Filed 2/24/15 P. v. Corral CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,                                                          B252508

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. YA085867)
         v.

NOE CORRAL,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of Los Angeles County. Alan B.
Honeycutt, Judge. Affirmed.
         Gideon Margolis, under appointment by the Court of Appeal, for Defendant and
Appellant
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and Herbert
S. Tetef, Deputy Attorneys General, for Plaintiff and Respondent.


                           ________________________________________
       Noe Corral appeals from the judgment after a jury found him guilty of making
criminal threats. Corral contends the trial court erred in failing to instruct the jury sua
sponte on the lesser included offense of attempted criminal threats. We find the facts did
not require an attempt instruction and affirm the judgment.
                         FACTS AND PROCEEDINGS BELOW
       The victim of the threats, Ana Rios, told Gardena police officers that she was
assaulted by defendant Corral a month earlier when they were passengers on a bus and
that she later received threatening phone calls from him. Rios knew Corral because
he had once dated her sister. The confrontation started when Rios and Corral were
passengers on a bus and Rios told Corral not to talk to her or be around her or her
children because she heard that he raped his sister. Corral hit Rios in the back as she got
off the bus. After that, Corral called Rios numerous times leaving threatening messages
on her voicemail.
       In a message played to the jury Corral told Rios: “Well, check this out bitch, you
wanna fuckin’ put . . . my sister’s name in your mouth, and you wanna say some shit
about my sister being raped? . . . Bitch, you’re gonna get dealt with. I’m will fuckin’ be
seeing you soon bitch, and I’m gonna knock all your fuckin’ teeth out, bitch[.] I’m gonna
fuckin’ put your ass in the hospital, that’s a fuckin’ serious issue right there. . . . [W]hen I
see you, you’re fuckin’ gonna tell me and you’re gonna get beat the fucked down, bitch, I
ain’t no fuckin’ joke bitch . . . . [¶] . . . I’m fuckin’ beat the fuck out of you because you
fuckin’ said that I fuckin’ did somethin’ to my sister, bitch. . . . I will fuckin’ see you
soon, bitch and I’m gonna motherfuckin’ . . . knock your fuckin’ teeth out . . . and stomp
your fuckin’ head out with my sister in your mouth, fuckin’ tweaker ass fuckin’ whore.”
       Rios told the police that Corral left this message on her voicemail the previous day
and that she was scared. She said she believed Corral could carry out his threats against
her because he beat another girl from Gardena. When asked if she wanted to press
charges Rios answered “Yeah.”



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       Defendant was arrested and charged with one count of making criminal threats in
violation of Penal Code section 422, subdivision (a).
       Rios initially refused to testify at Corral’s trial and was jailed for contempt of
court. Her statements to the police regarding Corral’s threats to her were admitted into
evidence through the testimony of Detective Roberto Rosales of the Gardena Police
Department. Rosales testified that between his initial interview with Rios and the trial he
spoke with Rios between 13 and 15 times. On each occasion Rios told Rosales she was
scared of Corral and would not testify.
       When Rios eventually testified she stated at the outset: “I don’t want to be here.”
She stated that when she initially spoke to the police she just wanted to ask and did not
know her statements were being recorded. Rios could not remember who left her the
telephone message that she played for Detective Rosales until the prosecutor played her
the tape recording of her statements. She said she was not sure if the telephone message
was left by Corral or his brother, because they sounded alike. She admitted the telephone
message made her feel “just a little” scared.
       Rios further testified that although she told Corral that she heard he raped his
sister, she later found out it was not true. After that she was no longer afraid of Corral.
                                            DISCUSSION
       Corral’s sole contention on appeal is that the court erred in failing to instruct the
jury sua sponte on the offense of attempting to make criminal threats, a lesser included
offense of making criminal threats. (People v. Toledo (2001) 26 Cal.4th 221, 226.)
       Conviction of the crime of making criminal threats requires proof of the following
elements: (1) the defendant willfully threatened to commit a crime that would result in
death or great bodily injury; (2) the defendant made the threat with the specific intent that
it be taken as a threat, even if there was no intent of actually carrying it out; (3) the threat,
on its face and under the circumstances in which it was made, was 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) the threat caused the

