Excerpt from Spector reply brief re Tannazzo testimony.

As appellant has demonstrated, however, his initial statement, as reported by Tannazzo
made a decade before the charged offense and to the effect that all women deserve a
bullet in their heads — fails to pass even this preliminary threshold.

Specifically, a comment, however pointed or angry, about what women do or not
“deserve” is a far cry from a plain statement of intent to harm that can authorize
admission under governing case law. Echoing the trial court’s rationale, the state
responds that there is no requirement that a generic threat be more definite than that
admitted here because the “context and wording unambiguously showed a deep-seated
belief about women” and because questions concerning the statement’s meaning
implicate issues of weight rather than admissibility. (RB, at 99.)
This claim is nonsense. Case law nowhere suggests that evidence of a “deep
seated” animosity towards a victim class — essentially, simple propensity evidence — is
enough to constitute admissible evidence of a generic threat in a homicide prosecution.

To the contrary, each of the cases cited by respondent (and appellant) approving the
admission of “generic threats” has involved a statement(s) that, on its face, involves the
defendant’s direct statement of an intent to harm rather than a remark about what “should
happen” to another, as occurred here. (CITATIONS OMITTED).
Nor do any of the cited cases suggest that, notwithstanding 18 the potential for undue
prejudice arising from purported threat evidence, the question is merely one of“weight” rather than admissibility.

Putting aside its failure to constitute a cognizable “threat” at all, appellant’s initial
statement simply cannot be deemed to reflect an abiding, i.e., non-transient, intent to kill
or harm in light of the substantial amount of time — again, Tannazzo’s shifting account
ultimately settled on roughly a decade — between the statement and the charged offense.
(See AOB, at 119-122.) Recognizing the difficulty presented by this critical condition,
respondent seeks to alter the governing criteria by arguing that lapse of time is merely a
“factor” in determining the duration of the alleged intent under Karis. (RB, at 100-101.)
But Karis does not call for application of a “balancing test” where one “factor,” (here,
time) is weighed against various others to determine an outcome. To the contrary, that
case holds that the remoteness of the threat alone “suggests” impermanence and, with
that suggestion, requires exclusion. (See id., 46 Cal.2d at 637 (evidence of qualifying
generic threat is admissible “unless the circumstances in which the threat was made,
the lapse of time, or other evidence suggests that the state of mind was transitory and
no longer existed at the time of the charged offense. . .”) [emphasis added].)


Furthermore, and of great significance, none of the cases cited by respondent or
located by appellant has approved the admission of “generic threat” evidence after
anything approaching the 10 year period between purported “threat” and offense
appearing here. (See RB, at 98-103.) Having failed to locate any such authority,
respondent seeks to change the subject by invoking decisions in which reviewing courts,
applying section 1101(b), have approved the admission of similar bad acts evidence that
was even more temporally remote. (See RB, at 101, citing People v. Davis (2009) 46
Cal.4th 539, 602 [admitting prior acts as evidence or common scheme or plan and intent
to commit sexual assault] and People v. Steele, 27 Cal.4th 1230, 1245 [admitting
evidence of prior homicide on issue of premeditation as to charged offense].)

The obvious flaw here is that, again, these cases did not involve generic threats at all, but
rather similar acts of misconduct that were proffered and admitted under the different
legal criteria required by section 1101(b), People v. Ewoldt (1994) 7 Cal.4th 380, and
related authority. As the trial court in this case recognized and the state cannot credibly
dispute, in no event could the purported threat described by Tannazzo meet such “similar
acts” criteria.

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