Filed 4/14/15 P. v. Steffes CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FIVE

THE PEOPLE,                                                          B253094

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. NA091977)
         v.
                                                                     ORDER MODIFYING OPINION
SCOTT STEFFES,                                                        [CHANGE IN JUDGMENT]

         Defendant and Appellant.



THE COURT:


         It is ordered that the opinion filed herein on March 27, 2015, be modified as set
forth below.
         1.        On the first page, the second full sentence should read: Affirmed in part
as modified, and reversed in part.


         2.        On page 10, under Part II, Abstract of Judgment, the first paragraph is
revised to read the following.
         The Attorney General correctly states that the trial court orally imposed a
one year term for defendant’s section 667.5, subdivision (b) enhancement, but
neither the minute order for the sentencing hearing nor the abstract of judgment
reflects that term. The Attorney General asks that we order the abstract of
judgment modified accordingly. Defendant does not address the issue in his reply
brief. Although the trial court stated at the sentencing hearing that it was
sentencing defendant to a term of 16 years, four months (the total term reflected on
the abstract of judgment, but a term that would not include a one year term under
section 667.5, subdivision (b)), it expressly stated that it was imposing “an additional
year” “for the prior prison term.” The trial court was without jurisdiction to
impose that one year term, however, because it imposed a five year term under
section 667, subdivision (a)(1) based on the same prior conviction that served as the
basis for its imposition of the one year term under section 667.5, subdivision (b).
(People v. Jones (1993) 5 Cal.4th 1142, 1149-1152 [only the greater enhancement
under section 667, subdivision (a)(1) and section 667.5, subdivision (b) may be
imposed with respect to the same prior conviction].) We may review the trial
court’s sentencing error in the absence of an objection in the trial court because the
trial court imposed an unauthorized sentence. (People v. Scott (1994) 9 Cal.4th 331,
354 [“a sentence is generally ‘unauthorized’ where it could not lawfully be imposed
under any circumstance in the particular case”].) We reverse the trial court’s order
imposing a one year term under section 667.5, subdivision (b).


      3.     On page 11, the disposition is revised to read as follows: The judgment is
affirmed. The abstract of judgment is ordered modified to reflect a total criminal
conviction assessment of $90, and a total court security fee of $120.


      Petition for Rehearing is Denied. Change in judgment.




MOSK, J.                         TURNER, P. J.                     KRIEGLER, J.




                                           2
Filed 3/27/15 (unmodified version)
                  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 FIVE


THE PEOPLE,                                                          B253094

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. NA091977)
         v.

SCOTT STEFFES,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County, Richard
R. Romero, Judge. Affirmed as modified.
         California Appellate Project, Jonathan B. Steiner, Executive Director, Ann Krausz,
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, Senior Assistant Attorney General, Susan Sullivan Pithey,
Supervising Deputy Attorney General, David Zarmi, Deputy Attorney General, for
Plaintiff and Respondent.
                                     INTRODUCTION
       A jury convicted defendant and appellant Scott Steffes of two counts of assault by
means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)1) and
making a criminal threat (§ 422, subd. (a)). Defendant admitted that he suffered a prior
conviction within the meaning of the “Three Strikes” law (§§ 667, subds. (b)-(i) &
1170.12, subds. (a)-(d)); section 667, subdivision (a)(1); and section 667.5, subdivision
(b). The trial court sentenced defendant to 17 years, four months in state prison. On
appeal, defendant contends that the trial court erred in failing to instruct the jury, sua
sponte, on attempted criminal threat, a lesser included offense of criminal threat. The
Attorney General contends that the abstract of judgment does not accurately reflect
defendant’s sentence and the trial court failed to impose certain mandatory assessments
and fees. We affirm the judgment and order the abstract of judgment modified as set
forth below.


