Filed 12/15/17 P. v. Aldama CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

RYAN LOUIS ALDAMA,

Defendant and Appellant.
D071384



(Super. Ct. No. SCS28490)

APPEAL from a judgment of the Superior Court of San Diego County, Francis M. Devaney, Judge. Affirmed.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Julie L. Garland, Senior Assistant Attorney General, Randall D. Einhorn and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.

 
A jury found Ryan Louis Aldama guilty of making a criminal threat (Pen. Code,
§ 422; count 2) but found not true the allegation that he personally used a deadly weapon, a knife (§ 12022, subd. (b)(1)). It found Aldama not guilty of assault with a deadly weapon (§ 245, subd. (a)(1); count 1), and found not true the allegation that he personally used a deadly weapon, a knife (§ 1192.7, subd. (c)(23)). In bifurcated proceedings, Aldama admitted he was convicted of a prior serious felony within the meaning of section 667, subdivision (a). The court sentenced Aldama to seven years as follows: the midterm of two years on the criminal threat conviction and five years on the serious felony prior conviction.
Aldama contends the court erroneously failed to instruct the jury on its own motion on the lesser included offense of attempted criminal threats, thus violating his due process rights under the federal Constitution. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGOUND
Prosecution Case
Stephanie S. testified that on February 14, 2016, she, her three children and Aldama were living in the same apartment. At approximately 7:30 a.m., she and Aldama got into an argument. It escalated because she wanted to go out with her children but Aldama wanted to punish the children by keeping them at home. When one of Stephanie S.'s daughters wished Aldama a happy Valentine's Day, he responded, "Fuck Valentine's Day." The girl started crying and Stephanie S. got further upset with Aldama, telling him he could not talk to her children that way. At one point, Aldama told Stephanie S., "I'm going to fucking stab you." As Aldama went from the living room to the bedroom, she grabbed his shoulders and held on to his back to restrain him. He entered the bedroom, removed a knife from a little box, and tried to stab her. Stephanie S. testified she was scared while Aldama was threatening her: "I've never been—I've never been so in my whole—my whole life on this planet. I still feel it. I still feel it. Like I never felt so fucking scared in my whole life." Stephanie S. was screaming at Aldama to stop. The children cried, urging him to stop. He immediately left the apartment.
Stephanie S. testified about what she did afterwards: "I moved the couch in front
of the door. And I just didn't want him to come back in. I don't know what I was doing. I was fucking panicking." She hesitated to call the police: "I locked the door. And I was freaked out beyond belief. I'm just shaking and shaking. My kids are, like, 'Call the cops, mom. Call the cops right now.' And I was, like, 'I can't call the cops. I can't do it.' Like, I wasn't—I was too scared. I couldn't call the cops and I wasn't going to call the cops." However, she was persuaded to call the police because of Aldama's further threat: "He said he was going to break the door down. And at that point I was, like, well, what else can I get? What else is going to happen to me now? What else is going to happen to my family? I have to protect my kids. My kids are begging me to call the cops."
At approximately 7:58 a.m., Stephanie S. telephoned 911. The police arrived at her apartment in about ten minutes. A recording of the call was played for the jury. Stephanie S. stated on the call that Aldama's threat to stab her made her scared for herself and her children. She said Aldama was sending her text messages stating he was going to open the door.
Chula Vista Police Officer Casey Rose testified that when he arrived at the apartment, he first spoke to Aldama downstairs. He later went upstairs and spoke to Stephanie S., who was "very upset" and "just had difficulty talking. She was very nervous. She was worried about talking because she thought Aldama could hear her." He spoke to Stephanie S. and her two daughters about the incident, and videotaped their conversations with his body-worn camera. His interviews were played for the jury. On the recording, Stephanie S. told Officer Rose she was "a little shaken up" and "really scared" of Aldama. Police found a glass pipe on Aldama's person, but did not find a knife on Aldama's person nor inside or outside of the apartment.
Defense Case
