Filed 6/16/15 P. v. Aguilar CA1/5
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE


THE PEOPLE,
         Plaintiff and Respondent,                                   A141410
v.
                                                                     (San Francisco City and County
JAIME AGUILAR,                                                       Super. Ct. No. SCN220079)
         Defendant and Appellant.


         Jaime Aguilar was convicted by jury of two counts of willful infliction of corporal
injury on a cohabitant, two counts of simple assault, and one count of making a criminal
threat. On appeal, Aguilar contends the evidence was insufficient to support the
conviction for making a criminal threat, and the court was required to instruct, sua
sponte, on attempted criminal threat as a lesser included offense. We agree that an
instruction on the lesser included offense was required. Accordingly, the judgment with
respect to making a criminal threat must be reversed.
                         I.        FACTUAL AND PROCEDURAL BACKGROUND
         The San Francisco District Attorney charged Aguilar by information with
infliction of corporal injury upon a cohabitant (Pen. Code, § 273.5, subd. (a);1 counts one
& three), assault by force likely to produce great bodily injury (§ 245, subd. (a)(4);
count two), assault with a deadly weapon (§ 245, subd. (a)(1); count four), and criminal



         1   Undesignated statutory references are to the Penal Code.

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threats (§ 422; counts five & six).2 In connection with counts three and five, it was
further alleged that Aguilar used a screwdriver as a deadly weapon (§ 12022,
subd. (b)(1)).
                                      Prosecution Case
          M.R. lived with Aguilar from October 2011 until April 2013 at a hotel on Valencia
Street in San Francisco. At trial, M.R. testified that she considered Aguilar “like [her]
husband.”
          In June 2012, prior to the charged incidents, Aguilar argued with M.R. about
money and tried to prevent her from leaving the hotel with a girlfriend. Aguilar, who had
been drinking, pulled her jacket from behind and grabbed her hair. A witness saw
Aguilar yanking on M.R.’s hair and called the police. M.R. appeared scared. When
police officers arrived, M.R. was crying. The officers saw a red imprint of a zipper on
M.R.’s neck. She told the police Aguilar had not hit her. Several days later, she signed a
termination of investigation form. M.R. remained in a relationship with Aguilar because
she was very attached. After he was released from jail, Aguilar apologized and told M.R.
that he loved her.
          M.R. testified that on April 1, 2013, Aguilar came home from work, but then went
back out. M.R. called him multiple times asking him to bring home medicine for her
toothache. Aguilar stated that he was drinking beer with friends. When he returned
home, at midnight, M.R. could tell he was drunk because he had red eyes and had trouble
standing. Aguilar shouted at M.R. to leave. She attempted to do so after putting on a
sweater. Aguilar grabbed M.R. from behind, pulled her hair, punched her in the chest,
and threw her on the bed. He pulled a screwdriver out of a drawer, stood above her,
pointed the screwdriver at M.R.’s chest, and said, “I’m going to kill you, mother fucking
bitch.”
          M.R. thought about her mother and children and begged for strength from God.
She grabbed Aguilar’s hands and attempted to calm him with “nice words.” She told

          2
         Counts one through five all pertained to events alleged to have occurred on
April 2, 2013. Count six involves threats allegedly made on April 6, 2013.

