Filed 10/27/14 P. v. Lesdesma CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                    SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,                                                         B251607

         Plaintiff and Respondent,                                  (Los Angeles County
                                                                    Super. Ct. No. TA128016)
         v.

SERGIO LEDESMA,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County. Tammy
Chung Ryu, Judge. Reversed.
         Jasmine C. Patel, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Lance E. Winters, Senior Assistant Attorney
General, Yun K. Lee and Corey J. Robins, Deputy Attorneys General, for Plaintiff and
Respondent.
                                 _________________________________
       Defendant Sergio Ledesma appeals from a judgment entered following a jury trial
in which he was convicted of making a criminal threat. Defendant contends the trial court
erred by admitting evidence unknown persons had fired shots at the victim’s restaurant.
       We agree. The prosecutor conceded no evidence implicated defendant in the
shooting, which was therefore irrelevant to the charges against defendant, as well as
highly inflammatory. We conclude the error was prejudicial and reverse defendant’s
conviction.
                                     BACKGROUND
1.     Prior incidents
       Andres Solorzano operated a restaurant called El Infierno on Santa Fe Avenue in
Compton. For about six months, a group, including defendant and five to seven other
men, congregated on the grounds of an apartment building across the street from El
Infierno. Members of the group drank liquor and yelled at Solorzano from across the
street, saying they did not want Solorzano there. Defendant participated in this conduct
and yelled that he wanted Solorzano to leave. Sometimes members of the group crossed
the street to purchase liquor at a store in the same strip mall as El Infierno. This annoyed
Solorzano and he tried to keep them from doing so. Solorzano had previously called the
police about the group, and one time an officer came out, but Solorzano thought the
officer “did not listen to” him.
       On April 19, 2013,1 Jose Garcia encountered Solorzano inside the liquor store near
El Infierno and threatened to kill him. Solorzano had seen defendant and Garcia together
“every day” in the group across the street, but defendant was not present when Garcia
threatened Solorzano. Garcia’s “exact words” were, “‘We are already in agreement.
We’re going to kill you. We don’t want you here.’” A Los Angeles sheriff’s deputy
arrested Garcia. The deputy identified defendant as someone he saw across the street,
drinking alcohol.

       1   Date references pertain to 2013.


                                              2
          About 10:30 p.m. on April 19, while El Infierno was closed for the night, it “was
shot up,” causing serious damage. Solorzano testified that the restaurant’s surveillance
camera “taped two people shooting at the business.”2
          A deputy who responded to El Infierno after the shooting also testified about the
damage he observed, Solorzano’s fear, the number of shots fired, the location of bullet
holes, and that a large-caliber “auto weapon,” perhaps an AK47, M16, or AR15, was
used. The deputy testified he reviewed a surveillance video, but “it was just too dark and
. . . you just couldn’t see anything.” Solorzano told the deputy he often engaged in
“verbal confrontations” with people who congregated at an apartment complex across the
street.
2.        The charged offense
          On April 28, about 20 people were drinking across from El Infierno and the group
“started bothering” Solorzano, so he went outside. Solorzano testified defendant “went
on to the middle of the street and he told me from there that he was going to kill me.”
Solorzano further testified defendant “told me he was going to finish what the other
person hadn’t.” “Because of the shooting at” El Infierno, Solorzano believed defendant
was going to kill him. Defendant stood in the middle of the street for about half an hour,
yelling at Solorzano. Defendant did not appear to have a weapon, and Solorzano had
never seen him with a weapon. Some of the other men began throwing peaches at the
restaurant, and Solorzano told his employee, Maria Pelayo, to call law enforcement.
Solorzano thought defendant was capable of carrying out his threat “[b]ecause of the
shooting to [his] business.”
          Deputy Daniel Hoyos responded to El Infierno on April 28. He testified defendant
was across the street from El Infierno, with other people, and Solorzano was “in the
street, pointing at the suspect.” Solorzano told Hoyos “he was fighting with the guys


          2
         Outside the presence of the jury, the prosecutor told the court he had no
surveillance footage from El Infierno regarding any of the incidents.


