Filed 4/29/14 P. v. Moore CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                    (San Joaquin)
                                                            ----



THE PEOPLE,                                                                                  C073468

                   Plaintiff and Respondent,                                    (Super. Ct. No. SF121602A)

         v.

FRANKIE GARRETT MOORE, SR.,

                   Defendant and Appellant.


         Defendant Frankie Garrett Moore lived in an apartment complex managed by
Gloria Dellavedova. For approximately five months, Dellavedova attempted to evict
defendant because he did not pay rent. During the course of the eviction process,
defendant frequently caused trouble in the apartment complex and threatened
Dellavedova on many occasions. A week after a court granted an eviction order,
Dellavedova and defendant had a confrontation that ended with defendant hitting
Dellavedova on the head with a “4-by-4” wooden stick and telling her to “[w]atch
[her]self outside the gate ‘cause somebody gonna stick [her].” A jury found defendant
guilty of assault with a deadly weapon and criminal threats. On appeal, defendant argues
there is insufficient evidence to support the criminal threats conviction. We agree but
modify the conviction to attempted criminal threats and remand for resentencing.


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                  FACTUAL AND PROCEDURAL BACKGROUND
       Defendant moved into an apartment complex managed by Dellavedova in April
2012. From April until September defendant never paid rent. During that time,
Dellavedova attempted to evict defendant from the apartment complex and finally
received a court order evicting defendant in early September. Over the course of the five-
month eviction process, defendant and Dellavedova, who also resides at the complex,
commonly had verbal altercations where defendant threatened her. Dellavedova
admittedly did not “feel threatened” by defendant’s threats during the five-month time
frame and characterized the threats as defendant “talking crap” and making “wolf calls,”
referring to “The Boy Who Cried Wolf.”
       Approximately one week after receiving the eviction order from the court,
Dellavedova took her dogs outside of her apartment so they could “go to the bathroom.”
The unleashed dogs ran down the stairs, over to defendant’s son, and began to bark at
him. After Dellavedova came downstairs and retrieved her dogs, defendant emerged
from his apartment holding a butcher knife. Defendant approached Dellavedova and
said, “I’m gonna stab those dogs.” Taking this threat as “[j]ust another wolf call,”
Dellavedova told defendant, “put that knife away, you know you’re not gonna stab
anyone.” Upon hearing Dellavedova, defendant returned to his apartment and put the
knife away. Within seconds defendant returned from his apartment and began to engage
in a verbal altercation with Dellavedova, calling her a “[s]tupid white bitch,” to which she
retorted he was a “[s]tupid black negro.” At some point in the verbal altercation,
defendant spit in Dellavedova’s face and she spit back in his face. Dellavedova then
turned to walk back up the stairs to her apartment.
       After Dellavedova took a few steps up the stairs, defendant hit her on the back of
the head with a “4-by-4” wooden stick, which caused bleeding and a one-inch laceration.
Dellavedova then turned to defendant and said, “Really, Frank? It didn’t have to go to



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this,” and indicated that “he was gonna go to jail for this one.” In response, defendant
told her to “[w]atch [her]self outside the gate ‘cause somebody gonna stick[1] [her].”
       Defendant was charged with assault with a deadly weapon and criminal threats.
At trial, Dellavedova initially testified that she considered defendant’s threats after he hit
her a “wolf call.” After the prosecutor reminded her of her previous testimony at the
preliminary examination, Dellavedova testified that she took the threat “serious[ly].” The
jury found defendant guilty of both assault with a deadly weapon and criminal threats.
The trial court sentenced defendant to four years eight months in prison.
                                        DISCUSSION
       Defendant argues there is insufficient evidence of two elements of the criminal
threats conviction. First, he asserts there is insufficient evidence to find the final threat
he made to Dellavedova was “unconditional, unequivocal and immediate.” We disagree.
Additionally, defendant claims substantial evidence does not support a finding that his
threat put Dellavedova in sustained fear. We agree and modify the judgment.
       Penal Code2 section 422, subdivision (a), provides that a person is guilty of
making a criminal threat if he “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.”




1     Dellavedova interpreted this statement to mean that if she “left [her] gate, outside
where [she] live[d], that somebody” would stab her.
2      All further section references are to the Penal Code.

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       We “ ‘view the evidence in a light most favorable to respondent and presume in
support of the judgment the existence of every fact the trier could reasonably deduce
from the evidence.’ ” (People v. Johnson (1980) 26 Cal.3d 557, 576.) “ ‘[T]he critical
inquiry on review of the sufficiency of the evidence to support a criminal conviction . . .
[is] to determine whether the record evidence could reasonably support a finding of guilt
beyond a reasonable doubt.’ ” (Ibid.) “ ‘[T]his inquiry does not require a court to “ask
itself whether it believes that the evidence at the trial established guilt beyond a
reasonable doubt.” [Citation.] Instead the relevant question is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.’ ” (Ibid.)
                                               I
                  Substantial Evidence Supports A Finding Defendant’s
            Threat Was Unconditional, Unequivocal, Immediate, And Specific
       “ ‘To constitute a criminal threat, a communication need not be absolutely
unequivocal, unconditional, immediate, and specific. The statute includes the qualifier
“so” unequivocal, etc., which establishes that the test is whether, in light of the
surrounding circumstances, the communication was sufficiently unequivocal,
unconditional, immediate, and specific as to convey to the victim a gravity of purpose
and immediate prospect of execution.’ . . . ‘[I]t is the circumstances under which the
threat is made that give meaning to the actual words used. Even an ambiguous statement
may be a basis for a violation of section 422.’ ” (People v. Hamlin (2009) 170
Cal.App.4th 1412, 1433.) “The jury is ‘free to interpret the words spoken from all of the
surrounding circumstances of the case.’ ” (Ibid.) “ ‘Conditional threats are true threats if
their context reasonably conveys to the victim that they are intended.’ ” (People v.
Melhado (1998) 60 Cal.App.4th 1529, 1540.) “[T]he statute ‘was not enacted to punish
emotional outbursts, it targets only those who try to instill fear in others.’ ” (In re Ryan
D. (2002) 100 Cal.App.4th 854, 861.)

