Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Los Angeles County No. PA061308, Barbara M. Scheper, Judge.
Athena Shudde, 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, Assistant Attorney General, Paul M. Roadarmel, Jr., and Jaime L. Fuster, Deputy Attorneys General, for Plaintiff and Respondent.
FLIER, J.
Appellant Brandon Anthony Dean was convicted of premeditated attempted murder, assault with a deadly weapon, dissuading a witness, two counts of criminal threats, personal use of a knife, intentional infliction of great bodily injury, and one prior strike conviction. He was sentenced to prison for a determinate term of 12 years eight months in prison, plus a consecutive term of life imprisonment plus four years. He contends that there was insufficient evidence for the two counts of criminal threats (Pen. Code, § 422 (section 422)). We reject the contention, order a correction to the abstract of judgment, and otherwise affirm.
FACTS
On April 10, 2008, a group of young men spent the evening at Jesse O.’s house, talking and drinking. The group included appellant, Jesse, David M., Jason P., and others. Appellant was an acquaintance of Jesse’s, and first met David and Jason on the previous day. In contrast, Jesse, David, and Jason were longtime close friends. They became victims of appellant’s crimes later that night and described what happened at the trial.
During the course of the evening, all of the men at Jesse’s house handled a “throwing knife” that Jesse used for target practice. At some point, Jason saw the knife in appellant’s back pocket. Jason thought appellant was trying to steal the knife. Jason “pickpocketed” it and put it back on Jesse’s desk.
As the evening progressed, appellant kept pouring alcoholic drinks for everyone, as if trying to get the other men drunk, but he drank no alcohol himself. He repeatedly raised his shirt, rubbed his stomach, and displayed a tattoo on his stomach that read “SFV.” As Jason had grown up in the area, he knew that tattoo symbolized a San Fernando Valley gang. Six or seven times, appellant opened his mouth wide and said, “I think the tiger shark needs to come out tonight.” Jason had no idea what appellant meant.
David felt uncomfortable throughout the evening, as appellant stared at him strangely and asked weird questions about what David did sexually with women.
Late in the evening, appellant, David, Jesse and Jason were the only people still at Jesse’s house. When David was alone at the front door, preparing to leave, appellant suddenly attacked him with Jesse’s knife. Appellant quickly inflicted 22 knife wounds, many of which were serious. David fell to the floor after the first couple of wounds. Appellant leaned over him and continued “hammer punching” him with the knife. Jesse and Jason ran to the front door, grabbed appellant, and forcefully pulled him off of David. As they did so, they fell on their backs on the floor, with appellant on top of them. Appellant was still holding the knife, and it was close to Jason’s face.
Appellant then uttered the words on which the prosecution relied for the two section 422 counts. To Jesse, he said, “Let me go before I shank you, too.” Jesse took the words as a threat and let appellant go. Appellant then said, to Jason, something like, “If you don’t let me go I will f---ing stab you or kill you.” Jason also let appellant go, to avoid being stabbed.
Appellant and Jesse stood up. Jesse argued with appellant about why appellant attacked David. Appellant approached Jesse in an intimidating way and backed him into the kitchen. Jesse saw blood on appellant’s hand. Meanwhile, Jason opened the front door and told David to run. David managed to run to his truck, drive away, and obtain medical attention. He was severely injured, but he survived.
After David escaped, appellant talked with Jesse and Jason in the kitchen. Appellant threatened to kill them if they told anyone what he did. He said he attacked David because David was a “rapist.” Jason and Jesse knew that statement was not true. Appellant wrapped the knife in a cloth, held a fork at Jesse’s eye, and ordered Jesse to get rid of the knife. Then, appellant left. Jason and Jesse soon left as well, as they were afraid that appellant would return and kill them.
Jason and Jesse were so frightened that they did not initially report the incident. Jesse stopped living at the house. He happened to encounter appellant on the street, several days later. Appellant’s hand was bandaged. He threatened to have Jesse and Jesse’s family killed by gang members if the incident was reported. Appellant also said, “I earned my stripes.” Jesse had no idea what those words meant.