                                               3
across the street. It is a continuous issue of them fighting back and forth.” Solorzano told
Hoyos defendant said, “‘I’m going to kill you because the other guy didn’t.’” Hoyos
asked if there had been other crimes at the restaurant, and Solorzano told him “the night
prior his shop was shot at,” and “earlier someone else threatened him.”
       Hoyos attempted to talk to defendant to hear his side of the story, but defendant
was under the influence of alcohol and uncooperative. Hoyos arrested him.
       On May 7, El Infierno burned down. The jury was not informed defendant was in
custody at the time, and the court gave no limiting instruction regarding the fire.
3.     Defense case
       Defendant testified he had previously been a customer at another restaurant
Solorzano had owned and liked Solorzano’s food. He denied being disrespectful to or
provoking Solorzano. Solorzano, however, had called defendant names, such as
“‘drunk,’” “‘low life,’” and “‘wet back,’” and they had argued. Three years earlier,
Solorzano had called the police about defendant, and the police had arrested defendant
after he jokingly told them he wanted to hurt Solorzano.
       Defendant liked to hang out across the street from El Infierno with his friends to
talk and drink beer. He went there two or three days a week and had done so for about
three years. Solorzano had called the police about the group several times. Defendant
had seen Solorzano arguing with many people who went to the other businesses in the
shopping center, but defendant had not argued with Solorzano since the incident three
years earlier. Defendant thought Solorzano was “kind of confused as to who may” have
been “hurting him” because he had fought with so many people. Defendant denied he
was involved in a plan to kill Solorzano, but he had heard a rumor or joke that he and
someone else “wanted to burn the place down.” He further denied being present when
Garcia was arrested and did not even know what had happened.
       On April 28, defendant was walking from the liquor store in the same shopping
center as El Infierno to his customary hang-out across the street when he saw Solorzano
looking at him hatefully. Solorzano said defendant would be the next person to be


                                              4
arrested. From across the street, defendant said that if Solorzano was a man, he would
face his problems by himself, without “calling the police for nothing.” Defendant denied
making the threat Solorzano reported. Defendant was intoxicated and did not remember
exactly what he said to Solorzano, just that he was cursing and insulting Solorzano, just as
Solorzano was insulting him. During their argument, defendant never left his spot across
the street from El Infierno.
       A recording of a call to the sheriff’s station by Maria Pelayo was played at trial.
The recording began with a statement by someone who interpreted Pelayo’s statements
for the sheriff’s employee, stating Pelayo had “said the owner asked her to call you
because the people that, th’, that shot the business last week, they’re throwing rocks at the
business right now, at the restaurant.”
4.     Prosecution’s rebuttal case
       Pelayo testified the people across the street were throwing rocks at the front of El
Infierno on April 28. Solorzano was outside arguing with defendant, who was standing in
the middle of the street. Solorzano asked Pelayo to call the police. While she was on the
phone with the police, she continued to watch the people throwing rocks outside on the
monitor connected to the restaurant’s cameras.
5.     Verdict and sentencing
       The jury convicted defendant of making a criminal threat in violation of Penal
Code section 422.3 The court sentenced defendant to two years in prison.
                                       DISCUSSION
       Defendant contends the trial court erred by admitting evidence of the restaurant
shooting with respect to the element of Solorzano’s fear because there was no evidence
defendant had anything to do with the shooting. He argues the error violated defendant’s
rights to due process and free speech. He does not challenge admission of evidence of
Garcia’s threat against Solorzano.