A Child Welfare Services investigator, Helen Biru, testified she spoke to Stephanie S. and her children two days after the incident. Stephanie S. said she was not afraid of Aldama. Stephanie S. said Aldama did nothing wrong during the incident, and he did not use a knife. Stephanie S. said her earlier belief that she had seen a knife during the incident resulted from her suffering from schizophrenia and bipolar disorder. On cross-examination, Biru testified that victims of domestic violence commonly recant their earlier reports of domestic violence and they sometimes make excuses for their abusers and protect them. Stephanie S. blamed herself for the incident with Aldama. Biru recommended that Stephanie S. get a restraining order against Aldama because one of the children had mentioned that during the incident he was "doing flexes" with the knife.
Aldama testified that he was sick for several days up to and including Valentine's Day in 2016. He admitted that on that day he and Stephanie S. argued, and he responded rudely to her daughter's greetings. Stephanie S. opposed his decision to ground the children that day; therefore, Aldama told her, "I'm calling my mom." Shortly afterwards, his shoulders bumped Stephanie S.'s as he entered the bedroom to get his pipe, his medical marijuana and a lighter from a shoebox. She jumped on his back, saying, "He's grabbing a knife." Aldama shook her off and she fell backwards. He went outside to smoke. He later realized he was locked out of the apartment.
DISCUSSION
" '[A] defendant has a constitutional right to have the jury determine every material issue presented by the evidence . . . .' [Citations.] ' "To protect this right and the broader interest of safeguarding the jury's function of ascertaining the truth, a trial court must instruct on lesser included offenses, even in the absence of a request, whenever there is substantial evidence raising a question as to whether all of the elements of the charged offense are present." ' " (People v. Cole (2004) 33 Cal.4th 1158, 1215.)
" ' "Substantial evidence is evidence sufficient to 'deserve consideration by the jury,' that is, evidence that a reasonable jury could find persuasive." ' " (Ibid.) We review independently the question of whether the trial court failed to instruct on a lesser included offense. (People v. Avila (2009) 46 Cal.4th 680, 705.)
Attempted criminal threat is a lesser included offense of criminal threat. (People v. Toledo (2001) 26 Cal.4th 221, 230.) "[I]f a defendant, . . . acting with the requisite intent, makes a sufficient threat that is received and understood by the threatened person, 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, the defendant properly may be found to have committed the offense of attempted criminal threat." (Id. at p. 231.) In these situations, "only a fortuity, not intended by the defendant, has prevented the defendant from perpetrating the completed offense of criminal threat itself." (Ibid.) In determining whether the trial court erred in not giving a lesser included offense instruction we consider whether substantial evidence supports a verdict for the lesser included offense but not the greater offense. (People v. Brothers (2015) 236 Cal.App.4th 24, 29.)
The elements of a section 422 violation are: (1) defendant willfully threatened to commit a crime that would result in death or great bodily injury to another person; (2) he made the threat with the specific intent that it be taken as a threat (whether or not he actually intended to carry out the threat); (3) the threat, on its face and under the circumstances in which it was made, 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; (4) the threat caused the person threatened reasonably to be in sustained fear for his or her own safety; and (5) the threatened person's fear was reasonable under the circumstances. (People v. Toledo, supra, 26 Cal.4th at pp. 227-228; see also § 422.)
The element of sustained fear "requires proof of a mental element in the victim" (People v. Allen (1995) 33 Cal.App.4th 1149, 1156) and has a subjective and an objective component. (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1140.) "A victim must actually be in sustained fear, and the sustained fear must also be reasonable under the circumstances." (Ibid.) The communication at issue "must be sufficient 'on its face and under the circumstances in which it is made' to constitute a criminal threat." (In re Ryan D. (2002) 100 Cal.App.4th 854, 860.) The jury must consider the communication and the surrounding circumstances together, including a prior relationship between the defendant and the victim. (People v. Wilson (2010) 186 Cal.App.4th 789, 814; People v. Mendoza (1997) 59 Cal.App.4th 1333, 1340.) In evaluating whether the defendant made a criminal threat, the trier of fact may consider defendant's "mannerisms, affect, and actions involved in making the threat as well as subsequent actions taken by the defendant." (People v. Solis (2001) 90 Cal.App.4th 1002, 1013.)
