticks up both asses for what she does to innocent women and children who probably need protection in the form of restraining orders against Mater Dei people." Mendoza looked angry. She brandished a lacrosse stick and stated, "I have a lacrosse stick right here." She raised the stick with one hand and wrapped the index finger and thumb of her other hand around the stick, "as if to show the girth of the stick." Investigator Ada shared the video with Judge Leal, who watched it and said she felt threatened and feared for her safety.
On October 19, 2022 Mendoza voluntarily came to Investigator Ada's office to speak with him. Mendoza said she made the video as an artistic outlet for her aggression and anger and explained she was angry Judge Leal did not recuse herself from Mendoza's civil case with Mater Dei. Mendoza believed Judge Leal was biased in favor of Mater Dei because one of the judge's children attended the school. Mendoza described Judge Leal as terrifying and evil based on how the judge conducted proceedings in her courtroom. Mendoza said she was distraught and "just trying to survive." Mendoza also said she understood that, "if a person saw a video like that, it could scare them."
During the interview Investigator Ada observed Mendoza and concluded she had mental health issues. His concerns included her extremely emotional responses to his questions and the tangential nature of some of her statements. He observed that Mendoza would "go on and on, sometimes in a nonresponsive manner," about Mater Dei, lacrosse, and coaching.
Judge Leal later told Investigator Ada about an October 20, 2022 post on another of Mendoza's social media accounts. Mendoza had reposted a video of an unidentified woman (whom Mendoza referred to as a "life coach" or a "parenting coach") playing a clapping game similar to patty cake. Pretending her hand was a semiautomatic pistol, the woman in the video gestured as if she were loading the feigned gun and shooting it across the screen. The video was synchronized to an audio clip with the sound of someone charging and firing a pistol. Along with the video, Mendoza's post had a caption written by Mendoza that mentioned "private trafficker Catholic schools" and stated, "[D]o I deserve multiple days in court without Sandy Nunes Leal."
On November 15, 2022 Investigator Ada was conducting another check of Mendoza's social media posts and found a video of her standing outside a residence and violently swinging a lacrosse stick at a shrub for approximately four minutes. The video had a caption that stated, "Sandy Nunes Leal is a kind woman." Investigator Ada contacted Judge Leal about this post and asked if it made her feel threatened or concerned for her safety. Judge Leal said it did.
At a second interview on November 25, 2022, Investigator Ada spoke with Mendoza about her social media posts. Questioned about the one with the video of her swinging the lacrosse stick at the shrub, Mendoza said it was an outlet for her aggression. Asked why she had captioned the post "Sandy Nunes Leal is a kind woman," Mendoza replied, "I was just being sarcastic. She's not a nice lady. She's mean. She's really mean." As for her October 20, 2022 social media post (where she was pretending to shoot a gun), Mendoza was initially hesitant to talk about it, but eventually she said she created the caption and embedded the video of the unidentified woman. Investigator Ada observed that, during this interview, Mendoza went "off on tangents sometimes talking about lacrosse and Mater Dei and various conspiracies."
At some point Mendoza reached out to Investigator Ada in an attempt to bring criminal charges against Judge Leal, Mater Dei, and others for their alleged involvement in human trafficking. Investigator Ada assumed this was a manifestation of Mendoza's mental health issues.
The People relied on Investigator Ada's testimony and did not introduce Mendoza's actual social media posts at the preliminary hearing. Neither did Mendoza. Counsel for Mendoza, however, showed Investigator Ada one of the videos while he was on the witness stand and questioned him about it.
The magistrate found, "from all of the facts and circumstances, that there is sufficient evidence that [Mendoza] intended the statements to be made as a threat and that she had the apparent ability to do that ...." The magistrate also referred to two other cases where Mendoza had been charged with violating restraining or stay-away orders "around the same time." The magistrate stated that Mendoza's social media posts amounted to threats "sufficient to meet the elements for a preliminary hearing, which . . . is a very low burden to move the case on to the next step." The magistrate concluded "there is sufficient cause to believe" Mendoza knowingly and willingly threatened the life of, or serious bodily harm to, a judge, in violation of section 76, subdivision (a), and held Mendoza to answer that charge.
