Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Nos. GA071265 & GA071270, Candace J. Beason, Judge.
RJ Manuelian for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Pamela C. Hamanaka, Assistant Attorney General, James William Bilderback II and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.
ALDRICH, J.
Defendant and appellant Hovanes John Ashikian appeals from the judgment entered following a bench trial that resulted in his convictions for multiple counts of making criminal threats, multiple counts of assault with a semiautomatic firearm, misdemeanor simple assault, dissuading a witness by force or threat, and misdemeanor exhibiting a concealable firearm in a public place. He was sentenced to a prison term of seven years.
Ashikian contends the evidence was insufficient to support three of the four criminal threats convictions, each of the assault with a semiautomatic firearm convictions, and the simple assault conviction. The People concede that the simple assault conviction must be reversed, and request that we correct a clerical error in the abstract of judgment. We reverse the simple assault conviction and one of the criminal threats convictions, and correct the abstract of judgment as requested. In all other respects, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
Viewed in accordance with the usual rules governing appellate review (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Johnston (2003) 113 Cal.App.4th 1299, 1303-1304), the evidence relevant to the issues presented on appeal established the following:
a. September 15, 2007 assaults (Counts 5 through 8).
On September 15, 2007, at approximately 10:00 p.m., Vatche Kechichian, Raffi Batanian, and Nathanael (Nathan) Verano arrived at a party at a house in Arcadia. Appellant Ashikian had a “grudge” against Kechichian because several years previously, Kechichian had dated Ashikian’s girlfriend, Lara B. As Kechichian, Batanian, and Verano were walking toward the house, someone yelled, “ ‘Oh, he’s got a gun.’ ” Kechichian jokingly stated: “ ‘Who’s got the gun?’ ” Ashikian “pop[ped] out” onto the sidewalk and pointed a semiautomatic gun at Kechichian’s face and chest, and said, “ ‘I got the gun.’ ” Ashikian “cocked” the gun by pulling back the slide. Batanian, Kechichian and Verano found themselves surrounded by a group of five or six males. Ashikian waved the gun back and forth, pointing it at Batanian and Verano. Batanian told the others to relax. Verano stepped in front of Ashikian and pushed or held him back with his arm, telling him to calm down. The men in the other group “ganged up” on Verano and began punching him. Someone broke a tequila bottle over Verano’s head, partially cutting open his ear. The attackers yelled “ ‘Southside’ ” as they departed. Verano was taken to the hospital, and suffered cuts and bruises as well as the injury to his ear.
b. Threats against Shant Tavitian.
(i) May 3, 2007 instant messaging session (Count 9).
Shant Tavitian and Ashikian had attended the same high school in Pasadena. In May 2007, Ashikian had already graduated, but Tavitian was still a high school junior. Tavitian’s house had been “egged” in January 2007 during his birthday celebration, and he believed Ashikian’s girlfriend, Lara, knew who the culprit was. Approximately one week after the incident, Tavitian drove in a three-car caravan to Lara’s house, along with some of his friends, to attempt to find out who was responsible. They departed without incident within a few minutes. According to Lara’s testimony for the defense, Tavitian had threatened her.
On May 3, 2007, Ashikian and Tavitian exchanged a series of instant messages via an online chat program. Ashikian, identified by his nickname, “Froggy,” sent the first message. Tavitian responded with “hello.” Ashikian replied, “Hello. My dick in your mouth little boy.” Tavitian asked whether Ashikian’s parents had named him Froggy. Ashikian replied, “You little kid make jokes but when I catch you on the streets you gonna be running and duckin.” Tavitian believed Ashikian had access to weapons, and took the statement to mean he would be ducking to avoid bullets. Tavitian responded, “Okay, tough guy. Grow up.” Tavitian also stated that he was “a lover not a fighter.” Ashikian responded, “Keep talk stupid. You think this is a joke.” Ashikian gave Tavitian a telephone number and told him to call, but Tavitian refused. Ashikian then wrote, “Don’t trip. What a bitch. I catch you fool,” which Tavitian understood to mean that Ashikian would catch or find him. Tavitian then asked whether Ashikian was friends with a particular individual. Tavitian responded affirmatively and added, “Don’t ask questions little kid. Call if you got balls.” Tavitian again refused and Ashikian replied, “Fuckin’ fruitcake. You gonna get your house f’d up again.” Tavitian took this as a reference to the January 2007 egging incident. Tavitian asked if Ashikian’s statement was a threat, and Ashikian responded, “Promise.” Tavitian asked Ashikian for his last name. Ashikian responded that he would tell him “after I fuck your house up.” Tavitian stated that if Ashikian “ha[d] balls, just say your last name.” Ashikian responded, “Immafuckyoupyan.” Tavitian told Ashikian to calm down and asked whether he was afraid to give his last name. Ashikian replied, “You fuckin[g] little kid. You don’t know what situation you’re in.”
