Filed 6/10/14 P. v. Avila CA2/6

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


THE PEOPLE,                                                                  2d Crim. No. B247954
                                                                           (Super. Ct. No. BA366400)
     Plaintiff and Respondent,                                               (Los Angeles County)

v.

DANIEL AVILA,

     Defendant and Appellant.



                   A jury convicted Daniel Avila of eight counts of making criminal threats.
(Pen. Code, § 422.) The jury also found hate crime allegations to be true as to counts 1
and 9. (Id., § 422.55.)1 Avila received a prison sentence of 11 years, 4 months.
                   On appeal Avila contends the hate crime allegations are not supported by
substantial evidence. We affirm.
                                                         FACTS
(a) Marc Leventhal (count 1)
                   Ventura County Deputy District Attorney Marc Leventhal prosecuted Avila
for criminal fraud in 2005. While Avila was out on bail, he threatened to kill a man in
Texas and rape the man's daughters. The court granted Leventhal's motion to increase


1
    All statutory references are to the Penal Code.
Avila's bail. Avila was then held in custody. While in jail, Avila called his mother,
Herminia Avila, who placed calls to third parties for him in violation of jail rules.
Leventhal threatened to have Avila's right of representation revoked if he continued.
              In July 2008 Leventhal obtained a recording of a telephone call between
Avila and his mother. At the beginning of the call, Avila announced that the call was
privileged and no one was allowed to listen. He said he was testing the privilege by
threatening to kill Leventhal. He said he knew where Leventhal lived and would kill him
if he continued to harass Herminia Avila.
              During August and September 2009, Leventhal received five or six
telephone calls from Avila. During the calls Avila said: "I'm gonna kill your ass,
motherfucker. I'm gonna get you for being a Jew, I'm gonna burn you the way Hitler
should have done that to your fuckin' parents. [¶] . . . [¶] I'm gonna kill your ass,
motherfucker. Kill your ass. Piece of shit. Fuckin' Jewish fuckin' kike. Yep, they
should've killed your parents, man. If Hitler would have murdered your parents, you
would have never been born. Had 'em burned. Burned your dad, man. They would have
never been able to create your ass."
              The telephone calls terrified Leventhal. He spoke to Avila's doctor who
said Leventhal should take the threats seriously.
(b) Rama Maline (count 9)
              In July 2009 Deputy Attorney General Rama Maline was prosecuting three
other defendants for conspiracy to murder Leventhal. Maline is half Indian. Between
July and September 2009, Avila made eight telephone calls to Maline. During the
telephone calls Avila continually referred to Maline as a "raghead," and threatened to kill
Maline "for being a fucking raghead." In one telephone call he told Maline, "I'm going to
kill your raghead ass for being a fucking raghead. You're a traitor to the United States.
You're a second generation raghead. Why don't you go back to your fucking Rama
country, man."


                                              2
                                      (c) Other Threats2
               Deputy Attorney General Jonathan Kline was prosecuting Avila for threats
to Leventhal and others. Avila made two telephone calls to Kline threatening to kill him.
               Deputy Attorney General Michele Wong received five telephone calls from
Avila threatening to rape and murder her.
               Deputy District Attorneys Kasey Sirody, Rachelle Dean, Melissa Suttner
and Joann Roth received letters and telephone calls from Avila threatening to rape and
murder them.
               All the victims testified Avila's threats made them fearful.
                                          DEFENSE
               Deputy Public Defender William Quest was advised by a sheriff's deputy
that Avila had written a letter threatening to kill Quest. Quest knew Avila to be severely
mentally ill and did not take the threat seriously. He laughed about it with the sheriff's
deputy.
               Deputy Public Defender Cynthia Ellington represented Avila in an election
fraud case after his in propria persona status was revoked. Avila sent Ellington a letter
threatening to kill her. The letter caused her no fear because she knew Avila well. She
even found the letter to be humorous. She framed it and hung it on her wall "for others to
enjoy."
                                        DISCUSSION
               Avila contends the hate crime enhancements were not supported by
substantial evidence.
               Section 422.55, subdivision (a) provides in part: "'Hate crime' means a
criminal act committed, in whole or in part, because of one or more of the following
actual or perceived characteristics of the victim: . . . (4) Race or ethnicity."


2
 Because Avila's contentions on appeal relate only to threats against Leventhal and
Maline, we need to only briefly summarize Avila's threats against others.
                                               3
              Section 422.56, subdivision (d) provides: "[As used in section 422.55,
subdivision (a):] 'In whole or in part because of' means that the bias motivation must be a
cause in fact of the offense, whether or not other causes also exist. When multiple
concurrent motives exist, the prohibited bias must be a substantial factor in bringing
about the particular result. There is no requirement that the bias be a main factor, or that
the crime would not have been committed but for the actual or perceived characteristic.
This subdivision does not constitute a change in, but is declaratory of, existing law under
In re M.S. (1995) 10 Cal.4th 698 and People v. Superior Court (Aishman) (1995) 10
Cal.4th 735." (Underline omitted, italics added.)
              In reviewing the sufficiency of the evidence we view the evidence in a light
most favorable to the judgment. (People v. Johnson (1980) 26 Cal.3d 557, 578.) We
discard evidence that does not support the judgment as having been rejected by the trier
of fact for lack of sufficient verity. (People v. Ryan (1999) 76 Cal.App.4th 1304, 1316.)
We have no power on appeal to reweigh the evidence or judge the credibility of
witnesses. (People v. Stewart (2000) 77 Cal.App.4th 785, 790.) We must affirm if we
determine that any rational trier of fact could find the elements of the crime or
enhancement beyond a reasonable doubt. (People v. Johnson, supra, at p. 578.)
              Here Avila threatened Leventhal, "I'm gonna kill your ass, motherfucker.
I'm gonna get you for being a Jew, I'm gonna burn you the way Hitler should have done
that to your fuckin' parents." Avila also threatened Maline, "I'm going to kill your
raghead ass for being a fucking raghead." "Raghead" is an obvious reference to Maline's
Indian heritage.
              The jury could reasonably conclude from this language, as well as from
Avila's use of other racially charged language, that Leventhal's and Maline's race or
ethnicity was a substantial factor in making the threats. It may be true that Avila was not
solely motivated by race or ethnicity. But section 422.56, subdivision (d) clarifies that
sole motivation is not a requirement. Race or ethnicity of the victims need only be a
"substantial factor." (Ibid.)

                                              4
              Avila claims In re M.S., supra, 10 Cal.4th 698 and People v. Lindberg
(2008) 45 Cal.4th 1, make it clear that the defendant must be motivated by racial bias
such that the crimes would not have occurred in the absence of that motivation. But
neither case so holds. Instead, both cases affirm that the substantial factor test applies.
Section 422.56, subdivision (d) provides in part: "There is no requirement that the bias
be a main factor, or that the crime would not have been committed but for the actual or
perceived characteristic." Thus the People need not prove Avila was motivated by racial
bias such that the crimes would not have occurred in the absence of that motivation.
              The judgment is affirmed.




                                           GILBERT, P. J.


We concur:



              PERREN, J.



              BURKE, J.*




*
 (Judge of the Superior Court of San Luis Obispo County, assigned by the Chief Justice
pursuant to art. 6, § 6 of the Cal. Const.)
                                              5
                                Craig J. Mitchell, Judge

                         Superior Court County of Los Angeles
                         ______________________________


             David M. Thompson, under appointment by the Court of Appeal, for
Defendant and Appellant.
             Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Paul M.
Roadarmel, Jr., Victoria B. Wilson, Supervising Deputy Attorneys General, for Plaintiff
and Respondent.
