Filed 6/13/13 P. v. Gutierrez CA2/7 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SECOND APPELLATE DISTRICT 

DIVISION SEVEN 

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

MARIO GUTIERREZ, 

 Defendant and Appellant. 

 B241024 

 (Los Angeles County 

 Super. Ct. No. VA121790) 

 APPEAL from a judgment of the Superior Court of Los Angeles County, Lori Ann 

Fournier, Judge. Affirmed. 

 Lisa Holder, 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, and Paul M. Roadarmel, 

Jr., Deputy Attorney General, for Plaintiff and Respondent. 

_______________________ 
2

Appellant Mario Gutierrez appeals from the judgment entered following his 

conviction on two counts of attempted criminal threats (Pen. Code,1

§§ 664, 422). 

Gutierrez argues the trial court erred in admitting evidence of his membership in a gang 

and his alleged attempts to intimidate the complaining witnesses. Gutierrez also asserts 

the evidence was insufficient to support each of his convictions because the prosecution 

failed to prove he had a specific intent to communicate a criminal threat. We affirm. 

FACTUAL BACKGROUND AND PROCEDURAL HISTORY 

I. The Charges 

The Los Angeles County District Attorney filed a two-count information charging 

Gutierrez in count one with making criminal threats against Emmanuel Gutierrez, and in 

count two with making criminal threats against Angelica Brito (§ 422). As to each count, 

it was alleged that Gutierrez had suffered one prior serious or violent felony conviction 

within the meaning of section 667, subdivision (a)(1) and the “Three Strikes” law 

(§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). Gutierrez pleaded not guilty to each 

count and denied the enhancement allegations. 

II. The Evidence At Trial 

On September 24, 2011, at about 6:15 p.m., Gutierrez and his brother, Emmanuel,2

 

were arguing in the living room of their residence in Huntington Park. Earlier that 

evening, Gutierrez and Emmanuel had consumed a few beers. Emmanuel’s girlfriend, 

Angelica Brito, and their three-year-old daughter also resided in the home. The daughter 

was not at home at the time; Brito was in her bedroom and went downstairs to see what 

was happening. Emmanuel was upset because he had seen one of Gutierrez’s friends 

leaving the house. Emmanuel told Gutierrez that he did not want Gutierrez bringing his 

friends to the house because they were drug users. 

 

1 Unless otherwise stated, all further statutory references are to the Penal Code. 

2 For clarity and convenience, and not out of disrespect, we refer to Emmanuel 

Gutierrez by his first name. 
3

Gutierrez and Emmanuel went outside followed by Brito. As the two men 

continued to argue, Gutierrez became increasingly angry and aggressive toward 

Emmanuel. Gutierrez told Emmanuel, “I’m going to kill you. I’m going to chop your 

legs off.” Gutierrez then began walking around in circles. He also started punching 

Emmanuel’s car window and kicking his car door. As Emmanuel and Brito stood on the 

front porch, Gutierrez walked in front of Brito, looked directly at her, and said, “I’m 

going to kill your daughter.” 

Upon hearing Gutierrez’s statement about her daughter, Brito became concerned 

because he had “never said anything like that” before and she “wasn’t sure what he’s 

capable of doing.” Brito felt that she had to call the police at that time because 

Gutierrez’s statement caused her to fear for her family’s safety. She also was concerned 

the argument between Gutierrez and Emmanuel might escalate into a physical altercation. 

Brito was nervously dialing 911 when Emmanuel took the phone from her and reported 

Gutierrez’s threat to the 911 operator. Emmanuel decided to involve the police because 

he was fed up with Gutierrez and was also concerned there might be a physical 

confrontation. Gutierrez had been arrested for hitting Emmanuel in the past. 

Huntington Park Police Department Sergeant Eric Ault was the first officer to 

arrive on the scene. When Sergeant Ault approached Gutierrez in the driveway and 

asked “what was going on,” Gutierrez immediately answered, “If my brother tells you 

that I threatened to kill him, I didn’t do that.” Huntington Park Police Officer Saul Duran 

arrived as Gutierrez was being detained in the driveway. While at the scene, Officer 

Duran spoke with Emmanuel and Brito, both of whom appeared to be angry and upset. 