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       Substantial evidence supports a finding that defendant’s threat was sufficiently
unequivocal, unconditional, immediate, and specific. Although defendant did not
explicitly state where or who would “stick” Dellavedova, the context of the threat
reasonably conveyed his intent. Under these circumstances, it is reasonable to conclude
that defendant would stab Dellavedova because of his ongoing hostility with her, the
inevitability of Dellavedova leaving the apartment complex, and most importantly, the
fact that defendant assaulted Dellavedova prior to making the threat. Unlike his previous
threats, defendant actually assaulted Dellavedova before making this threat. It is
reasonable to conclude that his words here, unlike the previous threats, sufficiently
conveyed to Dellavedova an immediate and specific intent to harm her. The jury could
have reasonably inferred that this threat was sufficiently unequivocal because after
initially testifying the threat was a “wolf call,” Dellavedova clarified that “[a]fter he hit
me” she took the threat seriously. Defendant’s assertion that the threat was merely an
“angry utterance,” that was “one more empty threat in an ongoing stream of angry
words,” is without merit. Substantial evidence supports a finding that defendant’s threat
after he committed the assault on Dellavedova conveyed a sufficient gravity of purpose
that defendant would immediately harm Dellavedova, which was absent in his previous
threats.
                                               II
      There Was Insufficient Evidence To Find Dellavedova Was In Sustained Fear
       “Section 422 requires the person threatened ‘reasonably to be in sustained fear for
his or her own safety[,]’. . . [ which] requires proof of a mental element in the victim.”
(People v. Allen (1995) 33 Cal.App.4th 1149, 1156.) “A victim must actually be in
sustained fear,” to establish this element. (In re Ricky T. (2001) 87 Cal.App.4th 1132,
1140.) Sustained fear means “a period of time ‘that extends beyond what is momentary,
fleeting, or transitory.’ ” (Ibid.) “The victim’s knowledge of defendant’s prior conduct is



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relevant in establishing that the victim was in a state of sustained fear.” (Allen, at
p. 1156.)
       Here, neither Dellavedova’s words nor her conduct provided substantial evidence
that defendant’s threat placed her in sustained fear. The People agree that Dellavedova
did not testify at trial “that she was ‘afraid’ of [defendant,] to the extent that she didn’t
use the word ‘fear.’ ” Indeed, at trial Dellavedova initially testified that she considered
defendant’s threat a “wolf call,” and that “[defendant] wasn’t gonna do anything.” Only
after the prosecutor attempted to rehabilitate her testimony did she state that “after he hit
me, of course I take [sic] [the threat] serious[ly].” Nothing in her testimony, however,
addressed the issue of whether she actually was in sustained fear.
       In In re Sylvester C. (2006) 137 Cal.App.4th 601, 604-605, the defendant made a
threat to the victim that a witness heard. Although the witness testified that “everybody
got scared,” the appellate court ruled that this testimony did not constitute substantial
evidence that the victim (who did not testify) experienced fear. (Id. at p. 606.) The court
in Sylvester C. noted that “ ‘[e]vidence which merely raises a strong suspicion of the
defendant’s guilt is not sufficient to support a conviction. Suspicion is not evidence, it
merely raises a possibility, and this is not a sufficient basis for an inference of fact.’ ”
(Id. at pp. 606-607.)
       Similarly here, Dellavedova never testified that she was actually in sustained fear
or afraid at all and the record is silent as to her state of mind after defendant threatened
her. While the context of the threat defendant made might have placed a reasonable
person in sustained fear, Dellavedova never indicated she was actually afraid.
Dellavedova’s testimony that she took the threat seriously is not sufficient.
       In addition to her testimony, Dellavedova did not demonstrate any conduct that
showed she was in sustained fear. Dellavedova’s history of receiving defendant’s
numerous “wolf calls” is relevant because Dellavedova did not act differently here
compared to the previous threats. In fact, the officer who saw Dellavedova after the

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incident testified only that she appeared “angry” and “very agitated.” When
Dellavedova heard that defendant had returned to the apartment complex, she did not
hide or lock herself in her apartment; rather, she immediately came out of her apartment
and saw defendant. None of these facts provides substantial evidence of Dellavedova’s
subjective state of mind and none of them demonstrates she was in sustained fear. They
only raise a suspicion of fear, at best, and therefore are not a sufficient basis to support a
finding of sustained fear beyond a reasonable doubt.
                                                    III
                      Defendant’s Words Constitute Attempted Criminal Threats
           “Although we find the evidence insufficient to prove [defendant] guilty of the
crime of criminal threat, it was sufficient to prove him guilty of attempted criminal threat.
All elements of the crime of criminal threat were established, except whether the
victim . . . actually experienced sustained fear upon hearing the threat.” (In re Sylvester
C., supra, 137 Cal.App.4th at p. 607.) But the absence of proof of that element does not
defeat a conviction for attempted criminal threats. Because defendant satisfied each
element of section 422 except causing Dellavedova to be in sustained fear, substantial
evidence supports a conviction of the lesser included offense of attempted criminal
threats.
                                         DISPOSITION
       Defendant’s conviction of criminal threats is modified to a conviction of attempted
criminal threats, and the case is remanded to the trial court for resentencing.


                                                          ROBIE                   , J.
We concur:

      NICHOLSON                , Acting P. J.

      DUARTE                   , J.



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