Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. NA081252, Charles D. Sheldon, Judge.
Pamela J. Voich, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan Sullivan Pithey and Shira B. Seigle, Deputy Attorneys General, for Plaintiff and Respondent.
ASHMANN-GERST, J.
Jonathan Mistofsky appeals from the judgment entered upon his convictions by jury of two counts of making a criminal threat (Pen. Code, § 422, counts 3 & 4). The trial court sentenced him to a prison term of three years eight months. Appellant contends that (1) there was insufficient evidence to support his convictions, and (2) the trial court erred in failing to exclude gang evidence as irrelevant and unduly prejudicial.
All further statutory references are to the Penal Code unless otherwise indicated.
We affirm.
FACTUAL BACKGROUND
The prosecution’s evidence
Vonetta Mobley (Mobley) and Teves Lee (Lee) co-owned the Haven of Hope, a transitional home for the homeless (the Home), located on Loma Vista Drive, in Long Beach. Appellant, previously a tenant there, was evicted due to his disrespectful and threatening behavior towards other tenants. He was told not to return.
On February 24, 2009, appellant came to the Home to pick up a tenant who was moving out. Mobley told him “not to be on the premises.” After appellant left, Mobley told Jessica Loftin (Loftin), a resident of the Home with her seven-month-old daughter and partner, Darwin Brown (Brown), that appellant was not allowed on the property, which Loftin and Brown helped oversee.
The next day, near 6:00 p.m., appellant returned to the Home. Loftin and Hector Guzman (Guzman), another resident, were on the front porch, Loftin holding her baby. Brown was inside. As Brown was leaving for work, appellant quickly pulled his car into the driveway, almost hitting Brown. Brown approached the passenger side of appellant’s car and said, “Yo, man you almost hit me.” Appellant said he was looking for Lee “to knock that bitch out.” Brown responded that she was not there. Appellant got out of the car and tried to enter the Home.
Brown and Loftin told appellant he could not go inside because he did not live there. Appellant threatened to “kick [Loftin’s] ass” and tried to enter by “nudging” Loftin and her baby into a door. Brown told appellant not to touch his wife and daughter and “exchanged words” with appellant. Appellant began “ranting and raving, ” sweating and acting paranoid and irrational, leading Loftin to think that he was under the influence of narcotics.
Appellant ran from the porch to his car and, according to Brown, yelled, “I got something for you. I’m going to shoot you.” Brown followed him. When asked whether he was scared by appellant’s threat, Brown responded: “Yeah; it was not really my safety. The safety of everybody else in that house. I’m responsible for these people in this house.” Appellant opened the trunk of his car and reached inside. When Brown realized that appellant did not have a gun, he told appellant to “get in [his] car and leave.”
Appellant went to the front of his car, reached inside the front driver’s side window and pulled out his hand with an object in it. When Brown came around the car, he saw appellant holding a knife. Appellant lunged at Brown once with the knife in a “jabbing motion, ” but Brown jumped out of the way and was not struck, which he otherwise would have been.
Brown retrieved a stick to protect himself and tried to knock the knife from appellant’s hand with it. That is when appellant ran across the street to a park, throwing the knife into a hedge on his way.
Two or three minutes after appellant ran to the park, he returned to the Home with three or four Hispanic males, carrying sticks in a threatening manner. Loftin and several other residents, including Brown and Guzman, met appellant and the men in the middle of the street and told them to leave. The three Hispanic men left appellant by himself. Appellant “continued to threaten everybody there” and yelled, “I’ll fuck you up, ” “I’m going to blow this mother fucker up” and “I will kill all of you.”
While the foregoing was occurring, Mobley and Shara Lomax (Lomax), the administrative assistant for the Home, arrived there. They saw appellant lunge at Brown and heard him yell, “Anybody come up to me yelling and screaming at me, I’m going to beat their ass.” They saw Brown with a stick, which he only used to “ward off” appellant. They told appellant to leave. Lomax heard appellant yell, “I’ll fuck you up. I’m with G-Unit. I’m with G-Unit” or “I’m a G-unit.” Officer Aldo Decarvalho testified that a “G-Unit” is typically “street slang for a gang member.”