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person threatened to be in sustained fear for his or her own safety or for his or her
immediate family’s safety; and (5) the threatened person’s fear was reasonable under the
circumstances. (People v. Toledo, supra, 26 Cal.4th at pp. 227-228.)
       A defendant can be convicted of the lesser included offense of attempted criminal
threats if he acts with the required intent “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, italics omitted.)
       The trial court has no duty to instruct on a lesser included offense unless there is
substantial evidence to support the instruction. “‘“The trial court is obligated to instruct
the jury on all general principles of law relevant to the issues raised by the evidence,
whether or not the defendant makes a formal request.”’ [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.] This substantial evidence requirement
is not satisfied by ‘“any evidence . . . no matter how weak,”’ but rather by evidence from
which a jury composed of reasonable persons could conclude ‘that the lesser offense, but
not the greater, was committed.’ [Citation.] ‘On appeal, we review independently
the question whether the trial court failed to instruct on a lesser included offense.’
[Citation.]” (People v. Avila (2009) 46 Cal.4th 680, 704-705.)
       Corral contends that the trial court should have instructed on attempted criminal
threats because there was substantial evidence from which the jury could find that Rios
was not in a state of “sustained fear.” We disagree.
       The “sustained fear” requirement is satisfied where there is evidence that the
victim’s fear was more than “fleeting, momentary or transitory.” (People v. Culbert
(2013) 218 Cal.App.4th 184, 190.)
       The evidence in this case showed that Rios contacted Detective Rosales the day
after Corral left the threatening message quoted above on her answering machine. She
told Detective Rosales that she was scared and Rosales testified that she looked scared.

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Rios told Rosales she was scared because she believed Corral had beaten another girl
from Gardena.
       Evidence that Rios was still scared the day after appellant threatened her
unquestionably showed that she was in a state of sustained fear, as any fear that
lasts more than a day cannot be “‘momentary, fleeting, or transitory.’ [Citation.]”
(See People v. Fierro (2010) 180 Cal.App.4th 1342, 1349 [fear during the minute
in which victim heard defendant’s threat and saw defendant’s weapon qualified as
“sustained”]; People v. Allen (1995) 33 Cal.App.4th 1149, 1156 [15 minutes of fear was
more than sufficient to constitute “sustained” fear].) Moreover, there was evidence that
Rios was still afraid months after appellant threatened her. Rosales testified that Rios
told him she was scared every time he spoke to her. He further testified that when he
spoke to her in January 2013, almost four months after Corral’s threatening message,
Rios “was scared. She was in fear for her life. She was scared for the safety of herself,
for the safety of her children, and she was terrified.”
       Thus, there was overwhelming evidence that Rios was in a state of sustained fear.
       Corral argues that Rios was not in a state of sustained fear because she testified
that she no longer feared Corral once she found out that he had not raped his sister and
had not beaten another woman in Gardena. This argument lacks merit.
       No substantial evidence showed that Rios lacked a sustained fear of being attacked
by Corral. Rios was in a state of sustained fear from the time Corral threatened her until
she found out that he had not raped his sister or beaten another woman, which was
sometime after she reported the threats to Rosales.
       Corral also argues that there was evidence Rios was not in a state of sustained fear
because she testified that she was not afraid of him at the time of trial. Again, assuming
that the jury credited this testimony, there was evidence that she was in a state of
sustained fear months earlier when Corral threatened her.




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       In summary, there was no substantial evidence from which the jury could
conclude that Rios was not in a state of sustained fear for her safety following Corral’s
threats.
                                         DISPOSITION
       The judgment is affirmed.
       NOT TO BE PUBLISHED.




                                                        ROTHSCHILD, P. J.
       We concur:



                     JOHNSON, J.



                     BENDIX, J.





        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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