Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. Ronald M. Christianson, Judge, Super.Ct.No. J210219
Patricia A. Andreoni, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, James D. Dutton, Supervising Deputy Attorney General, and Michael T. Murphy, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RAMIREZ P.J.
INTRODUCTION
After a jurisdictional hearing in the juvenile court, it was found true that minor violated Penal Code section 422, by threatening to commit a crime, which would result in death or great bodily injury. Minor was declared a ward of the court and placed on probation. On appeal, minor contends there was insufficient evidence to support the court’s finding that minor made a criminal threat.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTS
At minor’s jurisdictional hearing, Alberto (the victim) testified to the events of September 5, 2006. The victim stated that he was walking home from school when he met minor. As the victim crossed the street, there was an individual walking approximately one foot in front of the victim. The victim stated the individual walking in front of him was someone with whom he was familiar, but that person was not present in court. While crossing the street, the victim heard the individual in front of him say that he was going to “shank” him. The victim felt scared because he thought the person who threatened him was carrying a knife. The victim was unable to recall any other incidents happening between himself and the individual that threatened to “shank” him. The victim stated that he still walks home from school with two individuals, Dillon and Cody.
Shanking someone refers to cutting them with a knife.
The next witness in the case was Dillon, who stated that he remembered speaking to minor about the victim, on September 5, 2006, but that minor did not threaten the victim. Dillon recalled speaking to a police officer that day and stated he did not lie when he talked to the officer. Dillon was able to recall a second instance where he spoke to minor or the victim after school. However, he could not recall what was said. Dillon remembered speaking to a police officer after that incident as well, but stated that he lied when he spoke to the police. Dillon was unable to identify minor in court.
The third witness in the case was Cody, who was able to identify minor in court. Cody walked home with minor on September 5, 2006. He recalled minor and the victim crossing the street when the victim said to minor, “I’m going to kick your ass.” In response, minor said to the victim, “I’m going to shank . . . you” or “I’m going to . . . sock you.” Due to the noise of the intersection, Cody could not hear clearly. However, Cody later testified it sounded more like minor said, “I’m going to sock you.” Cody has never seen minor with a knife and believes minor was joking when he said he would harm the victim, because minor often makes jokes. Cody believed the victim was not scared after minor’s statement, because the victim continued to walk “like normal, like he always does,” and he did not run home.
The final witness in the case was police officer Chavira, who investigated the alleged threats made by minor. Officer Chavira was able to identify minor in court. On September 7, 2006, Officer Chavira had spoken with the victim, who told him that the suspect had made threats to harm him.
Officer Chavira also spoke with minor, who told him that on September 5, 2006, the victim had “made a smart remark” to him, as minor was speaking to a female. Minor told the victim to “shut up.” Minor admitted carrying a knife on a regular basis for self-protection. Minor told the officer that while he was speaking to a friend on September 5, 2006, minor exposed the knife and its blade, while commenting about using the knife on the victim. Minor could not recall exactly what he said or whom he said it to. Minor did not believe the victim was in the immediate area when he remarked about using the knife on him.
A knife was not entered into evidence. The juvenile court found true the allegation that minor had made criminal threats, in violation of section 422. The court determined the offense to be a misdemeanor and set the maximum custody time at one year. Minor was placed on probation.
In his appellant’s opening brief, minor references the standard of review that applies to gang enhancements. We find nothing in the record addressing gang affiliation or gang enhancements.
DISCUSSION
Minor contends there is a lack of substantial evidence to sustain the third and fourth elements of the section 422 violation. (People v. Toledo (2001) 26 Cal.4th 221, 227-228 (Toledo).)
In order to support a finding that minor violated section 422, the People were required to “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.” (Toledo, supra, 26 Cal.4th at pp. 227-228.)
We examine claims of insufficient evidence under a substantial evidence standard of review, which requires analyzing “‘“the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find [the elements of the crime] beyond a reasonable doubt.”’ [Citations.]” (In re George T. (2004) 33 Cal.4th 620, 630 631.) If the evidence presented below is subject to differing inferences, we must assume that the trier of fact resolved all conflicting inferences in favor of the prosecution. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
First, we will address minor’s contention that there is a lack of substantial evidence to support the finding that minor made a threat that was “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.” (§ 422.) Both the victim and Cody placed minor at the intersection. The victim testified he heard an individual say he was going to “shank” him. Cody testified he heard minor say a phrase that sounded like “I’m going to shank . . . you” or “I’m going to . . . sock you.” Officer Chavira testified that minor admitted to telling a third party that he intended to use a knife on the victim, while exposing the knife. From this evidence, it is reasonable to infer that it was minor who made the genuine threat to “shank” the victim, while he had a knife in his possession. Accordingly, a rational trier of fact could reasonably find minor’s threat to shank the victim was “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.” (§ 422.)
Minor analogizes the instant case to In re Ricky T. (2001) 87 Cal.App.4th 1132 (Ricky T.), where the court found insufficient evidence to support a finding that the minor had violated section 422. In that case, a teacher opened a classroom door, hitting the minor, who then reacted by telling the teacher, “‘I’m going to get you’” or “‘I’m going to kick your ass.’” (Ricky T., supra, at pp. 1135-1136.) The teacher felt threatened and sent the minor to the school office. (Id. at p. 1135.) Minor contends that his case is similar to Ricky T., because the threats in both cases were equivocal and lacked a sense of immediacy.