Tavitian’s father, who was seated next to Tavitian during the instant messaging session, wished to determine Ashikian’s identity. He telephoned the number Ashikian had provided and then hung up when Ashikian answered. Ashikian sent an instant message to Tavitian stating that he knew Tavitian had just called. Ashikian messaged, “You probably ran to an older cousin or brother. L.O.L. Like a bitch. They want some too. Don’t trip.” Tavitian gave Ashikian his cellular telephone number and told him to call. Tavitian also stated that he was laughing at Ashikian because Ashikian was 18 years old and had nothing better to do than “pick on someone.” Ashikian responded, “I’m gonna go now but when I catch you on the streets and you’re crying like a bitch, don’t say I didn’t tell you.” Ashikian also stated, “You think this is a joke? Don’t trip. I’m gonna get you and your house. [¶]... And everything around you. [¶]... You don’t even know.” Tavitian replied, “Get a life,” and “[g]row up.” Tavitian also stated that he was “shaking in [his] boots.” He did not take the threats entirely seriously but did not know what to do about them. Tavitian was “more than just concerned” about the threats. Tavitian’s father, however, was upset by the exchange and he and Tavitian reported the incident to police later that evening. Tavitian was “[a] little worried but not too worried” about the messages.
(ii) Events of October 10, 2007.
On October 10, 2007, Tavitian attended an event at his high school. A friend told him that Ashikian and Ashikian’s friends were coming to the school, looking for him. Due to this information, Tavitian immediately left the school event and went home. He did not wish to become involved in “any kind of trouble.” He wasn’t sure whether Ashikian was coming to hurt him; “[a]nything could have happened.”
(iii) Events of October 11, 2007.
A. 2:30 p.m. telephone call (Count 1).
The next day, on October 11, 2007, Ashikian called Tavitian at approximately 2:30 p.m. Ashikian told Tavitian to call him before midnight or he would shoot at Tavitian’s house. Tavitian believed Ashikian had weapons. Ashikian claimed he was a gang member from the Pasadena area. He said he did not care about Tavitian’s life, and that someone needed to put Tavitian in his place. Ashikian stated he wished to meet Tavitian at an intersection in Pasadena. Tavitian attempted to calm Ashikian down.
B. Instant messages (Count 2).
Tavitian remained logged in to his instant messaging program when he left for the remainder of the afternoon. When he returned home that evening at approximately 10:00 p.m., he saw that Ashikian had repeatedly sent him instant messages. One of the messages began with an Armenian phrase meaning, “Hey, idiot.” Then Ashikian said, “You run around talking shit, saying Froggy’s a bitch and this and that. L.O.L. When I catch you, L.M.A.O., watch gyote.” “L.M.A.O” means “ ‘laugh my ass off’ ” and “gyote” means “gay.” Ashikian further messaged, “ ‘Fuck your gay mouth’ ” and “You keep this shit up I’m a run in your house, the one on Mich[e]linda and Denair.” The intersection of those streets was near Tavitian’s home. Ashikian also stated, “Neighborhood Primos, bitch. Sleep with one eye open.” At first, Tavitian did not take the threats seriously, and was “not entirely” in fear for his life. However, “as that night went on and it got closer to midnight [he] started worrying a little more....” He eventually told his parents about the threats. He was concerned about his and his parents’ safety, as were they. His parents called police.
C. 11:45 p.m. telephone call (Count 3).
Pasadena Police Officer Sheri Schwab arrived at the Tavitian home and took a report. At approximately 11:45 p.m., while Officer Schwab was still there, Ashikian called Tavitian. Schwab wrote down questions for Tavitian to ask and recorded the conversation.
Ashikian stated, among other things, that Tavitian was supposed to call him by midnight. He wanted Tavitian to come to his house, where he would be waiting outside. He invited Tavitian to “bring as many friends as you want.” Tavitian asked why Ashikian had threatened to shoot up his house. Ashikian replied that Tavitian had “put my name down, [c]alled me a little bitch” and he was “going to put my name back up, really back up like high up.” Ashikian said he had not carried through on his threat to shoot at Tavitian’s house because Tavitian had not been home, and he did not wish to hurt Tavitian’s family. Ashikian stated that he would not come to the high school Tavitian attended to avoid getting in trouble “with the cops.” Tavitian asked what would happen if he did not come to Ashikian’s house to talk, as Ashikian desired. Ashikian replied that he would find him. Tavitian mentioned the September incident at the Arcadia party, and opined that the person who had “smashed the bottle on Nathan’s head” should have been arrested. Ashikian replied, “That’s a sample of what’s going to happen to Vatche. Remember these words. Then you’re next dawg....” Tavitian asked whether Ashikian was “going to take down... all my friends one by one? You think you[’re] untouchable?” Ashikian replied, “I’m not untouchable dawg. I’m going to beat all you fools up, you guys can shoot back, we’ll shoot at you and have fun dawg.” Ashikian told Tavitian to “stop talking shit” or “every single one of you guys are going to regret it.” He claimed to have gone to the home of one of Tavitian’s friends with a gun, frightening the friend. When Tavitian asked whether Ashikian or his friend had the gun, Ashikian replied, “It’s every single one of us dawg, what you think we have one gun for 30 people? All of us got straps.” Ashikian stated he would “smoke Vatche’s ass that’s for sure, if it[’s] not today, it[’s] not tomorrow, not this year not next year... Vatche’s a dead man, that’s for sure.”
