Opinion
B302094
02-03-2021
In re C.L., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. C.L., Defendant and Appellant.
Holly Jackson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorneys General, Noah P. Hill and Heidi Salerno, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. YJ38665) APPEAL from an order of the Superior Court of Los Angeles County, Nancy L. Newman, Judge. Reversed. Holly Jackson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorneys General, Noah P. Hill and Heidi Salerno, Deputy Attorney General, for Plaintiff and Respondent.
Defendant C.L. appeals from a juvenile court order declaring him a ward of the court pursuant to Welfare and Institutions Code section 602. He challenges the sufficiency of the evidence supporting the juvenile court's finding that he violated Penal Code section 422 by aiding or abetting criminal threats made by another. We agree and therefore reverse.
All subsequent statutory references are to the Penal Code unless otherwise indicated.
FACTUAL SUMMARY
In June 2019, C.L. was 17 years old and living with his parents, his older brother Manuel, and Manuel's girlfriend, Vanessa. He lived about two blocks away from E.L., who lived in an apartment with her parents, her older sister Guadalupe, and Guadalupe's children. C.L. and E.L. went to the same high school and had mutual friends.
A few weeks prior to June 5, 2019, C.L. asked E.L. about being his girlfriend, but E.L. told him that she would not date him. A week or two later, C.L. had put his arm around E.L.'s shoulder at school. E.L. told him to stop, grabbed his arm and moved it away. C.L. became angry and walked away.
Some time prior to June 5, 2019, C.L. told Vanessa that he had heard from friends that E.L. said Vanessa was fat. Vanessa had never seen E.L. and the two had never met.
On June 5, 2019, E.L.'s older sister Guadalupe picked E.L. up from school and drove them home. E.L. got out of the car and walked toward the front gate of their apartment building with Guadalupe's children.
Meanwhile, Vanessa had picked up C.L. from school in her Jeep. Manuel was in the front passenger seat. C.L. sat in the middle of the back seat. A fourth person was in the back seat behind the driver's seat. On their way home, Vanessa drove past E.L.'s apartment building just as E.L. was walking from Guadalupe's car. C.L. pointed to E.L. and told Vanessa that E.L. was the person who called Vanessa fat. Vanessa made a U-turn and stopped the Jeep in the middle of the street, approximately six to eight feet from the curb, with the passenger side of the vehicle facing E.L.'s apartment building. She got out of the Jeep and walked around the vehicle toward the sidewalk where E.L. and Guadalupe were walking toward their apartment.
According to E.L., Guadalupe, and Maria (E.L.'s mother), the fourth person was a male. Surveillance video of the incident appears to show a male getting out of the rear on the driver's side and quickly getting back in the Jeep. According to Vanessa, however, the fourth person was C.L.'s girlfriend.
The witnesses gave varying accounts of what happened next.
A. E.L.'s Testimony
According to E.L., Vanessa began "screaming" at E.L. that she was going to "kick [her] ass" and "fuck [her] up." Manuel remained in the car and was "screaming that they were gonna beat [E.L.] up and telling [Vanessa] to beat [her] up." Manuel told E.L. that she "was gonna get [her] ass beat" "by Vanessa," and that Vanessa "was gonna fuck [her] up." C.L. was also "screaming," but E.L. did not testify as to what he said. E.L. felt that Vanessa's threats were real and was frightened by them.
While Vanessa was yelling at E.L., Manuel said he was from "Florence" or "Florence 13" and someone in the back seat of the car said "they were from Culver City." Although E.L. understood these to be gang references, she knew "nothing" about the gangs. At one point in her testimony, E.L. said that the person who said they were from Culver City was not C.L. Later, she said she did not know whether C.L. had said it. At some point, Manuel either displayed a gang sign with his hand or "was just throwing up his middle finger."
Gang experts testified for the prosecution that C.L. and Manuel were members of or affiliated with a Culver City street gang. The primary activities of the gang are assault with deadly weapons, attempted murders, vandalism, criminal threats, and witness intimidation.
As Vanessa returned to the driver's seat in the Jeep, Guadalupe walked across the sidewalk to the curb, with E.L. remaining 5 to 10 feet behind her. Vanessa told Guadalupe that E.L. had gone to Vanessa's house and "was talking mess to her." E.L. yelled to Vanessa, "I didn't go to [your] house." She did not say anything else to Vanessa during the incident.