Mobley approached appellant, who said to her, “Bitch, I’m going to beat your ass. Bitch, I will kill you.” Because appellant had his hand in his pocket, and Mobley did not know what he was holding, she was concerned for her safety and took appellant’s threats seriously. She was also frightened because she had never seen appellant act like that before, and he approached her to swing at her. As he did so, Brown stepped between them.
Mobley ran to her car to call the police, as appellant went around his car, reached through the driver’s side window, and pulled out a knife. Appellant said to Brown, “Nigga, I’m going to kill you now.” Brown put up his hands as appellant lunged towards him. According to Mobley, appellant tried to stab Brown three or four times. If Brown had not backed up, appellant would have stabbed him.
Lomax actually saw a knife in appellant’s hand.
When the police arrived on the scene, Lomax directed an officer to the hedge where she saw appellant throw the knife. Brown told officers that there had been some “gang talk.”
Defense Evidence
Emery Kovacs (Kovacs), a resident at the Home at the time of the incident, was on the front porch and witnessed what occurred. He contradicted the testimony of other witnesses, believing that Brown was the initial aggressor. When appellant first approached the porch, he said something to Loftin that “kind of got [Brown] a little irate.” Brown told appellant several times not to talk to his wife like that or that he would take appellant into the street and “kick his ass.” Appellant “decided to give up and started walking towards his car.” The trunk “popped” open, and appellant closed it.
At some point, somebody said that Brown picked up a stick, though Kovacs did not see him do so, and approached appellant, as appellant was leaving and walking towards the driver’s side door of his car. Kovacs saw Brown repeatedly swing the stick at appellant. Appellant jabbed at Brown, possibly with keys in his hand. When they paused, appellant threw his keys and ran along his car, chased by Brown, swiping the stick at him.
Kovacs did not hear appellant threaten anyone, say he was going to blow up the Home, say, “Nigg[a], I’ll kill you, ” or say he was a “G-Unit” or gang member. He did hear Guzman telling people to say that appellant was the aggressor, that the knife was in the bushes and that appellant threw it there.
Officer Decarvhlo said that none of the victims told him that they heard appellant say he was a “G-Unit.”
After the police left, Kovacs heard Guzman, Loftin, and Brown talking, with Guzman laughing “because the knife [Guzman] threw there, and now the police have [appellant], and he’s the one who told the police that [appellant] threw the knife there.” Kovacs identified the knife recovered at the scene as a knife from the Home’s kitchen.
When Kovacs was asked by a police officer, on the night of the incident, if he had seen anything, Kovacs said, “no.” Kovacs did not tell anyone his version of events until two weeks before trial. He explained at trial that he did not want to pick sides, particularly because he wanted to live in Long Beach and did not want to give a statement about someone who may be involved with a gang. Kovacs first said that he left the Home on good terms. He later admitted that he was not on good terms with Guzman and Brown when he left.
A defense investigator went to the Home on July 26, 2009, and interviewed Guzman. Guzman told him that he did not see appellant holding a knife, did not hear him make any death threats, but heard him threaten to “beat up” the Home’s owner. Guzman also said that he recognized the knife recovered by police the night of the incident as being from the Home’s kitchen.
DISCUSSION
I. Sufficiency of the evidence
A. Contention
Appellant contends that there is insufficient evidence to support his criminal threat convictions. He argues that there is no evidence that Mobley or Brown “were even in sustained fear, let alone that such sustained fear would have been reasonable under the circumstances.” Brown, he argues, testified that he was never in fear at any time for his own safety but went after appellant to protect his wife and other tenants. Mobley was not in sustained fear as she arrived at the scene and immediately called the police, while Brown chased appellant away from the Home. This contention is meritless.
B. Standard of review
“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. [Citations.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.) We resolve all conflicts in the evidence and questions of credibility in favor of the verdict, and indulge every reasonable inference the jury could draw from the evidence. (People v. Autry (1995)37 Cal.App.4th 351, 358.) Reversal on this ground is unwarranted unless ‘“upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” (People v. Bolin, supra, at p. 331.) “‘[T]he appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ [Citation.] This standard applies whether direct or circumstantial evidence is involved.” (People v. Catlin (2001) 26 Cal.4th 81, 139.)
C. Evidence of the threat
Section 422 makes it a crime to “willfully threaten[] to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, 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, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family’s safety....”