The People had also charged Mendoza with a misdemeanor, intentionally and knowingly violating a protective order, in violation of section 273.6, subdivision (a). The magistrate granted the People's motion to dismiss that charge.
B. The Trial Court Denies Mendoza's Motion Under Section 995 To Set Aside the Information
Mendoza moved to set aside the information under section 995. She argued that there was insufficient evidence her statements amounted to true threats and that therefore they were protected speech. She also asserted there was no evidence she intended Judge Leal to take her statements as threats. The trial court denied her motion. The court found that the video "with the lacrosse stick, and the comments made regarding the lacrosse stick, is a threat to do serious bodily harm to Judge Leal." The court acknowledged there was "quite a bit of evidence [at] the preliminary hearing that [Mendoza] claimed that her statements were not to be taken as a threat. But that's not the standard at the preliminary hearing. The standard at the preliminary hearing is, is there evidence of it."
Mendoza filed a petition for a writ of mandate, challenging the trial court's order denying her motion under section 995. After asking the parties to submit supplemental briefs on whether the magistrate erred in holding Mendoza to answer based on the content of social media posts that Investigator Ada described but that the magistrate did not see, we issued an order to show cause.
DISCUSSION
A. Applicable Law and Standard of Review
"In California, a person charged with a crime or an enhancement has the right to a preliminary determination of whether there is sufficient evidence-that is, probable or reasonable cause to believe that they committed that crime or enhancement-to prosecute those charges through trial. [Citations.] Our state Constitution provides two different avenues for this evaluation: (1) indictment after evaluation of the evidence by a grand jury; or (2) the filing of an information after evaluation of the evidence by a 'magistrate' at a hearing called a 'preliminary examination' (or, more informally, a preliminary hearing)." (Chavez v. Superior Court (Jan. 25,2024, B332361) ___Cal.App.5th___ [2024 WL 277231, p. 3].) "No matter which avenue the People take, a defendant has a right to challenge the resulting indictment or information. Section 995 provides a statutory basis for attacking an indictment or information on the ground that the evidence presented to the grand jury (in the case of an indictment) or to the magistrate (in the case of an information) did not provide 'reasonable or probable cause' to believe the defendant committed the charged crime or enhancement." (Id. at p. ___ [p. 4].)
"'To prevail on a section 995 motion to set aside an information, the defendant must establish that he was "committed without reasonable or probable cause."'" (Zemek v. Superior Court (2020) 44 Cal.App.5th 535, 544.) "To establish probable cause sufficient to overcome a section 995 motion, 'the People must make some showing as to the existence of each element of the charged offense.' [Citation.] 'Evidence that will justify a prosecution need not be sufficient to support a conviction.'" (People v. Scully (2021) 11 Cal.5th 542, 582 (Scully).) "'"[T]he showing required at a preliminary hearing is exceedingly low."'" (Zemek, at p. 544; accord, Carpenter v. Superior Court (2023) 93 Cal.App.5th 1279, 1312; see Scully, at p. 582 [there is a "low evidentiary bar" to overcome a section 995 motion].) The People may establish the existence of a necessary element of the offense by circumstantial evidence. (Rodas-Gramajo v. Superior Court (2023) 92 Cal.App.5th 656, 668 (Rodas-Gramajo); People v. Chapple (2006) 138 Cal.App.4th 540, 545-546.)
