Opinion
A144419
06-27-2017
THE PEOPLE, Plaintiff and Respondent, v. LUIS C. LUCATERO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. SC080891A)
Defendant Luis Lucatero seeks reversal of his conviction for making criminal threats to Santos Trujillo under Penal Code section 422, arguing (1) the district attorney did not present sufficient evidence for the jury to find him guilty, and (2) the trial court erred by not including in its jury instructions the lesser included offense of attempted criminal threats. We conclude sufficient evidence supports Lucatero's conviction. We agree the court erred by not instructing on the lesser offense, but we view that error as harmless. We therefore affirm Lucatero's conviction.
All undesignated statutory references are to the Penal Code.
I. BACKGROUND
A. Alleged Criminal Threats Made on April 16, 2014
Despite having seen each other at a local doughnut shop hundreds of times over a 10-year period, Lucatero and Trujillo had never actually spoken to each other beyond Lucatero's simple transactions at the liquor store where Trujillo worked. At times, Trujillo observed Lucatero with his employer, a roofer. Trujillo is of El Salvadoran heritage, as is Lucatero's employer.
On April 16, 2014, Trujillo was working alone in the evening when Lucatero purchased a beer from his store. Trujillo then busied himself with replenishing the coolers; about three feet away Lucatero began complaining loudly and to no one in particular about suing his employer, who apparently owed him a great deal of money. As Lucatero continued ranting about his employer, calling him, for instance, an "idiot mother fucker," Trujillo asked how this involved him. Lucatero projected his dislike of his boss onto Trujillo, telling him, "[Y]ou are El Salvadorian [sic] . . . you are a mother fucker, too. . . . I hate you mother fucker." Although he did not at this point feel threatened or offended, Trujillo asked Lucatero to leave and told him he would not sell to him anymore.
By the time Lucatero returned to the liquor store approximately 30 minutes later, Trujillo was helping two other customers. As Trujillo was interacting with one customer and another was waiting in line, Lucatero grabbed two beers and slammed them on the counter, yelling, "Here!" After assisting the two customers, Trujillo looked at Lucatero, who slid the beers closer to the register and demanded Trujillo ring him up. Trujillo reminded Lucatero he would not sell to him, and after a brief back-and-forth, Lucatero began screaming his demand to be able to buy the beer. Trujillo then asked Lucatero to leave as two other customers entered the store.
Although Lucatero stepped outside, he remained at the front door about 10 feet from Trujillo at the register. Lucatero and Trujillo continued their back-and-forth, until Lucatero told Trujillo he hated him and called him a "mother fucker" again. Concerned, Trujillo warned he would call the police, which did not seem to bother Lucatero, who responded by goading Trujillo to "Call them, mother fucker. I hate you." At this point Lucatero was pacing in front of the store and screaming, and Trujillo again warned Lucatero he would call the police. Lucatero stated: "Call them right now; otherwise, I am going to go to my house and bring a bunch of my guys and blow your head off. I am going to beat you up and blow your head off." Lucatero then attempted to reenter the store, but Trujillo told him to remain outside.
Still upset, Lucatero repeated the same statement a second time. Now Lucatero had made Trujillo feel "[u]ncomfortable and afraid," for he did not know Lucatero or his friends, and could not gauge the likelihood that Lucatero would actually carry out his threat within the next few minutes or days. At some point during this incident, Trujillo was so afraid he unzipped his vest to provide himself with easy access to the pepper spray he carries, "just in case" Lucatero made good on his threats. After a couple of minutes, Trujillo finally called 911. While Trujillo spoke with the dispatcher, Lucatero continued screaming and yelling at Trujillo—loud enough that he was recorded on the 911 call recording. Before Trujillo left the 911 phone call, Lucatero took off on his bicycle, leaving Trujillo in fear because he thought Lucatero "was going to come back pretty soon with his friends as he said." His fears notwithstanding, Trujillo at one point told the 911 dispatcher to "just forget about it" because he was "concerned that maybe the police wouldn't be able to find [Lucatero] because he had [already] left." But Trujillo continued the conversation to the end, and cooperated when a sheriff's deputy arrived and interviewed him at the store a few minutes later—at which point Trujillo was "a little bit shaken[ ] up," "agitated," "concerned," and "disturbed."
