Filed 10/6/16 P. v. Flemons CA3
                                           NOT TO BE PUBLISHED



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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----



THE PEOPLE,                                                                                  C075055

                   Plaintiff and Respondent,                                     (Super. Ct. No. 12F05089)

         v.

JEFFREY CHRISTIAN FLEMONS,

                   Defendant and Appellant.




         Defendant Jeffrey Christian Flemons was convicted by jury of three felonies,
assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)),1 criminal threats (§ 422),
and child abuse (§ 273a, subd. (a)). The jury also concluded defendant personally used a
deadly weapon in the commission of criminal threats and child abuse. (§ 12022, subd.
(b)(1).) He appeals only his conviction for criminal threats, contending the trial court



1        Undesignated statutory references are to the Penal Code.

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prejudicially erred by failing sua sponte to instruct the jury on attempted criminal threats
as a lesser included offense. He also requests us to review the sealed transcript of the
Pitchess2 hearing to determine if the trial court properly denied his Pitchess motion.
       Finding any instructional error harmless, we affirm the judgment.
                                          FACTS
       The following facts are taken from the trial testimony of various witnesses to the
incident giving rise to defendant’s claims.
       Paul Heston (Defendant’s Neighbor)
       Paul Heston lives next door to defendant in Elk Grove. Heston testified that, on
July 27, 2012, he was in his kitchen when he heard a “[v]ery loud argument” coming
from defendant’s backyard. People were yelling and cursing and “threatening back and
forth.” It was difficult for Heston to hear all of the words spoken, but he did hear a male
say, “[Y]ou ‘F’ with my family,” and a male, perhaps the same male, say, “I’ll cut you.”
He could discern the “two loudest . . . and threatening” voices were male, with one
female voice attempting to calm the situation. Looking over the fence, he could see four
people (defendant, his wife Dondra Flemons, his stepson T.Y., and another male) from
the shoulders up. Heston observed defendant and T.Y. “carrying on back and forth”
while Dondra tried to calm defendant down, and could tell they were angry by the tone of
their voices and because they were “moving around and posturing.” Heston also
observed defendant’s young daughter J.F. standing in the corner of the yard looking
“very frightened.”
       Heston listened to the argument next door for approximately 30 seconds and called
911. The transcript of the 911 call included the following statement by Heston: “There’s
half a dozen people involved yelling and screaming. A guy threatened to kill another




2      Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).

                                              2
one. They’ve got two older kids in their teens and the girl’s hiding in the corner of the
yard. It’s been going on for about 5 minutes.”
       As Heston waited for police to arrive, he stood in his living room looking out at
the street. He saw defendant come out of the house, get into a car in the driveway, and
fumble around in the car. Defendant then got out of the car and walked back to the
house, holding his left hand “tight against his leg” as if he was carrying something he
wanted to hide. Soon after defendant returned to the house, the argument resumed and
continued for several minutes until police officers arrived.
       Heston pointed the officers to the gate to defendant’s backyard. When the officers
entered the yard, Heston heard them yell, “Drop the gun” several times.
       Elk Grove Police Officer Rodjard Daguman
       On the day of the incident, Elk Grove Police Officer Rodjard Daguman was
dispatched to defendant’s house regarding a physical disturbance. He and Elk Grove
Police Officer Kenny Viec arrived in separate cars and were directed by Heston towards
defendant’s house. As they approached, Officer Daguman heard a loud verbal altercation
between approximately two people coming from defendant’s backyard. Officer
Daguman walked through the gate and saw defendant, who was seated on a chair and
holding a knife, arguing with T.Y., who was standing approximately 10 feet away.
Officer Daguman drew his weapon and instructed defendant several times to put down
the knife. Defendant refused, kept yelling at T.Y., and then got up and walked
aggressively towards T.Y. He eventually dropped the knife and complied with Officer
Daguman’s order to get down on the ground. When Officer Daguman handcuffed
defendant, he noticed defendant had red, watery eyes and emitted a strong odor of
alcohol.
       Immediately after the incident, Officer Daguman spoke with T.Y., who appeared
“[d]istressed” and “scared.” T.Y. said he had been playing video games with his cousin
when defendant came downstairs and started yelling at T.Y. and disrespecting Dondra.