Here, Aldama challenges only the fourth element of the criminal threats conviction—i.e., that his threat actually caused Stephanie S. to be in sustained fear for her safety. That element looks to the victim's state of mind in response to the defendant's threat. (People v. Fierro (2010) 180 Cal.App.4th 1342, 1349 (Fierro).) The term "sustained" as it is used in section 422 means " 'a period of time that extends beyond what is momentary, fleeting, or transitory.' " (Fierro, supra, at p. 1349.) No specific amount of time is required to render the victim's fear "sustained." (People v. Allen, supra, 33 Cal.App.4th at p. 1156, fn. 6.) Some cases have recognized that fear that lasts anywhere between one and 15 minutes may be sufficient to qualify as "sustained fear" under section 422. (See Fierro, supra, at p. 1349 [one minute sufficient to qualify as "sustained fear" where the defendant uttered threat and the victim saw the defendant draw a weapon]; Allen, supra, 33 Cal.App.4th at p. 1156 [15 minutes sufficient to qualify as "sustained fear"].)
Substantial evidence supports the jury's finding that Stephanie S. actually was in sustained fear after Aldama's threats. In Stephanie S.'s 911 telephone call, which she made some minutes after Aldama's threat, she repeatedly said she was scared. During her interview with the police officer who arrived at her apartment several minutes after the call, she still appeared nervous and had difficulty speaking. She told Officer Rose she was really scared of Aldama. Stephanie S. also testified at trial that during the incident she was the most scared she had ever been in her life. We conclude the criminal threats were carried out, and the trial court had no basis to instruct the jury regarding an attempted criminal threat.
Aldama argues: "There was evidence [Stephanie S.] was the aggressor and not the victim. [Aldama] was in poor health with a blood infection. . . . It is unlikely someone suffering with a serious health condition would invite a physical altercation. [He] denied telling [Stephanie S.] that he was going to stab her. . . . [Stephanie S.] admitted to jumping on [Aldama's] back as he approached the door to the bedroom and before [he] had allegedly possessed a knife. . . . She tried to choke him. . . . [Stephanie S.] chased [him] out of the apartment and told him to 'get the fuck out of here. Don't fucking ever come back.' . . . [Stephanie S.] exchanged text messages with appellant for about 10 minutes after she had expelled him from the apartment."
Aldama speculates regarding what a person in poor health was likely to do; he also, in effect, challenges the sufficiency of the evidence and asks us to reweigh the evidence. But we may not do so under the applicable standard of review. " '[A] reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible
or inherently improbable, testimony of a single witness is sufficient to support a conviction.' " (Fierro, supra, 180 Cal.App.4th at p. 1347.) Aldama has presented no evidence to show that Stephanie S. was not in sustained fear. Accordingly, we conclude there was no evidentiary support for an instruction regarding attempted criminal threat.
Having concluded there was no instructional error, we reject Aldama's constitutional claim. The Watson standard of prejudice applies in noncapital cases as here, and we ask whether it is reasonably probable the verdict would have been more favorable to the defendant absent the error. (People v. Partida (2005) 37 Cal.4th 428, 449; see People v. Watson (1956) 46 Cal.2d 818, 836.) Based on the trial evidence, even if the court had instructed the jury regarding attempted criminal threat, it is not reasonably probable that the jury would have found Aldama guilty of that lesser included crime. Rather, if the jury found him guilty at all it would have found he made a criminal threat. (People v. Stewart (2000) 77 Cal.App.4th 785, 795-796 ["It is error, however, to instruct on a lesser included offense when a defendant, if guilty at all, could only be guilty of the greater offense, i.e., when the evidence, even construed most favorably to the defendant, would not support a finding of guilt of the lesser included offense but would support a finding of guilt of the offense charged."].)

DISPOSITION
The judgment is affirmed.

O'ROURKE, J.

WE CONCUR:



McCONNELL, P. J.



BENKE, J.