They reported to Officer Duran that Gutierrez had threatened to kill Emmanuel and their 

daughter. They also told Officer Duran that they were in fear for their own safety and the 

safety of their daughter due to Gutierrez’s violent history. 

Neither Sergeant Ault nor Officer Duran observed any objective signs that 

Gutierrez was under the influence of alcohol or drugs. His breath did not smell of 

alcohol, his eyes were not watery or bloodshot, and he did not have an unusual gait. 

Gutierrez was fairly talkative, but appeared to be coherent and responded logically to 
4

the officers’ questions. Sergeant Ault spent 10 to 12 minutes with Gutierrez at the scene. 

Officer Duran observed Gutierrez at the police station for approximately 15 minutes onehalf hour to an hour after his arrest. At that time, Gutierrez was calm, quiet, and did not 

appear to be intoxicated. After being advised of his Miranda rights, Gutierrez told 

Officer Duran that he did not want to talk and simply wanted a court date. 

While Gutierrez was in custody, he called the family’s home and spoke with Brito. 

During the call, he told Brito that “he would see [her] soon.” When Brito asked Gutierrez 

what he meant by that statement and whether he would be released soon, he did not 

answer her. Instead, he kept repeating, “I’ll see you soon.” Brito was concerned about 

Gutierrez’s intent in making the statement and discussed the call with Emmanuel. 

On November 9, 2011, a few weeks after Gutierrez’s arrest, Probation 

Officer Gilbert Garay spoke with Emmanuel on the telephone in the course of preparing a 

pre-plea report. Emmanuel told Officer Garay that Gutierrez had been involved with 

gangs all of his life and had been in and out of jail. He said that his family had tried to 

help Gutierrez, but Gutierrez continued to bring drug users to their home and was causing 

a serious problem. In addition, Emmanuel stated that, since Gutierrez’s arrest, several 

people had come on to the family’s property and attempted to get into their cars, which 

had never before happened in the 11 years they had been at that residence. Emmanuel 

told Officer Garay that he believed Gutierrez was sending these individuals to their home 

through his contacts in jail because he was a gang member. Emmanuel also described 

Gutierrez’s statement to Brito that he would see her soon and told Officer Garay that he 

took that statement as a threat. 

At trial, both Emmanuel and Brito testified that Gutierrez was a drug user and that 

they believed he was under the influence of drugs at the time he threatened Emmanuel 

and their daughter. Emmanuel explained that he had lived with Gutierrez for over 20 

years and knew how he acted when he was under the influence of drugs. According to 

Emmanuel, when Gutierrez was on drugs, he tended to act erratically and speak 

nonsensically. Although Brito had not observed Gutierrez taking drugs, she had found 

his pipes and other drug paraphernalia in the past. As described by Brito, Gutierrez was a 
5

different person when he was on drugs. His facial expression would change, his eyes 

would become red, and his fingers would start to twitch. He also tended to stutter and 

become very aggressive. Neither Emmanuel nor Brito had ever observed Gutierrez being 

violent or aggressive when he was sober. 

On the night of the incident, Brito noticed that Gutierrez was stuttering slightly 

and repeating the same statements. She also saw that his eyes were red and his fingers 

were twitching. Brito testified that she wanted Gutierrez to be prosecuted and to remain 

in custody because “he really needs help with his addiction, and that way I won’t have to 

deal with him or see him.” Emmanuel testified that he wanted Gutierrez to get help for 

his drug problem, but “not to go to jail for something he hasn’t done or is not capable of 

doing.” 

III. Jury Verdict and Sentencing 

The jury found Gutierrez not guilty of the charged offenses of making criminal 

threats, but guilty of the lesser included offenses of attempted criminal threats. In a 

bifurcated proceeding, the trial court found the allegations that Gutierrez had suffered one 

prior serious or violent felony conviction to be true. Gutierrez was sentenced to a total 

state prison term of seven years and eight months. He filed a timely notice of appeal. 

