Filed 5/22/13 P. v. Ramos CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


THE PEOPLE,                                                          B238093

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA 386321)
         v.

MARIO RAMOS,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Monica
Bachner, Judge. Affirmed.


         James M. Crawford, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Marc A. Kohm and Sonya Roth,
Deputy Attorneys General, for Plaintiff and Respondent.


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       A jury convicted appellant Mario Ramos of stalking and making criminal threats.
Appellant contends (1) the evidence was insufficient to support his conviction for
criminal threats, and (2) the court prejudicially erred in failing to instruct the jury on the
lesser included offense of attempted criminal threats. We affirm.
                                STATEMENT OF FACTS 
       Susana A. met appellant in Mexico, where they began dating. They were together
for approximately 10 years and had one son together. They left Mexico in 2001 and
moved to Washington for a short time. In November 2001, they moved to Los Angeles.
Approximately two months later, Susana became pregnant. Their son was born in Los
Angeles. Some time later the couple moved to Idaho where appellant had family.
Appellant had an accident in Idaho and stopped working. Susana was working to support
the family. Around this time appellant started insinuating that he believed Susana was
being unfaithful to him, and he became violent with her. He pulled her hair several times
and hit her one time.
       The couple eventually moved back to Los Angeles, approximately four years
before appellant’s trial in this matter. They had money problems and continued to have
arguments that would become violent. He would also say insulting things to her, like
calling her a “whore” or saying she was “whoring around.” In April 2011, Susana
decided to leave appellant. The last week before she left him, he was making insulting
remarks to her every day. She would lock herself in the bathroom to get away from him,
but he would continue to say things to her. The night before she left him, she was in the
bathroom for three hours waiting for him to leave the house. When he finally left, she
called her aunt to pick her up. Susana went to live with her aunt and uncle, Emiliana and
Ignacio G.
       The first month after Susana left appellant, he called almost every day pleading
with her to come back to him. Susana at first would tell him no, and eventually she
stopped answering his calls. He began leaving her voicemail messages calling her a
“whore” and saying “many ugly, vulgar things.” He also started to threaten physical
harm. He told her, “I’m going to look for you. I’m going to kill you. If you don’t

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answer me, things are going to get worse for you.” She had five or 10 such messages in
April 2011. She had many messages in which he said he was going to find her and kill
her or “cut [her] up in little pieces.”
       In May, she received a text message from appellant that said, “I’m going to find
you. No matter where you hide, I’m going to find you.” He also sent another one saying,
“I’m going to kill you, and I’m going to cut you up in little pieces. I’m going to put you
in the refrigerator, and I’m going to eat you up little by little.” He sent her a photograph
via text message showing him with a gun sitting on his legs. Beneath the photograph, the
message said, “Don’t you believe me? Look.” He sent around five text messages in
June. One of them said, “Don’t answer, and whenever I see you, I will kill you. You
know that I don’t lie. I’m really crazy. I’m going to kill you. That is for sure. You and
the others down there. And all this because you don’t answer.” In another message, he
said, “I’m going to take you out tonight. Don’t fall asleep. You know me, and you know
this is true. I’m going to make you suffer.” He also sent a message saying, “You know
I’m going to kill you. I’m going to do it, because you are not going to make a fool out of
me. You know very well that I will do it.” Around this time, Susana would see appellant
outside her house, as if he was spying on her. When Susana had to leave the house, she
felt “bad” and “fearful” because she would always see appellant following her, and she
did not want to go out alone. She saved appellant’s text messages and showed them to
Emiliana and Ignacio. When Ignacio saw them, he thought appellant was “crazy” and
was going to kill Susana. He became concerned for his and his family’s safety.
       On a day in May, Ignacio and Susana were dropping off Susana’s son at school,
and appellant was there. Appellant tried to hit Susana, and Ignacio got out of the car.
Appellant told Ignacio he was going to “beat the s--t out of” him and that he was going to
“bump [him] off.” Ignacio understood “bump off” to mean appellant was going to kill
him. Appellant went off laughing. Approximately two days later, appellant left Ignacio a
voicemail message saying appellant wanted to speak with him, and he did not want
Ignacio’s children to be left without a father. When Ignacio heard that message, he felt



