Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. VJ38545 Benny C. Osorio and Gary Y. Tanaka, Judges.
Stephen Borgo, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Stephanie A. Miyoshi and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.
MOSK, J.
INTRODUCTION
The District Attorney of Los Angeles County filed a petition alleging that defendant and appellant G.S. came within the provisions of Welfare and Institutions Code section 602 because he committed the felony offenses of attempted second degree robbery (Pen. Code, §§ 664/211 ) and making a criminal threat (§ 422). The juvenile court found the allegations true and ordered G.S. suitably placed at the Dorothy Kirby Center.
All statutory citations are to the Penal Code unless otherwise noted.
On appeal, G.S. contends that insufficient evidence supports the findings that he made a criminal threat and committed an attempted robbery. We affirm.
BACKGROUND
About 3:00 p.m. on September 30, 2010, Gordon B. was using his telephone as he walked on 30th Street West in Lancaster. G.S. approached Gordon and asked him, in a very hostile manner, where he was from. Gordon understood the inquiry to be a “sort of gang term.” Gordon responded that he did not “bang, ” and was not in a gang. G.S. said, “On, no, I’m not trying to bang on you. It’s nothing like that.”
Gordon noticed that G.S. was holding a “bulge” in his waistband. Gordon said to G.S., “You are making me really nervous with that bulge in your waistband.” G.S. walked closer to Gordon and said that the bulge was a gun. G.S. said that he would shoot Gordon dead if Gordon did not give him Gordon’s telephone.
Gordon believed that the bulge was a gun. Gordon was in fear for his life and punched G.S. in the mouth. G.S. fell backwards into a bush, and Gordon got on top of him. Gordon put his hand on G.S.’s throat. Gordon was afraid that G.S. was “going to go for his gun.” As soon as Gordon got on top of G.S., however, G.S. put up his hands and said, “I’m just a kid. I’m just a kid. Don’t hit me.” Gordon was nervous and did not want to allow G.S. to get up if G.S. had a gun, but G.S. pulled a hairbrush from his belt and showed Gordon that he did not have a gun.
Gordon allowed G.S. to get up, and G.S. started to walk away. As G.S. walked away, he said he was going to “get” Gordon. G.S. said he was going to get his “boys” and return “right then” or “right now.” Gordon took G.S.’s statement as a threat. Gordon was afraid for his safety and thought that G.S. and his “boys” would return in “maybe 10 minutes” and inflict bodily harm on Gordon as he walked down the street.
About 3:00 p.m. on September 30, 2010, Sheriff’s Deputy Scott Woods responded to an attempted robbery call and spoke with Gordon. Gordon told Deputy Woods what had happened. Deputy Woods did not recall Gordon telling him that G.S. said he was going to come back “right now.” Deputy Woods did recall, however, that Gordon said that he was afraid that G.S. and “several others would be driving by within minutes to kill him.” Gordon explained to the deputy that because of his fear, he walked towards Antelope Valley College to wait for the deputy to arrive.
DISCUSSION
I. The Criminal Threat Finding
G.S. contends that insufficient evidence supports the juvenile court’s finding that he made a criminal threat within the meaning of section 422. G.S. contends that his statement to Gordon that he was going to get him and would momentarily return with his “boys” was an angry utterance that did not place Gordon in sustained fear. Sufficient evidence supports the juvenile court’s finding.
Section 422 provides, in relevant 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, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.”
“‘When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.]” (People v. Avila (2009) 46 Cal.4th 680, 701.) In determining whether substantial evidence supports a conviction, “we do not reweigh the evidence, resolve conflicts in the evidence, draw inferences contrary to the verdict, or reevaluate the credibility of witnesses.” (People v. Little (2004) 115 Cal.App.4th 766, 771, citing People v. Jones (1990) 51 Cal.3d 294, 314.)
“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—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, italics added.)
“[S]ection 422 does not punish such things as ‘mere angry utterances or ranting soliloquies, however violent.’ (People v. Teal (1998) 61 Cal.App.4th 277, 281 [71 Cal.Rptr.2d 644].)” (In re Ryan D. (2002) 100 Cal.App.4th 854, 861.) For purposes of section 422, “sustained fear” is fear that “extends beyond what is momentary, fleeting, or transitory.” (People v. Allen (1995) 33 Cal.App.4th 1149, 1156; In re Ricky T. (2001) 87 Cal.App.4th 1132, 1139-1140.)
According to G.S., while he was leaving the scene, he said to Gordon “something to the effect, ‘I am going to get you, ’ or that he was going to come back with his boys.” Citing In re Ricky T., supra, 87 Cal.App.4th at page 1140, G.S. contends that his statement was an angry utterance that might have caused Gordon momentary fear, but could not have caused Gordon sustained fear “over a prolonged period of time.” G.S.’s reliance on In re Ricky T. is misplaced. In In re Ricky T., after a teacher accidentally hit a student with a door, the student threatened to “get” the teacher and “‘kick [his] ass.’” (Id. at p. 1137.) There was no evidence, however, that the teacher “felt fear beyond the time of the angry utterances.” (Id. at p. 1140.) Here, there is substantial evidence that Gordon was in sustained fear beyond the time G.S. threatened him.
When G.S. approached Gordon, he asked Gordon where Gordon was from. Gordon understood the inquiry to be gang related. G.S. threatened to shoot and kill Gordon if Gordon did not comply with G.S.’s demand to turn over Gordon’s telephone. Then, after Gordon successfully fended off G.S.’s attempted robbery by punching G.S. in the face and subduing him, G.S. threatened to “get” Gordon and said that he was going to get his “boys” and return right away. Gordon was afraid for his safety and expected G.S. and his “boys” to return momentarily and inflict great bodily injury on Gordon. Gordon’s fear caused him leave the scene and walk towards Antelope Valley College as he waited for law enforcement to arrive.
II. The Attempted Second Degree Robbery Finding
G.S. contends that insufficient evidence supports the juvenile court’s finding that he attempted to commit a second degree robbery. G.S. contends that there is insufficient evidence that Gordon was placed in fear of him. Sufficient evidence supports the finding.
“Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” (§ 211.) “An attempt to commit a crime is comprised of ‘two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission.’ (§ 21a; see § 664 [prescribing punishment].) Other than forming the requisite criminal intent, a defendant need not commit an element of the underlying offense. [Citations.]” (People v. Medina (2007) 41 Cal.4th 685, 694; People v. Vizcarra (1980) 110 Cal.App.3d 858, 862-863 [although robbery requires the use of force or fear, it is not necessary that the overt act for attempted robbery includes the force or fear element].)
G.S.’s contention that insufficient evidence supports his attempted robbery conviction fails on the law and the facts. Legally, as set forth above, a person may commit attempted robbery without having placed the intended victim in fear. (People v. Medina, supra, 41 Cal.4th at p. 694.) Factually, even if force or fear were an element of attempted robbery, G.S.’s actions placed Gordon in fear. The evidence shows that G.S. approached Gordon in a hostile manner. G.S. was holding a bulge in his waistband that he represented was a gun. G.S. said that if Gordon did not turn over Gordon’s telephone, he would shoot Gordon dead. Gordon testified that he was in fear for his life.
DISPOSITION
The order is affirmed.
We concur: TURNER, P. J.ARMSTRONG, J.