People v. Castorena CA4/1 ( 2021 )

Filed 1/25/21 P. v. Castorena CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D076918
Plaintiff and Respondent, (Super. Ct. No. JCF002596)
v.
ROBERTO CASTORENA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Imperial County,
Marco D. Nunez, Judge. Reversed.
Charles R. Khoury, Jr., under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney
General, Arlene A. Sevidal and Minh U. Le, Deputy Attorneys General, for
Plaintiff and Respondent.
Roberto Castorena suffers from mental illness. One day he sent
numerous text messages to his mother R.G. (Mother) threatening to kill Jane
Doe, his college academic advisor, and two peace officers. When Mother
indicated she would give the text messages to the police, Castorena replied,
“Do it.” Law enforcement immediately detained Castorena and later
informed Doe of his threat. A jury convicted Castorena of making a criminal
threat (Pen. Code, § 422) against Doe.1 The trial court denied probation and
sentenced Castorena to prison for 16 months.2 Castorena asserts the
evidence fails to show he intended that his threat be conveyed to Doe. We
agree and reverse the judgment.3
1 Undesignated statutory references are to the Penal Code.
2 After serving his sentence, Castorena was diagnosed with
schizophrenia and admitted to the Department of State Hospitals as a
condition of his parole as a mentally disordered offender (see § 2960 et
seq.) under section 2962.
3 Castorena also filed a petition for writ of habeas corpus arguing
that his trial counsel provided ineffective assistance by failing to
request funds for a psychiatric evaluation to determine if he qualified
for pretrial mental health diversion. (§ 1001.36, subd. (a).) By separate
order, we dismiss the petition as moot.
On the day of oral argument Castorena filed a request for an
order to the Superior Court of Imperial County, Evidence Room to
transmit People’s Exhibit 2, audio/video recording of law enforcement
interview with the defendant DVD to this court. This request is denied.
Castorena also moved to file numerous medical records pertaining to
his petition for writ of habeas corpus. Because we are dismissing the
petition as moot, the motion is denied.
2
FACTUAL AND PROCEDURAL BACKGROUND
One morning, Castorena sent about 40 to 50 text messages to
Mother. In the first message Castorena stated that he was going to jail
for murder, he was at the college with a gun and, “ ‘I’m going to shoot
them. I’m going to kill [Doe] at her job, or Sheriff Ramirez, whoever
arrives at work first.’ ” Castorena included a picture of the college
campus where he was enrolled as a full-time student. Underneath this
picture, Castorena wrote Doe’s first name and stated that she “ ‘exits
through this building and has been following me around campus and
has been telling Ramirez I have been talking to myself when really I
was screaming to’ -- ‘screaming on the phone with my social worker.
I’m going to do it.’ ”
Castorena texted a picture of a backpack with a rifle in it.
Underneath this picture, Castorena wrote, “ ‘I’m going to kill Sergeant
Officer Garrido and Deputy County Sheriff Ramirez, and if they run
like bitches like they did three days ago, I’m just going to run up in
Building 100 and start shooting facility [sic] members until I get to the
back and kill [Jane Doe].’ ”
Castorena then wrote “ ‘You have until 9:30 to turn yourself in to
the police or I will begin the shooting on campus, then take my own
life.’ ” He included a link to a newspaper article about the Columbine
shooting and stated that the two Columbine shooters were heroes.
After the link to the article, Castorena wrote, “ ‘Just watch me. I’m not
stupid and I will spray the whole [college] facility.’ ” Immediately after
this message were three identical pictures of a backpack containing a
rifle.
3
Castorena included pictures of Doe, the police department,
several different police officers, and a stainless steel revolver. In
between a picture of his identification card and a picture of a backpack,
Castorena wrote, “ ‘You tell them your son is the next mass shooter.’ ”
Castorena included three more pictures of a backpack and rifle.
After several more pictures and text messages where Castorena
accused Mother of organizing to have him raped, Mother responded, “ ‘I
am handing over your texts to the police department. You have given
me no choice.’ ” Castorena replied, “ ‘Do it. I want a court hearing. I’m
looking for Deputy County Sheriff Ramirez. I’m going to blast his punk
ass.’ ” This was the last text message Castorena sent Mother that
morning.