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“badly” because he started thinking of his children and family. He thought appellant
wanted to kill him.
         On or around June 15, 2011, appellant confronted Susana after she dropped off her
son at school. He stopped her on the sidewalk as she was walking with a friend. She
agreed to talk with him because she knew he would try to stop her from walking off
otherwise. He told her to sit down, but she refused. He grabbed her by the neck with
both hands and squeezed hard, and said, “What do you want?” She broke free and ran
away. As she was running away, she heard him say, “I’m going to kill you,” and “Keep
on running. It doesn’t matter. I’m going to find you, anyway.” In June, Ignacio received
some text messages from appellant that told him “[n]ot to get involved anymore.”
Appellant also told Ignacio again that he was going to “bump” him off. Ignacio reported
to the police that appellant was threatening him. He told the police he feared for his and
his family’s safety. He also took Susana to the police station to report the incidents
against her. Ignacio received a total of two threatening text messages and two
threatening voicemails from appellant.
         On July 7, 2011, appellant came to Emiliana and Ignacio’s house and yelled for
Susana to come out. She went out to see what he wanted. They walked down the street
away from the house and argued. She asked what he wanted and said she already told
him there was no chance of reconciliation. He said his fight was with Ignacio, not her.
She told him to hit her if he wanted to and then “leave [her] in peace already.” As they
continued walking, appellant grabbed her by the hair and on the arm and punched her in
the head. He pulled her into a parking lot and punched her three or four times in the
head. Susana walked away and ran into a store. She waited in the store for a short while
and then left and began walking home. Appellant waited for her outside the store and
followed her home. At the door of the house, he caught up with her and hit her once or
twice.
         Ignacio and Emiliana were in the car in the driveway of the house when this
happened. Ignacio saw Susana running from appellant and crying. He saw appellant hit
her five or six times. He got out of the car and argued with appellant. Appellant told

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Ignacio he wanted to hit him, and if Ignacio “was a man,” he would fight appellant.
Ignacio responded, “Well, if you want to [hit me], well, do it.” Emiliana got a broom and
began hitting appellant with it. Susana would not allow Ignacio to get into a fight with
appellant. Police officers arrived and arrested appellant. They found appellant walking
quickly down the street from Susana’s house. The officers saw Ignacio walking
approximately 20 feet behind appellant. Ignacio pointed to appellant when he saw the
officers. As they arrested appellant, he told Ignacio, “Even if five or ten years go by, I’ll
come out and kill you.” Ignacio felt “badly” and afraid when appellant said this. Ignacio
walked back to Susana with Officer Kathleen Talbot after the officers arrested appellant.
Officer Talbot then interviewed Susana and Ignacio. The officer thought Ignacio
appeared calm during the interview.
                               PROCEDURAL HISTORY
       The second amended information charged appellant with one count of stalking
Susana and two counts of making criminal threats to Ignacio. Regarding the two counts
of criminal threats to Ignacio, the information charged that the first instance occurred on
or between May 20, 2011, and June 27, 2011. It charged the second instance occurred on
or about July 7, 2011. During closing argument, the prosecutor argued that the first
charged threat occurred when appellant left Ignacio a voicemail in May saying that he did
not want Ignacio’s children to be left without a father. The prosecutor argued that the
second charged threat occurred when the officers arrested appellant on July 7, and he told
Ignacio that he was going to kill him “[e]ven if five or ten years go by.”
       The jury found appellant guilty as charged on all three counts. The court
sentenced appellant to a total of three years four months in state prison. Appellant filed a
timely notice of appeal.
                               STANDARD OF REVIEW
       When a criminal defendant claims on appeal that his conviction was based on
insufficient evidence, 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