                                               2
Aguilar, “[D]on’t do anything that’s going to get you in terrible trouble. If I die, you’re
going to go to jail.” Aguilar “seemed to come to his senses,” turned the screwdriver
around, hit M.R. in the stomach with the handle, and then threw the screwdriver at her
nose.
        M.R. asked, “[W]hy are you doing these things? What’s happening to you?”
Aguilar responded by kicking M.R. in the leg and insulting her. He urged M.R. to call
the police, but stated that they would not arrest him. He gave M.R. her phone, but then
took it away and broke it by throwing it against a wall. M.R. did not scream or call for
help, but she was crying.
        Aguilar told M.R. that he wanted to have sex with her. He told her to go to the
bathroom and “put on something sexy.” M.R. complied because “[Aguilar] was very
crazy, and [she] was scared.” After less than five minutes in the bathroom, Aguilar
opened the door and told her she was taking too long. Aguilar forcefully pulled off her
underwear, causing M.R. to tremble with fear. Aguilar then grabbed her hair and pushed
her onto the bed. Aguilar again stated that he wanted to have sex. M.R. said she did not
“want to do anything with [him],” but did not physically resist. They had vaginal sex and
then Aguilar forced M.R. to perform oral sex. He then turned her around and forced his
penis into her anus.
        M.R. testified that “the whole thing lasted about one hour.” Eventually, Aguilar
fell asleep. M.R. did not sleep but continued to cry. She did not call the police after
Aguilar fell asleep. She did not want to “hurt him” or cause his arrest.
        On the morning of April 2, 2013, M.R. had red marks on her chest and stomach, a
swollen leg, and a red, swollen nose. She missed work because of her injuries and
because Aguilar prevented her from leaving. Aguilar said he loved her and that their
problems would end. Aguilar left the hotel at one point to get some food. M.R. could
have left, but she did not. She did not know what to do or where to go.
        Three days later, on April 5, 2013, Aguilar told M.R. he wanted to go the police
station because “somebody was bothering him.” The two went to the police station
together and Aguilar spoke to an officer at the window. M.R. did not report Aguilar’s

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attack because she was with him and did not want the police involved. When they
returned home, Aguilar told M.R. to move out because he did not trust her. M.R. left, but
then returned when Aguilar was not home to get her belongings. She requested entry
from the building manager and took her belongings to a friend’s house. M.R. testified
that she took nothing belonging to Aguilar, although she did keep a diamond ring that he
had given her. She considered the ring her own.
        Aguilar called M.R. after she had retrieved her belongings. She told him she was
not coming home. On April 6, 2013, Aguilar left M.R. several voicemail messages, in
which he insulted her, accused her of stealing the diamond ring, and suggested he had
filed a police report. He stated, “that ring . . . you took is worth more than one year of
your life in money. . . . [I]t’s going to end for you, bitch . . . . [Y]ou’re going to be taken
off.”
        After listening to the messages, M.R. decided that Aguilar was not going to leave
her alone, and she filed a police report on April 6, 2013. M.R. told police that Aguilar
had threatened to kill her while holding a screwdriver in his hand. Photographs were
taken, showing bruises on M.R.’s chest and other injuries. M.R. cried during police
questioning.
        M.R. testified at trial that she still loved Aguilar. On cross-examination, M.R.
confirmed having told investigators on June 26, 2013, that she did not believe Aguilar’s
threats were real. She said Aguilar was a strong man and would have killed her if he
really wanted to do so.
        San Francisco Police Officers Antonio Flores and Liza Tiffe also testified
regarding an April 10, 2013 interview of Aguilar. During that interview, Aguilar said he
was drinking on April 1 until 11:00 p.m., but nothing happened between him and M.R.
after he went home. Aguilar said that he and M.R. had broken up, on April 5, after
arguing about her request to sell the ring. Aguilar had refused because the ring was not
M.R.’s. According to Aguilar, M.R. stole the ring, a $500 check, and $400 in cash after
they argued. However, he did not report the alleged theft.