Tavitian again asked what would happen if he did not come to Ashikian’s house as requested. Ashikian replied, “If you don’t come meet me tonight dawg, then I[’]m sorry, I gotta be your enemy.” Ashikian elaborated, “I[’]m going to catch you and it[’s] going to be ten times worse for you.” “I could catch you tomorrow, I can catch you next month it don’t matter, but I[’]m going to catch you.” Ashikian stated that he knew what parties Tavitian attended and would find him there, and cautioned that Tavitian and his friends should “watch your backs and watch your front.” He threatened that “I[’]m going to come out on Halloween and be very evil, Froggy[’]s a bitch, I[’]m going to show all you guys what a bitch Froggy is, Froggy is very evil, don’t fuck with Froggy.”
Tavitian asked, “what are you going to do when you catch me on the street are you going to get me 10 time[s] worse by shooting me or something?” Ashikian replied, “I didn’t say that I just said [I’m] going to hurt you dawg, I don’t want to talk to you on the phone, cause you could be recording me right now,... remember like the time you called the cops on me, remember that?” Tavitian stated he had not called the police. Ashikian replied, “If you call the cops, [p]eople get killed for snitching. You think if you call the cops on me you[’re] going to put me in jail? You think all the other homies don’t know who you are? Bitch,... from snitching dawg. I[’]m telling you right now, snitching is the worst thing you can do....”
Tavitian understood the comments to mean that if he called police, he would be killed or hurt. Tavitian was also worried about Ashikian’s statements about carrying guns; he “didn’t feel safe.” The next day at school, Tavitian “rushed in the high school and rushed out of school” because he did not feel safe. On October 12, Tavitian’s father told Schwab that Tavitian was “highly concerned,” had not slept well, and did not want to go to school. Tavitian had requested that his father drop him off near the school police when he arrived on campus.
(iv) October 13, 2007 incidents (Counts 4 and 10).
On October 13, 2007, at approximately 8:00 p.m., Tavitian was home alone. He heard noises outside and went to investigate. Someone had thrown a dozen eggs at his driveway, car, and front door. He cleaned up the mess, hosed down the driveway, and went back inside and worked at the computer. From that vantage point, he observed a black car, later identified as being driven by Ashikian, pass by the house. Tavitian went outside and hid behind his own car to see if the black car would drive past again. It did, and stopped right in front of Tavitian’s car. The driver was wearing a hooded sweatshirt and a bandana covering his face below his eyes. Tavitian stuck his head out from behind his hiding place. The hooded driver raised his arm at Tavitian, holding a black object in his hand that Tavitian believed was a gun. Tavitian was not afraid “at that exact moment” the car drove by, but became afraid for his own and his family’s safety within two minutes, “after realizing what just happened or what could have happened....” He called police and his parents, who returned home.
Later that night, Ashikian called Tavitian 11 times during a five-minute period between 11:22 and 11:27 p.m. Telephone records indicated the calls were made in the area where Tavitian’s home was located.
2. Procedure.
After waiving his right to a jury trial, Ashikian was tried by the court. He was convicted of four counts of making criminal threats (Pen. Code, § 422), three counts of assault with a semiautomatic firearm (§ 245, subd. (b)), simple assault, a misdemeanor (§ 240), dissuading a witness by force or threat (§ 136.1, subd. (c)(1)), and misdemeanor exhibiting a concealable firearm in a public place (§ 417, subd. (a)(2)). The trial court also found true the allegation that Ashikian personally used a firearm during commission of the assaults. It sentenced Ashikian to a total term of seven years in state prison, and imposed a restitution fine, a suspended restitution fine, and eight court security fees.
All further undesignated statutory references are to the Penal Code.
DISCUSSION
1. Sufficiency of the evidence to prove the criminal threats convictions (counts 1, 2, and 9).
a. Applicable legal principles.
When determining whether the evidence was sufficient to sustain a criminal conviction, we review the entire record in the light most favorable to the judgment to determine “ ‘whether it discloses substantial evidence -- that is, evidence which is reasonable, credible, and of solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.]” (People v. Hillhouse (2002) 27 Cal.4th 469, 496; People v. Halvorsen (2007) 42 Cal.4th 379, 419; People v. Carter (2005) 36 Cal.4th 1215, 1257-1258.) We presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053; People v. Wader (1993) 5 Cal.4th 610, 640.) Reversal is not warranted unless it appears “ ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.)
