Brief Bank # B-536b
District Attorney of Los Angeles County
849 South Broadway, 11th Floor
Los Angeles, California 90014‑3570
Telephone: (213) 974‑5916
Attorney for Plaintiff and Respondent
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
PEOPLE OF THE STATE OF CALIFORNIA, ) BR 31839
) (Municipal Court of the
Plaintiff and Respondent, ) Antelope Valley Judicial District
) No. 91M00848)
PRISCILLA Y. G., ) RESPONDENT’S BRIEF
Defendant and Appellant. )
Having been convicted of violating Penal Code §§ 240 and 422, Mrs. G. has appealed. She has thus filed her Appellant’s Opening Brief (“A.O.B.”).
The People discuss only those issues which have been raised in Mrs. G.’s presentation (see, e.g., People v. Modina (1905) 146 Cal. 142, 144; People v. Reinard (1963) 220 Cal.App.2d 720, 733; Loupias v. Rosen (1951) 102 Cal.App.2d 781, 784; see also: Government Code § 68081). For purposes of logical consistency, we address those issues in the order of our own choosing, rather than that in which they have been addressed in Mrs. G.’s brief.
At various places throughout her presentation, Mrs. G. has stated her version of the facts (see: A.O.B.: 2:9 – 5:8; 8:13 ‑9:2; 11:10-19; 14:16-18; 17:3-6; 18:7-11; 19:3-9). Except insofar as the contrary is noted below, the People accept Mrs. G.’s said statements as being both correct, and exhaustive of the relevant facts.
rules as are laid down by the law for the guidance of court and jury in the determination of questions of fact'” (Pierson v. Superior Court, supra, 8 Cal.App.3d at 518), and it thus follows that “‘[t]he rule “That a witness false in one part of his testimony is to be distrusted in others” [Citation] “is one solely for the guidance of the trial court and can have no pertinency in an appellate court“‘” (Ibid. [emphasis added]) Therefore “[v]iewing the record in the light most favorable to the People, as we are bound to do following a guilty verdict” (People v. Sweeney (1960) 55 Cal.2d 27, 33), the conviction must be affirmed.)
The violation of Penal Code section 422
Mrs. G. asserts that the evidence is insufficient, as a matter of law, to establish her violation of Penal Code § 422 (A.O.B.: Arguments § “I” and “II”, pages 5-10; see also: id.:). She is wrong.
Since Mrs. G.’s conviction arose out of a dispute between two mothers concerning their children (see: A.O.B.: 2:9 ‑ 3:28), she argues that Penal Code § 422 was not intended to cover such a situation (see: A.O.B.: 5:12 ‑ 7:7). This initial argument is frivolous.
Notwithstanding Mrs. G.’s correct observation “that there is no requirement that there is a showing of criminal street gang activity for Penal Code section 422 to apply” and her citation of “In re Ge M (1991) 226 Cal.App.3d 1519″ in respect thereof (A.O.B.: 5:25‑27), she nevertheless [—–] contradictorily) appears to suggest that the statute was designed for no purpose other than the control of street gangs, and that it therefore does not apply to her (see: A.O.B.: 5:12 [—–] But even if the original version of § 422 (see: In re Ge. M, supra, 226 Cal.App.3d at [——] were still the same as the one which is currently-relevant, and if — condition contrary [—- —-] (see: Penal Code § 422) — it were thus still to contain a reference to terrorism (see: In re Ge M., supra, 226 Cal.App.3d at 1522). Mrs. G.’s argument would be rebutted by the express holding of that very case which she herself has cited (id., at 1522-1523). Specifically, the Court of Appeal ‑‑ in connection with its observation that “[a]lthough criminal street gangs engage in terrorism, being a member of a street gang is not a prerequisite to being held accountable for making ‘terrorist threats’” (ibid. [emphasis added]) ‑‑ thus held that “[a]ny person can engage in the behavior proscribed by section 422” (ibid.). In short, Mrs. G.’s argument is defeated by both (i) the change in the wording of § 422, and ‑‑ as if the change in the wording were not enough ‑‑ by (ii) the holding in Ge M.