       3   Undesignated statutory references are to the Penal Code.


                                              5
1.     Proceedings in the trial court
       a.     Request to admit evidence of shooting
       Before trial began, the court granted, over defendant’s objection, the prosecutor’s
request to admit evidence of Garcia’s prior threat against Solorzano to show its effect on
Solorzano because “apparently that reference to the other guy” in defendant’s threat “may
be to Jose Garcia and what Mr. Garcia may have said” to Solorzano.
       The prosecutor later asked the court to admit evidence regarding the shots fired at
Solorzano’s restaurant. The prosecutor conceded there was no evidence implicating
either defendant or Garcia in the shooting, and represented he “obviously” would not
argue defendant “was somehow connected to the shooting” or proffer any evidence on
that point. He argued, however, the evidence was admissible to show Solorzano’s
“sustained fear of [defendant’s] threat,” explaining Solorzano had told him the sequence
and timing of events, including Garcia’s threat, the shooting, and defendant’s threat,
caused him to take defendant’s threat seriously. The court expressed concern that, absent
evidence linking defendant to the shooting, the shooting “may be more prejudicial than
probative” and not “really helpful to the jury at all. I mean, it just prejudices them.” The
prosecutor argued the absence of any evidence linking defendant to the shooting actually
“mitigates the potential prejudice because through cross-examination and argument,
[defense counsel] can basically say [defendant] was not” involved.
       Over defendant’s objection, the court allowed the prosecutor to introduce evidence
of the shooting, saying, “No one was arrested or charged with that crime, so it will go,
obviously, towards reasonableness of the fear of the victim, Mr. Solorzano, in light of
what he knew of the circumstances as he believed existed at the time. [¶] So it goes to
the reasonableness of the fear, the disputed fact that it does look like it is relevant. I did
consider it may be more prejudicial than probative. However, it appears that it is more
probative than prejudicial, at this time, and also that it’s not going to take long. It’s
already been discussed at prelim.”




                                               6
       b.     References to, and evidence of, the shooting
       Thereafter, the jury heard numerous references to the shooting. In his opening
statement, the prosecutor told the jury that the day after Garcia was arrested for his threat,
the “restaurant was shot up. Multiple gunshots were hurled at his restaurant. I will show
you some pictures of that.” After describing defendant’s alleged threat, the prosecutor
said, “Those words, compounded by the fact that his business had been shot up by his
[sic] companion,[4] at least the person he hangs out with, threatened his life, made Mr.
Solorzano in great fear for his life. [¶] It was reasonable, based upon the incident that
happened, the contact, and that he was in sustained fear, which is one of the elements of
the crime because he believed that [defendant] was, in fact, serious[,] that he was capable
of carrying out this threat, and that based upon the prior contacts, he thought it was going
to happen.”
       Solorzano thereafter testified El Infierno “was shot up” on April 20.5 Asked by
the prosecutor what he meant by “‘shot up,’” Solorzano replied, “They finished it with the
shooting.” The prosecutor introduced three photographs of the damage to El Infierno,
which were later admitted in evidence, and both Solorzano and a responding deputy
described the damage. The deputy volunteered his thoughts on the type of assault rifle
used. Solorzano nonresponsively testified on cross-examination that the restaurant’s
video cameras “taped two people shooting at the business.”
       Thereafter, Solorzano testified to defendant’s April 28 statements and said he
interpreted the reference to finishing “what the other person hadn’t” as meaning
defendant was going to kill him. The prosecutor asked Solorzano if his belief was based
solely on what defendant had said or “everything that happened.” Solorzano replied,
“Because of the shooting at my business.” The prosecutor asked Solorzano why he

       4  Nothing in the record indicates any of defendant’s companions were involved in
the shooting.
       5 Although a deputy testified the shooting was reported on the night of April 19,
the court, counsel, and Solorzano referred to the shooting as having occurred on April 20.