Later, to provide an in-field identification, one responding deputy took Trujillo to the location where other deputies were questioning Lucatero. Although Lucatero was not identified in-field until quite some time after the incident—and although that identification occurred with multiple sheriff's deputies placing Lucatero in handcuffs while Trujillo was seated in a patrol car, unbeknownst to Lucatero—Trujillo still felt fear from Lucatero's threats, even with law enforcement officers around him. In fact, Trujillo's fear continued until at least the day of the trial, several months later.
B. Lucatero's Conviction under Section 422
The day after the incident, the district attorney charged Lucatero with, among other things, one count of making criminal threats against Trujillo in violation of section 422. On November 6, the jury found Lucatero guilty of making criminal threats against Trujillo in violation of section 422. Two months later, on January 9, 2015, the court sentenced Lucatero to the middle term of two years in prison, with 537 days of credit, ordered Lucatero to pay court fines and restitution to Trujillo, and issued a three-year criminal protective order protecting Trujillo against Lucatero, set to expire on January 8, 2018.
The district attorney also initially charged Lucatero under section 69 with three counts of using threats to deter or prevent the three sheriff's deputies who arrested him from doing their duty. At the district attorney's request before trial, one count involving one deputy was dismissed for insufficient evidence. The jury acquitted Lucatero on the other two counts.
Lucatero timely filed his notice of appeal of his conviction on February 25, 2015.
Although not material to our analysis, it is worth mentioning that Lucatero filed a petition for habeas corpus on September 26, 2014, which the trial court denied on March 12, 2015, in part because "the issues Petitioner has raised in th[e] [habeas corpus] petition are contentions that should be raised on appeal [citations]."
II. DISCUSSION
A. Lucatero's Conviction Is Supported by Substantial Evidence
Lucatero "contends there was insufficient evidence to support his conviction of making a criminal threat against [Trujillo]." (See People v. Fierro (2010) 180 Cal.App.4th 1342, 1347 (Fierro).) We read the record here the same way the court read the record in Fierro and conclude his "contention lacks merit." (See ibid.)
1. Standard of Review
"The standard for appellate review of the sufficiency of the evidence to support a criminal conviction is well established." (Fierro, supra, 180 Cal.App.4th at p. 1347.) We review the conviction " 'under the substantial evidence standard,' " looking to " ' " 'the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find [the elements of the crime] beyond a reasonable doubt.' " [Citations.] " ' "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." ' " ' " (Ibid.) In addition, " '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.' " (Ibid.)
2. Substantial Evidence
Section 422 is a lengthy provision that can be difficult to parse. Our Supreme Court has "divide[d] the crime of criminal threat into five constituent elements that must be established to find that a defendant has committed this offense[:] . . . (1) that the defendant 'willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person,' (2) that the defendant made the threat '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,' (3) that the threat—which may be 'made verbally, in writing, or by means of an electronic communication device'—was 'on its face and under the circumstances in which it [was] made, . . . 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) that the threat actually caused the person threatened 'to be in sustained fear for his or her own safety or his or her immediate family's safety,' and (5) that the threatened person's fear was 'reasonabl[e]' under the circumstances." (People v. Toledo (2001) 26 Cal.4th 221, 227-228 (Toledo), quoting § 422, subd. (a).) It is, of course, the prosecution's burden to prove each element beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 317-318.)
Section 422, subdivision (a) provides: "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, made verbally, in writing, or by means of an electronic communication device, 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 by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison."
Lucatero argues on appeal that the district attorney failed to present sufficient evidence as to the third and fourth elements. Specifically, Lucatero argues his threats did not carry a sufficiently heavy "gravity of purpose" with "an immediate prospect of execution of the threat" so as to constitute criminal threats, and his threats did not cause Trujillo to experience sustained fear. As we shall explain, Lucatero's argument essentially amounts to a request that this court reweigh the evidence and substitute our opinion for that of the jury's, which we are not permitted to do. (See Fierro, supra, 180 Cal.App.4th at p. 1347; accord, People v. Holt (1997) 15 Cal.4th 619, 668 (Holt).) Thus, Lucatero's arguments fail.
a. Gravity of Purpose
To meet the third element of making criminal threats, the district attorney must prove Lucatero's statements to Trujillo were " 'on [their] face and under the circumstances[,] . . . 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.' " (Toledo, supra, 26 Cal.4th at p. 228.) Much of Lucatero's argument on this point boils down to an assertion that, despite his words, the surrounding circumstances were such that Trujillo could not have experienced " 'a gravity of purpose and an immediate prospect of execution of the threat.' " (See ibid.) While it is true that "threats are judged in their context" and cannot be judged "solely on the words spoken" (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1137 (Ricky T.)), Lucatero's arguments lack merit.