                                             3
He and defendant got into a heated argument and started pushing one another. Defendant
called Dondra “all types of derogatory names” and said he did not like T.Y. and did not
want T.Y. living there. T.Y. walked outside into the backyard. Defendant came outside
with a knife in his hand and continued to argue with T.Y., saying, at least once, that he
would cut T.Y. T.Y. feared for his life and safety because he did not know what
defendant’s intentions were. T.Y. confirmed that his statement to Officer Daguman was
accurate.
       Officer Daguman also spoke with defendant’s son, D.F., who seemed sad and
upset about the incident. D.F. said he was arguing with T.Y. when defendant got mad
and started arguing with T.Y. Defendant came outside with a knife and tried to slice T.Y.
with it. D.F. confirmed that his statement to Officer Daguman was accurate.
       Elk Grove Police Officer Kenny Viec
       Officer Viec was also dispatched to defendant’s house regarding the incident.
When he and Officer Daguman arrived in separate cars, he could hear the sound of a
male yelling from defendant’s backyard, and heard, “I’m going to fuck you up.” Officer
Viec walked through the gate and first saw defendant’s young daughter J.F. standing
behind some bushes. She was shaking and crying and appeared to be “in fear and
distraught.” Next, he saw defendant seated in a chair, arguing with T.Y. When Officer
Viec identified himself, defendant stood up, revealing that he was holding a knife in his
hand. Officer Viec drew his weapon and told defendant numerous times to stop and drop
the knife. Defendant refused and said, “Fuck you. This is my house. I’m not going
anywhere.” He moved toward T.Y., then toward the officers. Defendant eventually
dropped the knife and lay down on the ground.
       Officer Viec spoke with defendant’s wife, Dondra, who appeared to be scared.
Dondra said she had been in the backyard cleaning a turtle tank with J.F. when defendant
started yelling at T.Y. The argument got “heated” and escalated when they moved to the
backyard. Defendant was being belligerent and telling T.Y. it was his house and T.Y.

                                             4
needed to get out. Dondra told Officer Viec she knew defendant did not mean it and was
just causing a scene because he had been drinking. T.Y. got upset, refused to listen, and
started to walk away. Defendant went into the house, retrieved a steak knife, and came
back out into the backyard. He told T.Y. to “get the fuck out or I’m going to kill you.”
Dondra, T.Y., and J.F. told defendant to stop, but defendant refused. Dondra confirmed
that her statement to Officer Viec was accurate.
       Officer Viec also spoke with defendant’s daughter J.F. who was shaking and
“tremoring.” J.F. said she was scared for T.Y.’s safety because “she was 100 percent
sure that the defendant was going to slash or stab her brother.” J.F. told Officer Viec that
defendant had been drinking that day and got into a fight with T.Y. over “house rules”;
the argument started inside the house and continued in the backyard; defendant tends to
yell and cause problems when he drinks; defendant was upset T.Y. had been living at the
house for free; defendant told T.Y. he “needed to get his shit and get out of the house or
otherwise he was going to kill [T.Y.]”; T.Y. was adamant he was not going anywhere
because defendant and Dondra raised him since he was two years old; defendant got
frustrated, walked into the house, grabbed a kitchen knife, and walked back outside and
started threatening T.Y.; defendant ran towards T.Y. trying to cut him; defendant tried to
jab the knife towards T.Y.’s stomach area; defendant and T.Y. were cursing at each other;
during the argument, T.Y. was holding a blue milk crate to defend himself and trying to
back away from defendant, making defendant even angrier; defendant tried to slash at
T.Y. approximately five times in the neck as if he was going to slit T.Y.’s throat; and J.F.,
Dondra, and D.F. were screaming loudly. J.F. also told Officer Viec she was shaking
because she thought defendant was going to kill T.Y. or slit his throat; she was so scared
she stood behind the bushes fearing for T.Y.’s life; and she was scared of defendant
because “every time he’s drunk he acts violent” and will grab anything around him and
throw it at family members. J.F. twice confirmed that her statement to Officer Viec was
accurate.