Section 422 makes it an offense to willfully threaten to commit a crime which will result in death or great bodily injury to another person under specified circumstances. (People v. Toledo (2001) 26 Cal.4th 221, 224; People v. Maciel (2003) 113 Cal.App.4th 679, 685-686.) Not all threats are criminal, however. (In re George T. (2004) 33 Cal.4th 620, 630.) “In order to prove a 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... 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.” (People v. Toldeo, supra, at pp. 227-228; see generally People v. Bolin, supra, 18 Cal.4th at pp. 337-340; In re George T., supra, at p. 630.) When considering the sufficiency of the evidence to support a criminal threats conviction, we evaluate the totality of the circumstances, including the parties’ prior contacts and the manner in which the communication was made, to determine whether the communication conveyed to the victim a gravity of purpose and an immediate prospect of execution of the threat. (In re Ryan D. (2002) 100 Cal.App.4th 854, 859-863; People v. Butler (2000) 85 Cal.App.4th 745, 753-754; In re Ricky T. (2001) 87 Cal.App.4th 1132, 1137; People v. Solis (2001) 90 Cal.App.4th 1002, 1013.)
Section 422 provides in pertinent part: “Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is 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, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family’s safety,” is guilty of a crime.
“The phrase ‘will result in great bodily injury’ means objectively, i.e., to a reasonable person, likely to result in great bodily injury based on all the surrounding circumstances.” (People v. Maciel, supra, 113 Cal.App.4th at p. 685.) “Great bodily injury” means “ ‘a significant or substantial physical injury.’ ” (Id. at p. 686.) “ ‘[T]here is no requirement that a specific crime or Penal Code violation be threatened.’ [Citation.]” (Id. at p. 685.) “Sustained fear” means “a period of time that extends beyond what is momentary, fleeting, or transitory.” (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.) However, the period need not be lengthy. (Ibid. [“Fifteen minutes of fear of a defendant who is armed, mobile, and at large, and who has threatened to kill the victim and her daughter, is more than sufficient to constitute ‘sustained’ fear for purposes of this element of section 422”]; In re Ricky T., supra, 87 Cal.App.4th at p. 1140.) “Immediate,” as used in the statute, means “that degree of seriousness and imminence which is understood by the victim to be attached to the future prospect of the threat being carried out....” (People v. Melhado (1998) 60 Cal.App.4th 1529, 1538.)
b. The evidence was insufficient to prove Ashikian made criminal threats on May 3 (Count 9).
Ashikian contends his conviction on Count 9 must be reversed because the evidence was insufficient to prove he made an actual threat during the May 3, 2007 instant messaging session, or that Tavitian was in sustained fear.
The evidence was sufficient to establish Ashikian willfully threatened to commit a crime that would result in great bodily injury to Tavitian. Among other things, Ashikian stated that when he caught Tavitian on the streets, Tavitian would be running and ducking, which Tavitian understood to be a reference to Ashikian shooting at him. Ashikian gave his last name as “Immafuckyoupyan.” Ashikian stated twice that he was not joking, and warned that Tavitian did not “know what situation you’re in.” Further, he stated, “I’m gonna get you and your house. [¶]... And everything around you. [¶]... You don’t even know.” He further threatened, “when I catch you on the streets and you’re crying like a bitch, don’t say I didn’t tell you.”
Plainly, these statements qualified as threats within the meaning of section 422. A threat is sufficiently specific where it threatens great bodily injury. (People v. Butler, supra, 85 Cal.App.4th at p. 752.) Fairly read, Ashikian’s statements were unequivocal and unambiguous threats to physically harm Tavitian. A reasonable person could easily conclude that Ashikian was threatening to shoot Tavitian when he taunted that Tavitian would be running and ducking. Further, Ashikian impliedly threatened physical harm to Tavitian when he threatened to catch him and cause him to cry, threatened to “fuck [him] up,” and threatened that he would “get you and your house... [a]nd everything around you.” Contrary to Ashikian’s argument, the threats reasonably conveyed much more than that Ashikian intended to egg Tavitian’s house. His statements carried both implied and explicit threats of serious physical harm. “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.’ ” (People v. Butler, supra, at p. 752; People v. Martinez (1997) 53 Cal.App.4th 1212, 1220 [threat was sufficiently specific although the defendant did not mention specific activities which would result in great bodily injury or death].) Ashikian reinforced this impression by his repeated admonishment that he was not joking.
Further, the context of the conversation supported the trial court’s finding. Ashikian began the instant messaging session with a vulgar and degrading sexual reference, repeatedly referred to Tavitian as a “little kid,” repeated his threats in a variety of ways, and conducted the conversations with obvious hostility. The threats made by Tavitian bore no similarity to those found too ambiguous in other cases. (See In re Ricky T., supra, 87 Cal.App.4th at pp. 1135, 1138 [juvenile said, “ ‘I’m going to get you’ ” after teacher accidentally hit him with a door]; In re George T., supra, 33 Cal.4th at pp. 627, 636 [evidence insufficient where high school student gave two classmates a poem that, while referring to his dark, destructive, and dangerous nature, was inherently ambiguous and open to varying interpretations].) The evidence detailed ante was more than sufficient to prove Tavitian willfully threatened to commit a crime which would have resulted in death or great bodily injury.