                                     BACKGROUND2
       Kimberly D. met defendant again after many years in September 2011, and dated
him on and off for about five months. In April 2012, they began to date more regularly.
On April 9, 2012, Kimberly moved back into her home after it had been rebuilt following
a fire. She was not fully moved in at the time and was sleeping on the floor. She invited
defendant to stay with her.
       About 7:30 p.m. on April 15, 2012, Cindy Juarez, Kimberly’s next door neighbor,
heard Kimberly screaming for help. She went outside and saw Kimberly jump out of a
window on the side of her house. Kimberly was wearing only a bra and jeans. Kimberly
was bleeding from her mouth and had marks on her neck and a bump on her head. She


1      All statutory citations are to the Penal Code unless otherwise noted.

2      Because defendant’s claim on appeal concerns only his criminal threat conviction,
we focus our recitation of the evidence on that offense and set forth evidence concerning
one of his assault convictions for context.

                                               2
seemed nervous and scared and was shaking and crying. Kimberly told Juarez that a man
had hit and choked her. Another neighbor called 911 and gave the phone to Kimberly.
Kimberly’s conversation with the 911 operator was played for the jury. Kimberly told
the operator that defendant tried to strangle her and that she had been assaulted.
       When Los Angeles Police Department Officer Edwin Nelson arrived, Kimberly
was sitting on the ground moaning in pain and crying. She appeared to be afraid.
Kimberly told Officer Nelson that defendant had choked her. She believed that he might
still be inside the house and armed with a knife. Officer Nelson went to the front of the
house. The front door was open, and he could see inside. While at the front door, Officer
Nelson smelled a strong odor of natural gas. He decided to wait for the Fire Department
to arrive to determine if it was safe to enter. Upon determining that it was safe to enter,
Officer Nelson entered the house and observed that all four knobs on the stove were
turned on to “full blast.” Officer Nelson turned off the gas. Officer Nelson did not find
defendant during a search of the house.
       Officer Nelson interviewed Kimberly at the hospital. Kimberly was “very
emotional,” crying, and “fearful.” Officer Nelson had a hard time interviewing her.
When he asked her questions, she looked away and made statements along the lines of, “I
can’t believe he did this to me. He’s gone too far.” Kimberly told Officer Nelson that
defendant had been smoking methamphetamine and taking Xanax and had not slept in
three nights. Defendant had become paranoid and thought the police were coming to get
him, so he pulled down all of the window blinds in the bedroom. When Kimberly pulled
up the blinds and told defendant that no one was “out to get [him],” he became angry. He
grabbed Kimberly with both hands, pushed her against the wall, and choked her.
Kimberly fought back and freed herself. As she tried to run away, defendant punched her
numerous times in the head. Kimberly tried to run out the front door, but was unable to
reach it; she left the house through a side window.
       Officer Nelson asked Kimberly why the stove was on and gas was being emitted.
Kimberly responded that she did not know why the stove was on and that it was not on
when she exited through the window. During that part of the interview, Kimberly still

                                              3
appeared to be “hysterical.” According to Officer Nelson, it was “quite common” for
domestic violence victims to provide information at a later day that was not initially
reported at the scene of the crime.
       On April 16, Los Angeles Police Department Officers Lana Maya and Christopher
Eick responded to a burglary call a few blocks from Kimberly’s house. There, Officer
Maya saw defendant jumping from house to house from the houses’ rooftops. Defendant
was arrested. After defendant’s arrest, Officer Maya returned to the police station and
called Kimberly. Kimberly told Officer Maya that defendant told her that he was going
to blow up the house if she did not come back and that she saw him turn on the gas to the
stove. Kimberly said that she heard that statement while she was in the house.
       Later, Kimberly and her father, Jerry D., went to the police station and Kimberly
spoke with Officer Maya. Kimberly described the domestic violence incident with
defendant. She said that defendant became mad at her and said that he was “gonna
fucking blow up the house if she didn’t come back in the house.” Kimberly said that she
saw defendant turn on the gas on the “oven.” She was afraid and left through a window.
At the preliminary hearing, Officer Maya testified that Kimberly said that defendant
turned the knobs on to the “oven” without the flames burning so that gas was emitting,
that Kimberly left the house in fear, and that defendant then shouted that if she did not
come back, he would “fucking blow it up.”
       At trial, Kimberly recanted her earlier statements about defendant’s domestic
violence. She denied that defendant had hit or choked her. She testified that she and
defendant engaged in sexual activity that included defendant choking her. She attributed
an injury to her eye to that activity. She said that on April 15, she got into a fight with a
fellow female longshoreman near the longshoremen’s hall. Kimberly lost the fight and
attributed other of her injuries to that fight. When the police later interviewed her at the
hospital, she said she had falsely said that defendant, and not the female longshoreman,
had caused her injuries.
       According to Kimberly, when she returned home after the fight, defendant told her
that he wanted to break up with her. She became angry and berated and punched