E.L.'s mother Maria walked out from their apartment, approached Vanessa and Guadalupe, and asked, "What's the problem?" Maria told Vanessa that they could have come to talk to her instead of threatening to beat up E.L.
C.L., sitting in the backseat of the car, pointed a gun at Maria and Guadalupe. As he held the gun, C.L. laughed and told E.L. that she "was gonna get [her] ass beat" by Vanessa and that "this is just the beginning." This frightened E.L., and she yelled that she was going to call the police. She went upstairs to the apartment, called 911, and reported that a female and "two guys" were threatening her and one of them was pointing a gun at them.
E.L. went back outside just as Vanessa began to drive away. Vanessa turned the Jeep around, returned to E.L.'s apartment building, and said to E.L., "I'm gonna come again, I'm gonna fuck you up." Vanessa then drove away.
When the police arrived, E.L. told an officer that Vanessa had threatened to beat her up and that C.L. had pointed a gun at her and said, "this is just the beginning."
When E.L. was asked during cross-examination whether she was concerned for her safety before she saw the gun, she answered, "Yes," "because they screamed that they were from Florence gang and from Culver City."
About two weeks after the incident, E.L. received "threat messages through [her] phone" (via Instagram) from an unidentified source. In addition, "plenty of vehicles" passed by her house, with people screaming her name and "telling [her she] was gonna get [her] ass beat and that they were gonna kill [her]." E.L. could not identify the people in the vehicles.
B. Guadalupe's Testimony
Guadalupe, E.L.'s older sister, testified that Vanessa got out of the Jeep and started yelling that Guadalupe and her sisters were whores and that her sisters had come to her home and told her she was fat. Vanessa also told E.L. that she was "going to fuck her up."
Maria—Guadalupe and E.L.'s mother—came down from the apartment and asked Vanessa, "What's the problem?" Vanessa repeated that her "daughters are whores" and that they had gone to her house and yelled that she is fat. Guadalupe and Maria told Vanessa that if they had a problem, they could come and talk to Guadalupe, Maria, or E.L.'s father.
As Guadalupe and Maria stood at the curb facing Vanessa, C.L. held a gun and pointed it outside the vehicle toward them. This frightened Guadalupe, but neither she nor Maria backed away. Indeed, Maria walked up to the Jeep and spoke directly to C.L. sitting in the back seat of the Jeep. C.L. had yelled that E.L. is a whore and that she had been hanging out with older men. He did not, however, make any threats or say that "he was going to do anything to someone."
In contrast to E.L.'s testimony, Guadalupe testified that no one in the Jeep other than Vanessa and C.L. said anything, and that Manuel was just "sitting there." Guadalupe did not testify that anyone in the car referred to a gang or showed a gang sign.
E.L. said she was going to call the police and, as she went to the apartment, Vanessa yelled to her: "[I]f I see you, I'm going to fuck you up" or "anywhere I see you I am gonna kick your ass." E.L. returned from the apartment with her cell phone and began calling the police. As she did, Vanessa began to drive away. Vanessa then turned around, drove back to the apartment, and yelled to E.L.: "I'm going to fuck you up wherever I . . . find you." Vanessa then drove away.
C. Maria's Testimony
Maria was in the family's second-floor apartment when she heard Vanessa yelling obscenities at E.L., calling E.L. a whore, and saying E.L. liked older men. She also heard Vanessa complaining to Guadalupe that E.L. had come to her home and yelled obscenities to her. Maria went outside and approached Vanessa, who told Maria that E.L. had gone to her home and yelled at her. Maria responded that she should come talk to her if she had a problem with E.L.
Maria saw C.L. sitting in the backseat of the car and recognized him as someone who occasionally passed by their home. C.L. said that E.L. was a whore and liked older men. Maria told C.L. that he could have come to her and E.L.'s father if he had a problem with E.L. C.L. "was just laughing."
When Maria approached the Jeep, she saw C.L.'s hands folded on his lap and holding "something black," which he pointed in her direction. She initially testified that she could not tell what it was. Later, she testified that the object was, or "seemed like," a black handgun and that it frightened her. Still later she testified: "What I saw was a gun. But to tell you the truth, it was so fast that I cannot say for sure, for sure, that it was a gun."
After the Jeep drove away, Maria returned to the apartment and did not speak to responding officers.