Upon receiving the text messages, Mother initially did nothing.
Her only concern was for her son’s mental state and well-being, not
that he would make good on his threats. Mother visited a school safety
officer who she worked with for advice. Mother asked about how she
could get counseling for her son. After learning about the text
messages, the school safety officer told Mother that she needed to go to
the sheriff’s department and drove her there. The school safety officer
informed the sheriff’s department that they were there to report a
threat.
Mother told David Barboza, a criminal investigator for the
Imperial County Sheriff’s Office, that she was there to get help for her
son, and she did not believe he would harm anybody or that he had a
gun. Mother explained that Castorena was “just venting” and “pushing
[her] buttons” because he was mad at her. Mother informed Barboza
that her son had sent threats in the past and she did not want to be
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responsible if something happened to her son. She also stated that
Castorena was schizophrenic and she believed he was not taking his
medications.
Barboza provided information about Castorena to patrol deputies
and went to the college to look for him. After stopping a bus that might
have been carrying Castorena, Barboza obtained Castorena’s address
and detained him. Inside Castorena’s apartment was an iPad
containing the text messages Castorena had sent Mother. No weapons
were found.
Barboza conducted a recorded interview with Castorena. During
the interview, Castorena seemed upset and mentioned that he was not
getting justice for either a rape or some sort of sexual assault that had
occurred to him. Castorena admitted sending the text messages, but
denied ever possessing a gun while on campus. Castorena claimed that
Doe sexually harassed him and tried to have sex with him. He also
stated that he did not want to kill anyone.
At trial, Mother testified that when she gets upset with
Castorena she puts him in a “timeout” by ignoring his text messages.
Mother added that Castorena would then respond by trying “to get my
attention with -- to see how he can push my buttons because he knows
how to push my buttons. And so [Castorena] has a tendency to send
text messages on what he knows that I don’t like. He’ll talk about
certain things that I don’t like. So then he does it only to try to see if I
respond to a text message.”
Doe testified that she worked as an academic advisor at the
college and met Castorena a few years earlier for three “walk-in”
appointments. Doe had no interaction with Castorena after these
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appointments. Doe denied ever sexually harassing Castorena or
soliciting him for sexual intercourse.
Barboza contacted Doe the day after Castorena’s arrest to inform
her of the threat against her. Barboza told her that the threats were
“very serious,” that she was in danger and needed to pursue a
restraining order. Doe believed that Castorena would actually shoot
her. She purchased additional surveillance equipment for her home,
gave her neighbors pictures of Castorena, and was obtaining a
concealed weapons permit. By the time of trial, Doe was still “very
afraid” because she did not believe anything had changed.
After the People rested, defense counsel moved for judgment of
acquittal under section 1118.1, arguing that the evidence did not show
Castorena intended that his threat be conveyed to Doe. The trial court
denied the motion, finding that Castorena’s request that Mother tell
the police about his threat was sufficient to allow the case to go to the
jury.
DISCUSSION
I. Insufficient Evidence Supports the Criminal Threats Conviction
A. Standard of Review
To determine the sufficiency of the evidence, “we review the
entire record in the light most favorable to the prosecution to determine
whether it contains evidence that is reasonable, credible and of solid
value, from which a rational trier of fact could find that the elements of
the crime were established beyond a reasonable doubt.” (People v.
Tripp (2007) 151 Cal.App.4th 951, 955.) We must “view the evidence in
the light most favorable to respondent and presume in support of the
judgment the existence of every fact the trier could reasonably deduce
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from the evidence.” (People v. Lewis (1990) 50 Cal.3d 262, 277.)
Reversal based on insufficient evidence is warranted only if “it appears
‘that upon no hypothesis whatever is there sufficient substantial
evidence to support [the conviction].’ ” (People v. Bolin (1998) 18
Cal.4th 297, 331.)
Determining the sufficiency of the evidence presents a mixed
question of law and fact. (In re Ryan D. (2002) 100 Cal.App.4th 854,
862 (Ryan D.).) We defer to the fact finder’s resolution of historical
facts by viewing the evidence in a light most favorable to the judgment
and exercise our independent judgment in determining whether the
facts thus established are sufficient to meet the statutory standards.