Virtually identical observations apply in respect of Mrs. G.’s assertion that “Penal Code section 422 … address[es nothing but] threats or violent action in order to achieve social or political goals” (A.O.B.: 6:17-19 [emphasis added in part]), and her resultant contention that the conviction cannot stand (see: A.O.B.: 6:26 ‑ 7:7). Specifically, Mrs. G.’s argument is predicated upon the former version of § 422 (see: A.O.B.: 6:1-13; see also: former Penal Code § 422.5; People v. Mirmirani (1981) 30 Cal.3d 375, 381; In re Ge M., supra, 226 Cal.App.3d at 1522), and thus suffers from the defect of being no longer the law (see: footnote 5, supra). Specifically, by repealing § 422.5 and the former version of § 422, the Legislature changed the statutory law, and the judicial opinions which were predicated upon the former statutory rule are ‑‑ to this extent ‑‑ no longer to be followed (e.g., People v. Valentine (1946) 28 Cal.2d 121, 144; People v. Neer (1986) 177 Cal.App.3d 991, 999).
Still arguing that the evidence was insufficient to sustain her conviction of violating Penal Code § 422, Mrs. G. contends “[t]hat the fear of the alleged victim was unreasonable and was not unequivocal, unconditional, immediate and specific” (A.O.B.: 7:7‑9; see: 9:11-17, 21-22; 14:6-7; 15:26 ‑ 16:1). Mrs. G. is wrong.
It is clear that there was prosecution evidence relative to Mrs. G.’s words ‑‑ and Mrs. K.’s reaction thereto ‑‑ which, if totally accepted as factually correct, was sufficient for a violation of Penal Code § 422. Specifically ‑‑ as noted above ‑‑ there was prosecution evidence that Mrs. G. “HIT” Mrs. K. with a broom which she was swinging “HARD, WITH AN ANGER”, that Mrs. G. was at that time screaming at Mrs. K. (R.T.A.: 27:28 ‑ 28:3; 28:8‑9; 31:14; 200:5-7; see: 170:11‑15), and that her words were …
“… ‘YOU SON OF A BITCH POLLACK. I’M GOING TO KILL YOU POLLACK I HAVE SURPRISE FOR YOU. I USED TO BE IN MEXICAN MAFIA, AND I’M GOING TO COME 0VER AND KILL YOU AND THE KIDS.’ *** [¶] … ‘I’M GOING TO COME BACK AT 3:00 O’CLOCK IN THE MORNING WHEN [YOUR HUSBAND] LEAVES. AND DON’T WORRY. I’LL BE HERE.”
(Id.: 31:19-27 (emphasis added); see: id.: 26:28 ‑ 27:2; 168:11‑14; 169:6-27; 196:18 ‑ 197:3; 200:16‑22; 201:10‑11; 202:6‑12.) Mrs. K. testified that she believed Mrs. G.’s words (id.: 32:6‑10), and thus anticipated that Mrs. G. would indeed return to kill her and her children (id.: 32:11‑14; see.‑ 32:20‑22). Likewise, with the jury having been property instructed as to those elements which constitute a violation of Penal Code § 422 (R.T.B.: 287:25 ‑ 288:17), the jurors’ subsequent verdict of guilty indisputably establishes that they accepted the prosecution evidence of guilt, while rejecting the contrary defense evidence of innocence (e.g., People v. De Paula, supra, 43 Cal.2d at 649; People v. Reinard, supra, 220 Cal.App.2d at 725), which factual determination is conclusive on appeal (e.g., People v. Lara, supra, 67 Cal.2d at 392; People v. Swanson, supra, 204 Cal.App.2d at 173). It is thus that Mrs. G.’s argument cannot prevail.
Mrs. G. contends that her First Amendment freedom of expression “NEUTRALIZES THE CRIMINAL CHARACTERIZATION OF HER COLORFUL LANGUAGE” (A.0.B.: Arguments § “II” pages 7‑10). Specifically, while the People disagree with much of Mrs. G.’s reasoning process, we are nevertheless in complete agreement with her ultimate conclusion that her “COLORFUL LANGUAGE” is constitutionally protected, and hence cannot property be characterized as criminal. But Mrs. G. has not been convicted of using “COLORFUL LANGUAGE”; instead, she has been convicted of making a threat of the type to which Penal Code § 422 pertains. Her argument is thus foreign to this case.