D. Guadalupe's 911 Call and Police Investigation
Although E.L. and Guadalupe both testified that E.L. had called 911 and Guadalupe specifically denied calling 911, an audio recording of a 911 call about the incident was played for Guadalupe during trial and she agreed that she had made the call. The defense also introduced evidence that no other person called 911 about the incident.
In her 911 call, Guadalupe told the operator that some people were "disrespectful to [her]" and had "threaten[ed] to kill [her]." When asked to be more specific, Guadalupe responded that "she said to me that she was going to fuck me up." When the operator asked Guadalupe if she had seen any weapons, she answered, "No. It's just that there's too many of them." During trial, Guadalupe explained that she did not mention the gun during the call because she "was afraid."
Inglewood Police Officer Amanda Belotto responded to the call and interviewed E.L. and Guadalupe. Guadalupe appeared "concerned and shaken." E.L. did not appear to be "as scared as her sister, but she was still very nervous." Guadalupe told the officer that Vanessa had threated to beat her up and called E.L. names, and that the rear seat passenger pointed a black handgun in her direction.
E.L. told Officer Belotto that Vanessa called her a bitch and "was threatening to beat her up." She also said that C.L. had pointed a firearm at her and said, " 'This is just the beginning.' " E.L. said she was not afraid until she saw the gun and it appeared to the officer that she was not "really bothered by [Vanessa's] words." E.L. also told the officer that C.L. "mention[ed] that he was affiliated with . . . a Culver City gang." E.L. did not say that anyone referred to any other gang.
Eight days after the incident, Inglewood Police Detective Marya Parente interviewed E.L. and Guadalupe. E.L. said that Manuel was making gang signs and saying "Culver City Boys." E.L. also told the detective that C.L. had pointed a black handgun at her while laughing. Guadalupe told Detective Parente that C.L. had pointed a black handgun in E.L.'s direction.
E. Video Evidence
A surveillance camera recorded video, but not audio, of the incident. The recording shows Vanessa exiting the driver's seat and walking toward the curb while speaking and gesticulating with her right hand. Neither E.L. nor Guadalupe can be seen in the video during this time. After about 30 seconds, she returned to the driver's side of the Jeep. The front passenger window is open and Manuel's arm is resting on the top of the door. The rear passenger window is rolled up and no one is visible in the back seat.
Guadalupe appears and crosses the sidewalk toward the street and stops at the curb. Vanessa then returns to the street and approaches Guadalupe. After they converse for about 20 seconds, Maria crosses the sidewalk and stands near Guadalupe at the curb. Around that time, the rear passenger window of the Jeep is rolled down and C.L. can be seen in the back seat.
Guadalupe, Vanessa, Maria, and the Jeep are shown in the video recording of the incident. E.L. cannot be seen.
Guadalupe and Maria continue to stand at the curb facing Vanessa, who is in the street about four or five feet away. At no point does Vanessa appear to make a physically aggressive movement toward anyone. As they talked, C.L., in the rear passenger seat, lifts an object with his right hand up to his face, then lowers it. No one appears to react to his actions.
As Vanessa walks back to the driver's seat of the Jeep, Maria steps into the street and approaches C.L. and speaks to him while gesturing vigorously. Vanessa then drives away. The entire incident lasted approximately 2 minutes 15 seconds.
F Defense Evidence
Vanessa testified for the defense. According to her, she got out of the Jeep and asked E.L. why E.L. was calling her fat. When asked if she was yelling, Vanessa testified, "[s]omewhat." Guadalupe told E.L. to go inside the apartment. As E.L. stepped inside the gate to her apartment, she yelled to Vanessa, "Fuckin' fat bitch. Get the fuck outta here."
Vanessa saw a person in an upstairs window "screaming to [her]." Vanessa recognized the person as someone who had come to her house with two "guys," "[i]nsulting us and telling [them] that [they] were scary bitches." Vanessa yelled to the person she saw in the window.
Guadalupe (who Vanessa believed was E.L.'s mother) approached her and said, " 'Talk to me. Talk to me.' " Vanessa told Guadalupe that "[E.L.] has sent guys to our house" and told her to "leave us alone." As Vanessa and Guadalupe talked, E.L. was screaming, "fat bitch," to her. Guadalupe turned to E.L. and told her to be quiet.