Lucatero's attempt to analogize his case to Ricky T., while distinguishing it from Fierro, is misguided. In Ricky T., after a teacher accidentally bumped into a high school student, the student cursed the teacher "and threatened him, saying, 'I'm going to get you.' " (Ricky T., supra, 87 Cal.App.4th at p. 1135.) The school called the police the next day and suspended the student for five days; the district attorney eventually charged him in a juvenile wardship petition with making a criminal threat. (Id. at pp. 1134, 1135-1136.) Following a juvenile court order sustaining the charge in his petition, the appellate court reversed, holding that there was insufficient evidence as to the third and fourth elements of the crime of making criminal threats: "section 422 was not enacted to punish an angry adolescent's utterances, unless they otherwise qualify as terrorist threats under that statute." (Id. at p. 1141; see id. at pp. 1136-1139.) Regarding its holding on the third element, the appellate court found "the remark 'I'm going to get you' [to be] ambiguous on its face and no more than a vague threat of retaliation without prospect of execution," and the court found the surrounding circumstances did not establish that the words rose to the level of a criminal threat. (Id. at pp. 1137-1138; see also id. at p. 1139 ["[A]bsence of circumstances can . . . show that a [criminal] threat was not made within the meaning of section 422."].)
First, the Ricky T. court noted that "the police were not called until the following day. . . . [And] the police did not again interview appellant until one week later." (Ricky T., supra, 87 Cal.App.4th at p. 1138.) Second, the court pointed out that "[i]n contrast to other cases upholding section 422 findings, there was no evidence in this case to suggest that appellant and [his teacher] had any prior history of disagreements, or that either had previously quarreled, or addressed contentious, hostile, or offensive remarks to the other." (Ibid.) "Nor was there evidence that a physical confrontation was actually imminent," for "there was no evidence offered that appellant's angry words were accompanied by any show of physical violence—nothing indicating any pushing or shoving or other close-up physical confrontation." (Ibid.)
The facts of this case can be readily distinguished from Ricky T. Here, Trujillo called 911 while Lucatero was pacing and screaming in front of the store, unlike the school in Ricky T., which waited until the next day to call the police. (See Ricky T., supra, 87 Cal.App.4th at p. 1138.) Further, unlike the student and teacher in Ricky T., Lucatero and Trujillo did have a "prior history of disagreements," specifically the incident on the same day, 30 minutes before the threats were made, where Lucatero "addressed contentious, hostile, [and] offensive remarks to" Trujillo, including calling him a "mother fucker" and telling him he hated him, apparently due to Trujillo's El Salvadoran heritage. (See ibid.) Although Trujillo may not have been immediately offended at the time those remarks were made, he still told Lucatero to leave and refused to sell to him; plus, those remarks would naturally be seen in a different light after the second incident involving the threats.
In addition, a rational factfinder could have found evidence that "a physical confrontation was actually imminent." (See Ricky T., supra, 87 Cal.App.4th at p. 1138.) Specifically, the jury could have looked to the fact that Lucatero returned to Trujillo's store in the first place—after Trujillo specifically told him he would not sell to him anymore—or that Lucatero slammed the beer on the counter while Trujillo was assisting other customers, or even that Lucatero was pacing and screaming in front of Trujillo's front door, just feet from Trujillo. Indeed, the jury could have found Trujillo sensed a sufficient "gravity of purpose" in Lucatero's threats, because he unzipped his vest to have easier access to his pepper spray, "just in case" Lucatero attempted anything, and eventually called 911.
