People v. Avila CA2/6

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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."