"In reviewing a trial court's ruling on a section 995 motion, we disregard the ruling of the trial court and directly review the magistrate's ruling." (People v. Superior Court (Mendez) (2022) 86 Cal.App.5th 268, 277; see Lexin v. Superior Court (2010) 47 Cal.4th 1050, 1072.) When an order denying a section 995 motion "rests on consideration of the evidence adduced, we must draw all reasonable inferences in favor of the information." (Lexin, at p. 1072; accord, Chavez Zepeda v. Superior Court (2023) 97 Cal.App.5th 65, 73.) "A court should set aside an information 'only when there is a total absence of evidence to support a necessary element of the offense charged.'" (Rodas-Gramajo, supra, 92 Cal.App.5th at p. 663; see Scully, supra, 11 Cal.5th at pp. 584-585 [prosecution meets its burden to overcome a motion under section 995 by presenting "at least some evidence to support each element," and where there is "'some evidence'" to support the information, the reviewing court "'will not inquire into its sufficiency'"].) "'We will not set aside an information "if there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it."'" (Scully, at p. 582; see Banerjee v. Superior Court (2021) 69 Cal.App.5th 1093, 1111.)
To the extent a section 995 motion "rests on issues of statutory interpretation, our review is de novo." (Lexin v. Superior Court, supra, 47 Cal.4th at p. 1072.)
B. There Was Evidence Mendoza Knowingly and Willingly Threatened To Cause Serious Bodily Harm to a Judge
Section 76 punishes, among other things, threats to do serious bodily harm to public officials, judges, and other specified persons. It provides that "[e]very person who knowingly and willingly threatens the life of, or threatens serious bodily harm to," a judge, "with the specific intent that the statement is to be taken as a threat, and the apparent ability to carry out that threat by any means, is guilty of a public offense." (§ 76, subd. (a).) For purposes of section 76, a threat may be "verbal or written," or "implied by a pattern of conduct or a combination of verbal or written statements and conduct." (Id., subd. (c)(5); cf. People v. Gonzalez (2017) 2 Cal.5th 1138, 1147 [section 422, making a criminal threat, does not cover nonverbal threats because section 422, unlike section 76, does not mention conduct].) "[T]he essence of a violation of section 76 is the making of a statement with the intent that it be taken as a threat, along with the apparent ability to carry out the threat, resulting in actual reasonable fear on the part of the victim." (People v. Barrios (2008) 163 Cal.App.4th 270, 277; accord, People v. Avila (2013) 212 Cal.App.4th 819, 826.)
Mendoza argues that, to show a violation of section 76, the People must present evidence on the five elements listed in CALCRIM No. 2650, including the element that the defendant willingly threatened to kill or cause serious bodily harm to a public official or judge. She contends there was insufficient evidence she made such a (or any) threat. The People, however, presented evidence on this element at the preliminary hearing.
Investigator Ada testified that Mendoza, in her first video post, expressed her belief Judge Leal deserved "sticks up both asses" and angrily raised a lacrosse stick; stated, "I have a lacrosse stick right here"; and gestured as if to show how big the stick was. Mendoza's other video posts paired the visual and audio representation of gunfire (the second video) or Mendoza violently swinging a lacrosse stick at a shrub with a caption referring to Judge Leal (the third video). Considered together, the evidence of Mendoza's social media posts as described by Investigator Ada, Mendoza's expressions of hostility toward Judge Leal, and Mendoza's anger at the judge for not recusing herself from Mendoza's case presented a "rational ground" for the possibility (Scully, supra, 11 Cal.5th at p. 582) Mendoza knowingly and willingly threatened serious bodily injury to Judge Leal.
Of course, there was evidence at the preliminary hearing that may have given rise to conflicting inferences. As discussed, however, in reviewing an order denying a motion under section 995 we draw all reasonable inferences in favor of the information. (Lexin v. Superior Court, supra, 47 Cal.4th at p. 1072.) Because a court should set aside an information only if there is a "total absence of evidence" (Rodas-Gramajo, supra, 92 Cal.App.5th at p. 663) to support an element of the offense charged, and the prosecution here presented some evidence Mendoza knowingly and willingly threatened serious bodily harm to Judge Leal, there was enough evidence to overcome Mendoza's motion.