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       Flores also testified as an expert witness on intimate partner battering syndrome.
Flores opined that M.R.’s late reporting was consistent with the condition, which
manifests when a person feels that they cannot leave a physically or mentally abusive
relationship. The syndrome results in a cycle of violence, in which peaceful
“honeymoon” periods alternate with abusive periods. The aggressor in the relationship
seeks control and the victim minimizes the abuse. Accordingly, it is common for victims
to recant or drop charges. The victim often does not leave the relationship because of
many factors including lack of economic means or alternate housing, low self-esteem,
and their feelings for the abuser.
                                       Defense Case
       Aguilar testified in his own defense. Both he and M.R. were from El Salvador.
They started dating in 2011, and M.R. began staying at his hotel room. On Monday,
April 1, 2013, Aguilar went to work and returned home at approximately 4:15 p.m.
When M.R. returned home from shopping, Aguilar went with her to withdraw $340 from
an ATM machine, and then they got takeout, and bought some lubricant. Aguilar later
went to a bar with a friend where he drank six to eight beers and watched a Giants’ game.
M.R. stayed at home. When Aguilar arrived home, M.R. greeted him with a kiss. They
engaged in consensual sex. Aguilar did not hit M.R. or use a screwdriver in any way.
Aguilar testified that, in response to M.R. telling him about a sexual fantasy, he used a
vibrator to hit her in the chest. M.R. did not state that she was in pain or that she wanted
Aguilar to stop.
       Aguilar owned a ring that M.R. had worn for months. Aguilar never gave her the
ring. She had specifically asked for it and he said “no.” On April 5, 2013, Aguilar and
M.R. went to the police station so that he could report harassing phone calls he was
receiving. M.R. did not speak to anyone. When they returned home, M.R. suggested
selling the diamond ring, which he did not want to do. She got upset. Aguilar left to go
to an appointment. When he got home, M.R.’s bags were gone, as well as $500 in cash,
the ring, and a $420 check. He was upset and felt betrayed. He left angry voicemail



                                              5
messages on M.R.’s phone, called her a thief, insinuated that he had filed a police report,
and tried to make her feel bad.
       The resident manager of the hotel testified that M.R. was never a resident at the
hotel, only a visitor. The manager was unaware of the June 2012 incident.
                                   Verdict and Sentence
       The jury found Aguilar guilty of two counts of willful infliction of corporal injury
on a cohabitant (§ 273.5, subd. (a); counts one & three) and one count of making a
criminal threat (§ 422; count five). The jury found the screwdriver use allegations “not
true.” The jury found Aguilar not guilty of the aggravated assault charges (§ 245;
counts two & four), but guilty of the lesser included offenses of simple assault (§ 240).
No verdict was reached on count six, and it was dismissed under section 1385. Aguilar
was sentenced to two years and eight months in prison. He filed a timely notice of
appeal.
                                    II.    DISCUSSION
       Aguilar does not challenge sufficiency of the evidence to sustain his convictions
for assault and for willful infliction of corporal injury on a cohabitant. He contends only
that the evidence is insufficient to support conviction on count five and that the court was
required to instruct, sua sponte, on attempted criminal threat (§§ 664, 422) as a lesser
included offense. We agree that an instruction on the lesser included offense was
required.
A.     Substantial Evidence
       Aguilar contends that the jury’s verdict on count five is not supported by
substantial evidence. When faced with such a challenge, “the court 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 could find the defendant guilty beyond a
reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578; see Jackson v.
Virginia (1979) 443 U.S. 307, 318–319.)



                                             6
       “A reviewing court must accept logical inferences the [fact finder] might have
drawn from the circumstantial evidence. [Citation.] ‘ “A reasonable inference, however,
may not be based on suspicion alone, or on imagination, speculation, supposition,
surmise, conjecture, or guess work. [¶] . . . A finding of fact must be an inference drawn
from evidence rather than . . . a mere speculation as to probabilities without evidence.” ’ ”
(People v. Sifuentes (2011) 195 Cal.App.4th 1410, 1416–1417.) We will not substitute
our evaluations of the witnesses’ credibility for that of the trier of fact. (People v. Koontz
(2002) 27 Cal.4th 1041, 1078.) “Where the circumstances reasonably justify the trier of
fact’s findings, a reviewing court’s conclusion the circumstances might also reasonably
be reconciled with a contrary finding does not warrant the judgment’s reversal.” (People
v. Zamudio (2008) 43 Cal.4th 327, 358.)
       In order to prove a violation of section 422, the prosecution must establish:
“(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 . . .
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.” (People v. Toledo (2001) 26 Cal.4th 221, 227–
228 (Toledo); In re Sylvester C. (2006) 137 Cal.App.4th 601, 605; § 422, subd. (a).)
       Aguilar challenges only the sufficiency of evidence with respect to the third and
fourth elements—whether the threat 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, and whether the threat actually caused the victim to be
in sustained fear for her own safety. Regarding the third element, the evidence most
favorable to the People shows that, after grabbing M.R. by the hair and punching her in