Maria approached and told Vanessa to calm down. Vanessa informed Maria that E.L. is "doing a lot of crazy stuff and she is dating a 40-year-old."
Maria spoke to Manuel in the Jeep, telling him that if they had a problem with E.L., they should speak to E.L.'s father. Vanessa then got in the Jeep and drove away. She made a U-turn, but did not speak to them again.
Vanessa testified that, in confronting E.L. and Guadalupe, she did not intend to harm anyone; rather, she wanted to tell them to leave her alone. According to her, neither she nor anyone in the Jeep threatened E.L. or anyone in her family, and no one said they were going to beat up E.L., "fuck her up," or "come back for [her]." C.L. did not say anything during the incident. No one mentioned a gang, no one had a gun, and no one appeared to be afraid of her or the others in the Jeep. She is not aware that either Manuel or C.L. is affiliated with a gang.
The defense also introduced a video and audio recording of Detective Parente's interview of C.L. after his arrest on August 1, 2019. C.L. told the detective that Vanessa got out of the Jeep and asked E.L. why she had been calling her fat. E.L. responded by "cussing out Vanessa." He denied he was a gang member and said he did not have a gun in the Jeep; all he had was his phone.
PROCEDURAL HISTORY
On August 5, 2019, the People filed a petition under Welfare and Institutions Code section 602 alleging that C.L. committed two counts of assault with a firearm (§ 245, subd. (a)(2)), one count of making criminal threats against E.L. (§ 422, subd. (a)), being a minor in possession of a firearm (§ 29610), and exhibiting a concealed firearm in public (§ 417, subd. (a)(2)(A)). The petition further alleged gang enhancements as to each count (§ 186.22, subd. (b)(1)(B) & (C)) and that C.L., in committing the criminal threats violation, personally used a handgun (§ 12022.53, subd. (b)).
The trial on the petition was held in September and October 2019. At the close of the prosecution's case, C.L. moved to dismiss the petition pursuant to Welfare and Institutions Code section 701.1. The court granted the motion to dismiss the gang and gun enhancements and all counts other than the criminal threats count. In explaining the partial grant of the motion, the court cited "significant" "inconsistencies" in the witnesses' testimony and "the fact that on the video, none of the witnesses acted like they were afraid [or] acted like they had seen a gun." The court further explained that it was "not persuaded that this was done on behalf of a gang."
The court then heard further argument on the criminal threats count. Defense counsel focused on evidence concerning C.L. and argued that there was no evidence "of threats from [C.L.] from the vehicle." The prosecution argued that Vanessa was the perpetrator of the threats. The court then denied the motion to dismiss that count.
After the presentation of the defense case and the close of evidence, the prosecutor argued that Vanessa had made criminal threats to E.L. and that C.L. was liable as an aider and abettor. The prosecutor did not rely on the evidence that C.L. possessed a gun or on evidence of gang affiliations.
The juvenile court found that C.L. committed a felony violation of section 422. The court explained that the video recording of the incident supported the prosecution's evidence regarding Vanessa's actions and that "Vanessa was not credible in that regard with respect to her testimony."
The court refused C.L.'s request to reduce the crime to a misdemeanor. The court explained: "[J]ust to be clear. I never made a pronouncement that the witnesses were lying with respect to the gun; I just believe the People had not met their burden of proof on that. Maybe they thought the phone was a gun, I don't know. But I don't think that the People met their burden of proof on that. So I'm going to decline to reduce it to a misdemeanor."
On November 5, 2019, the court ordered that C.L. remain a ward of the court and be placed at home on probation. C.L. timely appealed.
DISCUSSION
C.L. contends the evidence is insufficient to support the court's finding that he committed a violation of section 422. We agree.
In reviewing a challenge to the sufficiency of the evidence, we review the whole record in a light most favorable to the judgment to determine whether it contains substantial evidence, i.e., evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find beyond a reasonable doubt that the accused committed the offense. (People v. Johnson (1980) 26 Cal.3d 557, 578; In re Ricky T. (2001) 87 Cal.App.4th 1132, 1136 (Ricky T.).)
To prove a criminal threat in violation of section 422, the prosecution must establish: (1) the defendant "willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person"; (2) 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) the threat 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) 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) the threatened person's fear was "reasonabl[e]" under the circumstances. (§ 422; see People v. Toledo (2001) 26 Cal.4th 221, 227-228.)