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could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980)
26 Cal.3d 557, 578.) We “must accept logical inferences that the jury might have drawn
from the circumstantial evidence.” (People v. Maury (2003) 30 Cal.4th 342, 396.) “‘If
the circumstances reasonably justify the trier of fact’s findings, the opinion of the
reviewing court that the circumstances might also reasonably be reconciled with a
contrary finding does not warrant a reversal of the judgment. [Citations.]’” (People v.
Thomas (1992) 2 Cal.4th 489, 514.) Moreover, reversal on the ground of insufficient
evidence “is unwarranted unless it appears ‘that upon no hypothesis whatever is there
sufficient substantial evidence to support [the conviction].’” (People v. Bolin (1998) 18
Cal.4th 297, 331.)
       We apply “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
a charged offense.” (People v. Waidla (2000) 22 Cal.4th 690, 733.)
                                        DISCUSSION 
1. Substantial Evidence Supported Appellant’s Conviction for Criminal Threats
       The prosecution must establish the following elements to convict a defendant of
making criminal threats under Penal Code section 422:1 “‘(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 for his or her immediate family’s safety,” and

1      Further undesignated statutory references are to the Penal Code.



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(5) that the threatened person’s fear was “reasonabl[e]” under the circumstances.’
[Citation.]” (In re George T. (2004) 33 Cal.4th 620, 630.)
       Appellant contends that the evidence relating to both criminal threat counts was
insufficient to show Ignacio was actually and reasonably in sustained fear of death or
great bodily injury. We disagree.
       A “sustained fear” is one “that extends beyond what is momentary, fleeting, or
transitory.” (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.) The threat must be
examined in light of the surrounding circumstances. (People v. Bolin, supra, 18 Cal.4th
at p. 340.) “The victim’s knowledge of defendant’s prior conduct is relevant in
establishing that the victim was in a state of sustained fear.” (People v. Allen, at p. 1156.)
As to the voicemail threat, appellant argues that Ignacio confronted appellant on July 7,
which was after Ignacio received the voicemail; appellant urges this was not the mindset
of someone in sustained fear. We are not persuaded by this argument. Ignacio received
the voicemail from appellant in May 2011. The fact that Ignacio tried to defend Susana
weeks later in July 2011 does not prove he was not in sustained fear of appellant in May.
The term does not mean that the victim must sustain his or her fear for weeks at a time. It
merely means something more than momentary, as explained above.
       Appellant further argues that Ignacio never testified appellant’s voicemail left him
in sustained fear. But there is no talismanic requirement that Ignacio have uttered the
phrase “sustained fear” in describing his state of mind. As long as the evidence
supported a reasonable inference that appellant’s actions created a sustained fear in
Ignacio, the jury properly convicted appellant. There was such evidence here. Only two
days before receiving the voicemail, Ignacio witnessed appellant try to hit Susana when
they were dropping her son off at school; when Ignacio tried to intervene on that
occasion, appellant told him he was going to beat him and “bump” him off. Before the
school incident, Susana had showed Ignacio the text messages from appellant stating he
was going to cut her into pieces or kill her. Ignacio was already concerned for his and his
family’s safety after seeing those messages. And when Ignacio heard appellant’s
message saying that he did not want Ignacio’s children to be left without a father, Ignacio