                                              7
thought defendant was capable of carrying out his threat. Solorzano again replied,
“Because of the shooting to my business.”
       During the defense case, the jury heard the recording of Pelayo’s call to the
sheriff’s department on April 28, which included the interpreter’s statement that “the
people that . . . shot the business last week, they’re throwing rocks at the business right
now, at the restaurant.”
       The prosecutor referred to the shooting numerous times during his arguments.
After addressing the threat by Garcia and saying Solorzano took Garcia’s threat seriously,
the prosecutor stated, “Four days later, his business is shot up. You saw the pictures.
Bullet holes. What did the officer—the deputy testify? It seemed like a large caliber
weapon riddled the place, broke glass, broke TV’s, basically rendered his business just a
pile. [¶] So what happens? The next day, like clock work, [defendant] and his friends
are back out there and he says to him, ‘I’m going to finish what the other one didn’t
do.’”6 Addressing whether the threat caused Solorzano to be in sustained fear for his
safety, the prosecutor argued, “All of the things that I just talked about are the
circumstances of the threat, the business being shot up.” A little later the prosecutor
argued, “Mr. Solorzano made it very clear from the witness stand that he did take it
seriously and he thought that it was going to be carried out because of what had happened
just in the last week.”
       In his rebuttal argument, the prosecutor addressed an argument by defense counsel
regarding the absence of video evidence. After referring to Garcia’s threat, the prosecutor
argued, “Second incident. Shot up the place. Grab the video equipment. Couldn’t get
anything up on it. Got it fixed. Came back when this situation; right? What happened?
Couldn’t bring it up. [Pelayo] was looking at it through the camera. That’s how—we
know that. At least the cameras were working. But what do we know? The police never


       6The prosecutor misstated the timing of both the shooting and the threat by
defendant.


                                              8
got it. Three weeks later the place burned down.” Moments later, the prosecutor argued,
“What’s important, though, is that you focus on the context, again, of this crime. It was
about an earlier incident. It was about a pattern of activity that made Mr. Solorzano
afraid.”
       c.     Court’s limiting instruction
       The trial court instructed the jury as follows regarding the evidence of Garcia’s
threat and the shooting: “During the trial, certain evidence was admitted for a limited
purpose. That evidence pertains to the April 19, 2013 incident involving Jose Garcia also
known as Jose Lopez and to the April 20, 2013 incident in which the victim’s business
was shot at. Th[is] evidence may be considered for the purpose of determining the
reasonableness of [the] victim’s fear and his sustained fear. You may consider th[is]
evidence only for those purposes and for no other.”
2.     Pertinent principles of law
       a.     Admission and exclusion of evidence
       We review any ruling on the admissibility of evidence for abuse of discretion.
(People v. Elliott (2012) 53 Cal.4th 535, 577.)
       Only relevant evidence is admissible. (Evid. Code, § 350.) “‘Relevant evidence’
means evidence, including evidence relevant to the credibility of a witness or hearsay
declarant, 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 that the court may, in its discretion, exclude
relevant evidence if its probative value is substantially outweighed by the probability that
its admission will either be unduly time consuming or create a substantial danger of
undue prejudice, confusion of the issues, or misleading the jury.
       “Evidence of other similar crimes linked to no one at all is clearly inadmissible to
prove any element of the crime charged against a defendant, even though the crime
occurred within reasonable proximity of time and place.” (People v. Jackson (1967) 254
Cal.App.2d 655, 658 (Jackson).) The admission of such evidence places an impossible


                                             9
burden upon the defendant to prove the innocence of a third person, and thus violates due
process. (Id. at p. 660.) “The ‘extreme caution’ enjoined upon the courts in admitting
[evidence of uncharged misconduct] is magnified when the prosecution attempts to prove
the commission of a crime by a person other than the defendant on trial.” (People v. Long
(1970) 7 Cal.App.3d 586, 590–591.)
       The admission of evidence may violate due process if there is no permissible
inference a jury may draw from the evidence. (People v. Steele (2002) 27 Cal.4th 1230,
1246; People v. Albarran (2007) 149 Cal.App.4th 214, 229.) “[T]he admission of
evidence, even if erroneous under state law, results in a due process violation only if it
makes the trial fundamentally unfair.” (People v. Partida (2005) 37 Cal.4th 428, 439.)
       b.     Criminal threats
       A criminal threat in violation of section 422 is a willful threat to commit a crime
that will result in death or great bodily injury to another person. On its face and under the
circumstances in which it is made, the threat must be so unequivocal, unconditional,
immediate, and specific as to convey to its subject a gravity of purpose and an immediate
prospect of execution. The threat must reasonably cause its subject sustained fear for his
or her safety or that of his or her immediate family, and must have been made with the
specific intent that it be taken as a threat. No intent to actually carry out the threat is
required. (§ 422; People v. Toledo (2001) 26 Cal.4th 221, 227–228.)
       “[A]ll of the surrounding circumstances should be taken into account to determine
if a threat falls within the proscription of section 422. This includes 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
(Solis).) “[A] jury can properly consider a later action taken by a defendant in evaluating
whether the crime of making a terrorist threat has been committed. . . . [A]ll of the
circumstances can and should be considered in determining whether a terrorist threat has
been made.” (Id. at p. 1014.)
       Section 422 does not apply to every threatening statement. It instead applies only