In Fierro, the court held there was "more than substantial evidence support[ing] each . . . element" for a conviction under section 422, including as to the third element and as relevant here, "[a]ppellant's proximity to the victim and his threatening gesture," which "added weight to his words." (Fierro, supra, 180 Cal.App.4th at p. 1348.) The appellant and the victim in Fierro were strangers who got into a verbal argument at a gas station that eventually led to the appellant flashing what appeared to be a gun (but was actually a folding knife in a gun holster) at the victim, who was a father traveling with his teenage son. (Id. at pp. 1344-1346.) The appellant then made his threats in Spanish, saying he "ought to kill" the victim and his son " 'right now.' " (Id. at p. 1346.) Fortunately for the victim, the appellant did not carry through with his threat; the father and son left and within a few minutes called the police. (Ibid.) Both of them testified they were " 'scared,' " and the father testified he was "in fear for [his] life" and "in fear for [his] son's life." (Ibid.)
Here, Lucatero attempts to distinguish the facts of his case from Fierro, noting that he was outside of the store when he made the threats and was not that close to Trujillo. Lucatero's reliance on his proximity to Trujillo as evidence of his not making an actual criminal threat is misplaced. For one thing, the distance between Trujillo and Lucatero is only a couple of feet longer than that between the appellant and the victim in Fierro. (See Fierro, supra, 180 Cal.App.4th at pp. 1345-1346.) For another, there is no reason to believe that, for a set of words to constitute a criminal threat, the speaker must be within a certain close physical proximity to the victim. Not only can criminal threats be made electronically or in writing (see § 422, subd. (a)), it would be strange to apply such a standard in a case like this one, where the speaker makes a threat that, if he actually carried it out as spoken, would require him to travel even farther before returning.
Lucatero further points out that, unlike the appellant in Fierro, he did not have a weapon nor, as he argues, did he act aggressively toward Trujillo. (See Fierro, supra, 180 Cal.App.4th at pp. 1345-1346.) First, we note the statutory language of section 422 does not require the accused to have a weapon while speaking to have his words constitute a criminal threat. Second, a rational factfinder could have interpreted Lucatero's actions as "aggressive," as discussed above in the context of a physical confrontation being potentially imminent under Ricky T.
Thus, Lucatero has failed to demonstrate there was insufficient evidence as to the third element of the crime of making criminal threats under section 422.
b. Sustained Fear
To meet the fourth element, the district attorney had to prove Lucatero's threats "actually caused the person threatened [(Trujillo)] 'to be in sustained fear for his or her own safety or his or her immediate family's safety.' " (Toledo, supra, 26 Cal.4th at p. 228.) "The [statutory] phrase to 'cause[] that person reasonably to be in sustained fear for his or her own safety' [(§ 422, subd. (a))] has a subjective and an objective component. A victim must actually be in sustained fear [(subjective)], and the sustained fear must also be reasonable under the circumstances [(objective)]." (Ricky T., supra, 87 Cal.App.4th at p. 1140.) Lucatero challenges the sufficiency of the evidence as to the subjective question whether Trujillo actually was in sustained fear. "[T]he term 'sustained fear' is defined . . . as a period of time 'that extends beyond what is momentary, fleeting, or transitory.' " (Ibid., citation omitted.)
Lucatero's argument boils down to his pointing us to the evidence he believes to be favorable to him, while ignoring other evidence that would sustain his conviction. Here again, we are being asked to reweigh the evidence. (See People v. Hernandez (2011) 200 Cal.App.4th 1000, 1005 ["This contention essentially invites us to reweigh the evidence . . . ."]; see also Holt, supra, 15 Cal.4th at pp. 667-668; Fierro, supra, 180 Cal.App.4th at p. 1347.) And here again, Lucatero relies on Ricky T. and Fierro, which we conclude actually support his conviction.
In addition to finding a lack of sufficient evidence for the third element, the court in Ricky T. found a lack of sufficient evidence for the fourth element. (Ricky T., supra, 87 Cal.App.4th at pp. 1139-1141.) There, the court noted that despite "[w]hatever emotion" the teacher "felt during the moment of the verbal encounter" with the student, "there was nothing to indicate that the fear was more than fleeting or transitory," for "the threat was not specific" and "the police were not notified until the day after the incident." (Id. at p. 1140.) "Apparently," the court noted, "fear did not exist beyond the moments of the encounter." (Ibid.)