DISCUSSION

I. Rulings on the Admission of Evidence 

On appeal, Gutierrez raises two arguments regarding the admission of evidence. 

First, he contends the trial court erred in admitting evidence of his membership in a gang 

because such evidence was inflammatory and overly prejudicial in the absence of any 

gang enhancement allegation or proof the charged crimes were gang-related. Second, he 

claims the trial court erred in admitting evidence of his alleged attempts to intimidate 

Emmanuel and Brito from jail because such evidence was speculative, irrelevant, and 

unduly prejudicial. Gutierrez also asserts that the errors had the effect of depriving him 
6

of his constitutional right to due process. We conclude that the trial court did not abuse 

its discretion or violate due process in admitting the challenged evidence. 

A. Standard of Review 

A trial court generally has broad discretion concerning the admission of evidence. 

(People v. Cole (2004) 33 Cal.4th 1158, 1197; People v. Rodrigues (1994) 8 Cal.4th 

1060, 1124.) When an objection under Evidence Code section 352 is raised, “the trial 

court ‘must weigh the admission of [the challenged] evidence carefully in terms of 

whether the probative value of the evidence is greater than the potentially prejudicial 

effect its admission would have on the defense.’” (People v. Cardenas (1982) 31 Cal.3d 

897, 904.) Evidence is overly prejudicial if it “uniquely tends to evoke an emotional bias 

against a party as an individual, while having only slight probative value with regard to 

the issues.” (People v. Crittenden (1994) 9 Cal.4th 83, 134.) 

“‘[A]n appellate court applies the abuse of discretion standard of review to any 

ruling by a trial court on the admissibility of evidence, including one that turns on the 

relative probativeness and prejudice of the evidence in question. . . .’ [Citation.]” (People 

v. Jablonski (2006) 37 Cal.4th 774, 805.) “Where, as here, a discretionary power is 

statutorily vested in the trial court, its exercise of that discretion ‘must not be disturbed 

on appeal except on a showing that the court exercised its discretion in an arbitrary, 

capricious or patently absurd manner that resulted in a manifest miscarriage of justice. 

[Citations.]’ [Citation.]” (People v. Rodrigues, supra, 8 Cal.4th at pp. 1124-1125.) 

As a general matter, application of the ordinary rules of evidence does not 

impermissibly infringe on a defendant’s constitutional rights. (People v. Lindberg (2008) 

45 Cal.4th 1, 26; People v. Kraft (2000) 23 Cal.4th 978, 1035.) “To prove a deprivation 

of federal due process rights, [a defendant] must satisfy a high constitutional standard to 

show that the erroneous admission of evidence resulted in an unfair trial. ‘Only if there 

are no permissible inferences the jury may draw from the evidence can its admission 

violate due process. Even then, the evidence must “be of such quality as necessarily 

prevents a fair trial.” [Citations.] Only under such circumstances can it be inferred that 
7

the jury must have used the evidence for an improper purpose.’ [Citation.]” (People v. 

Albarran (2007) 149 Cal.App.4th 214, 229.) Accordingly, “[t]he admission of relevant 

evidence will not offend due process unless the evidence is so prejudicial as to render the 

defendant’s trial fundamentally unfair.” (People v. Falsetta (1999) 21 Cal.4th 903, 913.) 

B. Admission of the Gang Evidence 

1. Relevant Facts 

At trial, defense counsel objected to the introduction of any evidence regarding 

Gutierrez’s gang affiliation. Defense counsel argued that such evidence was irrelevant 

because the case arose out of a domestic dispute and no gang enhancement allegation had 

been alleged. Defense counsel further asserted that the victims’ vague belief that 

Gutierrez associated with gang members did not provide an adequate foundation for such 

evidence. The prosecutor countered that the evidence was relevant to Emmanuel’s fear 

that Gutierrez was continuing to harass him from jail through his gang contacts. The 

prosecutor also explained that Emmanuel and Brito recently had become reluctant to 

cooperate, but previously had indicated that they knew of Gutierrez’s gang involvement 

based on their familial relationships with him. 

