Friday, January 11, 2013
Page 3
Conviction Upheld in Threats Against Ventura Prosecutors
By a MetNews Staff Writer
The Court of Appeal for this district yesterday upheld the conviction of a former Thousand Oaks City Council candidate who threatened to kill Ventura County prosecutors.
Justice Kenneth Yegan, writing for Div. Six, rejected Daniel Avila’s argument that he lacked the apparent ability to carry out his threats because he was incarcerated at the time and did not have a fixed release date.
Avila was arrested in 2005 and was charged with multiple counts of identity theft and fraud based on harassing text messages he sent during his council campaign. His bail was subsequently increased based on his leaving of threatening voice mails, and he was taken into custody after failing to post the increased amount.
Representing himself, Avila allegedly persuaded his mother to help him make three-way telephone calls, contrary to jail rules, as a result of which Deputy District Attorney Marc Leventhal moved to revoke his right of self-representation. While the motion was pending, Avila placed a three-way call to the district attorney’s office, threatening a staff member that he would “deal with” Leventhal if he prosecutor didn’t stop harassing Avila’s mother.
A deputy sheriff at the jail subsequently found several envelopes near the door of Avila’s cell. Written on the envelopes were threats to “find,” “rape,” “murder,” and stab the persons to whom the envelopes were addressed, all female deputy district attorneys.
The same deputy sheriff said he had retrieved other envelopes a few days earlier, including one that was addressed to District Attorney Greg Totten and included a threat to kill a Superior Court judge “with a shotgun at point-blank.”
Avila, who subsequently won a dismissal of the original case, was convicted of six counts of criminal threats and six counts of threatening public officials. Judge Eugene L. Huseman sentenced him to six years and four months in prison.
On appeal, the defense argued that Avila did not violate Penal Code Sec. 76, the threats-against-public-officials statute, because Sec. 76(c)(1) states that the requirement of an apparent ability to carry out the threat applies to an incarcerated person who has “the ability to fulfill the threat at some future date” and has “a stated release date.”
Yegan noted that Avila could have, at the time, obtained immediate release by posting bail or, according to Leventhal’s testimony, by pleading guilty or by going to trial, since he would have gotten enough custody credit to earn immediate release.
The justice explained:
“Subdivision (c)(1) provides that a prisoner with a stated release date may be included within the class of persons who have an apparent ability to carry out a threat. It does not state the reverse: that a prisoner without a stated release date cannot, as a matter of law, have the same ability.”
The case is People v. Avila, 13 S.O.S. 97.
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