To sustain a finding that appellant made a criminal threat, the prosecution must prove that: (1) appellant willfully threatened to commit a crime that would result in death or great bodily injury; (2) he made the threat with the specific intent that it be taken as a threat, regardless of whether appellant intended to carry it out; (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; and (4) the threat caused the person threatened reasonably to be in sustained fear for his own safety or that of his family. (§ 422; People v. Melhado (1998) 60 Cal.App.4th 1529, 1536; see also People v. Bolin, supra, 18 Cal.4th at p. 337.)
Appellant initially intimates that there is insufficient evidence that Brown was threatened because only he heard appellant threaten to kill him. This suggestion is both legally and factually incorrect. Brown’s testimony alone is sufficient to support the conviction, as the testimony of a single witness is enough. (Evid. Code, § 411.) In any event, both Mobley and Loftin also heard appellant tell Brown he was going to kill him and saw appellant lunge at him, with what appeared to be a knife or other weapon.
Appellant’s principal challenge is to the fourth element of the offense. He claims that there is insufficient evidence that Mobley or Brown was in sustained fear. He is wrong. The requirement of sustained fear for personal safety has a subjective and objective component; (1) the person must actually be in sustained fear, and (2) the sustained fear must also be reasonable under the circumstances. (In re Ricky T. (2001)87 Cal.App.4th 1132, 1139–1140.) There was sufficient evidence of both aspects of sustained fear with regard to each victim.
The evidence that the victims’ fear was reasonable under the circumstances is overwhelming. Appellant had a history of aggressive behavior, as he had been evicted from the Home for disrespectful and threatening behavior towards other tenants. When he came to the Home on February 25, 2009, he was sweating profusely and behaving erratically, suggesting that he may have been under the influence of narcotics, as Loftin surmised. He had a motive to retaliate against Mobley and Brown, as Mobley was the co-owner of the Home, who had evicted him and banned him from coming there, and Brown was the person charged with enforcing the ban. Appellant made wild threats to “kick [Loftin’s] ass, ” told Brown he was going to shoot him and “kill you now, ” yelled he was going to “fuck you up, ” and told Mobley, “Bitch, I’m going to beat your ass. Bitch, I will kill you.” In an attempt to make his threats more credible, appellant announced that he was “a G-unit” or “with a G-unit, ” meaning a gang member, with its obvious implication of criminal violence.
Along with the threats and ranting and raving, appellant acted in such a way as to give credence to those threats. He held his hand in his pocket suggesting that he might be holding some type of gun or other weapon. He opened the trunk of his car immediately after telling Brown that he was going to shoot him, reasonably leading to the impression that there was a firearm in the trunk. Several of the witnesses also saw him procure a knife from the car. While the jury did not find that to be the case, appellant nonetheless was acting in such a manner as to cause the victims and others present to reasonably believe he had a weapon. He also pushed Loftin into a door as she held her infant, took a swing at Mobley, and made jabbing motions at Brown, while holding a knife in his hand, all suggesting a penchant for physical violence.
There was also unequivocal evidence that Mobley and Brown were in actual fear. First, the above-described evidence establishing reasonable fear are circumstantial evidence, albeit not alone sufficient, that the victims experienced actual fear. Further, Brown was questioned about whether he was afraid, as follows: “Q So when [appellant] said, ‘I’m going to shoot you’ under the circumstances, did that cause you to be in some fear for your safety? [¶] A. Yeah. It was not really my safety. The safety of everybody else in that house. I’m responsible for these people in this house.” Living in the Home with him was Loftin, who he referred to as his wife though apparently they were unmarried, and his infant daughter. The actual fear required for making a criminal threat offense is the fear “for his or her own safety or for his or her immediate family’s safety....” (§ 422, italics added.) This testimony suggests that Brown feared for the safety of his immediate family.
Appellant argues that the evidence was that Brown was not in sustained fear because he went to get a stick and followed appellant to appellant’s car, rather than staying with the other residents inside and calling the police. But Brown did not know what appellant was capable of, whether he had a gun or other weapon, and was trying to protect his family and residents. When he followed appellant to the car, it was after appellant threatened to shoot him and opened the trunk of his car.
Mobley testified that she was afraid as a result of appellant’s threats. Appellant had his hand in his pocket while he was acting irrationally and erratically. She testified that she was afraid because she had never seen him act so irrationally and because he took a swing at her. Consequently, both victims directly testified that they were fearful.