                                             5
       J. F.
       J.F. was 12 years old at the time of trial. She testified that, on the day of the
incident, she was in the backyard helping her mother clean the turtle tank. Her brother
D.F. (14 years old) was also there helping. Her other brother T.Y. (18 years old) was in
the house playing a video game with his cousin.
       At some point, D.F. went outside and did not close the door all the way. When
T.Y. told him to close the door, an argument ensued and the two boys began yelling at
each other. Dondra stepped in between them to try to break up the fight. Defendant
came downstairs and yelled at both D.F. and T.Y. J.F. believed defendant had been
drinking because his eyes were red and he was acting mad and “came out just yelling.”
Defendant went back inside the house and returned with a knife. J.F. was “[s]cared” and
“a little worried” because she “didn’t know what was going on.” However, she “knew
[defendant] wouldn’t do anything.” Defendant sat down on the chair holding the knife.
       J.F. testified she was not afraid during the incident, but felt scared when the police
came because they had guns and she thought they were going to shoot defendant. She
was standing in the corner of the yard because “they’re like screaming at each other.”
She did not recall anyone making any threats during the incident, or defendant running
towards T.Y. with the knife. She denied telling police anything to the contrary.
       J.F. testified she saw defendant stand up out of the chair with the knife. She said
she saw T.Y. holding a milk crate trying to protect himself. However, she did not
remember telling police defendant tried to jab the knife towards T.Y.’s stomach as T.Y.
backed away holding the crate. She also did not remember telling police defendant tried
to slash T.Y. five times, or that she was afraid defendant might slit T.Y.’s throat.
       J.F. testified that when the police arrived, they told defendant once to drop the
knife and defendant dropped it. She denied being afraid of defendant. She also denied
telling police: she was afraid of defendant when he’s been drinking because he acts
violent; defendant and T.Y. got into a fight over some house rules; defendant gets loud

                                              6
and causes problems when he drinks; defendant got mad at T.Y. because T.Y. had been
living in the house for free; defendant told T.Y. he “needed to get his shit out of the
house”; defendant said he was going to kill T.Y.; T.Y. told defendant he “wasn’t going to
get out of the house because he had been raised by [Dondra and defendant] since he was
two years old”; defendant ran towards T.Y. with the knife; defendant tried to jab at T.Y.’s
stomach with the knife; T.Y. was moving away from defendant and holding a milk crate
to protect himself; defendant got really mad when T.Y. walked away from defendant; or
defendant tried to slash T.Y. with the knife. J.F. further denied telling police she thought
defendant was going to kill her brother; she was afraid defendant was going to slit T.Y.’s
throat; she was so scared she stood behind the bushes; she is afraid of defendant because
every time he gets drunk he acts violent; she thought defendant was going to hurt T.Y.
with the knife; or she was 100 percent sure defendant was going to slash T.Y. with the
knife.
         D.F.
         D.F. was 14 years old at the time of trial. He testified defendant was stressed
about finances and had been drinking the day of the incident. D.F. and his brother T.Y.
were arguing about D.F. not closing the door. When their mother broke up the argument,
defendant came outside and started yelling. Defendant and T.Y. argued and yelled at
each other, but D.F. could not recall what they were arguing about. D.F. denied seeing
either one push or threaten the other. D.F. said defendant got a knife from the barbeque
outside, “but he wasn’t really going to hit [T.Y.] He was just trying to scare him away.”
D.F. testified that defendant just sat down in the chair and rocked back and forth, holding
the knife in front of him, and also testified that defendant was holding onto the knife and
“walking back and forth.” D.F. saw T.Y. pick up a milk crate to protect himself, but
denied seeing defendant try to hit T.Y. with the knife. D.F. also testified that when the
police arrived, they yelled at defendant twice to put down the knife. Defendant complied