However, the evidence was insufficient to establish the fourth element, i.e., that the threats actually caused Tavitian to be in sustained fear for his own, or his immediate family’s, safety. (See In re Ricky T., supra, 87 Cal.App.4th at p. 1140 [a victim must actually be in sustained fear to establish violation of section 422].) At trial, when asked whether he took the threats seriously, Tavitian replied, “Not to the full extent ‘cause – I mean, I didn’t know what to do about it.” He admitted being “concerned.” That evening, he did not have trouble sleeping. He went to school the next day, at which point he was “[a] little worried but not too worried” about the threats. This testimony simply does not establish Tavitian’s concern rose to the level of fear.
Nor do Tavitian’s responses during the instant messaging session demonstrate fear. During the conversation Tavitian stated, “Okay, tough guy. Grow up. How about that.” He challenged Ashikian to give his last name, if he “ha[d] balls.” Tavitian stated that he was laughing at Ashikian, who was a “loser,” because Ashikian was 18 years old and had nothing better to do than pick on others. When Ashikian stated that he was not joking and he would “get” Tavitian, Tavitian replied that it was “hilarious.” He told Ashikian to “[g]et a life” and “[g]row up,” and sarcastically stated, “Ha, ha. I’m shaking in my boots.” These comments demonstrate Tavitian was unafraid during the instant messaging session. No evidence indicates he became afraid afterwards, until months later when further threats were made.
The People urge that the evidence was sufficient to demonstrate Tavitian’s sustained fear for three reasons. First, they point out that Tavitian and his father reported the messages to police that evening. The fact a victim calls police can, indeed, demonstrate sustained fear. (See People v. Melhado, supra, 60 Cal.App.4th at p. 1538.) When asked, during direct examination, whether he was concerned about the threats, Tavitian replied, “Well, at that night around 12:30 we came to the police station, me and my dad, so he was concerned.” (Italics added.) Later in his testimony, Tavitian confirmed that his father was in fear for his life and called police. Tavitian nowhere stated that he was concerned for his safety, or that he wished to go to the police. Nor does the evidence suggest Tavitian reported the threats to his father due to fear. Instead, his father became involved because he was seated next to Tavitian when the instant messaging session was going on.
Second, the People argue that Tavitian stayed up until 2:00 or 3:00 a.m., discussing the messages with his parents. However, this evidence was elicited upon the prosecutor’s query as to whether Tavitian slept “okay” that night. Tavitian replied, “I fell asleep a little late ‘cause my parents and I stayed up till 2:00 or 3:00 talking about it.” Tavitian did not state that the conversation was necessitated by his fear.
Finally, the People point out that when asked whether he was “more than just concerned” about the threats, Tavitian responded affirmatively. However, the record is devoid of any testimony that Tavitian was afraid or frightened. Being “more than just concerned,” in the context of his testimony as a whole, did not amount to evidence he was in sustained fear. While the evidence suggests that Tavitian’s father was fearful, it does not demonstrate that, as of May 3, 2007, Tavitian shared that fear. The evidence was therefore insufficient to support the finding of guilt on count 9.
c. The evidence was sufficient to prove the criminal threats convictions stemming from Ashikian’s conduct on October 11, 2007 (Counts 1 and 2).
In contrast, applying the sufficiency of the evidence standard articulated ante, there was sufficient evidence to support the criminal threats convictions in counts 1 and 2, despite Ashikian’s contention that there was no evidence Tavitian was placed in sustained fear by these threats.
Ashikian does not challenge the sufficiency of the evidence on count 3, and we therefore do not address the issue.
Ashikian does not contend that the evidence was insufficient to establish the remaining elements of the crime, and we accordingly we do not specifically discuss the evidence as it pertained to the other elements. As is readily apparent from our recitation of the facts ante, the evidence was sufficient to establish the other elements of the crime.
Count 1 was based upon the 2:30 p.m. telephone call placed by Ashikian to Tavitian. During that call, Ashikian threatened, among other things, to shoot up Tavitian’s house if Tavitian failed to call him before midnight. Ashikian appropriately concedes that this statement was a threat within the meaning of section 422. Count 2 was based upon the instant messages sent by Ashikian following the call. In those messages, Ashikian stated, among other things, that he would catch Tavitian; that he would “run in [Tavitian’s] house”; and that Tavitian should “sleep with one eye open.” Ashikian’s comments also demonstrated he knew where Tavitian lived. Ashikian, correctly, does not argue that these statements were insufficient to constitute threats within the meaning of the statute.
Instead, Ashikian posits that there was insufficient evidence to prove Tavitian was placed in sustained fear by either the 2:30 p.m. call or the series of instant messages that followed. We disagree. After recounting the specific threats made, Tavitian was asked whether he was in fear for his life. He answered, “Um, not entirely.” When asked, “Were you concerned at all?” he answered, “A little bit.” If this was the sum total of evidence supporting the crimes, we would perhaps agree with Ashikian that there was insufficient evidence of sustained fear. However, substantial additional evidence exists.