Appellant argues that Mobley arrived at the Home and immediately telephoned the police, so her fear was not sustained. We disagree. As soon as she arrived, and approached appellant to speak with him, he threatened to kill her. Some minutes passed as the incident unfolded before Mobley called the police, and some time passed before the police arrived. While it might have only been a comparatively short time, as the People argue, “‘When one believes he is about to die, a minute is longer than “momentary, fleeting, or transitory.”’”
II. Admissibility of gang evidence
A. Background
Lomax testified without objection that she heard appellant repeatedly say that he was a “G-unit” or “with a G-unit.” Before Officer Decarvalho testified, defense counsel indicated his belief that the prosecution was going to ask him about the meaning of appellant’s G-unit reference. He argued that its admission would be prejudicial because there was no allegation and or evidence that this was a gang case. The prosecution argued that the evidence was relevant to show that appellant was a gangster who would kill. The defense countered that the victims were not asked how they understood the statement.
The trial court stated: “I’m well aware that defense counsel, everybody has to be concerned about gang testimony. And you’re doing your job properly in that regard. I know that it has impact to at least a lot of jurors, if not all of them. But I feel, on the other hand, truth in evidence, and he has a right to put on his case. And if that is part of it, where the jury may draw some inference that he was trying to threaten him, that’s the charge, or did threaten him and did succeed, I have to overrule your objection.”
Officer Decarvalho then testified that appellant’s “G-Unit” reference meant that he was a gang member. Later, in the defense case, Kovacs testified that he refused to give police a statement because he wanted to move back to Long Beach with a statement over his head on people who could be gang-related.
B. Contention
Appellant contends that the trial court committed reversible error in permitting the admission of gang evidence. He argues that there was no evidence that the charged offenses were gang related, there was no gang allegation, and that consequently the gang evidence was irrelevant, and, if there was any relevance, it was outweighed by its prejudice.
The People contend that to the extent appellant’s contention relates to the admission of Lomax’s statement that she heard appellant say he was “with a G-unit, ” it has been forfeited by failure to object to that evidence in the trial court or to request that the testimony be stricken. We agree.
C. Forfeiture
Generally, objections to evidence on the specific grounds asserted must be made or the objection is forfeited. (People v. Derello (1989) 211 Cal.App.3d 414, 428.) To preserve a claim for appeal, a party must object in the trial court and “make clear the specific ground of the objection.” (Evid. Code, § 353, subd. (a).) Appellant did not object to, nor move to strike, the testimony of Lomax that she heard appellant yell, “I’m with G-unit” and therefore, failed to preserve the statement for appeal. However, objection was made to the admission of the testimony of Officer Decarvalho regarding the meaning of “G-unit, ” the propriety of which we must consider.
D. Standard of Review
We review the trial court’s rulings on the admission and exclusion of testimony for abuse of discretion. (People v. Harrison (2005) 35 Cal.4th 208, 230; People v. Kipp (2001) 26 Cal.4th 1100, 1123 [relevance objection]; People v. Greenberger (1997) 58 Cal.App.4th 298, 352 [Evid. Code, § 352 objection].) The same rule applies to gang evidence. (See People v. Carter (2003) 30 Cal.4th 1166, 1194.) The trial court’s discretion is as “‘broad as necessary.’” (People v. Kwolek (1995) 40 Cal.App.4th 1521, 1532.) “‘[I]n most instances the appellate courts will uphold its exercise whether the [evidence] is admitted or excluded.’” (Ibid.) “‘A trial court’s exercise of discretion will not be disturbed unless it appears that the resulting injury is sufficiently grave to manifest a miscarriage of justice.’” (Id. at p. 1533.) Abuse occurs when the trial court “exceeds the bounds of reason, all of the circumstances being considered.” (People v. Giminez (1975) 14 Cal.3d 68, 72.) We find no abuse here.
E. Gang evidence
“Except as otherwise provided by statute, all relevant evidence is admissible.” (Evid. Code, § 351.) Relevant evidence is evidence “having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) Evidence Code section 352 provides an exception to the rule that all relevant evidence is admissible, stating: “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
Gang evidence is inflammatory in nature and tends to allow the jury to improperly infer that the defendant is criminally disposed and culpable of the charged offense. (People v. Bojorquez (2002) 104 Cal.App.4th 335, 345.) Consequently, in cases not involving the gang enhancement, like that now before us, it 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) or if merely tangentially relevant (see People v. Tuilaepa (1992) 4 Cal.4th 569, 588). Gang evidence is not admissible if its only purpose is to prove the defendant’s disposition. (People v. Ruiz (1998) 62 Cal.App.4th 234, 240.)