                                                7
the chest, Aguilar pushed her onto the bed, stood above her, brandished a screwdriver and
said, “I’m going to kill you, mother fucking bitch.”
       The statute does not concentrate on the precise words of the threat but whether the
threat communicated a gravity of purpose and immediate prospect of execution of the
threat. (People v. Mendoza (1997) 59 Cal.App.4th 1333, 1340.) “ ‘The use of the word
“so” indicates that unequivocality, unconditionality, immediacy and specificity are not
absolutely mandated, but must be sufficiently present in the threat and surrounding
circumstances to convey gravity of purpose and immediate prospect of execution to the
victim.’ ” (People v. Bolin (1998) 18 Cal.4th 297, 340.) “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.” (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1137
(Ricky T.).) Even an ambiguous statement may be found to be a criminal threat if the
circumstances clarify its meaning. (In re George T. (2004) 33 Cal.4th 620, 635
(George T.); People v. Butler (2000) 85 Cal.App.4th 745, 753.)
       “The circumstances surrounding a communication include such things as the prior
relationship of the parties and the manner in which the communication was made.
[Citation.] Although an intent to carry out a threat is not required, the actions of the
accused after making the communication may serve to give meaning to it. [Citation.]
And, just as affirmative conduct and circumstances can show that a criminal threat was
made, the absence of circumstances that would be expected to accompany a threat may
serve to dispel the claim that a communication was a criminal threat.” (In re Ryan D.
(2002) 100 Cal.App.4th 854, 860.) Evidence that the defendant previously subjected the
victim to violence is “thoroughly germane” to whether a particular statement will be
taken as a threat and whether the victim was in a state of sustained fear. (People v.
Garrett (1994) 30 Cal.App.4th 962, 967.) A defendant’s activities after the threat may
give meaning to his words and show whether he “meant serious business” when he made
the threat. (People v. Martinez (1997) 53 Cal.App.4th 1212, 1221.)



                                              8
       Aguilar relies on George T., supra, 33 Cal.4th 620 and Ricky T., supra,
87 Cal.App.4th 1132 to support his position. But neither case is on point. In George T.,
a student gave two classmates a poem, which recited in part, “I am Dark, Destructive, &
Dangerous. I slap on my face of happiness but inside I am evil!! For I can be the next
kid to bring guns to kill students at school. So parents watch your children cuz I’m
BACK!!” (George T., at p. 625.) At least two of the classmates receiving the poem
testified that they were frightened after reading it and understood it to be personally
threatening. (Id. at pp. 625–627.) The student, however, testified that the poem was not
intended to be a threat, it was “ ‘just creativity.’ ” (Id. at p. 628.) The reviewing court
concluded the poem did not constitute a violation of section 422. “As is evident, the
poem . . . is ambiguous and plainly equivocal. . . . [¶] . . . [¶] Unlike some cases that have
turned on an examination of the surrounding circumstances given a communication’s
vagueness, incriminating circumstances in this case are noticeably lacking: there was no
history of animosity or conflict between the students [citations], no threatening gestures
or mannerisms accompanied the poem [citations], and no conduct suggested to [the
classmates] that there was an immediate prospect of execution of a threat to kill
[citation]. Thus the circumstances surrounding the poem’s dissemination fail to show
that, as a threat, it was sufficiently unequivocal to convey . . . an immediate prospect that
minor would bring guns to school and shoot students.” (George T., at pp. 636–638.)
       In Ricky T. a student was accidentally hit with a door by his teacher, and
immediately told the teacher he would “get” him, and “kick [his] ass.” (Ricky T., supra,
87 Cal.App.4th at pp. 1135–1136, 1138.) The teacher felt threatened and sent the student
to the school office. The student immediately complied and there was “no evidence that
[the student] exhibited a physical show of force, displayed his fists, . . . or attempted to
batter [the teacher] or anyone else.” (Id. at p. 1138.) The reviewing court reversed,
concluding that the student’s statements in that context were ambiguous and “no more
than a vague threat of retaliation without prospect of execution.” (Ibid.)
       Here, neither Aguilar’s words, nor the surrounding circumstances were
ambiguous. Aguilar did not use an inherently ambiguous artistic expression, such as the