The trial court ruled as follows: “I am going to allow the witnesses to be 

questioned about the sustained fear aspect and element of the crime. And if they believed 

Mr. Gutierrez to be a gang member, then that goes to the sustained fear. Whether or not 

he actually is is a different issue. But . . . it’s the victims’ state of mind as to why they 

were afraid of him. So . . . in terms of whether he is a gang member or not, that goes to 

the weight of the evidence.” The trial court also held that the evidence was probative on 

the issue of witness bias and recanting of prior testimony. 

Officer Garay testified at trial about Emmanuel’s statements to him that Gutierrez 

had been involved with gangs all of his life and may have been sending people to the 

family’s home to intimidate them through his contacts with the gang. During her 

testimony, Brito was asked by the prosecutor if she knew whether Gutierrez was a gang 

member and if she was afraid of Gutierrez because of his gang affiliation. Brito testified 
8

that she was aware Gutierrez was a member of the Lynwood Rude Boys with the moniker 

“Lefty.” She denied that Gutierrez’s gang affiliation caused her any fear or affected her 

testimony in any way. During his testimony, Emmanuel was asked about his statements 

to the probation officer concerning Gutierrez’s gang involvement and suspected use of 

gang contacts to intimidate Emmanuel from jail. Emmanuel was also asked whether he 

feared Gutierrez because of his gang affiliation. Emmanuel testified that he did not recall 

making any statements about Gutierrez’s membership in a gang to the probation officer. 

He also stated that it “was just a thought” that Gutierrez might be sending people to the 

house through gang contacts, but denied it caused him any fear. On cross-examination, 

Emmanuel testified that Gutierrez had not been involved in gangs for a very long time. 

Following the witnesses’ testimony, the trial court issued the following limiting 

instruction to the jury: “[A]ny testimony that you heard about whether or not Mr. 

Gutierrez was a member of a gang, anything about a gang, anything about people coming 

by the house, the only reason you heard that testimony was for a limited purpose. It goes 

to whether or not these witnesses who testified were fearful because of their thoughts. 

There is no evidence that Mr. Gutierrez is a gang member. That’s not for you to decide 

or whether or not people came to the house because of him; it’s just what the people 

believed and how that affected them. And it will be evidence you can consider for that 

purpose. . . .” 

2. Relevant Law 

In cases not involving a section 186.22 gang enhancement allegation, it generally 

has been held that “evidence of gang membership is potentially prejudicial and should 

not be admitted if its probative value is minimal.” (People v. Hernandez (2004) 33 

Cal.4th 1040, 1049.) Gang evidence is not admissible where its sole relevance is to show 

that a defendant has a criminal disposition or bad character. (People v. Albarran, supra, 

149 Cal.App.4th at p. 223; People v. Avitia (2005) 127 Cal.App.4th 185, 192.) On the 

other hand, “evidence of gang membership is often relevant to, and admissible regarding, 

the charged offense. Evidence of the defendant’s gang affiliation – including evidence 
9

of the gang’s territory, membership, signs, symbols, beliefs and practices, criminal 

enterprises, rivalries, and the like – can help prove identity, motive, modus operandi, 

specific intent, means of applying force or fear, or other issues pertinent to guilt of the 

charged crime. [Citations.]” (People v. Hernandez, supra, at p. 1049.) Gang evidence is 

therefore admissible if it is logically relevant to some material issue in the case other than 

character evidence, is not more prejudicial than probative, and is not cumulative. (People 

v. Carter (2003) 30 Cal.4th 1166, 1194; People v. Albarran, supra, at p. 223; People v. 

Avitia, supra, at p. 192.) 

3. The Gang Evidence Was Properly Admitted 

In this case, the trial court did not abuse its discretion in admitting the evidence of 

Gutierrez’s gang affiliation. To prove Gutierrez was guilty of making criminal threats, 

the prosecution had to establish, among other elements, that Gutierrez’s threats caused 

Emmanuel and Brito to be in actual and reasonable sustained fear for their own safety or 

the safety of their family. (§ 422; In re George T. (2004) 33 Cal.4th 620, 630.) In the 

context of section 422, “sustained fear” means a fear that continues for “a period of 

time that extends beyond what is momentary, fleeting, or transitory. . . .The victim’s 

knowledge of defendant’s prior conduct is relevant in establishing that the victim was in a 

state of sustained fear. [Citation.]” (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.) 