But gang evidence is not per se inadmissible. It may be admitted if otherwise relevant. (People v. Perez (1981) 114 Cal.App.3d 470, 477.) While gang evidence is carefully scrutinized before admitting it because of its inflammatory capacity (People v. Williams (1997) 16 Cal.4th 153, 193), it is not insulated from the general rule that all relevant evidence is admissible if relevant to a material issue in the case other than character, is not more prejudicial than probative, and is not cumulative. (People v. Avitia (2005) 127 Cal.App.4th 185, 192; see also People v. Hernandez, supra, 33 Cal.4th at p. 1049; People v. Carter, supra, 30 Cal.4th at p. 1194; Evid. Code, §§ 210, 352.) Such evidence is often relevant to, and admissible regarding, a charged offense, as evidence of identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt. (People v. Hernandez, supra, at p. 1049; People v. Martin (1994) 23 Cal.App.4th 76, 81 [motive]; People v. Champion (1995) 9 Cal.4th 879, 922 [identity], disapproved on another point in People v. Combs (2004) 34 Cal.4th 821, 860.)
The gang evidence here was relevant to the criminal threat offense. Appellant’s claim that he was a gang member could only increase the fear his victims experienced from his threats. The universal reputation of gangs for violence and retaliation was relevant to whether appellant’s threats to kill Brown and Mobley were credible. But appellant argues that there was no evidence that either victim heard appellant’s claim of gang affiliation, in which case, he argues, the meaning of appellant’s statement was irrelevant to their fear. We agree that the foundational evidence necessary to make the gang evidence relevant on this issue was missing.
However, the gang evidence was relevant on another issue; whether appellant made the threat with the specific intent that it be taken as a threat, regardless of whether he intended to carry it out. (§ 422; People v. Melhado, supra, 60 Cal.App.4th at p. 1536.) Statements made to heighten the seriousness of the threat and the immediate likelihood of execution that it would and could be carried out are germane to the speaker’s intent that the threat be taken as such.
F. Harmless error
Even if the trial court erred in admitting the challenged evidence, it is not reasonably likely that had it been excluded a different result would have ensued. (See People v. Scheer (1998) 68 Cal.App.4th 1009, 1018–1019 [adopting Watson standard for improperly admitted evidence]; People v. Espinoza (2002) 95 Cal.App.4th 1287, 1317 [adopting the Watson standard for improperly excluded evidence].)
People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).
As previously discussed, the evidence against appellant was strong. Several witnesses testified to his threatening behavior and statements. Brown and Lomax each saw appellant with a knife in his hands thrusting at Brown, and Loftin saw the thrusting though she could not see the knife. Appellant had a motivation to hurt and or threaten Brown and Mobley, as Mobley had previously evicted him from the Home, and Brown would not let him in.
Contrary to appellant’s assertion that there was “extensive gang evidence, ” appellant’s single statement that he was “a G-unit” and the officer’s explanation of that statement was brief in the context of the entire trial and was not argued to any great extent. Further, it was somewhat cumulative to other gang references in the evidence, including Brown’s statement that there was “gang talk, ” and Kovacs’s testimony that he did not give a statement to police because he wanted to move to the Long Beach area and did not want to give a statement about someone who may be involved in gangs.
Finally, it does not appear that the mention of gangs had the overwhelming prejudicial effect that appellant hypothesizes or that such evidence is capable of causing. The jury did not rush to judgment but, in fact, acquitted appellant of three of the more serious charges and found the weapon-use allegation to be false.
DISPOSITION
The judgment is affirmed.
We concur: BOREN, P. J., CHAVEZ, J.
Appellant was acquitted of a third count of making a criminal threat (count 5), one count of attempted murder (§§ 664, 187, subd. (a), count 1) and one count of assault with a deadly weapon (§ 245, subd. (a)(1), count 2). The jury also found to be false the allegation that he personally used a deadly weapon, to wit, a knife (§ 12022, subd. (b)(1)).