Nevertheless interpreting Mrs. G.’s constitutional argument so as to make it not foreign to this case, the People thus construe it as advancing the proposition that the words, by which she threatened to kill Mrs. K. and her children in violation of Penal Code § 422, were themselves constitutionally protected. We nevertheless note that “‘it has never been deemed an abridgment of freedom of speech … to make a course of conduct illegal merely because the conduct was in part … carried out by means of language”‘ (Cox v. Louisiana (1965) 379 U.S. 536, 555 [13 L.Ed.2d 471, 85 S.Ct. 453]; accord, e.g., People v. Davis (1968) 68 Cal.2d 481, 486; People v. Milano (1979) 89 Cal.App.3d 153, 161-162). Thus ‑- by way of close analogy ‑‑ it is noted that “we do not … punish a bandit for … use of the words, ‘Stick ’em up'” (Long v. Valentino (1989) 216 Cal.App.3d 1287, 1296), but instead, “[w]e punish him for the act of attempting to take the property of another by force and fear[, and i]t is of no moment that language was the vehicle to the goal” (id., at 1297 [emphasis added in part]; cf., e.g., People v. Rubin (1979) 96 Cal.App.3d 968, 980; People v. Gordon (1975) 47 Cal.App.3d 465, 474). The same principle applies to the case sub judice.
Mrs. G. asserts that “there was absolutely no indication of immediacy of execution of any threat” (A.O.B.: 14:6‑7 [emphasis added]; see: 7:7‑9; 9:14‑16; 15:27 ‑ 16:1), and thereby raises such an issue in regard to her violation of Penal Code § 422. Believing this to be an arguably‑significant issue, the People thus discuss it, notwithstanding her failure to advance argument or cite authority in regard thereto (see: footnote 7, supra).
Since the legislative history is silent in regard to present meaning of the word “immediate” (Penal Code § 422), the People observe that:
“The word ‘immediate’ is defined [as follows]:
‘Strictly it implies not deferred by any lapse of time, but as usually employed, it is rather within reasonable time having due regard to the nature and circumstances of the case. This word and ‘immediately’ are of no very definite signification, and are much subject to the context. In legal proceedings they do not impart the exclusion of any interval of time.'”
(Feely v. Boyd (1904) 143 Cal. 282, 285 (emphasis added); accord, e.g., Newlove v. Mercantile Trust Co. (1909) 156 Cal. 657, 666.) Comparably, we equate the word “immediate” as used in § 422 with the closely‑related word “imminent” as used in Penal Code § 197(3) (cf. People v. Aris (1989) 215 Cal.App.3d 1178, 1187). We thus observe that while a future danger will not justify a present killing in self‑defense (e.g., id., at 1186‑1189; People v. Taylor (1906) 4 Cal.App. 31, 37), there yet exist circumstances in which a danger ‑‑ justifying a killing in self‑defense ‑‑ is “imminent” notwithstanding that the attacker has desisted and is departing (e.g., People v. Hecker (1895) 109 Cal. 451, 463), thereby giving full meaning to the word “imminent” and the closely‑related word “immediate”. Moreover, where a criminal defendant had offered a reward to anyone who would kill a Nazi at a time five weeks in the future and was thus prosecuted for violation of Penal Code § 653f (see: People v. Rubin, supra, 96 Cal.App.3d at 972), the Court of Appeal relevantly observed that …
” … time is a relative dimension and imminence a relative term, and the imminence of an event is related to its nature. *** The event which concerns us here was the scheduled Nazi Party demonstration and march to be held … in five weeks … *** [¶] We think solicitation of murder in connection with a public event of this notoriety, even though five weeks away, can qualify as incitement to imminent lawless action.”
(Id., at 978‑979; emphasis added.) Thus, since imminence ‑‑ and, by extension, immediacy ‑‑ is a relative concept, it follows that Mrs. G.’s statement that “I’M GOING TO COME BACK AT 3:00 O’CLOCK IN THE MORNING WHEN [YOUR HUSBAND] LEAVES” (emphasis added), stating the time at which “I’M GOING TO COME OVER AND KILL YOU AND THE KIDS” (emphasis added), was clearly sufficient; although the “notoriety” (ibid.) of the “scheduled Nazi Party demonstration and march” (id., at 978) was clearly absent from the case sub judice, yet the instant murders, promised for “3:00 O’CLOCK IN MORNING WHEN [YOUR HUSBAND] LEAVES” (emphasis added), were to be committed much sooner than the five weeks found to be sufficient in Rubin (id., at 979). In short, the requirement of immediacy (Penal Code § 422) was here satisfied.
THE PRIOR CONVICTION, AND RELATED MATTERS
The Evidence Of The Prior Conviction
Mrs. G. asserts that the Municipal Court’s act of admitting evidence of her prior conviction for violation of Penal Code § 148, was erroneous and thus entitles her to a reversal (A.O.B.: Arguments § “III,” pages 10‑12). She is both right and wrong. Specifically, although disagreeing in part with Mrs. G.’s reasoning process, the People concede the correctness of her conclusion that the challenged evidence was not made admissible by Evidence Code § 1103(b), and was hence inadmissible. We nevertheless deny the correctness of her conclusion that she is therefore entitled to a reversal, and emphatically assert the contrary to be true. We thus address the issue of harmless error.