Here, the evidence pertaining to Gutierrez’s gang affiliation was probative of 

whether the victims were in actual and reasonable sustained fear of Gutierrez based on 

his threats, and whether any fear experienced by the victims affected their testimony at 

trial. As discussed, Officer Garay testified that, when he spoke to Emmanuel a few 

weeks after the incident, Emmanuel stated that he believed Gutierrez, a life-long gang 

member, was sending people to the family’s home through his contacts with his gang. 

Officer Garay further testified that Emmanuel appeared to be in fear for his safety at the 

time he reported these concerns. The evidence was thus relevant to establishing that 

Emmanuel’s fear of Gutierrez was not momentary, fleeting, or transitory. The evidence 

was also relevant to countering Emmanuel’s testimony that he was never afraid for his or 
10

his family’s safety based on Gutierrez’s threats, and was merely concerned about an 

imminent physical altercation with Gutierrez when he contacted the police. 

Gutierrez contends that the gang evidence could not have been probative on the 

element of sustained fear because both Emmanuel and Brito testified at trial that they did 

not believe Gutierrez would carry out his threats to kill Emmanuel and their daughter, 

and were not afraid of Gutierrez based on his gang affiliation. However, in speaking with 

Officer Garay, Emmanuel specifically mentioned Gutierrez’s life-long gang involvement 

and his concern that Gutierrez might be using his gang contacts to intimidate Emmanuel 

from jail. Additionally, there was evidence that, immediately after the incident, both 

Emmanuel and Brito told Officer Duran that they were in fear for their own safety and 

the safety of their daughter due to Gutierrez’s violent history. Given the victims’ prior 

inconsistent statements to law enforcement about their state of mind, the evidence of 

Gutierrez’s gang affiliation was relevant to demonstrating that his threats caused them 

to be in a state of reasonable sustained fear despite their subsequent testimony to the 

contrary. The gang evidence was also relevant to evaluating the credibility of the 

victims’ testimony and explaining their reluctance to testify against Gutierrez at trial. 

Furthermore, admission of the gang evidence was neither unduly prejudicial nor 

did it render the trial fundamentally unfair. The prosecutor’s questions about Gutierrez’s 

gang affiliation were narrow in scope, neutrally-phrased, and directed at establishing the 

foundation for the victims’ knowledge about whether Gutierrez was a gang member and 

the extent to which such knowledge caused them fear. The prosecutor only addressed 

Gutierrez’s gang affiliation in rebuttal after the issue was raised by defense counsel. 

Additionally, the trial court instructed the jury to consider the gang evidence only for the 

limited purpose of evaluating the victims’ state of mind, and reminded the jury of its 

limiting instruction during closing arguments. We must presume that the jury understood 

and followed this instruction. (People v. Lindberg, supra, 45 Cal.4th at p. 26; People v. 

Coffman and Marlow (2004) 34 Cal.4th 1, 107.) The fact that the jury acquitted 

Gutierrez of the charged offenses of making criminal threats, and instead convicted him 
11

of the lesser included offenses of attempted criminal threats, further suggests that the 

gang evidence did not have an inflammatory impact on the verdict. 

The trial court acted within its discretion and in accordance with due process in 

concluding that the probative value of the gang evidence outweighed the potential for 

undue prejudice. 

C. Admission of the Witness Intimidation Evidence 

1. Relevant Facts 

At trial, defense counsel also objected to the introduction of evidence concerning 

the alleged attempts to intimidate Emmanuel and Brito while Gutierrez was in custody. 

