Filed 2/10/14




                             CERTIFIED FOR PUBLICATION


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                               FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                     F065496
        Plaintiff and Respondent,
                                                               (Tuolumne Super. Ct.
                  v.                                             No. CRF34641)

RONALD W. LIPSETT, JR.,
                                                                   OPINION
        Defendant and Appellant.



        APPEAL from a judgment of the Superior Court of Tuolumne County. James A.
Boscoe, Judge.
        John F. Schuck, under appointment by the Court of Appeal, for Defendant and
Appellant.
        Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Alice
Su, Deputy Attorneys General, for Plaintiff and Respondent.
                                               --
                                       BACKGROUND
        Defendant was charged with one count each of carjacking (count I - Pen. Code,1
§ 215, subd. (a)), vehicle theft (count II - Veh. Code, § 10851, subd. (a)) and making a

        1   All subsequent statutory references are to the Penal Code unless otherwise noted.
criminal threat (count III - § 422). The information contained firearm use allegations as
to each count. (§ 12022, subd. (a)(1).) It further alleged defendant suffered a prior
serious or violent felony conviction. (§§ 667, subds. (b)-(i), 667.5, subd. (b).)
       Defendant was convicted on all substantive counts. The jury was unable to reach
verdicts on the firearm use allegations. The trial court found the prior conviction
allegations true.
       The court sentenced defendant to the upper term on each count as follows: 9 years
on count I (carjacking), a stayed term of 3 years count II (unlawful taking of a vehicle)
and a concurrent term of 3 years on count III (criminal threats). The 9-year term was
doubled pursuant to section 667, subdivisions (b)-(i). A consecutive term of 5 years and
a stayed term of 1 year were imposed for the prior conviction findings. (§§ 667,
subd. (a), 667.5, subd. (b).) The total aggregate term was 23 years.
                                   TRIAL EVIDENCE
       On the evening of September 6, 2010, David Smith’s dirt bike was parked outside
his bedroom window. At around 4:00 a.m. on September 7, Smith heard a large truck
backing up on his driveway. A male jumped out of the passenger seat and ran to Smith’s
bike. Smith realized his bike was being stolen, so he went outside and confronted the
man who was now dragging the bike. Smith and the man got into “a tug of war over the
bike.” Smith yelled, “ ‘Drop the bike[]’ ” several times.
       Smith’s German shepherd dog came outside. The man who was dragging Smith’s
bike screamed at the top of his lungs: “ ‘Shoot him; shoot him; shoot the dog….’ ” He
said “shoot him” or “shoot the dog” several times, “meaning…six, eight, ten times.”
       The driver of the truck exited the vehicle and started to approach Smith. The
driver lifted his arm up, holding what “looked like a gun.” Smith described it as a small,
black gun that “looked to be a revolver[.]” The driver pointed it at Smith’s stomach.
Smith ran away. He saw his wife and child standing at the front door, and asked his wife



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to call 9-1-1. Smith said, “ ‘Oh, I’m going to go get one of my guns,’ ” and ran towards
his house.
       The two men threw the bike into the back of the truck. By the time Smith returned
from his home, the truck was leaving.
       Photographic Lineups
       Smith was shown a photographic lineup. Smith said none of the photographs
“really matched” the person he had seen stealing his bike. He was shown a second
photographic lineup one week later. He selected defendant’s photograph and said,
“ ‘That’s the guy right there.’ ”
       Recovery of the Bike
       A few days after the bike was stolen, a man named Fred Esguerra, Jr., was stopped
by a highway patrolman. Esguerra was riding a bike he had recently bought from
defendant for $500. The bike was returned to Smith.
                                       DISCUSSION
       I.     THERE WAS SUFFICIENT EVIDENCE TO SUPPORT
              DEFENDANT’S CONVICTION FOR VIOLATING SECTION 422,
              SUBDIVISION (a)
       A. Standard of Review
       Defendant contends there was insufficient evidence to support his conviction for
violating section 422, subdivision (a).
       “ ‘In assessing the sufficiency of the evidence, we review the entire record in the
light most favorable to the judgment to determine whether it discloses evidence that is
reasonable, credible, and of solid value such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt. [Citations.] Reversal on this ground is
unwarranted unless it appears “that upon no hypothesis whatever is there sufficient
substantial evidence to support [the conviction].” [Citation.]’ ” (People v. Wilson (2010)
186 Cal.App.4th 789, 805.)