                                              4
defendant. As defendant tried to pack his belongings in a bag, Kimberly hit him with a
wooden paddle. Although she taunted defendant, he did not hit or choke her. Defendant
took the bag containing his belongings and placed it near the front door. As he leaned
over to place the bag on the floor, Kimberly struck him with a brick.
       Kimberly testified that, having bludgeoned defendant with a brick, she did not
want to remain in the house. She exited through a window because defendant was
blocking the front door and to “show some drama to the situation.” When she screamed
for help, she was doing so to make a scene so everyone would see her. In her interview
with the police at the hospital, she made sure not to reveal enough about the incident that
she would be arrested.
       Kimberly testified that she did not tell Officer Nelson about “statements about
blowing the house up if you don’t get back.” She did not hear about such a statement
until April 16, when she heard about it from her father.
       At some point after the domestic violence incident, Kimberly’s father spoke with a
neighbor who said “something to the effect that she heard that the gas was being left on
again.” He never heard the neighbor say, “I’m going to fucking blow up the house if you
don’t come back” or say the words “fucking” or “blow up.” Although it was possible
that he told Kimberly about the neighbor’s statement, he did not think he had. It was also
possible that he told her before they went to the police station on April 16. Kimberly’s
father later testified that he was “almost positive” and “pretty sure” that his conversation
with the neighbor took place after he went with Kimberly to the police station. He also
said that he initially thought that Kimberly told him that defendant said, “I’m going to
fucking blow up the house if you don’t come back,” but changed his mind when
Kimberly said she had not told him of that. He then testified that he “probably” heard the
statement from Kimberly, absent the “F” word, prior to taking her to the police station.




                                              5
                                        DISCUSSION
I.     Attempted Criminal Threat
       Defendant contends that the trial court erred in failing to instruct the jury, sua
sponte, on the lesser included offense of attempted criminal threat because there were
reasonable bases for doubting that Kimberly received and understood the threat or that
she was in sustained fear. The trial court did not err.
       A trial court has a duty to instruct the jury, sua sponte, on a lesser included offense
“whenever there is substantial evidence raising a question as to whether all of the
elements of the charged offense are present. [Citations.]” (People v. Lewis (2001) 25
Cal.4th 610, 645.) The “substantial evidence” required to trigger a trial court’s duty to
instruct the jury on a lesser included offense is not any evidence, no matter how weak,
but evidence that a jury composed of reasonable persons could conclude that the lesser
offense, but not the greater offense, was committed. (People v. Cruz (2008) 44 Cal.4th
636, 664; People v. Breverman (1998) 19 Cal.4th 142, 177 [“the sua sponte duty to
instruct on a lesser included offense arises if there is substantial evidence the defendant is
guilty of the lesser offense, but not the charged offense”].) A trial court has no duty to
instruct the jury on a lesser included offense when “no evidence supports a finding that
the offense was anything less than the crime charged. [Citations.]” (People v. Gutierrez
(2009) 45 Cal.4th 789, 826.) We review de novo a claim that a trial court erred in failing
to instruct the jury, sua sponte, on a lesser included offense. (People v. Waidla (2000) 22
Cal.4th 690, 733.)
       To prove a criminal threat in violation of section 422, the prosecution must prove
the following: “(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