The facts of this case are distinguishable from Ricky T. Unlike the student's ambiguous threat in Ricky T., supra, 87 Cal.App.4th at p. 1135 (" 'I'm going to get you' "), Lucatero's threat here was much more specific as to what he threatened to do (i.e., bring his friends back to the store to beat Trujillo up and blow his head off). Moreover, unlike the school in Ricky T., Trujillo did not wait until the next day to call the police, but rather called 911 while Lucatero was still pacing and screaming in front of the store. (See id. at p. 1140.) Furthermore, Trujillo told the 911 dispatcher, as well as a sheriff's deputy when he arrived minutes after Lucatero left, that he was in fear of Lucatero. If this were not enough, the jury could have reasonably believed Trujillo when he testified at trial—months after the incident, clearly "beyond the moments of the encounter" (see ibid.)—that he remained in sustained fear of Lucatero. (See Fierro, supra, 180 Cal.App.4th at p. 1347 [The " 'testimony of a single witness is sufficient to support a conviction.' "].)
Lucatero places heaviest reliance on Fierro to support his position here, but in the end that case cuts against him. The court in Fierro held there was substantial evidence that the victim was in sustained fear for a reasonable amount of time, relying on the victim's testimony "that he was horribly scared, and his fright was not fleeting." (Fierro, supra, 180 Cal.App.4th at p. 1348.) Similar to our case, the appellant and victim in Fierro had essentially two confrontations, the first of which ended without much incident, yet which served as "[recent] history between these people" for when the appellant returned. (See ibid.) Although the appellant in Fierro, unlike Lucatero here, flashed a weapon to the victim when he threatened to kill him, section 422 does not require the involvement of a weapon (as discussed above), and the trier of fact could have reasonably relied on, among other things, Trujillo's own testimony as to his sustained fear. (Cf. id. at pp. 1347-1348.) Despite the evidence Lucatero highlights to contend Trujillo was not in sustained fear—including Trujillo's allegedly calm demeanor on the phone with the 911 dispatcher, his ability to continue assisting other customers after Lucatero left, and his testimony that he did not "plan" to use the pepper spray on Lucatero—it is not our duty to resolve " 'conflicts and inconsistencies in the testimony[;] [such] is the exclusive province of the trier of fact.' " (Id. at p. 1347; accord, Holt, supra, 15 Cal.4th at p. 668.)
Thus, Lucatero has failed to demonstrate there was insufficient evidence as to the fourth element of the crime of making criminal threats under section 422. Accordingly, we conclude that there is more than substantial evidence to support Lucatero's conviction.
B. The Trial Court's Failure to Include Attempted Criminal Threat as a Lesser Included Offense in Its Jury Instructions Was Harmless Error
1. Standard of Review
"An appellate court applies the independent or de novo standard of review to the failure by a trial court to instruct on an uncharged offense that was assertedly lesser than, and included, in [sic] a charged offense. Whether or not to give any particular instruction in any particular case entails the resolution of a mixed question of law and fact that, we believe, is however predominantly legal. As such, it should be examined without deference." (People v. Waidla (2000) 22 Cal.4th 690, 733 (Waidla).)
2. The Court Erred by Not Instructing on Attempted Criminal Threat
" ' "A defendant has a constitutional right to have the jury determine every material issue presented by the evidence." ' " (People v. Cunningham (2001) 25 Cal.4th 926, 1007.) " '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 offense are present.' " (Id. at p. 1008.) "A trial court must instruct the jury sua sponte on an uncharged offense that is lesser than, and included in, a greater offense with which the defendant is charged 'only if [citation] "there is evidence" ' [citation], specifically, 'substantial evidence' [citation], ' "which, if accepted . . . , would absolve [the] defendant from guilt of the greater offense" [citation] but not the lesser' [citation]." (Waidla, supra, 22 Cal.4th at p. 733.) Lucatero argues the trial court erred in not instructing the jury on the lesser included offense of attempted criminal threat. We conclude that, although the court erred by not instructing the jury on this lesser offense, the error was harmless.