                                               10
to “a specific and narrow class of communication,” that is, “the expression of an intent to
inflict serious evil upon another person.” (In re Ryan D. (2002) 100 Cal.App.4th 854,
863.) The standard set forth in section 422 is also “the constitutional standard for
distinguishing between punishable threats and protected speech. Accordingly, in applying
section 422, courts must be cautious to ensure that the statutory standard is not expanded
beyond that which is constitutionally permissible.” (In re Ryan D., at pp. 861–862.)
3.     The trial court erred by admitting third party other crimes evidence
       Appellate courts have held surrounding circumstances such as “the defendant’s
mannerisms, affect, and actions involved in making the threat” (Solis, supra, 90
Cal.App.4th at p. 1013), the victim’s knowledge of defendant’s history of violence
(People v. Garrett (1994) 30 Cal.App.4th 962, 965, 967; People v. McCray (1997) 58
Cal.App.4th 159, 172), and subsequent actions taken by the defendant (People v.
Stanfield (1995) 32 Cal.App.4th 1152, 1163; People v. Mendoza (1997) 59 Cal.App.4th
1333, 1341 (Mendoza); People v. Martinez (1997) 53 Cal.App.4th 1212, 1221) to be
relevant and admissible in criminal threat cases.
       Here, however, the purported circumstance—the restaurant shooting—was
conduct neither committed by defendant nor in any way attributable to defendant, e.g.,
defendant did not aid and abet the shooting or incite its commission. Although the
restaurant shooting understandably increased Solorzano’s overall level of fear, the
shooting was not relevant to the criminal threats charge or to any witness’s credibility.
Defendant’s threat and any surrounding circumstances attributable to defendant—not
unrelated conduct by third persons for which defendant was in no way responsible—had
to cause Solorzano’s sustained, reasonable fear. Defendant’s own prior interactions with
Solorzano and his demeanor, gestures, and actions before, during, and after the threat
were relevant, admissible circumstances, but criminal conduct by unidentified, uncharged
persons having no connection to defendant was not. Permitting the jury to consider fear
caused by unrelated conduct for which defendant was in no way responsible not only
ignores the elements of the statute, it creates a substantial due process issue by reducing


                                             11
the prosecution’s burden of proof as to defendant and potentially violates the First
Amendment by criminalizing speech that does not constitute an actionable threat. In
addition, any minimal probative value of the restaurant shooting was substantially
outweighed by an extreme risk of undue prejudice, as the trial court initially seemed to
recognize. Accordingly, the trial court abused its discretion by admitting evidence of the
restaurant shooting.
       The Attorney General argues Mendoza, supra, 59 Cal.App.4th 1333, supports
admission of evidence of the conduct of third persons to support a section 422 charge. In
Mendoza, everyone involved was a member or associate of the same street gang. After
the victim testified against the defendant’s brother, the defendant visited her and said she
had “‘fucked up his brother’s testimony’” and the defendant was “‘going to talk to some
guys from’” the gang. (Mendoza, at p. 1337.) The victim did not initially consider this as
a threat, but did so about 20 minutes later after she saw two members of the gang sitting
in a car outside her house looking at her and honking the car’s horn, then heard from her
sister that one of the two people in the car outside was looking for her. (Id. at p. 1338.)
The issue considered on appeal was the sufficiency of evidence to support the defendant’s
conviction under section 422, not the admissibility of the conduct of the other gang
members with respect to defendant’s guilt. Moreover, it was reasonable to infer
defendant had carried out his stated intent of talking to members of the gang, and had
thereby caused the other gang members to sit outside the victim’s house to intimidate her.
(Mendoza, at p. 1341.) Here, nothing indicated defendant was in any way connected to or
responsible for the shooting.
       The Attorney General attempts to distinguish Jackson, supra, 254 Cal.App.2d 655,
as limited to an intent element. It is not, and no rationale supports such a limitation.
       The Attorney General further argues defendant incorporated the restaurant
shooting, as well as Garcia’s threat, into his own threat because the shooting occurred
shortly after Garcia made his threat and the shooting could have resulted in injury or
death. This theory directly contradicts the stance of the prosecutor, who argued