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testified he thought appellant wanted to kill him. He said the message made him feel
“badly,” and he started thinking of his family. In light of appellant’s conduct leading up
to the voicemail message, and Ignacio’s testimony regarding his thoughts and feelings
upon hearing the message, substantial evidence supported the jury’s inference that
Ignacio’s fear was more than momentary, fleeting, or transitory.
       As to the July 7 threat when the officers were arresting him, appellant urges that
any fear was unreasonable because he had no immediate ability to execute the threat in
police custody. We also find this argument unpersuasive. The defendant’s intent that the
statement be taken as a threat, not his or her intent to actually carry out the threat, is
dispositive. (In re George T., supra, 33 Cal.4th at p. 630.) Moreover, section 422 “does
not require an immediate ability to carry out the threat.” (People v. Lopez (1999) 74
Cal.App.4th 675, 679; see also In re David L. (1991) 234 Cal.App.3d 1655, 1660
[Section 422 “requires only that the words used be of an immediately threatening nature
and convey ‘an immediate prospect of execution’ (italics added) even though the
threatener may have no intent actually to engage in the threatened conduct. . . . It does
not require the showing of an immediate ability to carry out the stated threat”].) Even
when defendants are incarcerated or being arrested as they make threats, courts have
found victims’ fear to be reasonable based on surrounding circumstances, such as the
defendant’s prior conduct. (People v. Gaut (2002) 95 Cal.App.4th 1425, 1431-1432
[even though defendant was in jail and could not carry out threats to former girlfriend
immediately, she reasonably believed he would be released and carry out threats, based
on defendant’s history of assaulting her]; People v. Franz (2001) 88 Cal.App.4th 1426,
1449 [although defendant made threat while being arrested, immediacy factor was
present in surrounding circumstances; defendant “in a rage,” had already assaulted
victims, and had already threatened one victim].) Ignacio knew of appellant’s prior
threats to kill Susana, had seen appellant attempt to hit her, and had received threatening
voicemails and texts from appellant, which concerned Ignacio enough to file a police
report. That day the officers arrested appellant, Ignacio saw appellant actually hit Susana
multiple times. The evidence demonstrated that appellant was certainly willing to

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commit violence against Ignacio, and any fear of such was reasonable, regardless of
appellant’s ability to carry out violence at the moment he uttered the threat. Further,
Ignacio felt badly and afraid when he heard appellant’s threat. Substantial evidence
supported the judgment.
2. The Court Did Not Err in Failing to Instruct the Jury on Attempted Criminal
Threat
       We also reject appellant’s second contention that the court erred in failing to
instruct the jury on the lesser included offense of attempted criminal threat. “‘“[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.”’ [Citation.] Conversely, even on request, the court
‘has no duty to instruct on any lesser offense unless there is substantial evidence to
support such instruction.’ [Citation.] ‘“Substantial evidence is evidence sufficient to
‘deserve consideration by the jury,’ that is, evidence that a reasonable jury could find
persuasive.”’” (People v. Cole (2004) 33 Cal.4th 1158, 1215.)
       Attempted criminal threat is a lesser included offense of criminal threat. (People
v. Toledo (2001) 26 Cal.4th 221, 226.) A defendant may be convicted for attempted
criminal threat when “acting with the requisite intent, [the defendant] 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 . . . .” (People v. Toledo, supra, 26 Cal.4th at p. 231.) Appellant
argues that, because there was evidence Ignacio was not actually in sustained fear of him,
the appropriate charge was attempted criminal threat, not criminal threat.
       We are not convinced there was substantial evidence supporting such a theory.
Ignacio testified that appellant’s threats made him feel badly and he was concerned for
his and his family’s safety when he heard appellant’s threats. He told the police when he
filed a report that he feared for his and his family’s safety. Appellant’s evidence that
Ignacio was not actually in fear is that (1) he was willing to fight appellant weeks after he

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received the threatening voicemail, and (2) he appeared calm when Officer Talbot
interviewed him and Susana after appellant’s arrest. In light of all the other evidence
supporting appellant’s conviction, this was not substantial evidence from which a jury
composed of reasonable persons could conclude appellant committed the lesser offense.
(People v. Breverman (1998) 19 Cal.4th 142, 162.) The court had no duty to instruct on
the lesser offense.
                                     DISPOSITION
       The judgment is affirmed.




                                                 FLIER, J.
WE CONCUR:




       BIGELOW, P. J.




       RUBIN, J.




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