Defense counsel argued that such evidence was impermissibly speculative because 

Emmanuel had no basis for knowing that the individuals he had observed outside his 

home had been sent by Gutierrez. Defense counsel further asserted that any fear the 

victims may have felt based on such conduct was not probative of whether Gutierrez’s 

charged threats caused them fear. The prosecutor responded that he did not intend to use 

the evidence to prove that Gutierrez had, in fact, sent people to intimidate the victims, 

but rather to show that Emmanuel remained in a state of fear even after Gutierrez was in 

custody. The prosecutor also opined that Gutierrez’s statement to Brito that he would see 

her soon was relevant to Emmanuel’s demeanor on the witness stand and his reluctance 

to testify against Gutierrez due to fear for his family’s safety. 

The trial court overruled defense counsel’s objection and held as follows: “I think 

the cases are clear that those inquiries are appropriate in terms of recanting witnesses or 

witnesses who may have initially testified. So I am going to allow [the prosecutor] to 

inquire of the witness, and whether or not he can prove up the statements is another 

issue.” As discussed, the trial court also issued a limiting instruction to the jury that it 

was not allowed “to decide whether people came to the house because of [Gutierrez],” 

and that such evidence was to be considered solely for the purpose of determining “what 

the [witnesses] believed and how that affected them.” 
12

Brito testified at trial about Gutierrez’s repeated statement to her on the telephone 

that he would see her soon. She related that she did not necessarily regard the statement 

as a threat, but she was “a little” concerned because she did not know what Gutierrez 

meant by it and whether he was upset that she and Emmanuel had contacted the police. 

Brito also testified that, on another occasion while Gutierrez was in custody, an 

unidentified person broke into her car as it was parked in the driveway. Brito stated that 

she did not know if Gutierrez had sent anyone to the family’s home, but she was not 

fearful that he had done so. In his testimony, Emmanuel admitted that he told the 

probation officer about Gutierrez’s statement to Brito that he would see her soon, but 

denied telling the officer that he perceived it as a threat. Emmanuel also confirmed that 

he told the probation officer about people coming onto the family’s property and trying to 

break into their cars, but denied telling him that he believed those people had been sent 

by Gutierrez. 

2. Relevant Law 

Evidence of a third party’s attempt to intimidate a witness generally is 

inadmissible to prove a defendant’s consciousness of guilt unless the defendant 

authorized the intimidation. (People v. Abel (2012) 53 Cal.4th 891, 924; People v. 

Williams (1997) 16 Cal.4th 153, 200). However, “‘[e]vidence that a witness is afraid to 

testify or fears retaliation for testifying is relevant to the credibility of that witness and is 

therefore admissible. [Citations.] An explanation of the basis for the witness’s fear is 

likewise relevant to [his or] her credibility and is well within the discretion of the trial 

court. [Citations.]’ [Citations.]” (People v. Mendoza (2011) 52 Cal.4th 1056, 1084.) 

“For such evidence to be admissible, there is no requirement to show threats against the 

witness were made by the defendant personally or the witness’s fear of retaliation is 

‘directly linked’ to the defendant. [Citation.]” (People v. Guerra (2006) 37 Cal.4th 

1067, 1142, disapproved on another ground in People v. Rundle (2008) 43 Cal.4th 76, 

151; see also People v. Mendoza, supra, at p. 1084 [“evidence of a ‘third party’ threat 

may bear on the credibility of the witness, whether or not the threat is directly linked to 
13

the defendant”].) “It is not necessarily the source of the threat -- but its existence -- that 

is relevant to the witness’s credibility.” (People v. Burgener (2003) 29 Cal.4th 833, 870.) 

3. The Witness Intimidation Evidence Was Properly Admitted 

Here, the trial court acted within its discretion in admitting the evidence of the 

threats allegedly directed at the victims following Gutierrez’s arrest. The credibility of 

Emmanuel and Brito, their general reluctance to testify against Gutierrez, and the extent 

to which their testimony may have been influenced by a fear of retaliation were critical 

issues in the case. While both Emmanuel and Brito informed Officer Duran immediately 

after the incident that they were in fear for their own safety and the safety of their 

daughter based on Gutierrez’s threats, they told a different story at trial. Although Brito 

testified at one point that she called the police because Gutierrez’s threats caused her to 

fear for her family’s safety, she later stated that she was never afraid that Gutierrez would 

carry out his threats and was merely concerned that the verbal argument between 

Gutierrez and Emmanuel might escalate into a physical altercation. Emmanuel 

completely denied at trial that he was ever in fear for his or his family’s safety due to 