First, on October 10, the previous evening, Tavitian had been informed by friends that Ashikian and his cohorts were on the way to the high school, looking for him. Tavitian immediately left the school function he was attending and went home. He was not sure whether Ashikian was coming to hurt him and was concerned that “[a]nything could have happened.” Further, when asked whether he took the threats made during the 2:30 p.m. telephone call and the instant messages on October 11 seriously, Tavitian responded, “At first I didn’t but as that night went on and it got closer to midnight I started worrying a little more and then eventually told my parents what was going on,” at approximately 11:30 p.m. Tavitian testified that, at this point, he was concerned for his safety, as well as the safety of his parents. (People v. Mendoza (1997) 59 Cal.App.4th 1333, 1342 [sufficient evidence of sustained fear when victim became afraid of defendant’s threat after learning that gang members were looking for her]; People v. Allen, supra, 33 Cal.App.4th at p. 1156.) Upon learning of the threats, Tavitian’s parents telephoned police. Unlike in the May 2007 incident, on October 11, it is readily apparent that Tavitian told his parents about Ashikian’s conduct because he was afraid and needed assistance, resulting in the call to police. (See People v. Melhado, supra, 60 Cal.App.4th at p. 1538 [call to police evidenced fear].) This evidence was sufficient to prove sustained fear within the meaning of the statute.
Additionally, according to Tavitian’s father, that night Tavitian was “highly concerned,” did not sleep well, and did not wish to attend school the next day. Tavitian requested that his father drop him near the school police when taking him to school the following morning. Tavitian also recounted that he did not feel safe at school and “rushed” in and out of campus. Of course, at that point the midnight telephone call from Ashikian–during which Ashikian made numerous additional threats and disturbing statements–had also added to Tavitian’s level of fear and distress. However, in our view Ashikian’s ongoing course of conduct cannot be compartmentalized. Tavitian’s fear the following morning was at least partially attributable to the 2:30 call and afternoon instant messages. The evidence was sufficient.
2. The evidence was sufficient to prove Ashikian’s conviction for dissuading a witness by threat.
Ashikian next challenges the sufficiency of the evidence supporting his conviction for dissuading a witness by force or threat (§ 136.1, subd. (c)(1)). That conviction was based on Ashikian’s conduct on the night of October 13, 2007, when he egged and repeatedly drove by Tavitian’s house, followed by repeated calls to Tavitian. Ashikian urges that there is no evidence his intent was to dissuade Tavitian from testifying or reporting his threats to police. We disagree.
Section 136.1 makes it a criminal offense to knowingly and maliciously dissuade or attempt to dissuade any witness or victim from making a report to a peace officer, or from attending or giving testimony at any trial, proceeding, or inquiry authorized by law. (§ 136.1, subds. (a)(2), (b)(1); People v. Prieto (2003) 30 Cal.4th 226, 268-269.) “The offense can be either a misdemeanor or felony; if the perpetrator tried to dissuade by using force or the threat of force, it is a felony. (§ 136.1, subd. (c).)” (People v. Ortiz (2002) 101 Cal.App.4th 410, 415-416.) “The crime of intimidating a witness requires proof that the defendant specifically intended to dissuade a witness from testifying. [Citations.]” (People v. Young (2005) 34 Cal.4th 1149, 1210.)
There is no requirement that the threat of force be explicit; the plain language of the statute provides that the threat may be implied. (§ 136.1, subd. (c)(1).) “ ‘There is, of course, no talismanic requirement that a defendant must say “Don’t testify” or words tantamount thereto, in order to commit the charged offenses. As long as his words or actions support the inference that he... attempted by threat of force to induce a person to withhold testimony [citation], a defendant is properly’ convicted of a violation of section 136.1, subdivision (c)(1).” (People v. Mendoza, supra, 59 Cal.App.4th at p. 1344 [a rational juror could find defendant’s statement that he would talk to the “ ‘guys from Happy Town,’ ” (id. at p. 1343) a criminal street gang, was an implied threat to have gang members inflict violence on the victim]; People v. McElroy (2005) 126 Cal.App.4th 874, 877, 881-882 [defendant violated section 136.1 when, during an argument, he grabbed and hung up telephone when his girlfriend said she was calling police].) Intent is rarely susceptible to direct proof, and usually must be inferred from the facts and circumstances surrounding the offense. (People v. Massie (2006) 142 Cal.App.4th 365, 371.)
Here, there was sufficient evidence that Ashikian intended his actions on the evening of October 13, 2007, to dissuade Tavitian from reporting the threats to police. Near the end of his last conversation with Tavitian two days before, Ashikian had warned Tavitian that people who “call the cops... get killed for snitching.” He also expressed concern that Tavitian might call police, and might be recording their call. It was a reasonable inference that, two days later when he egged Tavitian’s house and drove past with his hand extended, Ashikian intended to send a message that Tavitian should not report the threats to police or testify against him in an eventual proceeding or he would make good on his threats. Although the trier of fact found insufficient evidence to establish the item in Ashikian’s hand was actually a gun, nevertheless his actions clearly mimicked the motion of aiming a gun at Tavitian, sending the desired message. From Ashikian’s menacing actions, occurring after the threat, the trier of fact could have inferred an intent to dissuade.