                                              3.
       B. Section 422, subdivision (a)
       Section 422, subdivision (a) provides, in part:

               “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 .…”
       The statutory language can be divided into five elements the prosecution must
prove: “(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 (5) that the threatened person’s fear was ‘reasonabl[e]’ under the
circumstances.’ [Citation.]” (People v. Toledo (2001) 26 Cal.4th 221, 227-228.)
       C. Analysis
       Defendant contends he was improperly convicted of making criminal threats
because he did not “direct” the alleged threat to the victim, Smith.2 This contention is

       2Defendant also seems to suggest his comment was not a threat because it was not
phrased as an “ ‘or else’ statement.” But, section 422 explicitly encompasses
“unconditional” threats. (§ 422, subd. (a).) The absence of conditional language does not
undermine the conviction, it supports it.

                                              4.
true in a limited sense not relevant here. In a purely grammatical sense, defendant’s
comment was not “directed” to Smith, because it used the third-person pronoun, “him.”
As we will explain, this fact is irrelevant.
       “The language of section 422 is sufficiently clear so that ‘its plain meaning should
be followed.’ [Citation.]” (In re David L. (1991) 234 Cal.App.3d 1655, 1658.)
Accordingly, our analysis begins and ends with the statutory text.
       By its plain language, section 422 contains no exception for threats that are
technically addressed to third parties. Instead, it requires that a defendant intend “the
statement … to be taken as a threat” by the victim. (§ 422, subd. (a).) A defendant may
harbor such intent even while grammatically addressing the threat to someone other than
the victim.
       Consider a hypothetical where two gang members capture a suspected police
informant in their ranks. The gang members want the victim to admit to informing on the
gang, so they interrogate him. The informant denies the gang members’ accusations, and
one gang member tells the other gang member: “I am going to shoot the snitch for
lying.” He makes the statement in earshot of the victim, intending to scare the victim into
telling the truth. The statement would not fall outside the scope of section 422 merely
because it did not reference the victim with a second person pronoun.
       Thus, the true question presented is whether defendant intended his “statement …
to be taken as a threat” by Smith (§ 422, subd. (a)), not whether the threat was
syntactically addressed to him. Here, there is sufficient evidence defendant possessed the


       Defendant also contends the threat did not cause Smith to be “in sustained fear for
his … own safety or for his … immediate family’s safety .…” (§ 422, subd. (a).) But
Smith specifically testified that he was “worried” when defendant made the threat. As
defendant notes, Smith went on to testify that he became more worried when the driver
exited the vehicle. But this does not alter the fact that both occurrences – the threat and
the driver’s subsequent conduct – “worried” Smith, albeit one more than the other. The
jury was free to conclude that Smith was in sustained fear for himself and/or his family as
a result of the threat.

                                               5.
requisite intent. Defendant was yelling the statement at the top of his lungs while
engaged in a “tug of war” with Smith over the bike he was trying to steal. Smith’s
German shepherd was nearby. The jury could have reasonably inferred that defendant
made the threat intending to scare Smith into retreating with his dog so defendant could
steal the bike and escape.
       We therefore reject defendant’s contentions regarding sufficiency of the evidence.
       II.    UNLAWFULLY TAKING A VEHICLE IS NOT A LESSER
              INCLUDED OFFENSE OF CARJACKING
       Defendant also posits that unlawful taking of a vehicle (Veh. Code, § 10851) is a
lesser-included offense of carjacking (§ 215). Therefore, he contends, his conviction for
unlawfully taking a vehicle must be reversed.
       Defendant’s premise is incorrect. Quite simply, “unlawfully taking a vehicle is
not a lesser included offense of carjacking .…” (People v. Montoya (2004) 33 Cal.4th
1031, 1035.)3 A defendant may be convicted of both crimes.
                                     DISPOSITION
       The judgment is affirmed.


                                                                _____________________
                                                                Poochigian, J.
WE CONCUR:


______________________
Levy, Acting P.J.


______________________
Kane, J.



       3
       In his reply brief, defendant virtually concedes this issue. Defendant
acknowledges Montoya’s holding and our duty to follow it.


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