                                                6
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.) Attempted criminal threat is a lesser included offense of criminal threat.
(Id. at pp. 226, 230-231.)
         “Section 422 requires that the threat be ‘so unequivocal, unconditional, immediate,
and specific [that it] convey . . . a gravity of purpose and an immediate prospect of
execution of the threat . . . .’ (Italics added.) It is clear that the nature of the threat cannot
be determined only at face value. Section 422 demands that the purported threat be
examined ‘on its face and under the circumstances in which it was made.’ The
surrounding circumstances must be examined to determine if the threat is real and
genuine, a true threat. [Citations.]” (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1137.)
         The “sustained fear” element is satisfied when there is “evidence that the victim’s
fear is more than fleeting, momentary or transitory.” (People v. Culbert (2013) 218
Cal.App.4th 184, 190; People v. Allen (1995) 33 Cal.App.4th 1149, 1151, 1156 [15
minutes of fear may be sufficient to establish the “sustained fear” element]; People v.
Fierro (2010) 180 Cal.App.4th 1342, 1349 [one minute of fear may be sufficient].) In
establishing whether the victim was in a state of sustained fear, the victim’s knowledge of
the defendant’s prior conduct is relevant. (People v. Allen, supra, 33 Cal.App.4th at p.
1156.)
         A defendant commits an attempted criminal threat when he intends to commit a
criminal threat “but is thwarted from completing the crime by some fortuity or
unanticipated event.” (People v. Toledo, supra, 26 Cal.4th at p. 232.) The Supreme
Court has explained that “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, an attempted criminal threat also would occur.
Further, 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

                                                7
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, the defendant properly may be found to have committed the offense
of attempted criminal threat.” (Id. at p. 231.)


       A.     Evidence that Kimberly Received and Understood the Threat
       Defendant contends that there was evidence from which a reasonable jury could
conclude that Kimberly did not directly hear the threat from defendant that he would
blow up the house if she did not return—she did not tell the 911 operator or Officer
Nelson about defendant’s threat and she told Officer Nelson that she did not know why
the gas was on and that it was not on when she left the house through a window. At trial,
Kimberly denied hearing the threat from defendant and said that her father told her about
the threat. Defendant argues that the only evidence that Kimberly heard the threat was
Officer Maya’s testimony that Kimberly told her of the threat at the police station on
April 16. Defendant further claims his argument is “underscored by the fact that
although Kimberly was initially so willing to give a detailed report of what occurred that
night, she never mentioned” the threat to the 911 operator or to Officer Nelson.
       The evidence shows that Kimberly told Officer Maya on the phone that defendant
said to her he was going to blow up the house if she did not come back and that she saw
him turn on the gas to the stove. Kimberly said that she heard that statement while she
was in the house. When Kimberly went to the police station with her father to speak with
Officer Maya she again told the officer that defendant said to her that he was going to
blow up the house if she did not return and said that she saw defendant turn on the gas.
As for Kimberly’s claim that she heard about the threat from her father, her father’s
testimony about his conversation with the neighbor was so equivocal that it was largely
without probative value. However, in his description of his conversation with the
neighbor, he said that she never said the words “blow up.” Moreover, although Kimberly
denied that she heard the threat from defendant, she also denied that defendant hit or



                                              8
choked her or inflicted injuries on her, but the jury necessarily found that testimony
incredible and rejected her denials when it convicted defendant of two counts of assault.
       As for defendant’s claim that his argument is supported by Kimberly’s failure to
tell the 911 operator or Officer Nelson of the threat even though she was initially “so
willing” to provide the details of the domestic violence incident, defendant overstates the
record. The transcript of the 911 call consists of three pages. Apart from Kimberly’s
statement that she had been assaulted, defendant tried to strangle her, and that she “had to
jump out,” the transcript contains no details of defendant’s assault. Of his interview of
Kimberly at the hospital, Officer Nelson said, “It was very difficult to interview her. I
would ask her a question. Then she would just kind of look off and say things like, ‘I
can’t believe he did this to me. He’s gone too far.’” He further testified that domestic
violence victims quite commonly provide information at a later time that they did not
initially report. Based on the evidence, reasonable jurors could not conclude that
Kimberly did not hear defendant threaten to blow up the house unless she returned and
that she instead heard about the threat from her father.