                                              9
poem in George T. Nor was there an absence of threatening circumstances, as presented
in Ricky T. Instead, Aguilar directly told M.R., “I’m going to kill you,” immediately after
grabbing and punching her, and while he stood above her with a weapon in hand. The
People correctly point out that the jury’s “not true” finding on the screwdriver use
enhancement allegation does not mean necessarily that the jury believed that no
screwdriver was used. But even if we ignore M.R.’s testimony about the screwdriver,
there was ample evidence of Aguilar’s physical aggression immediately before and after
he made the threat, as well as in the couple’s history.
       The facts of this case are even stronger than those presented in People v. Butler,
supra, 85 Cal.App.4th 745, in which the defendant confronted the victim, grabbed her
arm, called her “a fucking bitch,” and told her she needed to mind her own business or
she “was going to get hurt.” (Id. at pp. 753, 754–755.) The court found that, considering
all the circumstances, the defendant expressed a willingness and intent to hurt her if she
did not mind her own business, and that this sufficiently demonstrated a violation of
section 422. (Butler, at pp. 754–755.) Substantial evidence was presented to allow a
rational jury to conclude that Aguilar’s threat was sufficiently unequivocal,
unconditional, immediate and specific to convey a gravity of purpose and immediate
prospect of death or serious bodily injury.
       Substantial evidence also supports the fourth element—that the threat actually
caused the victim to be in sustained fear for her safety. “[S]ustained fear” is defined as a
period of time “that extends beyond what is momentary, fleeting, or transitory.” (People
v. Allen (1995) 33 Cal.App.4th 1149, 1156.) In arguing the evidence was insufficient,
Aguilar relies on M.R.’s testimony that Aguilar “seemed to come to his senses” after her
pleas. He also relies on M.R.’s June 26, 2013 statement that she did not believe Aguilar’s
threats were real.
       On the other hand, M.R. testified that after hearing the threat she thought about her
mother and children and begged for strength from God. She grabbed Aguilar’s hands and
attempted to calm him with “nice words.” She also told Aguilar, “[D]on’t do anything
that’s going to get you in terrible trouble. If I die, you’re going to go to jail.”

                                               10
Furthermore, against her own wishes, M.R. submitted to Aguilar’s sexual demands for a
period of approximately an hour. For example, she testified that she went to the
bathroom to “put on something sexy” because “[Aguilar] was very crazy, and [she] was
scared.” When she reported the attack five days later, she was visibly upset. A
reasonable jury could infer that the statutory element of sustained fear was met. (See
People v. Allen, supra, 33 Cal.App.4th at p. 1156 [defendant was arrested within
15 minutes of making threat, but 15 minutes of fear was sufficient]; People v. Fierro
(2010) 180 Cal.App.4th 1342, 1349 [sustained fear satisfied by one minute during which
victim heard threat and saw gun; “[w]hen one believes he is about to die, a minute is
longer than ‘momentary, fleeting, or transitory’ ”].)
       Aguilar again misplaces his reliance on Ricky T., supra, 87 Cal.App.4th 1132, in
which the reviewing court also found insufficient evidence to support the victim’s
sustained fear. In that case, the victim said he “ ‘felt threatened,’ ” ordered the student to
the school office, but police were not notified until the next day. (Id. at p. 1140.) The
court explained: “Apparently, fear did not exist beyond the moments of the encounter.
Rather than taking advantage of [the victim’s] fear, [the defendant] followed his directive
and placed himself in the school office . . . .” (Ibid.)
       Here, in contrast, M.R. was unable to physically separate herself from Aguilar
during the early morning hours of April 2, 2013. M.R. did not contact police right away,
but the jury could reasonably understand this circumstance to be explained by the nature
of the relationship and the evidence that Aguilar destroyed M.R.’s phone. Substantial
evidence supports the jury’s verdict on count five.
B.     Failure to Instruct on Lesser Included Offense of Attempted Criminal Threat
       Aguilar also argues that the trial court erred by failing to instruct the jury on
attempted criminal threat. We review de novo an alleged “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.)
       Even in the absence of a request, the trial judge has a sua sponte duty to instruct on
lesser included offenses when there is substantial evidence the defendant is guilty only of