Here, the prosecution's theory was not that C.L. made a criminal threat directly, but that he aided and abetted Vanessa's threats. The criminal liability of an aider and abettor "is based on a combination of the direct perpetrator's acts and the aider and abettor's own acts and own mental state." (People v. McCoy (2001) 25 Cal.4th 1111, 1117.)
In determining whether the words constitute a threat within the meaning of section 422, the fact finder may consider "all of the surrounding circumstances," including the parties' histories, "the 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, 1013-1014; see, e.g., In re George T. (2004) 33 Cal.4th 620, 635; People v. Butler (2000) 85 Cal.App.4th 745, 754; People v. Mendoza (1997) 59 Cal.App.4th 1333, 1340.) In considering the circumstances, "care must be taken not to diminish the requirements that the communicator ha[s] the specific intent to convey a threat and that the threat be of such a nature as to convey a gravity of purpose and immediate prospect of the threat's execution." (In re George T., supra, 33 Cal.4th at p. 637.) A criminal threat, courts have explained, " 'is a specific and narrow class of communication,' and 'the expression of an intent to inflict serious evil upon another person. [Citation.]' [Citation.]" (People v. Wilson (2010) 186 Cal.App.4th 789, 805.) Thus, section 422 does not punish mere "emotional outbursts" (People v. Felix (2001) 92 Cal.App.4th 905, 913), "an angry adolescent's utterances" (In re Ricky T., supra, 87 Cal.App.4th at p. 1141), or "ranting soliloquies, however violent" (People v. Teal (1998) 61 Cal.App.4th 277, 281).
The focus of section 422 is " 'on the effect of the threat on the victim.' " (People v. Wilson, supra, 186 Cal.App.4th at p. 807.) The statutory requirement that the threat cause the victim " 'reasonably to be in sustained fear for his or her own safety' has a subjective and an objective component. A victim must actually be in sustained fear, and the sustained fear must also be reasonable under the circumstances." (In re Ricky T., supra, 87 Cal.App.4th at p. 1140.) Sustained fear requires "a period of time that extends beyond what is momentary, fleeting, or transitory." (People v. Allen (1995) 33 Cal.App.4th 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." (Ibid.)
In evaluating the sufficiency of the evidence, we note at the outset that we do not consider the testimony that C.L. possessed or pointed a gun during the incident. The trial court dismissed the counts against C.L. of being a minor in possession of a firearm and exhibiting a concealed firearm in public, as well as the enhancement allegation for personal use of a firearm. The court concluded that it had a reasonable doubt as to these counts and enhancement based on inconsistencies in the witness's testimony regarding a firearm and "the fact that on the video, none of the witnesses acted like they were afraid and acted like they had seen a gun."
The court did not specifically address the evidence of a gun in ruling on the criminal threats count or make an express finding on that point. It would be inconsistent and illogical, however, for the court to conclude that it harbored a reasonable doubt as to C.L.'s possession of a gun with respect to the counts it dismissed, but harbored no such doubt as to his possession of a gun for purposes of the criminal threats count. The court's finding that the evidence was insufficient to establish beyond a reasonable doubt that C.L. possessed a gun must therefore be implied with respect to the criminal threats count. In light of the inconsistencies the court noted and our own examination of the video evidence—which shows C.L. lifting an object that could be a cell phone, not a gun—we will not disturb that implied finding. It follows that E.L.'s testimony that she became fearful as a result of seeing a gun is not substantial evidence that she experienced "sustained fear" that was "reasonable under the circumstances." (In re Ricky T., supra, 87 Cal.App.4th at p. 1140.)
The court's treatment of evidence that passengers in the Jeep, including Manuel and possibly C.L., made references to gangs is more complicated. The court dismissed the gang enhancement allegation because it was "not persuaded that this was done on behalf of a gang," an apparent reference to the statutory requirement that the defendant commit the charged crime "for the benefit of, at the direction of, or in association with any criminal street gang." (§ 186.22, subd. (b).) The finding that the participants did not act on behalf of a gang, however, does not negate or discredit the evidence that Vanessa's companions referred to gangs during the incident. We must, therefore, consider E.L.'s testimony regarding gang references in evaluating the sufficiency of the evidence.