Ashikian argues that such an inference is speculative, especially in light of the fact that the evidence showed he already suspected the police had recorded the calls. We disagree. Ashikian certainly did not know the October 11 call was being tape recorded, or he would not have continued making threatening statements. Contrary to Ashikian’s argument, any suspicion that Tavitian had already reported, or might be about to report, the threats to police supported the intent element. Ashikian’s suspicions provided a strong motive for him to attempt to dissuade Tavitian from reporting or cooperating with authorities. While the evidence may have been susceptible to other inferences, this was a question of fact for the trier of fact, not for this court. (People v. Rodriguez, supra, 20 Cal.4th at p. 11.)
3. The evidence was sufficient to prove appellant’s convictions for assault with a semiautomatic firearm.
Ashikian next contends the evidence was insufficient to prove the three counts of assault with a semiautomatic firearm against Kechichian, Batanian, and Verano outside the Arcadia party. Ashikian asserts the evidence was insufficient to prove either that the gun was a semiautomatic, or that it was loaded, both elements of the offense. We disagree.
a. The evidence was sufficient to prove the gun was a semiautomatic.
Section 245, subdivision (b) provides: “Any person who commits an assault upon the person of another with a semiautomatic firearm shall be punished by imprisonment in the state prison for three, six, or nine years.” The plain language of the statute requires that to prove the offense, the People must demonstrate that the gun in question was a semiautomatic. A semiautomatic firearm “ ‘fires once for each pull on the trigger and reloads automatically, but requires the shooter to release the trigger lever before another shot can be fired.’ ” (In re Jorge M. (2000) 23 Cal.4th 866, 874, fn. 4.) The testimony of a lay witness is sufficient to establish the nature of a firearm; expert testimony is not generally required. (See People v. Haynes (1984) 160 Cal.App.3d 1122, 1136, fn. 7; People v. Williams (1976) 56 Cal.App.3d 253, 254- 255.)
Here, Kechichian and Batanian both testified that the gun had a clip, not a revolving chamber for bullets. All three victims saw Ashikian pull back the gun’s slide, indicating it was a semiautomatic, not a revolver. Both Batanian and Kechichian testified they believed the gun was a semiautomatic. The fact Verano thought the gun looked like a BB gun, or that the witnesses were not familiar with firearms, was immaterial; it was up to the trier of fact, not this court, to weigh the evidence and resolve any discrepancies. (People v. Young, supra, 34 Cal.4th at p. 1181; People v. Maury (2003) 30 Cal.4th 342, 403.) Ashikian offers no persuasive authority or argument for the proposition that the distinction between a revolver or other firearm, and a semiautomatic weapon, is so complex that expert testimony is required, and we are aware of none. The evidence was sufficient to prove the gun was a semiautomatic.
b. The evidence was sufficient to prove the gun was loaded.
“A long line of California decisions holds that an assault is not committed by a person’s merely pointing an (unloaded) gun in a threatening manner at another person. [Citations.]” (People v. Rodriguez, supra, 20 Cal.4th at p. 11, fn. 3; People v. Lochtefeld (2000) 77 Cal.App.4th 533, 542 & fn. 10 [applying rule that an assault cannot be committed by merely pointing an unloaded firearm at a victim, but arguing that the rule is an anachronism that should be discarded]; cf. People v. Miceli (2002) 104 Cal.App.4th 256, 269.) Direct evidence that the gun was loaded is not required, however. “A defendant’s own words and conduct in the course of an offense may support a rational fact finder’s determination that he used a loaded weapon.” (People v. Rodriguez, supra, at p. 13; People v. Mearse (1949) 93 Cal.App.2d 834, 837 [the acts and language used by a defendant while carrying a gun may constitute an admission by conduct that the gun is loaded].)
For example, in People v. Rodriguez, supra, 20 Cal.4th 1, the defendant, a gang member, committed a shooting. The next day, when confronting a witness, he pulled a gun from his waistband, placed the barrel under the witness’s chin, and stated that he could do to the witness what he had done to the shooting victims. (Id. at pp. 6-7.) The People argued that there was sufficient evidence the gun was loaded because the defendant had shot someone the previous day, and because a gang member like the defendant, in an area where gang violence was prevalent, would not carry an unloaded gun. (Id. at p. 12.) The appellate court reversed the assault with a firearm conviction, holding that there was insufficient evidence the gun was loaded. Rodriguez concluded the evidence was sufficient. (Id. at pp. 10-14.) In addition to the aforementioned testimony, the jury could have concluded the defendant’s threat was an admission of his present ability to harm the assault victim. (Id. at p. 12.)
Other cases are in accord. (People v. Lochtefeld, supra, 77 Cal.App.4th at pp. 536, 541-542 [defendant’s act of pointing a gun at officers, with his finger on the trigger, was an implied assertion the gun was charged; Lochtefeld’s own words and actions, in both verbally threatening and in displaying and aiming the gun at others, fully supported the jury’s determination the gun was sufficiently operable]; People v. Mearse, supra, 93 Cal.App.2d at pp. 836-838 [evidence sufficient gun was loaded where, inter alia, the defendant commanded the victim to halt, or he would shoot]; People v. Montgomery (1911) 15 Cal.App. 315, 319 [sufficient evidence a gun was loaded, despite the defendant’s contrary testimony, where the angry defendant left a fight, returned with a gun, pointed it at the victim and declared, “ ‘I have got you now’ ”].)