There was no gang allegation or testimony by a gang expert in this case.
About a week after the incident, Jason went to the police after he learned the extent of David’s injuries. Jesse then also talked to the police. Jason and Jesse made detailed statements about the incident, and both identified appellant as the perpetrator. Jason, Jesse and David also selected appellant’s photo from a six-pack photo lineup. When the police arrested appellant, he had gauze on his hand and stitches on his finger. The knife was found wedged in the sofa cushions at Jesse’s house.
DISCUSSION
Counts 3 and 5 charged appellant with criminal threats, in violation of section 422, as to Jason and Jesse. The prosecutor told the jury during final argument that those counts were based on appellant’s threats to stab Jason and Jesse if they did not let go of him, after they pulled him off of David.
Section 422 outlaws threatening to commit a crime against another person that makes that person fear for his or her safety. Section 422 states: “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....”
Appellant maintains that this case is like In re Ricky T. (2001) 87 Cal.App.4th 1132, in which the court found insufficient evidence for a violation of section 422. However, the facts of Ricky T. were entirely different, as they involved a minor who did no more than say “I’m going to get you” to a teacher, after the teacher accidentally hit the minor with the door of the classroom. (Ricky T., at p. 1135.)
Here, appellant was in the process of an extremely violent, unprovoked knife attack on David when Jason and Jesse grabbed him. Appellant then threatened to stab Jason and Jesse as well if they did not let go. He intended what he said, as shown by what he had just done to David. Jesse and Jason let go of him because he conveyed an immediate threat that caused them to be reasonably in fear for their safety. As the incident continued, he backed Jesse into the kitchen. Inside the kitchen, he threatened to kill Jesse and Jason if they told anyone what he had done to David.
The “sustained fear” element of section 422 has been defined as “a period of time that extends beyond what is momentary, fleeting, or transitory.” (People v. Allen (1995) 33 Cal.App.4th 1149, 1156 [15 minutes between the time of the threat and the arrival of the police was sufficient].) Here, Jason and Jesse were in sustained fear throughout the incident. After appellant left, they remained so frightened of appellant that they quickly left the house, Jesse stopped living there, and they waited a week before they reported that appellant perpetrated the attack on their close friend David.
Appellant argues that Jason and Jesse had only transitory fear because the evidence on the criminal threats counts must be limited to the fear that Jason and Jesse suffered when appellant threatened to stab them at the front door and cannot include the additional fear engendered by the subsequent threats that appellant made in the kitchen. We reject appellant’s argument because a section 422 threat “does not have to be the sole cause of the victim’s fear” and all of the surrounding circumstances are to be considered, including the defendant’s subsequent behavior. (People v. Solis (2001) 90 Cal.App.4th 1002, 1014.)
Utilizing the appropriate standard of review (People v. Kraft (2000) 23 Cal.4th 978, 1053), we conclude that there was substantial evidence for the two section 422 counts.
2. Correction of the Abstract of Judgment
In general, a prisoner with a life sentence cannot be paroled unless a term of at least seven calendar years has been served. (Pen. Code, § 3046.) That minimum is doubled to 14 years to life if a defendant has a prior strike conviction. (Pen. Code, § 667, subd. (e)(1); People v. Jefferson (1999) 21 Cal.4th 86, 96.)
When it orally imposed the sentence, the trial court correctly found that on count 1, the attempted premeditated murder of David, appellant’s prior strike conviction meant that “the minimum parole eligibility date would be 14 years.” As respondent points out, that finding does not appear in the abstract of judgment. We order inclusion of that finding in the abstract of judgment, to accurately reflect the oral judgment of the sentencing court. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
DISPOSITION
The trial court is directed to correct the abstract of judgment to add the finding of a minimum parole eligibility date of 14 years on count 1. A certified copy of the corrected abstract of judgment shall be delivered to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: BIGELOW, P. J., GRIMES, J.