The Supreme Court has described the crime of attempting to make criminal threats as follows: "acting with the specific intent to commit the offense of criminal threat, the defendant performs an act that goes beyond mere preparation and indicates that he or she is putting a plan into action." (Toledo, supra, 26 Cal.4th at p. 230.) "Furthermore , . . . a defendant acts with the specific intent to commit the offense of criminal threat only if he or she specifically intends to threaten to commit a crime resulting in death or great bodily injury with the further intent that the threat be taken as a threat, under circumstances sufficient to convey to the person threatened a gravity of purpose and an immediate prospect of execution so as to reasonably cause the person to be in sustained fear for his or her own safety or for his or her family's safety." (Id. at pp. 230-231.) In addition, to convict a defendant of attempted criminal threat, the prosecution must prove the defendant's intended criminal threat was sufficient under the circumstances to cause a reasonable person to be in sustained fear. (People v. Chandler (2014) 60 Cal.4th 508, 511, 525 (Chandler); see CALCRIM No. 460, Bench Notes; CALCRIM No. 1300, Bench Notes.) The Toledo court identified pertinent examples of attempted criminal threats, including: (1) "if a defendant, with the requisite intent, orally makes a sufficient threat directly to the threatened person, but for some reason the threatened person does not understand the threat"; or (2) "if a defendant, again 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." (Toledo, supra, 26 Cal.4th at p. 231, original italics; see also ibid. ["In each of these situations, only a fortuity, not intended by the defendant, has prevented the defendant from perpetrating the completed offense of criminal threat itself."].)
The evidence to which Lucatero points in support of his argument that there was " 'substantial evidence' [citation], ' "which, if accepted . . . , would absolve [him] from guilt of the greater offense" [citation] but not the lesser' " (see Waidla, supra, 22 Cal.4th at p. 733), falls under the second scenario described above, where the threatened person did not actually experience "sustained fear" (see Toledo, supra, 26 Cal.4th at p. 231). As noted, Trujillo testified that (1) he felt afraid after Lucatero twice threatened to return with friends and beat Trujillo up and blow his head off, and (2) this fear persisted when he identified Lucatero in the field and continued until the time of trial. But we agree with Lucatero that some of the evidence pertaining to Trujillo's conduct suggested he remained calm and could have supported a jury finding that he did not experience sustained fear.
On this issue, unlike his challenge to the sufficiency of the evidence discussed in section II.A, supra, Lucatero focuses primarily on the element of sustained fear. In the course of his instructional error argument, Lucatero also suggests there was evidence from which the jury could have concluded he lacked the requisite intent to threaten Trujillo. Even assuming that is correct, it would provide no basis for the jury to convict Lucatero of attempted criminal threat (rather than criminal threat), because the intent to threaten is an essential element of the crime of attempted criminal threat. (Chandler, supra, 60 Cal.4th at p. 525.) If the jury found Lucatero did not intend to threaten Trujillo, the result would be an acquittal, not a conviction of a lesser offense.
Lucatero notes Trujillo's testimony that, when Lucatero left the store the second time, Trujillo (while on the phone with the 911 dispatcher) went outside to see where Lucatero was going and relayed that information to the dispatcher. Trujillo apparently then returned to the store and did not close it; he may have assisted other customers before the sheriff's deputy arrived. Lucatero also notes that Trujillo at one point told the 911 dispatcher to "just forget about it," and Trujillo stated he did not plan on using his pepper spray on Lucatero.
Lucatero also asserts Trujillo spoke "calmly" to the 911 dispatcher and assisted customers during the call. We cannot assess the tone of Trujillo's voice: The recording of the 911 call, which was played for the jury and admitted into evidence, is not in the appellate record. A transcript of the recording was marked for identification and provided to the jurors to follow along as they listened to the recording; the transcript was not admitted into evidence or sent to the jury room. It has been provided to this court as part of the augmented record on appeal. (See Cal. Rules of Court, rules 2.1040(b), (c), 8.320(b)(11), 8.340(b).) The transcript does suggest that Trujillo remained collected enough to continue providing information to the 911 dispatcher (although his words also suggest fear, as he repeatedly stated Lucatero had threatened to come back with "a buncha guys" to kill him, and he twice stated that "[h]opefully" Lucatero would not come back), and it does appear Trujillo spoke with a customer near the end of the 911 call (after Lucatero had left, and after the dispatcher had stated an officer would arrive soon).
