Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Mateo County Super. Ct. No. SC061110
Marchiano, P.J.
Defendant Randall Lewis Stonom was convicted by the court of making a criminal threat (Pen. Code, § 422), and he was sentenced to six years four months in prison, representing the low term of one year four months for the threat, plus five years for a prior serious felony conviction (§ 667, subd. (a)). Defendant contends that the judgment must be reversed because there was no substantial evidence that he caused the victim to experience sustained fear, or because the court failed to consider the lesser included offense of attempted criminal threat. We conclude that the record fails to support these arguments, and affirm the judgment.
All further statutory references are to the Penal Code.
I. FACTS
Defendant and the victim, Peter LaRocca, were staying at a homeless shelter on April 22, 2006. LaRocca, Marty Collins, and Carl McIntyre were sitting outside and talking that afternoon on a patio at the shelter; defendant was sitting by himself at a nearby picnic table. Defendant was talking angrily to himself, saying things, according to Collins, like “[d]ead beat dad” and “[m]otherfucking white boy.” LaRocca recalled defendant looking over at them and saying, “Say something, smart bitch. Go ahead say something, smart bitch.”
LaRocca, Collins, and McIntyre did not respond to defendant. LaRocca had been staying at the shelter for about two months, and while he had not had much interaction with defendant, he had observed that defendant talked to himself “[a]ll the time.” McIntyre had also noticed defendant talking to himself a lot, and Collins had heard defendant having arguments with another resident in the middle of the night. LaRocca had not had any trouble with defendant, but had seen him “act out” with other people.
After swearing for several minutes, defendant abruptly stood up, walked over to LaRocca with a two-to-three inch knife in his hand, put the blade one quarter of an inch from LaRocca’s chest, and said, “I’ll cut your heart out.” LaRocca said that he was seated, defendant was standing, and defendant got “[r]ight up in my face with the knife to my chest. He didn’t touch me with it, but it was close enough. It was right there where I could see it.” Collins said that defendant repeated his previous profanities, and was “angry” and “[a]ggressive,” when he threatened LaRocca. Collins recalled defendant saying: “Motherfucking white boy. Dead beat dad. I’ll cut your heart out. . . . Go ahead. What are you gonna do? Say something. Say something. Do something. Do something right now.” LaRocca said defendant had the blade to his chest for less than 30 seconds; Collins thought defendant held the knife to LaRocca for five to 10 seconds. Defendant then put the knife away, walked to the picnic table, and sat back down. McIntyre estimated that the incident lasted about a minute.
LaRocca, Collins, and McIntyre all testified to defendant’s use of the words, “cut your heart out.” The three gave statements to Redwood City Police Officer Dina Ruiz-Jara at the scene, and, according to her notes, said that defendant threatened to “pull,” rather than “cut,” LaRocca’s heart out.
Collins said that LaRocca was “frozen” in his seat during the incident. After defendant walked away, McIntyre went into the shelter and told the staff what had happened. Collins said that he went into the shelter, but not until after McIntyre came back outside, because he “didn’t want to leave [LaRocca] out there all by himself” with defendant. Collins said that when he was inside the shelter defendant “charged in through the hallway and into the men’s dormitory.” The police were summoned, and they arrested defendant. According to the police incident report, they placed defendant under arrest 21 minutes after they were dispatched to the shelter.
McIntyre said that Collins came into the shelter when he was telling the director about the incident, leaving LaRocca and defendant together on the patio. This testimony did not necessarily indicate that LaRocca was left alone with defendant because, unlike Collins, McIntyre remembered other clients of the shelter being out on the patio when the incident transpired.
LaRocca testified and said that he was concerned that defendant might use the knife against him, and “shocked” by defendant’s behavior. The prosecution probed further into his state of mind in the aftermath of the incident: “Q. [W]hen the police came and you talked to them, were you still feeling the effects of this confrontation where this guy got a knife and pointed it at your chest? Was that still in your mind when you were telling the police what happened? [¶] A. Of course, it was on my mind. [¶] Q. How long was it in your mind, this event where he pulls this knife out and is making this threat? [¶] A. All day after that. [¶] People kept putting, you know, questions. You know, asking me, ‘Wow, what happened?’ It wasn’t like something that was gonna go away. [¶] Q. Were you shocked the rest of the day? [¶] A. Pretty much. I was shocked that it happened. I was glad that it didn’t go any further.”
The defense followed up on the subject in cross-examination: “Q. [W]ere you in fear that this guy was gonna pull your heart out or cut your heart out for the rest of the day? Were you in fear of that momentarily while he had the knife there? [¶] A. Yeah. [¶] Q. You didn’t have this fear for the rest of the day or the next week or whatever? [¶] A. No. I didn’t have a nightmare either. [¶] Q. . . . [¶] [D]id you think seriously that when Mr. Stonom said this to you that he was actually gonna cut your heart out? [¶] A. No.”
The prosecution returned to the subject on redirect examination: “Q. [A]fter the knife was pointed at you and those threats were made, did you continue to watch the defendant, what he was doing? [¶] A. Yeah. [¶] Q. Did you take your eyes off him and turn around and turn your back to the defendant where you wouldn’t be able to see what he was doing? [¶] A. No. [¶] . . . [¶] I was watching to see what his next move was gonna be. I wasn’t gonna turn around.” [¶] Q. In fact, were you concerned that he was going to potentially do something to you if you didn’t watch him? [¶] A. I thought the possibility existed because of his unstable situation that he was in a lot of times. So I didn’t really know. [¶] . . . [¶] I didn’t really think he was gonna do anything, but then again I thought the possibility existed that he might.” LaRocca said that he stayed outside after defendant went into the shelter because he did not want to be in the same place as defendant after the incident.