                                               7
and followed the officers to the car. D.F. denied telling police that defendant tried to
slice T.Y. with the knife.
       D.F. further testified that defendant did not like that D.F. and T.Y. were arguing
all the time. T.Y. was going to school and not working, and defendant wanted T.Y. to get
a job and pay rent.
       T.Y.
       T.Y. was 18 years old at the time of trial. He testified that, on the day of the
incident, he and his cousin were playing video games waiting for the barbeque for
defendant’s birthday. Defendant had been drinking. T.Y. told his brother D.F. to close
the door and an argument ensued in the backyard. T.Y. and D.F. were yelling and
pushing each other until their mother broke them up. Defendant came outside to see what
was happening, but was not mad and did not say anything. T.Y. did not recall whether he
and defendant argued.
       T.Y. denied telling police that defendant was yelling at him and disrespecting
Dondra; he and defendant got into a heated argument and started pushing each other;
defendant called Dondra derogatory names and was “talking a lot of smack;” defendant
said he did not want T.Y. living at home; defendant threatened T.Y. with a knife; when
defendant had the knife, T.Y. feared for his life because he did not know what
defendant’s intentions were; or defendant said he was going to cut T.Y. T.Y. testified
defendant retrieved a knife at some point and sat down in front of the barbeque to clean
off the grill, but denied defendant was mad at him or made any threats towards him with
the knife. T.Y. also denied he and defendant argued or he picked up a milk crate to
defend himself from defendant, and denied telling the defense investigator he picked up
the crate because defendant was drunk and T.Y. wanted to be able to defend himself.
       T.Y. testified that, when the police arrived with guns drawn, he was scared
because “they didn’t say anything, so [he] didn’t know what to expect.” When the
officers told defendant to drop the knife, he dropped the knife.

                                              8
      Stipulated Facts
      The parties stipulated that, on October 25, 2012, defense investigator John Miles
spoke with T.Y. at his home, at which time T.Y. told Miles the following: “My brother
and me were outside arguing about something he had said to my mom. My mom tried to
break up the fight. I think dad was upstairs. After mom broke up the fight, dad came
down and we started arguing. He was pacing around and walked up the side of the
house. When he came back he had the knife. [¶] At that point the police showed up. He
never threatened me with a knife. I picked up the crate because he was drunk and I
wanted to be able to defend myself. I don’t trust anyone who is drunk. I knew my dad
would never hurt me with the knife.”
      Dondra Flemons
      Dondra testified that, on the day of the incident, defendant had some alcohol to
drink but did not appear to be impaired. He was on the computer looking for a car. T.Y.
was downstairs playing video games with his cousin. Dondra was outside with J.F.
cleaning the turtle tank. T.Y. and D.F. got into an argument in the backyard over the
door not being closed. The boys started yelling and cursing, and were punching and
pushing each other. When Dondra got in the middle of the boys to break it up, she got hit
in the face. She said, “You motherfucker,” and the boys stopped and backed away.
Defendant came downstairs, without a knife, to see what happened and became upset
when he learned Dondra had been hit. Defendant yelled at both boys and T.Y. explained
what happened. Dondra denied that defendant and T.Y. were arguing. Defendant walked
to the side of the house, then returned and sat down with a knife in his hand. He was a
little angry and continued “talking to” the boys, but no one was yelling. Defendant was
calmly holding the knife, but was not making any kind of movements or threatening
anyone with it.
      Dondra further testified that, when the police arrived, defendant was still sitting in
the chair. With guns drawn, the police said something like “hold” or “stop” and told