Gutierrez’s threats, and claimed that he knew Gutierrez was not capable of carrying them 

out. Emmanuel further testified that he called the police solely because he was fed up 

with Gutierrez’s drug habit and wanted to avoid a physical confrontation. Evidence that 

Brito and Emmanuel felt they were being threatened after they reported Gutierrez’s 

crimes to the police was thus highly relevant to evaluating their credibility at trial. 

Gutierrez asserts that the evidence of his statement to Brito that he would see her 

soon should have been excluded because Brito and Emmanuel could only speculate that 

the statement was intended to be a threat. However, the probative value of the statement 

did not depend on Gutierrez’s intent in making it, but on the victims’ perception of the 

statement as a threat and the impact such perception may have had on their testimony. 

While not necessarily regarding it as a threat, Brito testified that the statement caused her 

concern about whether Gutierrez was angry that she and Emmanuel had contacted the 

police and whether Gutierrez might soon be released from custody. Although Emmanuel 
14

testified that he did not view the statement as a threat because he did not hear it firsthand 

from Gutierrez, Officer Garay recalled that Emmanuel specifically told him that he did 

consider the statement to be a threat. Given the victims’ reluctance to testify against 

Gutierrez at trial, the probative value of Gutierrez’s repeated statement to Brito that he 

would see her soon substantially outweighed the potential for prejudice. 

For similar reasons, the evidence relating to the victims’ concern about 

unidentified individuals trespassing onto their property and trying to break into their cars 

was also admissible. Contrary to Gutierrez’s claim, the evidence was not impermissibly 

speculative simply because the victims admitted they did not know whether Gutierrez had 

sent those individuals to their home. Irrespective of whether the alleged trespassers could 

be directly linked to Gutierrez, the evidence was relevant to establishing that Emmanuel 

and Brito remained fearful of Gutierrez several weeks after he had been taken into 

custody. Although both victims denied at trial that the presence of these strangers on 

their property caused them any fear, Officer Garay testified that Emmanuel did appear to 

be afraid for his family’s safety when he reported these suspicious activities to him. 

Moreover, any potential for prejudice was mitigated by the trial court’s limiting 

instruction to the jury that it was not to decide whether Gutierrez actually directed anyone 

to the victims’ home but was to consider such evidence for the sole purpose of evaluating 

the victims’ state of mind. In sum, because the substantial probative value of the witness 

intimidation evidence outweighed any potentially prejudicial effect, the trial court did not 

abuse its discretion or violate due process in admitting the challenged evidence. 

II. Sufficiency of the Evidence Supporting the Convictions 

Gutierrez also challenges the sufficiency of the evidence supporting his 

conviction. He specifically contends the evidence was insufficient to support a finding 

that he intended his statements to be taken as a true threat. Gutierrez claims the only 

reasonable inference that could be drawn from the evidence was that his statements were 

the result of an emotional outburst brought on by intoxication. We disagree. 
15

In assessing a claim of insufficient evidence, “we review the whole record to 

determine whether any rational trier of fact could have found the essential elements of the 

crime or special circumstances beyond a reasonable doubt. [Citation.] The record must 

disclose substantial evidence to support the verdict – i.e., evidence that is reasonable, 

credible, and of solid value – such that a reasonable trier of fact could find the defendant 

guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the 

evidence in the light most favorable to the prosecution and presume in support of the 

judgment the existence of every fact the jury could reasonably have deduced from the 

evidence. [Citation.] ‘Conflicts and even testimony [that] is subject to justifiable 

suspicion do not justify the reversal of a judgment, for it is the exclusive province of the 

trial judge or jury to determine the credibility of a witness and the truth or falsity of the 

facts upon which a determination depends. [Citation.] . . . [Citation.]’ [Citation.] A 

reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no 

hypothesis whatever is there sufficient substantial evidence to support”‘ the jury’s 

verdict. [Citation.]” (People v. Zamudio (2008) 43 Cal.4th 327, 357.) 

