Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA326820, Bob S. Bowers, Jr., Judge.
Gloria C. Cohen, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, and Michael R. Johnsen, Deputy Attorney General, for Plaintiff and Respondent.
MALLANO, P. J.
Kelvin Bacon appeals from the judgment entered following a jury trial in which he was convicted of making a criminal threat in violation of Penal Code section 422. Defendant was sentenced to 16 months in state prison and contends that the evidence was insufficient to support his conviction. We affirm.
BACKGROUND
Michael Joslyn was employed as a security guard for a large apartment complex at Rodeo Lane and Martin Luther King Boulevard in Los Angeles. In that capacity, Joslyn wore a uniform, including a bulletproof vest, and carried a gun in a side holster. As of August 1, 2007, Joslyn had seen defendant several times driving around the complex (but had not spoken with him), knew that defendant’s sister lived in the complex, and knew that on one occasion defendant had been searched by other security guards at the complex and “had been found with beer on the premises.”
Joslyn testified on direct examination that around 11:50 a.m. on August 1, 2007, he was at the front of the complex when he noticed defendant driving past his location. As defendant drove by, his window was down, he was facing Joslyn, and “he was definitely saying something negative, but without speaking, only using his lips.”
About a half hour later, Joslyn and another security guard came across defendant in a hallway of one of the buildings in the complex. As defendant spoke on a cell phone, Joslyn approached and asked defendant whether there was something he was trying to communicate earlier. Defendant responded, “Who the fuck are you,” continuing, “You don’t know who you are dealing with. I carry hollow points that rip through your bitch ass little vest.” Joslyn told defendant that he knew defendant’s name, following which defendant said, “[D]rop your gear. I’ll fuck you and your partner up.” Defendant then walked away, saying “basically a lot of cuss words, fuck you, don’t come here at night. I’m blood.” Joslyn explained that “[d]rop your gear means take off all your gear and fight with your fists. And meet me in the back alley. [Defendant] wanted me to go meet him in the back alley.” The reference to “blood” meant, “I’m serious, I’m not playing around with you. Similar to saying I swear to God.”
Joslyn further testified that when defendant made his remarks, he was “[p]acing back and forth, angry, furious.” Joslyn “was laughing out of frustration at the time. [He] couldn’t believe what [he] was hearing.” Joslyn was not angry but was “frustrated and scared at the same time.” He did not attempt to arrest defendant because defendant “was approaching his car and leaving.” Soon after the incident and at the suggestion of his supervisor, Joslyn called a lead officer in the Los Angeles Police Department. Joslyn continued at work for the remainder of his shift, but while on duty the next day he felt “[u]ncomfortable and very, very wary of [his] surroundings,” constantly looking around “[o]ut of paranoia.” Defendant was arrested about two weeks later.
On cross-examination, Joslyn testified that at the time of the incident he was frustrated and upset but not angry. Asked if he was “scared at this point,” Joslyn replied, “At that point, at that very particular moment, I was not scared.” On redirect examination, Joslyn explained that he took defendant’s comment about hollow points ripping through his vest to be a “[l]ife-threatening threat.” Asked when he became scared, Joslyn replied, “Once everything had calmed down.” “I would say after that shift, after I went home.”
Defendant did not offer any evidence on his behalf. In closing argument, he urged that Joslyn’s testimony was not credible.
DISCUSSION
Defendant contends that the evidence was insufficient for lack of proof that Joslyn’s fear was sustained, rather than momentary or intermittent, as required under Penal Code section 422. We disagree.
Penal Code 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 . . . 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 . . . .” (Italics added.)
“The prosecution must prove that the defendant had the specific intent that his statement would be taken as a threat, whether or not he actually intended to carry it out. Besides requiring this showing of defendant’s mental element, the statute also requires proof of a mental element in the victim. [Citations.] The statute, however, does not define ‘sustained’ fear. [¶] Defining the word ‘sustained’ by its opposites, . . . it means a period of time that extends beyond what is momentary, fleeting, or transitory.” (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.)
In In re Ricky T. (2001) 87 Cal.App.4th 1132, on which defendant relies, a student was excused from his high school class to use the restroom. When he returned, the door to the classroom was locked and the student pounded on it. The teacher then opened the door in its outwardly direction, which hit the student on his head. The student became angry and said to the teacher, “‘I’m going to get you.” In response, the teacher sent the student to the school office. (Id. at p. 1135.) In an interview the following day, the student “admitted ‘getting in [the teacher’s] face,’ but did not mean to sound threatening. He said that his actions were not appropriate and he apologized for the incident.” (Ibid.) In an interview a week later, the student said he had “told [the teacher] ‘I’m going to kick your ass.’ He added, however, that he never made any physical movements or gestures toward [the teacher] to further the threat.” (Id. at p. 1136.)
The Court of Appeal rejected the juvenile court’s finding that the student had made a criminal threat, concluding that, in context, the threat was not unequivocal. (In re Ricky T., supra, 87 Cal.App.4th at pp. 1137–1139.) The court further concluded that although the teacher had sent the student to the school office, the teacher did not suffer sustained fear. Rather, the teacher’s response, “far from evincing a reasonable sustained fear, was an appropriate, necessary response to a disruptive classroom incident.” (Id. at p. 1140.) The student’s statement “was an emotional response to an accident rather than a death threat that induced sustained fear.” (Id. at p. 1141.)
In contrast to Ricky T., the threat in this case was made in an apartment complex that had hired armed security guards to patrol it. The threat was made by a person (defendant) who had previously been searched at the apartment complex and had earlier that day driven past the complex looking at security guard Joslyn and said “something negative.” When approached by Joslyn a short while later in a hallway of the complex, defendant threatened to use a hollow point bullet that would rip through Joslyn’s bullet-proof vest. It is inconsequential that Joslyn’s descriptions of the fear he felt may have alternated between being scared at the time the threat was made and not being scared at that time but becoming scared only when he got home after his shift had been completed.
“‘It is blackletter law that any conflict or contradiction in the evidence, or any inconsistency in the testimony of witnesses must be resolved by the trier of fact who is the sole judge of the credibility of the witnesses. . . . To warrant the rejection by a reviewing court of statements given by a witness who has been believed by the trial court or the jury, there must exist either a physical impossibility that they are true, or it must be such as to shock the moral sense of the court; it must be inherently improbable and such inherent improbability must plainly appear.’ [Citations.] It is also true that uncertainties or discrepancies in witnesses’ testimony raise only evidentiary issues that are for the jury to resolve. [Citation.]” (People v. Watts (1999) 76 Cal.App.4th 1250, 1258–1259.)
Joslyn’s description of the threat made by defendant and the course of the fear Joslyn felt as a result of that threat was sufficient so that a rational trier of fact could conclude beyond a reasonable doubt that the element of “sustained fear” in Penal Code section 422 had been satisfied. Defendant’s assertion of insufficient evidence to prove a criminal threat must therefore be rejected. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Mendoza (1997) 59 Cal.App.4th 1333, 1342.)
DISPOSITION
The judgment is affirmed.
We concur: ROTHSCHILD, J., HASTINGS, J.
Retired Associate Justice of the Court of Appeal, Second Appellate District, Division Four, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.