                                             9
defendant once to get on the ground. Defendant complied with the knife in hand. He
eventually put the knife down and was handcuffed.
        Dondra denied telling police that when T.Y. was inside the house, defendant
started to yell at him; the argument between defendant and T.Y. got “really heated” and
escalated as they moved to the backyard; defendant was being belligerent and told T.Y.
that “this is his house”; defendant told T.Y. he had been raising T.Y. since he was two
and T.Y. needed to get out of the house; T.Y. got upset because defendant was yelling at
him and walked away from the argument; after T.Y. walked away, defendant walked
back into the house towards the kitchen, grabbed a steak knife and walked back to the
backyard; with knife in hand, defendant told T.Y. to “get the fuck out or I’m going to kill
you”; or Dondra, T.Y., and J.F. told defendant to stop and go back inside and “call it a
day.”
        Dondra testified she spoke with the defense investigator in October 2012 about the
incident. She told the investigator the argument started between T.Y. and D.F. She did
not tell the investigator defendant had been drinking the day of the incident because the
investigator did not ask her.
        Dondra acknowledged having several telephone conversations with defendant
after the incident while defendant was in jail. In the first conversation, she and defendant
discussed the incident. Defendant made no mention of an argument between T.Y. and
D.F. He blamed the events on T.Y. and said he could not live with T.Y. anymore. In the
second conversation, they again discussed the incident and defendant, again, made no
mention of an argument between T.Y. and D.F. He was angry with T.Y., said T.Y.
“drove him fucking crazy,” and said he “doesn’t want [T.Y.] living at home.” In the third
conversation, they discussed the incident again. Defendant was upset with T.Y. and
indicated T.Y. was going to move out. They also discussed the incident in a fourth
conversation, during which defendant was “extremely angry” about the statements
contained in the police report, and was “mad” about what Dondra, J.F., T.Y., and D.F.

                                            10
told police. Dondra had not seen the police report but, during that conversation, she
repeatedly told defendant that whatever was in the report was a lie.
                                 PROCEDURAL HISTORY
       Defendant was charged by information with assault with a deadly weapon (§ 245,
subd. (a)(1)—count one), criminal threats (§ 422—count two), felony child abuse (§
273a, subd. (a)—count three), misdemeanor child abuse (§ 273a, subd. (b)—count four),
and two counts of resisting a peace officer (§ 148, subd. (a)(1)—counts five & six). The
information alleged defendant personally used a deadly weapon in the commission of
counts two and three. (§ 12022, subd. (b)(1).)
       The jury found defendant guilty of counts one through three, acquitted him of
count four, and found true the deadly weapon enhancement. The jury deadlocked on
counts five and six, and the trial court declared a mistrial as to those counts.
       The trial court suspended imposition of sentence and placed defendant on formal
probation for six years subject to various terms and conditions. Counts five and six were
dismissed in the interest of justice.
       Defendant filed a timely notice of appeal.
                                        DISCUSSION
                                               I
                      Omission of Lesser Included Offense Instruction
       Defendant contends the trial court prejudicially erred in failing to sua sponte
instruct the jury on attempted criminal threats as a lesser included offense of criminal
threats. We disagree.
       A trial court must instruct sua sponte (i.e., on its own initiative) on the general
principles of law applicable to the case; this includes instruction on lesser included
offenses. (People v. Breverman (1998) 19 Cal.4th 142, 148-149, 154 (Breverman).)
Instruction on a lesser included offense is required whenever evidence that the defendant
is guilty only of the lesser offense is “ ‘ “substantial enough to merit [the jury’s]