C. There Was Evidence Mendoza Made a True Threat Not Protected by the First Amendment
Mendoza argues her social media statements constituted speech protected by the First Amendment. Specifically, though she acknowledges true threats of violence are not protected speech and can be punished as crimes, she argues that her statements constituted "emotional hyperbole" and that there was no evidence she made a true threat.
"The protections afforded by the First Amendment . . . are not absolute, and . . . the government may regulate certain categories of expression consistent with the Constitution." (Virginia v. Black (2003) 538 U.S. 343, 358; see People v. Peterson (2023) 95 Cal.App.5th 1061, 1068.) "'True threats' of violence is [a] historically unprotected category of communications. [Citation.] The 'true' in that term distinguishes what is at issue from jests, 'hyperbole,' or other statements that when taken in context do not convey a real possibility that violence will follow ....True threats are 'serious expression[s]' conveying that a speaker means to 'commit an act of unlawful violence.'" (Counterman v. Colorado (2023) 600 U.S. 66, 74; accord, Black, at p. 359; see Peterson, at p. 1068 ["the First Amendment 'permits a State to ban a "true threat"'"].) "Whether the speaker is aware of, and intends to convey, the threatening aspect of the message is not part of what makes a statement a threat .... The existence of a threat depends not on 'the mental state of the author,' but on 'what the statement conveys' to the person on the other end." (Counterman, at p. 74.) "The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats 'protect[s] individuals from the fear of violence' and 'from the disruption that fear engenders,' in addition to protecting people 'from the possibility that the threatened violence will occur.'" (Black, at pp. 359-360.)
Nevertheless, at trial the People "must prove in true- threats cases that the defendant had some understanding of his statements' threatening character." (Counterman v. Colorado, supra, 600 U.S. at p. 73.) The mens rea required to overcome a First Amendment challenge is recklessness, not purpose (the defendant "'consciously desires' a result") or knowledge (the defendant "'is aware that [a] result is practically certain to follow'"). (Id. at pp. 78-79, 82.) "In the threats context, [recklessness] means that a speaker is aware 'that others could regard his statements as' threatening violence and 'delivers them anyway.'" (Id. at p. 79.) Mendoza does not argue there was insufficient evidence of recklessness.
The testimony of Investigator Ada at the preliminary hearing, including that Judge Leal felt threatened and feared for her safety, was sufficient evidence of a true threat under section 76 for the People to clear the "exceedingly low" evidentiary bar of section 995. Mendoza cites no authority the First Amendment requires the People to do anything more to defeat a motion under section 995 to dismiss (as opposed to obtaining a conviction for or an adjudication of) a charge for violating section 76.
To support her contention there was insufficient evidence of a true threat, Mendoza relies on her statements she did not intend the videos to be threats. Whether Mendoza intended her statements to be construed as threats, however, does not determine whether they were protected by the First Amendment. (See Counterman v. Colorado, supra, 600 U.S. at pp. 74, 78-82 [First Amendment does not require specific intent for a statement to be a true threat]; People v. Lowery (2011) 52 Cal.4th 419, 426427 (Lowery) [to be constitutional, a statute criminally punishing threats need not include an element of specific intent].)
Although specific intent is not a factor in determining whether a true threat is outside First Amendment protection, section 76 requires the prosecution to prove specific intent. (See § 76, subd. (a).) The specific intent requirement of section 76, that the speaker intend the statement be taken as a threat, gives Mendoza greater protection than she has under the First Amendment. (See Gonzales v. Superior Court (1986) 180 Cal.App.3d 1116, 1122 ["where state law affords greater protection to expression of free speech than federal law, state law prevails"].) We address the statute's specific intent requirement in section D, post.
Acknowledging her statements could be construed as implicit threats to do harm, Mendoza asserts that a true threat must directly threaten harm. The law is to the contrary. (See People v. Peterson, supra, 95 Cal.App.5th at p. 1069 ["[d]irect threats of violence are not necessary" for true threats]; see also In re Ernesto H. (2004) 125 Cal.App.4th 298, 311-313 [minor communicated a true threat when he stated, "Yell at me again and see what happens," took a step toward the victim, tilted his head, and clenched his fists].)
