By Esha Kher
SACRAMENTO, CA – The most popular retort heard in one hearing this week in Sacramento County Superior Court was “would you allow me to refresh my recollection?”
Detective Justin Chaussee and police Officer Eric Steindorf went on to request to recollect events of the passing of a criminal threat after virtually every question asked during a probable cause hearing.
The defense charged the officers’ summaries and notes in their reports were incomplete, and didn’t reflect the direct statements of the witnesses and the direct quote of the threat, perhaps, as related by the alleged victim or victims.
The probable cause hearing was to assess the validity of the arrest of Peter Avella, who was charged with communicating a criminal threat, namely, “I’m gonna blow your f*** head off” and “I’m gonna f*** you up” and then proceeding to push the alleged victim, Howard Moore, who was socializing on his driveway with a third party. 
When it comes to assessing criminal threats and whether they were specific, immediate, and unequivocal, knowing the very details and exact wording is incredibly important in court.
Defense attorney Joshua Kurtz brought to light that the reporting of the alleged threat was inadequate because there were no direct statements in the police report.
Upon referring to his report, Officer Steindorf answered affirmatively when attorney Kurtz asked, “Am I correct in saying that in your report there are no actual quotations of what Mr. Moore claimed Avella said?
And upon being asked, “So in your report, would that be a summary or would that be exactly what Mr. Moore told you Mr. Avella said?” Police officer Steindorf claimed to have made only a summary.
Not only did Chaussee have to refresh his recollection after almost every question being asked of him, but he also revealed he did not include details of the actual statements made in the interview, rather only a summary and notes.
The defense brought this to light in the questioning of Chaussee about the third party witness and whether the third party solely saw defendant Avella push Moore or actually heard the criminal threat. Det. Chaussee, upon asking to refresh his recollection, said he wouldn’t know because he may have left that out of the report.
“I didn’t write that in my summary of his [third party witness] statement so I don’t know if that is something he told me in the recording or not, because I typed up a summary of what he said. But I don’t have that right now and I don’t recall that at this time,” said Det. Chaussee.
Defense attorney Kurtz emphasized the importance of having direct quotes when it comes to PC section 422, a charge of communicating criminal threats.
“Obviously if you’re investigating a possible 422 you’re gonna write any information down regarding the threat that is correct. Reports are written for prosecutors to look at to decide if there are charges to be filed, and so if someone said that somebody else threatened to kill them or something you would put that in the report as an element of the crime, wouldn’t you?” said the defense.
Chaussee replied, “Generally when I do statements, I summarize them from the recording so it’s possible that if someone says something to me during the interview and while I’m summarizing it I might not put it in the report. I might miss something.”
In brief arguments before submitting, the defense capitalized on the incompleteness of the detective’s testimony and reiterated that the third party witnesses present did not hear the defendant make any threat, they only saw Avella push Moore, which isn’t a 422 and, even if the court finds sufficient cause, it should be a misdemeanor.
The prosecution said that the statement has to be taken within context of prior events.
“With respect to the statement ‘I’m gonna f*** you up,’ that is a statement that is indicating that they’re gonna cause great bodily injury when it’s taken in the context of prior conduct such as pushing him and formerly making a statement to his neighbor about ‘blowing his brains out,’” prosecutor Tara Crabill argued.
After a series of hopeless “refreshing one’s recollection” and “summaries” of direct quotations, the judge nevertheless ruled that there was sufficient cause to believe that Avella willfully and unlawfully threatened to commit a crime that would result in death and great bodily injury.
“There was specific intent that the statement was to be taken as a threat and that the threatened crime was so unequivocal, unconditional, and immediate and specific as to convey to Howard Moore a gravity of purpose and immediate prospect of execution and that Howard Moore was reasonably in sustained fear of his safety,” said the judge.
The trial will be scheduled in May or June.
Esha Kher is an undergraduate student at UC Davis studying Political Science and Computer Science, hoping to pursue a career in corporate law. She is passionate about legal journalism and political advocacy that provokes new perspectives and sparks conversation among the public.
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