                                              11
consideration.” ’ ” (People v. Taylor (2010) 48 Cal.4th 574, 623 (Taylor), quoting
Breverman, supra, at p. 162.) This substantial evidence requirement is met by
“ ‘ “evidence from which a [reasonable] jury . . . could . . . conclude[]” ’ that the lesser
offense, but not the greater, was committed.” (Breverman, supra, at p. 162.) “In
deciding whether there is substantial evidence of a lesser offense, courts should not
evaluate the credibility of witnesses, a task for the jury. [Citations.]” (Ibid.)
       “[I]n a noncapital case, error in failing sua sponte to instruct . . . on all lesser
included offenses and theories thereof which are supported by the evidence must be
reviewed for prejudice exclusively under [People v. Watson (1956) 46 Cal.2d 818
(Watson)]. A conviction of the charged offense may be reversed in consequence of this
form of error only if, ‘after an examination of the entire cause, including the evidence’
(Cal. Const., art. VI, § 13), it appears ‘reasonably probable’ the defendant would have
obtained a more favorable outcome had the error not occurred [citation].” (Breverman,
supra, 19 Cal.4th at p. 178, fn. omitted.) “[A] reversal will result only when there exists,
in the opinion of the court, at least such an equal balance of reasonable probabilities as to
leave the court in serious doubt as to whether the error has affected the result.” (Watson,
supra, 46 Cal.2d at p. 837.)
       “[T]he Watson test for harmless error ‘focuses not on what a reasonable jury could
do, but what such a jury is likely to have done in the absence of the error under
consideration. In making that evaluation, an appellate court may consider, among other
things, whether the evidence supporting the existing judgment is so relatively strong, and
the evidence supporting a different outcome is so comparatively weak, that there is no
reasonable probability the error of which the defendant complains affected the result.’
[Citations.]” (People v. Beltran (2013) 56 Cal.4th 935, 956, original italics.)
       A defendant commits the crime of criminal threat if he or she “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, . . . is to be taken as a threat, even if

                                               12
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 . . . .”
(§ 422, subd. (a).)
       A defendant commits the lesser included offense of attempted criminal threat if the
defendant specifically intended to commit the crime of criminal threat, under
circumstances sufficient to cause a reasonable person to be in sustained fear for his or her
own safety or for his or her family’s safety, and the defendant performs an act that goes
beyond mere preparation and indicates that he is putting a plan into action. (People v.
Chandler (2014) 60 Cal.4th 508, 525.)
       Defendant contends he was entitled to a lesser included offense instruction on
attempted criminal threat because the jury heard conflicting versions of what occurred
during the incident. As defendant points out, Officer Daguman testified T.Y. said that,
during an argument between defendant and T.Y., defendant came outside with a knife in
his hand and told T.Y., at least once, that he would cut T.Y. Officer Daguman further
testified T.Y. appeared “[d]istressed” and “scared” and said he feared for his life and
safety because he did not know what defendant’s intentions were. As defendant also
points out, Officer Viec testified Dondra said defendant and T.Y. were in the middle of a
heated argument when defendant retrieved a steak knife from the house and told T.Y. to
“get the fuck out or I’m going to kill you.” Officer Viec further testified J.F. said
defendant and T.Y. were in the middle of an argument when defendant retrieved a
kitchen knife from inside the house and threatened T.Y. with it, ran towards T.Y. and
tried to cut him, jabbed the knife towards T.Y.’s stomach area, and slashed at T.Y. as
T.Y. held a blue milk crate and tried to defend himself. J.F. also told Officer Viec she
was “100 percent sure” defendant was going to slash or stab T.Y.

                                              13
       However, defendant argues the testimony of the two officers was contradicted by
the trial testimony of Dondra, T.Y., and J.F., each of whom denied virtually every
statement the police officers attributed to them, most notably that defendant and T.Y. had
an argument during which defendant threatened T.Y. and T.Y. feared for his safety.
       The recantations did nothing but present a stark contrast, either the defendant was
guilty or not guilty of the crimes charged, not an attempt of any one of them. Clearly, the
jury was convinced of defendant’s guilt of the charged crime based on the testimony of
Heston, the neighbor, and the two officers, along with the prior inconsistent statements
made by the various members of defendant’s family. Negating any doubt, defendant’s
wife admitted several telephone conversations with defendant about the circumstances
while he was in jail. During the last one, defendant was “extremely angry” about the
statements contained in the police report, and was “mad” about what his wife and the
other members of their family told police.
       Even if the recantation testimony by his family were legally sufficient to warrant
an instruction on the lesser included offense of attempted criminal threat, it is not
remotely, much less reasonably probable the jury would have reached a different result
had it been so instructed.
       The incident was first brought to the attention of police by a neighbor, Heston,
who called 911 and reported “yelling and screaming” from defendant’s backyard and “[a]
guy threatened to kill another one.” Consistent with that report, Heston testified at trial
that he heard and saw a very loud argument between defendant and T.Y., and heard a
male voice say, “I’ll cut you.” Although Heston could not identify which of the two men
made that threat, it was undisputed that the only person at the scene in possession of a
knife was defendant, and there was significant evidence defendant threatened T.Y. but no
evidence T.Y. threatened anyone.
       The testimony of Officers Daguman and Viec was consistent with Heston’s 911
call and trial testimony. When the officers arrived, they heard the argument between