       B.     Evidence that Kimberly Was in Sustained Fear
       Defendant contends that there was substantial evidence that Kimberly was not in
sustained fear because she did not tell Officer Maya on April 16 that she was still in fear
from defendant’s threat and because Kimberly did not accept her father’s invitation to
stay with him after defendant’s assault and before defendant was apprehended but,
instead, insisted on returning home where she would be alone. Defendant’s claim fails.
       Defendant turned on all of the burners on the gas stove and threatened to blow up
the house if Kimberly did not return, causing her to jump out of a window dressed only in
jeans and a bra. Juarez testified that Kimberly appeared to be afraid when she found her
after she had jumped out the window. Officer Nelson testified that when he arrived on
the scene, Kimberly appeared to be afraid. Officer Nelson testified that when he tried to
interview Kimberly later at the hospital, she was “fearful.” Until Kimberly was taken to
the hospital, she remained outside the house and in danger from defendant blowing up the

                                             9
house. Kimberly remained in fear from the time she left her house through the window
until at least the time she arrived at the hospital. Under the circumstances, Kimberly
endured fear of defendant for a period of time that was “more than fleeting, momentary
or transitory.” (People v. Culbert, supra, 218 Cal.App.4th at p. 190; People v. Allen,
supra, 33 Cal.App.4th at pp. 1151, 1156; People v. Fierro, supra, 180 Cal.App.4th at p.
1349.)


         C.     No Substantial Evidence Justified a Lesser Included Offense Instruction
         In view of the evidence discussed above, the trial court did not err by failing to
instruct on attempted criminal threat as a lesser included offense of criminal threat
because there is no substantial evidence that defendant committed the lesser offense, but
not the greater. (People v. Breverman, supra, 19 Cal.4th at p. 162.)


II.      Abstract of Judgment
         The Attorney General correctly states that the trial court orally imposed a one year
term for defendant’s section 667.5, subdivision (b) enhancement, but neither the minute
order for the sentencing hearing nor the abstract of judgment reflects that term. The
Attorney General asks that we order the abstract of judgment modified accordingly.
Defendant does not address the issue in his reply brief. Although the trial court stated at
the sentencing hearing that he was sentencing defendant to a term of 16 years, four
months (the total term reflected on the abstract of judgment, but a term that would not
include a one year term under section 667.5, subdivision (b)), it expressly stated that it
was imposing “an additional year” “for the prior prison term.” Accordingly, we order the
abstract of judgment modified to reflect the trial court’s oral imposition of a one year
term for defendant’s section 667.5, subdivision (b) enhancement. (People v. Crabtree
(2009) 169 Cal.App.4th 1293, 1328.)
         The trial court imposed a single $30 criminal conviction assessment (Gov. Code, §
70373) and a single $40 court security fee (§ 1465.8, subd. (a)(1)). The Attorney General
argues that the trial court should have imposed a criminal conviction assessment and a

                                               10
court security fee for each of defendant’s three convictions. (People v. Sencion (2012)
211 Cal.App.4th 480, 483 [the criminal conviction assessment and court security fee
apply to each of a defendant’s convictions].) The Attorney General requests that we
order the abstract of judgment modified to reflect an additional $140 in assessments and
fees—i.e., $60 in criminal conviction assessments and $80 in court security fees.
Defendant does not address the issue in his reply brief. The Attorney General is correct.
We order the abstract of judgment modified to reflect a total criminal conviction
assessment of $90 and a total court security fee of $120 for defendant’s three convictions.
(People v. Harbison (2014) 230 Cal.App.4th 975, 986, fn. 14.)


                                     DISPOSITION
       The judgment is affirmed. The abstract of judgment is ordered modified to reflect
a total sentence of 17 years, four months, including a one year term under section 667.5,
subdivision (b), a total criminal conviction assessment of $90, and a total court security
fee of $120.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.




                                                  MOSK, J.


We concur:



               TURNER, P. J.



               KRIEGLER, J.




                                             11