                                              11
the lesser offense (People v. Breverman (1998) 19 Cal.4th 142, 154 (Breverman)), or
where there is evidence which, if accepted, would absolve the defendant from guilt of the
greater offense but not the lesser (People v. Waidla, supra, 22 Cal.4th at p. 733). Failure
to instruct on a lesser included offense is problematic because it forces “an all-or-nothing
choice between conviction of the stated offense on the one hand, or complete acquittal on
the other.” (People v. Birks (1998) 19 Cal.4th 108, 119.) “[N]either party has a greater
interest than the other in gambling on an inaccurate all-or-nothing verdict when the
pleadings and evidence suggest a middle ground . . . .” (Id. at p. 127, italics omitted.)
Thus, “regardless of the tactics or objections of the parties, or the relative strength of the
evidence on alternate offenses or theories, the rule requires sua sponte instruction on any
and all lesser included offenses, or theories thereof, which are supported by the
evidence.” (Breverman, at p. 160, italics omitted.)
       The parties agree that attempted criminal threat is a lesser included offense of the
charged crime. (Toledo, supra, 26 Cal.4th at pp. 230, 232; In re Sylvester C., supra,
137 Cal.App.4th at p. 607.) The question is only whether substantial evidence required
instruction on the lesser offense. “In deciding whether evidence is ‘substantial’ in this
context, a court determines only its bare legal sufficiency, not its weight.” (Breverman,
supra, 19 Cal.4th at p. 177.) “ ‘Substantial evidence is evidence sufficient to “deserve
consideration by the jury,” that is, evidence that a reasonable jury could find
persuasive.’ ” (People v. Lewis (2001) 25 Cal.4th 610, 645.)
       We agree with Aguilar that Toledo, supra, 26 Cal.4th 221 is dispositive. In that
case, the defendant had been charged with making a criminal threat when, during an
argument with his wife, he told her, “ ‘You know, death is going to become you tonight.
I am going to kill you.’ ” (Id. at p. 225.) The wife said she did not care and walked
away. The defendant approached, aiming the point of a pair of scissors at her throat. The
wife eventually left the apartment but attempted to return later that same evening. She
told an investigating officer that she was afraid the defendant was going to kill her. At
trial, the wife denied any fear. The jury found the defendant not guilty of making a
criminal threat but guilty of attempted criminal threat. (Id. at pp. 225–226.)