                                             14
defendant and T.Y. Once through the gate and into the backyard, both officers saw
defendant, with knife in hand, arguing with T.Y. Statements by Dondra, J.F., D.F., and
T.Y. immediately following the incident uniformly confirmed defendant initiated a
heated argument with T.Y. and verbally and physically threatened T.Y. with a knife,
prompting T.Y. to back away while holding a milk crate to defend himself, and T.Y. and
the other family members were visibly shaken by what had just taken place.
       While J.F., Dondra, T.Y., and D.F. recanted significant portions of their earlier
statements to police regarding defendant’s threats toward T.Y., the jury was apparently
not persuaded by such recantations. Indeed, the recantations of those witnesses at times
contradicted their own testimony. For instance, J.F. denied telling police defendant
threatened T.Y., but testified T.Y. was backing away from defendant while holding a
milk crate trying to protect himself. D.F. denied any threats by defendant, but testified
he, too, saw T.Y. holding a milk crate to protect himself and defendant was “trying to
scare” T.Y. T.Y. could not recall at trial whether he and defendant argued, and denied
that defendant threatened him or that T.Y. tried to protect himself with a milk crate.
However, the parties stipulated T.Y. told defense investigator Miles he picked up the
crate because he wanted to be able to protect himself even though he “knew [defendant]
would never hurt [him] with the knife.”
       The jury was unimpressed with the recantations of testimony by the members of
defendant’s family. Based on all the evidence, the jury convicted him of three felonies
and two weapons enhancements. Thus, even if the evidence were legally sufficient to
warrant an instruction on the lesser included offense as to one of those convictions, i.e.,
criminal threats, the relative weight of all the evidence heard by the jury compels the
conclusion there is no reasonable probability the failure to instruct affected the result.
(Breverman, supra, 19 Cal.4th at p. 177.) Thus, any error in not instructing on the lesser
included offense of attempted criminal threats was harmless.



                                              15
                                             II
                                      Pitchess Motion
       Prior to trial, defendant filed a Pitchess motion seeking discovery of the law
enforcement personnel records of Officers Daguman and Viec. The trial court conducted
a hearing to determine whether good cause existed for the discovery request, and ordered
an in camera examination of any records “related to false reports.” Following an in
camera examination, the court informed defendant there were “no reports to be released.”
       Defendant asks this court to conduct an independent review of the sealed records
of the trial court’s hearing on his Pitchess motion. (People v. Mooc (2001) 26 Cal.4th
1216, 1228, 1232.) The People do not oppose the request.
       We will not disturb a trial court’s ruling on a Pitchess motion absent an abuse of
discretion. (Alford v. Superior Court (2003) 29 Cal.4th 1033, 1039.) Having reviewed
the Pitchess record, we find no procedural or substantive error in the trial court’s
handling of the motion. (See People v. Myles (2012) 53 Cal.4th 1181, 1208-1209.) No
relevant personnel materials exist, thus there was nothing to disclose.
                                      DISPOSITION
       The judgment is affirmed.


                                                        NICHOLSON              , Acting P. J.


We concur:



      BUTZ                  , J.




      HOCH                  , J.



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