(Ibid.) “ ‘Where, as here, the jury’s findings rest to some degree upon
circumstantial evidence, we must decide whether the circumstances
reasonably justify those findings, “but our opinion that the
circumstances also might reasonably be reconciled with a contrary
finding” does not render the evidence insubstantial.’ ” (People v. Tafoya
(2007) 42 Cal.4th 147, 170.)
The evidence of a defendant’s specific intent “ ‘is almost
inevitably circumstantial, but circumstantial evidence is as sufficient
as direct evidence to support a conviction.’ ” (People v. Manibusan
(2013) 58 Cal.4th 40, 87.) “ ‘We “must accept logical inferences that the
jury might have drawn from the circumstantial evidence.” ’ ” (Ibid.)
“An inference is a deduction of fact that may logically and reasonably
be drawn from another fact or group of facts found or otherwise
established in the action.” (Evid. Code, § 600, subd. (b).) “Whether a
particular inference can be drawn from the evidence is a question of
law.” (People v. Austin (1994) 23 Cal.App.4th 1596, 1604, disapproved
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on other grounds in People v. Palmer (2001) 24 Cal.4th 856, 861, 867.)
“ ‘[A] reasonable inference . . . “may not be based on suspicion alone, or
on imagination, speculation, supposition, surmise, conjecture, or guess
work. [¶] . . . A finding of fact must be an inference drawn from
evidence rather than . . . a mere speculation as to probabilities without
evidence.” ’ ” (People v. Davis (2013) 57 Cal.4th 353, 360 (Davis).)
B. Analysis
To sustain a finding that Castorena made a criminal threat in
violation of section 422, the People had to show (1) Castorena willfully
threatened to commit a crime that would result in death or great bodily
injury to another person; (2) Castorena made the threat with the
specific intent that the statement be taken as a threat, even if there
was no intent of actually carrying it out; (3) on its face and under the
circumstances in which it was made, the threat was so unequivocal,
unconditional, immediate, and specific as to convey to Doe a gravity of
purpose and an immediate prospect of execution; (4) the threat caused
Doe to be in sustained fear for her safety or for the safety of her
immediate family; and (5) Doe’s fear was reasonable under the
circumstances. (§ 422, subd. (a); In re George T. (2004) 33 Cal.4th 620,
630.)
“ ‘[T]he determination whether a defendant intended his words to
be taken as a threat . . . can be based on all the surrounding
circumstances and not just on the words alone. The parties’ history can
also be considered as one of the relevant circumstances.’ ” (People v.
Butler (2000) 85 Cal.App.4th 745, 754.) “[S]ection 422 does not punish
such things as ‘mere angry utterances or ranting soliloquies, however
violent.’ [Citation.] Accordingly, where the accused did not personally
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communicate a threat to the victim, it must be shown that he
specifically intended that the threat be conveyed to the victim.” (Ryan
D., supra, 100 Cal.App.4th at p. 861.)
As another court stated, “[t]he kind of threat contemplated by
section 422 may as readily be conveyed by the threatener through a
third party as personally to the intended victim. Where the threat is
conveyed through a third party intermediary, the specific intent
element of the statute is implicated. Thus, if the threatener intended
the threat to be taken seriously by the victim, he must necessarily have
intended it to be conveyed.” (In re David L. (1991) 234 Cal.App.3d
1655, 1659 (David L.).)
During closing argument, the prosecutor focused on the third
element regarding Castorena’s intent.4 Defense counsel essentially
conceded during his closing argument that the evidence satisfied all
elements except the third element regarding whether Castorena
intended the text messages be understood as a threat and intended this
threat be communicated to Doe.5
On appeal, Castorena further narrows his argument to whether
the evidence shows he intended that Doe hear the threat. He claims
4 On this element, the trial court instructed the jury that to convict
Castorena of the crime, it must find that he “intended that his
statement be understood as a threat and intended that it be
communicated to [Doe].” (CALCRIM No. 1300.)