To prove that a defendant made a criminal threat in 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 -- which may be ‘made verbally, in writing, or by means of an 

electronic communication device’ -- 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 ‘reasonabl[e]’ under the circumstances. 

[Citation.]” (People v. Toledo (2001) 26 Cal.4th 221, 227-228.) 
16

“[I]f a defendant, . . . acting with the requisite intent, makes a sufficient threat that 

is received and understood by the threatened person, but, for whatever reason, the threat 

does not actually cause the threatened person to be in sustained fear for his or her safety 

even though, under the circumstances, that person reasonably could have been placed in 

such fear, the defendant properly may be found to have committed the offense of 

attempted criminal threat.” (People v. Toledo, supra, 26 Cal.4th at p. 231.) In the 

context of section 422, “[a] threat is sufficiently specific where it threatens death or great 

bodily injury. A threat is not insufficient simply because it does ‘not communicate a time 

or precise manner of execution, section 422 does not require those details to be 

expressed.’ [Citation.]” (People v. Butler (2000) 85 Cal.App.4th 745, 752.) Section 422 

also “does not require an intent to actually carry out the threatened crime. [Citation.] 

Instead, the defendant must intend for the victim to receive and understand the threat, and 

the threat must be such that it would cause a reasonable person to fear for his or her 

safety or the safety of his or her immediate family. [Citation.]” (People v. Wilson (2010) 

186 Cal.App.4th 789, 806.) “‘[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.’” (People v. Gaut (2002) 95 Cal.App.4th 1425, 1431.) 

In this case, there was sufficient evidence to support a finding that Gutierrez 

intended his statements to be taken as a threat. “Evidence of intoxication, while legally 

relevant, may be factually unconvincing. ‘[A]s with any evidence, the jury may give this 

testimony whatever weight it deems appropriate in light of the evidence as a whole.’ 

[Citation.]” (People v. Mendoza (1998) 18 Cal.4th 1114, 1134.) Although Emmanuel 

and Brito both testified that they believed Gutierrez was under the influence of alcohol or 

drugs at the time he made the threats, neither of the officers who questioned Gutierrez 

that night observed any objective symptoms of intoxication. As described by the officers, 

Gutierrez appeared to be in full command of his faculties. He did not have watery or 

bloodshot eyes or an unsteady gait. He also answered the officers’ questions in a clear 

and coherent manner. Office Duran, who spoke with Gutierrez at the police station less 

than an hour after the incident, noted that Gutierrez was calm and quiet. Upon being 
17

advised of his Miranda rights, Gutierrez unequivocally chose to exercise those rights 

and told Officer Duran that he wanted a court date. From this record, the jury reasonably 

could have found that to the extent Gutierrez consumed any alcohol or drugs that 

evening, he was not so intoxicated that he was unable to form the requisite intent. 

The circumstances surrounding Gutierrez’s statements further supported a finding 

that he intended to communicate an actual threat. The words he used were specific and 

unambiguous. Gutierrez did not merely allude to an act of violence, but unequivocally 

stated that he was going to kill Emmanuel and chop off his legs. After kicking and 

punching Emmanuel’s car until he bled, Gutierrez then turned to Brito and told her that 

he was going to kill her daughter. At that point, both Brito and Emmanuel felt compelled 

to call the police. As Emmanuel was reporting the threat to the 911 operator, Gutierrez 

could be heard in the background repeating his statement that he was going to kill 

Emmanuel. When officers arrived on the scene shortly thereafter, Gutierrez told them 

without prompting, “If my brother tells you that I threatened to kill him, I didn’t do that.” 

Considering the totality of the evidence presented, each of Gutierrez’s convictions for 

attempted criminal threats was supported by substantial evidence. 

DISPOSITION 

 The judgment is affirmed. 

 ZELON, J. 

We concur: 

 PERLUSS, P. J. WOODS, J.