Mendoza points to evidence, including some of Investigator Ada's statements and the length of his investigation before the People filed charges against her, suggesting Investigator Ada and Judge Leal did not perceive Mendoza or her social media posts as posing an imminent threat. Arguing her posts thus cannot be true threats, Mendoza cites People v. Gudger (1994) 29 Cal.App.4th 310 (Gudger) and In re Ryan D. (2002) 100 Cal.App.4th 854 (Ryan D.) to support her contention that, to be constitutional, section 76 must require that the alleged threat is "so unequivocal, unconditional, immediate, and specific" that it conveys "a gravity of purpose and imminent prospect of execution."
Mendoza misconstrues these cases. In Gudger, supra, 29 Cal.App.4th 310 the court explained section 422, which proscribes making a criminal threat, contains language requiring that the threat is "'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.'" (Gudger, at pp. 317-318.) Observing that this language does not appear in section 76, the court in Gudger rejected the contention section 76 was unconstitutional for failure to include it. (Gudger, at pp. 318-321; see People v. Craig (1998) 65 Cal.App.4th 1082, 1092 ["[a]s Gudger held, such a requirement does not apply to section 76, either by its express terms or in order for it to pass constitutional muster"].)
Mendoza's reliance on Ryan D., supra, 100 Cal.App.4th 854 is also misplaced. The court in Ryan D. reversed an order sustaining a petition against a minor for making a criminal threat. The court concluded the "failure of school authorities, the victim, and the police to take immediate action against the minor" showed the minor's painting (of himself shooting an officer who had cited him for marijuana possession) "did not convey to them such an unequivocal, unconditional, immediate, and specific threat to commit a crime ...." (Id. at p. 865.) Ryan D., however, involved a violation of section 422, not section 76. (Ryan D., at p. 857.)
To be sure, the court in Ryan D., supra, 100 Cal.App.4th at pages 861 to 862 stated: "In enacting the current version of section 422, the Legislature adopted the standard set forth in United States v. Kelner [(2d Cir. 1976)] 534 F.2d 1020, and suggested by California's Supreme Court in People v. Mirmirani [(1981)] 30 Cal.3d 375 .... Hence, the standard set forth in section 422 is both the statutory definition of a crime and the constitutional standard for distinguishing between punishable threats and protected speech." As subsequently explained by the Supreme Court in Lowery, supra, 52 Cal.4th 419, however, United States v. Kelner, supra, 534 F.2d 1020 was decided several decades before, and "appears to conflict with," more recent pronouncements by the United States Supreme Court. (Lowery, at p. 428.) Cases, including those more recent than Ryan D., have concluded that, to be constitutional, statutes criminalizing threats need not require the threat or the prospect of its execution be immediate. (See, e.g., Lowery, at p. 428 [rejecting the contention that section 140, which makes it a crime to threaten a crime witness or victim, violates the First Amendment because it does not require the threat to be carried out immediately]; In re Ernesto H., supra, 125 Cal.App.4th at pp. 312-313 [even if section 422 requires that the threat carry an "immediate prospect of execution," section 71, which makes it a crime to threaten violence against a public officer or school employee, does not]; see also People v. Craig, supra, 65 Cal.App.4th at pp. 1088, 1092 [rejecting the contention that only threats that are "'immediate and . . . have the immediate prospect of execution'" may be constitutionally proscribed].) And even under section 422, "'unequivocally, unconditionality, immediacy and specificity are not absolutely mandated.'" (People v. Bolin (1998) 18 Cal.4th 297, 340; accord, In re George T. (2004) 33 Cal.4th 620, 635.)
