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Criminal Defense Attorneys

Criminal Threats When Immediate Family Member Target

In the early morning hours of September 21, 2020, a San Mateo County Deputy Sheriff was dispatched to a Millbrae apartment based on a report of an altercation between a mother and her son.

When the police officer arrived, he could hear yelling from within the apartment.  Clarisa Z. opened the door.  She was visibly upset and crying.  She said to the deputy, “Please help me.  My son is going crazy . . .” 

The deputy entered the apartment and saw David Ayala, Clarisa Z.’s son, in the hallway.  He yelled to the deputy, “Come get this bitch ass nigga before I fuck him up,” referring to his stepfather, Abner Z., who was standing near one of the bedrooms.  Shortly thereafter, David threw ice-cream at Abner, prompting the deputy to detain David and escort him to the patrol car.

The deputy then interviewed Clarisa, who told him in a shaky voice, that her son came over to the apartment first because he had car trouble.  However, after he arrived, David accused Abner of inappropriately touching his four-year old daughter.  David then told Clarisa, “I’m going to kill this motherfucker if he did something to my daughter,” referring to Abner.  David’s threat prompted Clarisa to call 911.

David had two prior strike convictions and two prior felony convictions.

The deputy then spoke to Abner, who was crying uncontrollably.  Abner also called 911.  David had told Abner that if anything happened to his daughter, someone would pay.  David tried to punch Abner, but Abner blocked the punch.  David then told Abner, “I’m going to get a knife to kill you.”

The deputy also interviewed David, who acknowledged saying “some violent shit.”  The deputy though David might have been under the influence of drugs during the interview.

The San Mateo County District Attorney charged David Cuauhtemoc Ayala with two counts of criminal threats against Abner Z. (count 1) and Clarisa Z (count 2) in violation of Penal Code § 422.  The information also alleged David’s two prior strikes and two prior felony convictions.

After the preliminary hearing, in which both counts were found supported, David filed a Penal Code § 995 motion to dismiss count 2 on grounds that Clarisa was not threatened because the threat was to kill or inflict physical harm on Abner.  The trial court denied Abner’s motion and Abner then filed a petition for a writ of prohibition with the First Appellate District Court of Appeal in San Francisco.

The First Appellate District began its analysis by citing to People v. Toledo (2001) 26 Cal. 4th 221, 227-228, wherein the California Supreme Court divided the criminal threats into five elements.  “In order to prove a violation of section 422, the prosecution must establish all of the following:
  1. That the defendant ‘willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person;
  2. That 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. That 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. That 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. That the threatened person’s fear was ‘reasonable’ under the circumstances.”

Applying these legal principals, the First Appellate District concluded that section 422 permitted Ayala to be charged with separate counts for making criminal threats directed at Abner and those threats directed at Clarisa, Abner’s wife.

We present this short summary of this appellate court decision really to lay out the California Supreme Court’s five-part test and exemplify a case wherein someone made threats directed at an immediate family member of the target recipient to show how criminal threats is interpreted as an offense.

For more information about criminal threats, please click on the following articles:
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