5 Defense counsel stated, “So you’ve heard the judge give the
elements for criminal threats. [The prosecutor] has discussed it, and,
as noted, I’m focusing on Element 3. That is why we’re here, that’s
what this trial is about. And Element 3 is that the Defendant intended
his statement be understood as a threat and that he intended this
threat to be communicated to [Doe].”
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that the evidence does not show he specifically intended the threat be
communicated to Doe because he never told Mother to communicate
any of his text messages to anyone other than the police so he could get
a hearing, noting that he told Barboza that he did not intend to carry
out his threats and never told Barboza or Mother to communicate his
threats to Doe. In other words, he claims no evidence supports the
inference that he intended to threaten Doe.
As Castorena impliedly conceded, the death threat directed
toward Doe was unequivocal and immediate, and Doe reasonably
sustained fear for her safety. After displaying an article about the
Columbine shooting, pictures of the police department, Doe and a
revolver, Castorena wrote, “ ‘tell them your son is the next mass
shooter.’ ” When Mother informed Castorena that she would inform the
police of the text messages Castorena responded, “ ‘Do it. I want a
court hearing.’ ” As soon as Barboza learned of the threat he took
immediate action by searching for Castorena and taking him into
custody. The circumstances and way Castorena made the threat
support the logical inference that he intended Mother share his
communications to her with law enforcement.
Accordingly, the question becomes whether a reasonable jury
could conclude from the evidence that Castorena specifically intended
that law enforcement convey his threat to Doe. There is no direct
evidence of Castorena’s intent; thus, the jury necessarily relied on
circumstantial evidence to determine whether Castorena intended that
law enforcement convey his threat to Doe. For example, in David L.,
supra, 234 Cal.App.3d 1655, the appellate court concluded that
defendant knew the third party would convey the threat to the victim
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because the victim and the third party were friends, the third party
witnessed antecedent hostilities between defendant and the victim, and
the prosecution proved that the third party informed the victim of
defendant’s remarks. (Id. at pp. 1658, 1660.)
In contrast, in People v. Felix (2001) 92 Cal.App.4th 905 (Felix),
the circumstances were such that a reasonable person would not expect
that the communication would in fact be relayed to the ostensible
victim. In Felix, defendant told a jail psychologist that he would kill his
ex-girlfriend when released and the psychologist warned the woman
consistent with his duty under Tarasoff v. Regents of University of
California (1976) 17 Cal.3d 425 (Tarasoff). (Felix, at pp. 908-909, 911.)
The appellate court rejected the People’s arguments that defendant
should have expected the psychologist to convey the threat because the
record contained no evidence defendant “knew about Tarasoff[,]” had
wanted the threat conveyed or had been told by the psychologist “that
he would contact” the ex-girlfriend, and he had given the psychologist
only the ex-girlfriend’s first name. (Felix, at p. 913.) Additionally, the
context did not support such an intent because defendant “made his
remarks while discussing highly personal thoughts about homicide,
suicide, and his emotions for [the ex-girlfriend] . . . in a setting where
the patient ha[d] an expectation of confidentiality.” (Id. at p. 914.)
Similarly, in Ryan D., supra, 100 Cal.App.4th 854, the minor
turned into his art class a painting showing him shooting a police
officer in the head; the officer depicted had recently cited the minor for
possessing marijuana. (Id. at p. 857.) Reversing the juvenile court’s
finding that the painting constituted a criminal threat, the Ryan D.
court explained the painting was ambiguous as an expression of intent,
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and the minor offered the painting as an art project in school rather
than making any effort to ensure the officer would see it. (Id. at
pp. 863-864.) The officer did not learn about the painting until an
assistant principal called her and then showed the painting to her. (Id.
at p. 864.) The Ryan D. court stated that “although the minor’s
painting was intemperate and demonstrated extremely poor judgment,
the evidence fail[ed] to establish that the minor intended to convey a
threat to the officer.” (Id. at pp. 857-858.)