                                             12
defendant’s threat only referred to Garcia’s threat and agreed defendant was not
implicated in the shooting. The Attorney General’s contention is also completely
speculative and is based upon a misreading of the facts. The shooting occurred after the
restaurant was closed for the night and, as far as the record reveals, no one was present to
be at risk of injury or death. Accordingly, we reject the Attorney General’s inconsistent
theory of relevance. Even if the theory were sound, it would not negate the trial court’s
abuse of discretion in failing to exclude the evidence pursuant to Evidence Code section
352.
4.     Admission of the shooting evidence was prejudicial
       The erroneous admission of evidence of the shooting violated due process for
several reasons. First, there were no permissible inferences for the jury to draw from the
shooting evidence, and the evidence was inflammatory, especially in light of Solorzano’s
testimony and the prosecutor’s arguments linking the shooting to defendant’s threat.
Second, admission of that evidence, coupled with the court’s instruction permitting the
jury to consider the evidence with respect to the fear element of the offense, reduced the
prosecution’s burden of proof by allowing defendant to be convicted without a finding
that his threat caused Solorzano to experience sustained, reasonable fear. In addition, as
stated in Jackson, supra, 254 Cal.App.2d at page 660, the admission of the shooting
evidence effectively placed an impossible burden on defendant to prove he was not
complicit in the shooting. For all of these reasons, the court’s error in admitting the
evidence rendered defendant’s trial fundamentally unfair. Because admission of the
evidence violated due process, the Attorney General has the burden of proving beyond a
reasonable doubt that the error did not contribute to the verdict. (Chapman v. California
(1967) 386 U.S. 18, 24 [87 S.Ct. 824].)
       Solorzano testified he believed defendant’s threat to kill him “because of the
shooting at [Solorzano’s] business.” Further, he believed defendant was capable of
carrying out his threat “because of the shooting to [his] business.” Solorzano did not
testify that defendant’s threat itself, without the shooting, caused him fear. Given the


                                             13
evidence that defendant was intoxicated at the time of the threat, defendant and Solorzano
were arguing at the time of the threat, the threat was shouted from afar, defendant had
previously argued with Solorzano, and Solorzano had previously insulted defendant and
called the police about him, defendant’s threat to kill Solorzano could have been viewed
as a hyperbolic, angry utterance, not a statement meeting all of the elements of section
422.
       Further, the shooting evidence created a substantial risk the jury would conclude
defendant was complicit in the shooting, thereby inflaming the jury and potentially
causing it to infer defendant was predisposed to committing crimes. The prosecutor’s
argument exacerbated this risk by effectively linking Garcia’s threat, the shooting, and
defendant’s threat and suggesting they constituted a “pattern of activity.” Worse yet, the
prosecutor argued the subsequent fire was part of that pattern, and the jury was neither
informed defendant was in custody at the time of the fire nor instructed not to consider
the fire with respect to defendant’s guilt.
       The court’s limiting instruction increased, not mitigated, the prejudicial effect of
the erroneous admission of evidence of the shooting by telling the jury it could consider
the shooting to determine the reasonableness of the victim’s fear and whether he suffered
sustained fear.
       For all of these reasons, the admission of the shooting evidence was not harmless
beyond a reasonable doubt, and defendant’s conviction must be reversed.




                                              14
                                    DISPOSITION
      The judgment is reversed.
      NOT TO BE PUBLISHED


                                                MILLER, J.*
We concur:


      ROTHSCHILD, P. J.


      CHANEY, J.




        * Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.



                                           15