The prosecutor resumed: “Q. . . . [¶] The word ‘fear’ was mentioned to you. Were you afraid? . . . [¶] A. I was more shocked than afraid. But yeah, I was a little afraid too. [¶] Q. . . . The question is, were you concerned that the defendant would carry out that threat to harm you after he walked away? Did you still have that concern? Not for sure? Not 100 percent? But was that part of your thinking? [¶] A. I was somewhat relieved when he walked away. [¶] . . . [¶] I was—it was more of a shock thing. I couldn’t understand why it happened. Because I could see no reason why it happened. [¶] Q. When did you stop feeling any sort of concern for your safety? . . . [¶] What point did you feel you were 100 percent safe and you were no longer concerned at what the defendant’s behavior was? [¶] A. The only time that I felt 100 percent safe was when the police were talking to me, they led him away in handcuffs, and told me he would be charged with a felony. That’s when I felt safe.”
In a similar vein, Collins said that his “[a]drenaline was still going” when he was interviewed by the police at the scene.
II. DISCUSSION
A. Substantial Evidence
Defendant contends that the court had insufficient evidence from which to find that his threat caused LaRocca to experience “sustained fear” as required for a conviction under section 422. (See People v. Allen (1995) 33 Cal.App.4th 1149, 1156 (Allen).)
Where sufficiency of the evidence is challenged, we “must review the whole record in the light most favorable to the judgment below 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.” (People v. Johnson (1980) 26 Cal.3d 557, 578 (Johnson).) “ ‘ “If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.” ’ ” (People v. Bean (1988) 46 Cal.3d 919, 933 (Bean).)
Allen, supra, 33 Cal.App.4th at page 1156, held that fear is “sustained” within the meaning of section 422 if it lasts for “a period of time that extends beyond what is momentary, fleeting, or transitory,” and concluded that the 15 minutes of fear experienced by the victim in that case was “more than sufficient” to satisfy this element of the crime. “The victim’s knowledge of defendant’s prior conduct is relevant in establishing that the victim was in a state of sustained fear.” (Allen, supra, at p. 1156.)
Defendant maintains that LaRocca’s testimony showed at most that he was only momentarily fearful of defendant during the brief interval when defendant held the knife to his chest. However, LaRocca said that he had seen defendant “act out” with other people, and that he remained wary of defendant after defendant walked away because of the “unstable situation [defendant] was in a lot of times.” (Allen, supra, 33 Cal.App.4th at p. 1156 [relevance of knowledge of defendant’s prior conduct].) He also said that he did not feel entirely safe until defendant’s arrest, which, according to police records, did not transpire until at least 21 minutes after the threat was made. (Ibid. [15 minutes of fear more than sufficient].) Viewed in the light most favorable to the judgment (Johnson, supra, 26 Cal.3d at p. 578), this testimony supported a finding that LaRocca felt more than momentary fear on account of defendant’s threat, even if a contrary finding might also have been reasonable (Bean, supra, 46 Cal.3d at p. 933).
Accordingly, we find no merit to the substantial evidence argument.
B. Lesser Included Offense
Defendant argues that the court erroneously failed to consider whether he may have been guilty of the lesser included offense of attempted criminal threat. (See People v. Toledo (2001) 26 Cal.4th 221, 231 (Toledo) [describing circumstances in which an attempted criminal threat could occur, including the situation where other elements of the crime are present “but, for whatever reason, the threat does not actually cause the threatened person to be in sustained fear for his or her safety even though, under the circumstances, that person reasonably could have been placed in such fear” . . . .] Italics in original.)
Defendant’s contention is based on statements made by the court after closing arguments. Defense counsel suggested that the court consider a conviction of the lesser related offense of brandishing (§ 417), and the prosecutor responded: “There’s a case right on point that permits the Court to find an attempted 422, felony, absent a sustained fear . . . finding. And that’s the case of [Toledo, supra] at 26 Cal.4th 221 . . . . That’s the appropriate alternative as a lesser included offense.” The closing arguments concluded, and the transcript reads:
The prosecutor had handed the court copies of Toledo and Allen at the outset of his initial closing argument.
“The Court: All right. It’s a new crime in my book, attempted 422.
“Have you seen any of those?
“[Defense Counsel]: No.
“The Court: I have not seen one in this county. All right?
“The Court has heard the evidence. I do sometimes feel that 422’s are overused in our society these days. We have 245’s and 417’s that I think often more accurately reflect the conduct that is involved. But I don’t have those choices here, frankly. I don’t believe I have a choice. I have to decide here, ultimately, was there a 422 committed in looking at the code section? I’ve gone through the jury instructions on that as to the law just to look at the elements. And in all candor, it’s not the most egregious of 422’s in my book.
“But I do believe the People have proved it beyond a reasonable doubt. So I do find the defendant guilty of the 422. . . . ” (Italics added.)
Defendant contends that the italicized statements show that the court did not believe the crime of attempted criminal threat existed, and thus that the court could not have considered whether he was guilty of that offense. However, “[a] judge is presumed to know and follow the law” (People v. Martin (2005) 127 Cal.App.4th 970, 977 (Martin)), and the court’s remarks do not overcome that presumption in this case. Just because the court may have been unfamiliar with the lesser offense does not mean that the court failed to consider it. Any such omission was in fact highly unlikely because the prosecutor cited the court to the Toledo case, which confirmed the existence of the offense, and gave the court a copy of that opinion. We have no reason to believe, and must decline to speculate (Martin, supra, at p. 977), that the court may have ignored the law that was brought to its attention.
Therefore, the lesser included offense argument also fails.
III. DISPOSITION
The judgment is affirmed.
We concur: Stein, J., Swager, J.