Here, as in the foregoing cases, sufficient evidence supported the inference that the gun was loaded. Ashikian, unamused by Kechichian’s jocularity, said, “I got the gun,” while pointing it directly at Kechichian. Ashikian then waved the gun at Kechichian’s companions. The trier of fact could reasonably infer that Ashikian’s statement, “I got the gun,” while pointing it at Kechichian, was an implied threat to shoot. Thus, his statements and conduct amounted to an implied assertion that the gun was loaded and capable of harming the men. (See People v. Lochtefeld, supra, 77 Cal.App.4th at p. 542.) Ashikian also “cocked” the gun by pulling the slide back, further suggesting the gun was loaded.
Additional evidentiary support is found in Ashikian’s statements to Tavitian. In May 2007, several months before the September 2007 assaults, Ashikian threatened that Tavitian would be running and ducking. This comment suggested Ashikian would be firing bullets at Tavitian, clearly implying he carried a loaded, not an unloaded, gun. In October 2007, approximately one month after the assaults, Ashikian implied he was affiliated with a gang; threatened to shoot at Tavitian’s house; and stated that he and “every single one of” his friends “got straps,” i.e., guns. It would have been anomalous for Ashikian, who implied he was a gang member, to brag that he and his friends carried unloaded guns; the clear import of his statement was that the guns were loaded. Thus, the September assaults were bracketed by instances in May and October in which Ashikian claimed or implied that he had a loaded gun. This evidence bolstered the inferences the trier of fact could reasonably draw from Ashikian’s conduct and statements during the offense. The fact other inferences were possible is of no moment. (See People v. Rodriguez, supra, 20 Cal.4th at pp. 13-14; People v. Ceja (1993) 4 Cal.4th 1134, 1139.) The evidence was sufficient to prove the gun was loaded.
4. The evidence was insufficient to prove simple assault (Count 10).
Ashikian was charged in count 10 with assault with a firearm (§ 245, subd. (a)(2)), based on the October 13, 2007 incident in which he drove past Tavitian’s house and extended his arm out the window. Tavitian initially told police that Ashikian had pointed a gun at him, but at trial testified that it was too dark for him to be sure.
When rendering the verdicts, the court indicated it was not convinced beyond a reasonable doubt that Ashikian had a gun when he drove by the house. Accordingly, the trial court found Ashikian not guilty of assault with a firearm, but guilty of the lesser offense of simple assault in violation of section 240.
Ashikian contends that, if the evidence was insufficient to prove he pointed a gun at Tavitian, it was also insufficient to prove he committed simple assault. The People concede the point, and we agree. Assault is defined as “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” (§ 240.) To prove that the defendant is guilty of simple assault, the People must establish: (1) the defendant did an act that by its nature would directly and probably result in the application of force to a person; (2) the defendant did that act willfully; (3) when the defendant acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone; and (4) when the defendant acted, he had the present ability to apply force to a person. (CALCRIM No. 915; People v. Ibarra (2007) 156 Cal.App.4th 1174, 1194; People v. Golde (2008) 163 Cal.App.4th 101, 108-109.)
Tavitian testified that Ashikian raised his arm toward Tavitian as he drove by the house, holding something in his hand. There was no evidence that Ashikian attempted to throw the object or otherwise apply force to Tavitian. If Ashikian did not point a gun at Tavitian, he committed no act that by its nature would have resulted in the application of force to Tavitian. As the People point out, “the court’s finding that there was insufficient evidence that appellant was holding a gun, means that appellant’s action did not constitute assault.” Accordingly, the conviction on count 10 must be reversed.
5. Correction of the abstract of judgment.
The trial court sentenced Ashikian to a concurrent, low term of three years on count 6. (See § 245, subd. (b).) The abstract of judgment indicates that a low term of four years was imposed. Where an abstract of judgment differs from the court’s oral pronouncements, the abstract does not control. (People v. Mitchell (2001) 26 Cal.4th 181, 185; People v. Walz (2008) 160 Cal.App.4th 1364, 1367, fn. 3; cf. People v. Price (2004) 120 Cal.App.4th 224, 242 [“Any discrepancy between the minutes and the oral pronouncement of a sentence is presumed to be the result of clerical error”].) The abstract of judgment clearly contains a clerical error, which may be corrected by this court on appeal. (People v. Mitchell, supra, at p. 185; People v. Garcia (2008) 162 Cal.App.4th 18, 24, fn. 1.)
DISPOSITION
Ashikian’s convictions for making criminal threats (§ 422, count 9) and for simple assault (§ 240, count 10), are reversed. The abstract of judgment is modified to reflect the low term of three years, concurrent, on count 6. The clerk of the superior court is ordered to prepare an amended abstract of judgment and forward a copy to the Department of Corrections. In all other respects, the judgment is affirmed.
We concur: CROSKEY, Acting P. J., KITCHING, J.