We disagree with this analogy. In Ricky T. the minor made a generalized threat to “get” the victim or “‘kick [his] ass,’” which may or may not involve death or great bodily injury. (Ricky T., supra,87 Cal.App.4th at pp. 1135-1137.) However, in the instant case, minor threatened to stab the victim and possessed the means to carry out the threat. Accordingly, we find minor’s threat was unequivocal and more immediate than the threat made in Ricky T. (§ 422.)
Minor goes on to distinguish the instant case from a series of cases upholding section 422 violations, partly based upon the history of disagreements between the defendant and the victim. Minor cites People v. Mendoza (1997) 59 Cal.App.4th 1333, 1341-1342, superseded by statute on other grounds as stated in People v. Franz (2001) 88 Cal.App.4th 1426, 1442; People v. Martinez (1997) 53 Cal.App.4th 1212, 1214-1216; and People v. Allen (1995) 33 Cal.App.4th 1149, 1151-1154 (Allen). Minor highlights the fact that there had not been a history of disagreements between himself and the victim. We do not find this argument persuasive. There does not need to be a documented history of prior incidents between a defendant and victim to sustain a conviction for a violation of section 422. (§ 422)
Minor also distinguishes his case from People v. Lepolo (1997) 55 Cal.App.4th 85, 88-90, where the defendant made a gesture with a weapon while threatening the victim. Minor contends the record in the instant case did not contain proof of an imminent physical confrontation following the threat and, therefore, the threat did not convey a gravity of purpose. We find this point unconvincing, because the evidence reflects minor carried a knife with him on a regular basis and had shown the knife to a third party. Also, the victim testified that he believed the person that threatened him had a knife. Therefore, we find a rational trier of fact could infer that although minor did not make an overt gesture with the knife while threatening the victim, it was clear to the parties involved that a physical confrontation might be imminent.
We conclude there was substantial evidence to support a rational trier of fact’s finding that minor’s threat was “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.” (§ 422.)
Second, we analyze minor’s claim that there is a lack of substantial evidence to support the finding that the victim was in sustained fear, which is the fourth element of a section 422 violation. (Toledo, supra, 26 Cal.4th at pp. 227-228.)
To qualify as “sustained,” the victim’s fear for his personal safety must extend beyond a period of time that is momentary, fleeting, or transitory. (Allen, supra, 33 Cal.App.4th at p. 1156.)
The juvenile court’s finding that the victim was in sustained fear is supported by the victim’s testimony that he was scared because he believed the person that threatened him had a knife. This evidence provides substantial support for a rational trier of fact concluding that the victim was in fear.
Next, we determine whether the victim’s fear was sustained beyond a period that is fleeting or momentary. The victim was threatened with death or great bodily harm by minor, who was most likely armed with a knife and at large. After minor uttered the words “I’m gonna shank you,” the victim walked home under the threat that minor was going to harm him. From this evidence, a rational trier of fact could infer that the victim’s fear was not “momentary, fleeting, or transitory,” and possibly continued until minor was apprehended two days later. Accordingly, we conclude there is substantial evidence to support the juvenile court’s finding that minor was in sustained fear.
Minor distinguishes his case from Allen, supra, 33 Cal.App.4th 1149. There, the defendant told the victim he was going to kill her and, as he spoke, pointed a gun at her. (Id. at p. 1153.) The defendant left the scene and was arrested in “‘fifteen minutes or so.’” The victim knew that the defendant had made a practice of looking inside her home. Under these circumstances, the court held that substantial evidence supported the section 422 conviction. (Allen, supra, at p. 1156.) Minor differentiates his case from Allen by highlighting the fact that minor did not further the threat by making any sort of gesture or movement and, therefore, there is no support for a finding that the victim was in sustained fear.
We find minor’s comparison to Allen to be unpersuasive. We have already concluded the victim was in fear due to minor’s threat. In Allen, the defendant was arrested approximately 15 minutes after the threat was made. (Allen, supra, 33 Cal.App.4th at p. 1156.) In the instant case, minor was arrested two days after threatening the victim. If anything, the victim in the instant case was in sustained fear for a longer period of time than the victim in Allen, due to the extended delay between the threat and the time of arrest.
Next, minor contends his statement was an emotional outburst in response to the victim’s threat to “kick [his] ass,” and does not rise to the level of a criminal threat that would induce sustained fear. To the contrary, a rational trier of fact could find that if threats were being made between the victim and minor, then minor’s threat to “shank” the victim was more serious and more menacing than if it had been made in a different context. If minor was emotional, as he states, then there was greater potential for the situation to escalate into violence, so it would be reasonable for a trier of fact to find that minor’s threat placed the victim in sustained fear.
We conclude there was substantial evidence to support a rational trier of fact’s finding that minor was in sustained fear.
DISPOSITION
The judgment is affirmed.
We concur: McKINSTER J., MILLER J.