Finally, in People v. Roles (2020) 44 Cal.App.5th 935 (Roles),
defendant and his wife were involved in a family law matter. (Id. at
p. 939.) Defendant’s wife and minor child were each represented by
separate counsel. (Ibid.) Defendant left threatening telephone
messages with minor’s counsel, in which he also threatened his wife’s
counsel. (Ibid.) In reversing defendant’s criminal threats conviction
directed toward wife’s counsel, the Roles court noted that “[i]n the 28
messages defendant left on [minor’s counsel’s] phone, defendant
threatened [wife’s counsel] three times without ever directing [minor’s
counsel] to tell [wife’s counsel] of the threats. Defendant further
testified the voice mails ‘had nothing to do with [wife’s counsel].’ And
[wife’s counsel] acknowledged defendant had her phone number and
contacted her personally several times in a threatening manner,
indicating he generally communicated with [wife’s counsel] directly and
not through [minor’s counsel].” (Id. at p. 944.)
As we discussed, the evidence supports the reasonable inference
that Castorena intended Mother communicate his threats to law
enforcement. To establish a criminal threat, however, it must be shown
that at the time defendant made the purported threat, the defendant
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specifically intended that the victim learn of the threat. (Ryan D.,
supra, 100 Cal.App.4th at p. 864.) Here, circumstantial evidence does
not support a reasonable inference Castorena specifically intended that
law enforcement convey his threat to Doe.
The evidence shows that Castorena directed his threatening text
messages to Mother, not to Doe, the college, or law enforcement.
Castorena never asked Mother to communicate his threat to Doe.
During his post-arrest interview, Castorena did not ask Barboza to
convey his threat to Doe. Instead, Castorena told Barboza that he was
seeking attention, had no intent to carry out his threat and was just
scared. Nonetheless, Barboza informed Doe of the threat the day after
Castorena’s arrest. On the day Castorena sent the text messages, Doe
knew only that the college had been threatened and that someone had
been arrested. As the record amply demonstrated, Castorena knew Doe
and how to contact her, and could have easily directed his threat to
Doe. He also could have asked Barboza to convey his threat to Doe but
did not do so.
For a defendant to intend a result, the defendant must “act[] for
the purpose or with the desire of causing a particular result.” (People v.
Davenport (1985) 41 Cal.3d 247, 262.) Unlike the situation in David L.,
supra, 234 Cal.App.3d 1655, the circumstantial evidence does not
support the reasonable inference that Castorena specifically intended
that law enforcement communicate his threat to Doe. The prosecutor
cited no evidence during closing argument to support an inference that
Castorena intended law enforcement convey his threat to Doe. Rather,
to fill this evidentiary void, the prosecutor argued that during the
course of the investigation law enforcement would speak to Doe and
13
“[o]f course, she’s going to find out.” However, Doe finding out about
the threat at some point during the investigation, and Castorena
specifically intending that his threat be communicated to Doe, are not
the same.
A reasonable inference cannot support a finding beyond a
reasonable doubt when it is based on the nonexistence of evidence,
rather than the existence of evidence. (Davis, supra, 57 Cal.4th at
p. 360 [inference must be drawn from evidence rather than mere
speculation as to probabilities without evidence].) The inference that
Castorena intended that law enforcement convey his threat to Doe is
based entirely on the prosecutor’s conjecture, not evidence. Like Ryan
D., supra, 100 Cal.App.4th 854, “the totality of the circumstances
establishes that [Castorena] could have, and perhaps even should have,
foreseen the possibility that [Doe] would learn of [the threat]. But the
evidence is not sufficient to establish that, at the time he acted,
[Castorena] harbored the specific intent” that law enforcement inform
Doe of his threat. (Id. at p. 864.)
In summary, we conclude substantial evidence does not support
the jury’s finding that Castorena made a criminal threat within the
meaning of section 422. Castorena’s conviction must be reversed and
this charge cannot be retried. (See Burks v. United States (1978) 437
U.S. 1, 18 [“the Double Jeopardy Clause precludes a second trial once
the reviewing court has found the evidence legally insufficient”]; People
v. Garcia (2014) 224 Cal.App.4th 519, 526 [reversal of enhancements
for insufficient evidence precluded retrial].)
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DISPOSITION
The judgment is reversed.
O’ROURKE, J.
WE CONCUR:
McCONNELL, P. J.
AARON, J.
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