Finally, Mendoza argues the People did not present evidence of a true threat because they did not introduce into evidence, and the magistrate did not review the actual social media posts. While it may have been better practice to introduce the social media posts into evidence, Investigator Ada, who reviewed the posts (including while on the witness stand), described their contents, and that was enough. Although "the 'secondary evidence rule' . . . generally prohibits the admission of oral testimony to prove the content of writings" (People v. Gonzalez (2021) 12 Cal.5th 367, 410; see Evid. Code, §§ 1521, 1523), "Penal Code section 872.5 exempts preliminary hearings from the secondary evidence rule." (People v. Chapple, supra, 138 Cal.App.4th at p. 546, fn. 3.) Thus, the secondary evidence rule did not bar Investigator Ada's preliminary hearing testimony describing the contents of Mendoza's videos posted on social media. As discussed, his testimony also provided context for Mendoza's social media statements, including her anger at Judge Leal for the judge's failure to recuse herself. Investigator Ada's testimony provided evidence of a true threat against a judicial officer, and the People did not have to present additional evidence of that threat to defeat Mendoza's section 995 motion. (See, e.g., Scully, supra, 11 Cal.5th at p. 584.)
For purposes of the secondary evidence rule, "a videotape is a writing." (People v. Panah (2005) 35 Cal.4th 395, 475; see People v. Gonzalez, supra, 12 Cal.5th at p. 410.)
Evidence Code section 1523, subdivision (a), states: "Except as otherwise provided by statute, oral testimony is not admissible to prove the content of a writing." Penal Code section 872.5 provides a statutory exception for preliminary hearings: "Notwithstanding Article 1 (commencing with Section 1520) of Chapter 2 of Division 11 of the Evidence Code, in a preliminary examination the content of a writing may be proved by an otherwise admissible original or otherwise admissible secondary evidence."
Mendoza argues in her supplemental brief that Investigator Ada "merely testified that [Mendoza] 'appeared angry'" in her first video, including when she made the statement Judge Leal "deserved sticks up both asses," and that Investigator Ada, when asked at the preliminary hearing to "describe how that anger was," stated, "I just think it's going to be hard for me to respond to that." From this exchange, Mendoza argues the prosecution should have introduced more evidence of the context of her statement. Mendoza, however, ignores Investigator Ada's other testimony, including that Mendoza, when discussing the video with him on October 19, 2022, admitted she made it to express her anger and aggression and that she was angry because Judge Leal did not withdraw from her civil case. Mendoza also overlooks Investigator Ada's testimony about her conduct in brandishing a lacrosse stick in the first video, her acknowledgment the video could frighten a person seeing it, and her subsequent posts of videos with representations of violent acts.
D. There Was Evidence Mendoza Specifically Intended Her Statements Be Taken as Threats
Mendoza argues there was insufficient evidence she specifically intended her statements be taken as threats. She contends there was no evidence from which the magistrate could reasonably infer such intent. But there was.
As discussed, for the element of specific intent under section 76, there are no First Amendment concerns. (See Counterman v. Colorado, supra, 600 U.S. at pp. 74, 78-82; Lowery, supra, 52 Cal.4th at pp. 426-427; see also In re Ernesto H., supra, 125 Cal.App.4th at p. 308.)
Mendoza posted notes throughout Judge Leal's courthouse describing the judge's animosity toward her, with hashtags identifying Mendoza and her social media account, along with the instruction, "Follow for more." All three videos specifically mentioned Judge Leal and contained references to, or representations of, violent acts. Mendoza said that she believed Judge Leal was evil and that she was angry at the judge for failing to withdraw from her case. Although she acknowledged her first video could scare a person watching it, Mendoza continued to post videos that included representations of violent acts and that referred to Judge Leal. Rather than a total absence of evidence, there was some evidence Mendoza specifically intended her statements be taken as threats. (See Gudger, supra, 29 Cal.App.4th at p. 321 ["in view of the language used in [the defendant's] repeated threats and the circumstances which revealed her disgruntled and agitated state at the time of the threats, as well as her specific and well-focused pique with [the judge], there is substantial evidence that [the defendant] intended her statements to be taken as true threats"].)
DISPOSITION
The petition is denied.
We concur: FEUER, J. MARTINEZ, J.