P. v. Sandefur

Filed 8/24/06 P. v. Sandefur CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

Appellant Jason Sandefur appeals from a judgment of conviction following jury trial of the felonies of assault with a deadly weapon (Pen. Code, § 245^[1]), and criminal threats (§ 422), and of the misdemeanor offenses of battery (§ 242) and elder abuse (§ 368, subd. (c)). He contends that the evidence was insufficient to sustain the jury's verdict as to the conviction for criminal threat, and that the trial court erred in failing to instruct, sua sponte, on the lesser included offense of attempted criminal threat (§§ 664/422). We will affirm.

I. FACTS AND PROCEDURAL HISTORY

The appellant Jason Sandefur was charged, by information filed on June 15, 2005, with the felony crimes of assault with a deadly weapon (§ 245, subd. (a)(1)--count I); elder abuse (§ 368, subd. (b)(1)--count II); and criminal threat (§ 422--count III). An enhancement for use of a deadly weapon (§ 12022, subd. (b)(1)) was alleged as to count II. Appellant entered pleas of not guilty.

Trial commenced on August 8, 2005. The prosecution presented the testimony of the victim Robert Oeffinger, witness Theodore Cathey, and San Francisco Police Officer Timothy Kiely. Oeffinger, who was 67 years old at the time of trial, testified that he encountered appellant^[2] at approximately midnight on May 14, 2005 while he was walking to a corner store. Appellant was sitting on the sidewalk with his feet stretched out, so that Oeffinger had to walk around him. Appellant said â€