                                              12
       On review, our Supreme Court held that attempted criminal threat was a crime and
that a defendant is guilty of it “whenever, acting with the specific intent to commit the
offense of criminal threat, the defendant performs an act that goes beyond mere
preparation and indicates that he or she is putting a plan into action.” (Toledo, supra,
26 Cal.4th at p. 230.) The court explained: “A variety of potential circumstances fall
within the reach of the offense of attempted criminal threat. For example, . . . 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 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. . . . [O]nly a fortuity, not intended by the defendant, has prevented the
defendant from perpetrating the completed offense of criminal threat itself.” (Id. at
p. 231, italics omitted.) In upholding the defendant’s conviction, the court observed that
the jury properly could have found that the defendant’s threat “was made with the
requisite intent and was the type of threat that satisfied the provisions of section 422 and
reasonably could have caused [the wife] to be in sustained fear for her own safety. At the
same time, however, the jury might have entertained a reasonable doubt [in view of the
wife’s testimony that she was not afraid] as to whether the threat actually caused [her] to
be in such fear.” (Id. at p. 235, italics omitted.)
       Similar to the victim in Toledo, M.R. told investigators that she did not believe
Aguilar’s threats. From this testimony, as well as the fact that M.R. did not immediately
contact police or leave the hotel room, the jury could reasonably infer that she was not
afraid or only momentarily afraid. The jurors were entitled to accept or reject all of
M.R.’s testimony, or a portion of her testimony, as well as any of Aguilar’s testimony.
(People v. Lacefield (2007) 157 Cal.App.4th 249, 261, disapproved on other grounds by
People v. Smith (2013) 57 Cal.4th 232, 241–242.) There was substantial evidence which,
if accepted, would have absolved the defendant from guilt of the greater offense, but not
the lesser.

                                               13
        Reversal is not warranted unless an examination of the entire record discloses that
the error produced a “miscarriage of justice.” (Cal. Const., art. VI, § 13.) This test is not
met unless it appears “ ‘reasonably probable’ ” the defendant would have achieved a
more favorable result had the error not occurred. (Breverman, supra, 19 Cal.4th at
pp. 149, 165; People v. Watson (1956) 46 Cal.2d 818, 836.) Reasonably probable “ ‘does
not mean more likely than not, but merely a reasonable chance, more than an abstract
possibility.’ ” (People v. Ross (2007) 155 Cal.App.4th 1033, 1055.) Aguilar meets that
test.
        Here, there was ample evidence M.R. suffered sustained fear, given her trial
testimony about her demeanor, thoughts, emotions, and compliance after the threat. We
also cannot fault the jury for inferring M.R.’s motive to later minimize the events in
statements to investigators given her testimony regarding her continued love for Aguilar
and Flores’s testimony regarding intimate partner battering syndrome. Although the
prosecution certainly presented substantial evidence that Aguilar was guilty of the
completed offense, we cannot say that the evidence was overwhelming. The evidence
also supports the possibility that, if instructed on the lesser included offense, one or more
jurors could have reasonable doubts about whether Aguilar’s threats in fact caused M.R.
sustained fear.
        The jury requested readback of M.R.’s testimony regarding the April 2 assault.
Requests for readback do not necessarily indicate a “ ‘close’ case.” (People v. Houston
(2005) 130 Cal.App.4th 279, 301; People v. Walker (1995) 31 Cal.App.4th 432, 436–
438.) However, courts have found such requests, when combined with evidence of guilt
that is not overwhelming, to suggest prejudicial error. (People v. Lacefield, supra,
157 Cal.App.4th at p. 262.) Furthermore, the jury returned a “not true” finding on the
deadly weapon use enhancement allegation, was unable to reach a verdict on count six,
and convicted Aguilar of lesser included assault offenses. There was a reasonable chance
Aguilar would have obtained a more favorable outcome had the jury been instructed on
the lesser included offense. We therefore reverse Aguilar’s criminal threat conviction.



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       “When a greater offense must be reversed, but a lesser included offense could be
affirmed,” the People have the “option of retrying the greater offense, or accepting a
reduction to the lesser offense.” (People v. Kelly (1992) 1 Cal.4th 495, 528.) At the
People’s request, we preserve this option for election on remand.
                                     III.    DISPOSITION
       The judgment of conviction is reversed with respect to count five. In all other
respects, the judgment is affirmed. If, after the filing of the remittitur in the trial court,
the People do not bring Aguilar to retrial on the charged offense within the time limit of
section 1382, subdivision (a)(2), the trial court shall proceed as if the remittitur
constituted a modification of the judgment to reflect a conviction of the lesser included
offense of attempted criminal threat and shall resentence Aguilar accordingly.




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                                 _________________________
                                 BRUINIERS, J.


WE CONCUR:


_________________________
JONES, P. J.


_________________________
NEEDHAM, J.




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