Lucatero also attaches significance to the choice of words used by the responding deputy to describe Trujillo's demeanor. The deputy testified Trujillo was "a little bit shakened [sic] up" and "a little bit agitated," and that he "appeared to be concerned and was disturbed by what had happened." Lucatero emphasizes the deputy did not use the word "fearful" to describe Trujillo. But in our view, the fact the deputy used different words to convey the point that Trujillo appeared upset does not provide any significant support for a finding that Trujillo did not experience sustained fear.
Taken together, the evidence suggesting that Trujillo remained calm during and shortly after Lucatero's threats could have supported a jury finding that Trujillo was not frightened. Of course, people experience fear in vastly different ways, and we do not suggest Trujillo's apparent calmness or stoicism establishes he did not experience fear. As discussed above, there was ample evidence supporting a conclusion Trujillo was afraid (including his own testimony he was afraid, and the fact he called 911 and unzipped his vest "just in case" he needed to use his pepper spray), and there was testimony explaining some of the evidence of his purported calmness. For example, Trujillo explained that he said "just forget about it" to the dispatcher because by that time Lucatero had left, and Trujillo was not confident the police would come in time. But the jury could have adopted a different interpretation of the evidence. We conclude the evidence suggesting Trujillo remained calm was sufficient to warrant instructing the jury on the lesser offense of attempted criminal threat on the theory that Trujillo did not experience sustained fear. The trial court erred by not instructing on that offense.
3. The Error Was Harmless
" ' "[T]he failure to instruct sua sponte on a lesser included offense in a noncapital case is, at most, an error of California law alone, and is thus subject only to state standards of reversibility." [Citation.] Under the state standard, "such misdirection of the jury is not subject to reversal unless an examination of the entire record establishes a reasonable probability that the error affected the outcome." [Citations.] "The Supreme Court has emphasized 'that a "probability" in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.' " ' " (People v. Brown (2016) 245 Cal.App.4th 140, 155.)
Applying this standard, we see no reasonable probability the error affected the outcome of this case. To find Lucatero guilty of the lesser offense of attempted criminal threat on the theory posited by Lucatero on appeal (i.e., that Trujillo did not experience sustained fear), the jury would have had to reach a set of conclusions about the evidence that, taken together, do not appear reasonably likely in the circumstances of this case. First, the jury would have had to find that Lucatero did make a sufficient threat (i.e., that he and his friends would return and beat Trujillo up and blow his head off), and that he did so with the intent that his statements be taken as a threat. (Toledo, supra, 26 Cal.4th at pp. 227-228, 230-231.) To make these findings, the jury would have had to credit Trujillo's testimony about Lucatero's statements and conduct. Second, to convict Lucatero of attempted criminal threat, the jury would have had to find his intended threat was sufficient under the circumstances to cause a reasonable person to be in sustained fear. (Chandler, supra, 60 Cal.4th at p. 525.) But the jury then would have had to conclude that Trujillo did not in fact experience sustained fear as a result of the intended threat, despite his testimony that he felt afraid and that his fear persisted.
We do not think there is a reasonable probability that, if the court had instructed on attempted criminal threat, the jury would have spliced the evidence in this manner. Trujillo did not make inconsistent statements about having been afraid. (See Toledo, supra, 26 Cal.4th at pp. 225, 235 [attempted criminal threat conviction upheld, where victim told investigating officer she was afraid defendant was going to kill her, but at trial victim denied she had been afraid of defendant].) Instead, Trujillo's account was consistent: He did not claim to have been frightened by Lucatero's initial statements or conduct, but stated he became fearful when Lucatero stated he would return with others to blow Trujillo's head off. Having credited Trujillo's testimony about the underlying events, including the content of Lucatero's statements, and having concluded Lucatero's statements were sufficient to cause a reasonable person to experience sustained fear, it is not reasonably likely on this record that the jury would have concluded Trujillo was lying when he said that Lucatero's statements frightened him and that his fear persisted.
III. DISPOSITION
For the foregoing reasons, Lucatero's conviction is affirmed.
/s/_________
Streeter, J. We concur: /s/_________
Ruvolo, P.J. /s/_________
Rivera, J.