The fact that Vanessa made her threats in the company of, and with the apparent support of, one or two gang members, arguably places her statements in a more serious and intimidating light even if the participants were not acting "on behalf of a gang." (See, e.g., People v. Mendoza, supra, 59 Cal.App.4th 1333, 1341; People v. Butler, supra, 85 Cal.App.4th at p. 755.)
Here, the evidence of a gang connection consists primarily of E.L.'s statements that Manuel said he was from "Florence" and someone in the back seat, perhaps C.L., said they were from "Culver City." E.L. also told Officer Belotto that C.L. "mention[ed] that he was affiliated with . . . a Culver City gang." The incident in this case, however, did not arise out of a gang-related dispute; rather, Vanessa was upset because E.L. had reportedly said she was fat. There was no evidence that either E.L. or Vanessa was a gang member. Indeed, E.L. testified that she knew "nothing" about "Florence" or "Culver City," other than that they were gangs. Thus, not only were Vanessa's threats not made for the benefit of, at the direction of, or in association with a criminal street gang, as the trial court found, but the nature of the conflict was highly personal between two persons unaffiliated with gangs.
Nevertheless, E.L. testified that she was "concerned for [her] safety" "because they screamed that they were from Florence gang and from Culver City." As we explain below, however, there is insufficient evidence that Vanessa's statements, viewed together with the gang references and all other surrounding circumstances, caused her "reasonably to be in sustained fear." (§ 422.)
There was no evidence of any prior history of violence or threats between E.L. and Vanessa. Indeed, the two had never met. Although E.L. had rebuffed C.L.'s romantic advances, there is no indication that he had threatened her. The impetus for the June 5 incident was C.L.'s report to Vanessa that E.L. had called Vanessa fat. Vanessa's actions and mannerisms, as revealed in the video recording of the incident, indicate a spontaneous emotional outburst or rant, not a premediated attack. Although she appears upset, her actions do not suggest that she is about to become violent. She walks to and from the Jeep at an ordinary pace, maintains an appropriate conversational distance between herself and Guadalupe and Maria, listens when spoken to, and gestures with her right hand to points in the distance, not at the women to whom she is speaking. Her left hand remained in her pocket almost throughout the incident. Vanessa does not make any aggressive movements or threatening hand gestures toward anyone, and does not attempt to physically touch anyone.
E.L. testified that Vanessa was "trying to hit [her]." None of the other witnesses corroborated her testimony on that point and it is not credible in light of the surveillance video showing no such attempt. The prosecutor did not rely on that statement in his argument to the court and the court did not mention it in its ruling. The testimony does not constitute substantial evidence of an attempt to hit E.L.
It does not appear from the video that anything Vanessa or the Jeep passengers said or did, including any mention of gangs, caused Guadalupe or Maria any fear. Indeed, shortly before Vanessa drove away, Maria approached the Jeep to speak to C.L. directly, while gesticulating aggressively. The fact that Maria would approach those who had just invoked the names of gangs and that neither Guadalupe nor E.L. felt a need to protect their mother from doing so further indicates that the women and E.L. did not experience sustained fear as a result of the incident.
Officer Belotto testified that E.L. reported that she did not become "afraid until she saw the gun." Once E.L. saw the gun, she ran into her apartment to call the police and did not return until Vanessa was driving away. Because references to gangs were made before E.L. purportedly saw a gun and she did not experience fear until she saw the gun, the gang references did not cause her to be in sustained fear. And, as explained above, any fear she experienced based upon her perception of a gun cannot support the court's finding of reasonably sustained fear.
The pertinent surrounding circumstances may also include subsequent events. (People v. Solis, supra, 90 Cal.App.4th at pp. 1013-1014.) Here, the prosecution submitted evidence that, in the weeks following the June 5 incident, E.L. had received anonymous threatening Instagram messages and heard threats yelled from cars passing by her apartment. There was, however, no evidence connecting these threats to either Vanessa or C.L. The suggestion of such a connection is too speculative to constitute substantial evidence.
In sum, even taking into account E.L.'s testimony regarding gang references by passengers within the Jeep, our review of the entire record, including the video evidence, compels our conclusion that the evidence is insufficient to support the finding that Vanessa's threats caused E.L. "to be in sustained fear" within the meaning of section 422.
DISPOSITION
The judgment is reversed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P.J. We concur:
CHANEY, J.
Judge of the San Luis Obispo County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------