Even given the occurrence of error in admitting evidence of Mrs. G.’s prior conviction, it still appears that no reversal should be ordered unless it appears that the error resulted in a miscarriage of justice (see, e.g., Constitution of the State of California, Article VI, § 13; Evidence Code § 353(b)). Thus, in keeping with the usual rule that “[a]nyone who seeks on appeal to predicate a reversal of conviction on error must show that it was prejudicial” (People v. Archerd (1970) 3 Cal.3d 615, 643 [emphasis added]), it is clear that the burden of establishing the reversible nature of the error is upon the convicted defendant-appellant (e.g., People v. Britton (1936) 6 Cal.2d 10, 13). This burden ‑‑ which consists of “establish [ing] … that without [the] error having been committed, the result of the trial …
 The former version of Penal Code § 422 was repealed in 1987 (see: Stats. 1987, Chapter 828, § 28; see also: In re Ge M, supra, 226 Cal.App.3d at 1522); thereafter the new version was enacted in 19[—] (see: Stats. [——], Chapter 1256, § 4; see also: In re Ge M., supra, [——-]Cal.App.3d at 1522, after which it was amended ‑‑ to read as it now does ‑‑ in 1989 (see: Stats. 1989, Chapter [———] In this regard, the People observe that the acts here in question were committed in 1991 [———] R.T.A.: 10:2’0‑25).
Likewise, there was other evidence that, in connection with Mrs. G.’s threat to “‘COME BACK AND … KILL YOU ALL”‘ (R.T.A.: 202:6‑12), she added that “‘I’M GOING TO GO HOME AND GET MY GUN”‘ (id.: 169:17‑19; 202:16‑20; 203:3-7).
 Aside from Mrs. G.’s conclusion that “the language is Billingsgate between mothers who were close to each other” (A.O.B.: 9:15‑17), she has made no effort ‑‑ whether by argument, and/or citation of authority ‑‑ to support her bald assertion that “reasonable people would not consider the expression to be dangerous” (A.O.B.: 9:21‑22). In light thereof, the People note it to be fundamental that:
“Where a point is merely asserted by counsel without any argument of or authority for its proposition, it is deemed to be without foundation and requires no discussion. [Citations.]”
(People v. Ham (1970) 7 Cal.App.3d 768, 783 (emphasis added) (disapproved on other grounds in People v. Compton (1971) 6 Cal.3d 55, 60); accord, e.g., People v. Dougherty (1982) 138 Cal.App.3d 278, 282‑283.)
 It cannot rationally be denied that such a threat can be accomplished, not only by the use of “COLORFUL LANGUAGE,” but also by words of Chesterfieldian delicacy. The presently‑relevant words (i.e., “I’M GOING TO KILL YOU,” “I’M GOING TO COME OVER AND KILL YOU AND THE KIDS”) appear to fall into an intermediate category.
 In order for the presently‑relevant crime to be committed, the threat must be “so … immediate … as to convey … an immediate prospect of execution” (Penal Code § 422 [emphasis added]). This “immediacy issue” arises from Mrs. G.’s words that “I’M GOING TO COME OVER AND KILL YOU AND THE KIDS,” and “I’M GOING TO COME BACK AT 3:00 O’CLOCK IN THE MORNING WHEN [YOUR HUSBAND] LEAVES” (emphasis added).
 Likewise, insofar as a violation of Penal Code § 422 ex facie requires that the victim “be in sustained fear” (emphasis added), it clearly imports a passage of some time between the making of the threat, and the contemplated unlawful action in accordance therewith.
 The People’s view, that the Municipal Court erred in admitting the evidence in issue, should emphatically not be construed as any criticism of the Judge of said Court. Entirely aside from the fact that the Court’s error was made at the People’s instigation, it is clear that judicial error “imputes no disgrace” (In re Sawyer (1959) 360 U.S. 622, 635 [3 L.Ed.2d 1473, 79 S.Ct. 1376] [plurality opinion; but see: 360 U.S. at 647]). Specifically, “[b]eing manned by humans, the courts are not perfect and are bound to make some errors” (Illinois v. Allen (1970) 397 U.S. 337, 346 [25 L.Ed.2d 353, 90 S.Ct. 1057]), in consequence of which “in the hurry of business … the most able Judges are liable to err” (Cotton v. Thurland (1793) 5 T.R. 405, 409 [101 Eng.Rep. 227, 229] [emphasis added]).