People v. Tran CA4/1 ( 2024 )

Filed 9/30/24 P. v. Tran CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D083013
Plaintiff and Respondent,
(Super. Ct. No. SCD297564)
v.
TYLER SHAUN TRAN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
David L. Berry, Judge. Affirmed.
James R. Bostwick, Jr., under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters and Charles C. Ragland,
Assistant Attorneys General, Eric A. Swenson, Christine Y. Friedman and Monique
Myers, Deputy Attorneys General for Plaintiff and Respondent.
A jury convicted Tyler Shaun Tran of making a criminal threat (Pen.
Code,1 § 422; count 1), and vandalism causing damage of $400 or more
1 Undesignated statutory references are to the Penal Code.
(§ 594, subds. (a), (b)(1); count 2).2 The court sentenced him to four years in
prison: two years eight months on count 1 plus one year four months on count
2.
Tran contends insufficient evidence supports his criminal threat
conviction and the court erroneously failed to instruct the jury on the lesser
included offense of attempting to make a criminal threat. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
C.W. testified that she lived on a houseboat in San Diego County. She
had a longtime friendship with Tran’s girlfriend, K.M., but they had lost
contact. Approximately two years before the incidents that formed the basis
of the charges here, C.W. renewed her friendship with K.M., who also lived
on a houseboat. They met and had a conversation. C.W. testified that later
that day, she met Tran for the first time when he went to C.W.’s boat “after
[K.M.] left and [Tran] was yelling . . . at my boat and thought that [K.M.] was
on my boat and was screaming at the top of his lungs that we were doing
heroin and things like that.”
During the next two years, C.W. witnessed Tran yelling demeaning and
obscene comments at K.M., causing K.M. to feel so embarrassed that she
would end up leaving with Tran in order to make him stop yelling. C.W.
twice saw Tran push K.M. “hard enough that it made her stumble.”
In late November 2022, Tran sent C.W. a text message: “You just let
[K.M.] know she wants to play fucking games with me, dude she would leave
me holding the bag over and over. It’s take care of everything while she is
2 The jury failed to reach a verdict on a resisting an executive officer
charge (§ 69; count 3) and the court declared a mistrial on that count. Tran
subsequently pleaded guilty to misdemeanor resisting arrest (§ 148), a lesser
included offense of count 3.
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out doing whatever the fuck she feels like. [Sic.] You let her know next time
I see her, I kill her. And if she’s on your boat, I’m going to fucking kill you
too. I don’t care anymore.” C.W. testified that when she received Tran’s text
message she felt “threatened” and “scared” because she believed Tran meant
what he wrote and would carry out the threat.
C.W. replied to Tran: “[It]’s not fair that you would say that to me
because [K.M.] didn’t even stay on my boat last night. She stayed on the
beach.” Tran responded, “I’m sorry. I have just been under a lot of stress. I
just don’t care anymore.”
C.W.’s fears were not assuaged by Tran’s apology because she
considered him to be “erratic.” She explained: “ ‘I’m sorry,’ doesn’t mean
much coming from somebody that goes back and does the same thing over
and over every day.”
Despite the fact Tran’s text message scared her, C.W. continued to
allow K.M. to stay on her houseboat because she “was under the impression
that [K.M.] wanted to break up with [ ] Tran. And I am her friend, and I
wanted to help her any way I could . . . to do that.” C.W. did not initially
report the text message to police because she thought she could defuse the
situation. Further, she did not want to get Tran in trouble.
Late one night near the end of December 2022, K.M. was on C.W.’s
boat, which was anchored approximately two miles from shore. Tran then
arrived in his dinghy, which he rammed into the side of C.W.’s boat, as he
yelled, “ ‘An eye for an eye.’ ” He threatened to cut her anchor, and
attempted to board C.W.’s boat. C.W.’s friend, M.G., was passing by in his
boat and heard the commotion. He saw that K.M. and C.W. were terrified.
Tran was pounding on C.W.’s boat and ramming it with his dingy. M.G.
boarded C.W.’s boat. C.W. had shown Tran’s threatening message to M.G.,
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and that “definitely” influenced M.G.’s decision to call 911. Police responded
and ordered Tran to leave. C.W. was afraid of Tran, realizing that he could
always return in his dinghy after the police left.
In fact, Tran returned that night and stabbed M.G.’s dinghy, which was
next to C.W.’s boat. Tran then quickly drove his boat away. M.G. called
police, who arrived. For the first time, C.W. told police about Tran’s
threatening text message.
At trial, the prosecutor asked C.W., “[S]ince you received that text
message from [Tran], has there been a point at which you have stopped being
fearful of him?” C.W. answered, “No.”
DISCUSSION
I. Sufficiency of the Evidence of a Criminal Threat
A. Applicable Law
“In the context of a criminal case, the substantial evidence standard
stems from the requirement that a criminal conviction necessitates
‘proof beyond a reasonable doubt of every fact necessary to constitute the
crime . . . .’ ” (People v. Mumin (2023) 15 Cal.5th 176, 198.) Under this
standard, and reviewing the whole record, “an appellate court retrospectively
inquires whether a rational trier of fact could have found the defendant guilty
beyond a reasonable doubt, based on all the evidence when viewed in the
light most favorable to the prosecution. ‘Sufficiency review essentially
addresses whether “the government’s case was so lacking that it should not
have even been submitted to the jury.” ’ ” (Id. at p. 199.) “ ‘Conflicts and
even testimony which is subject to justifiable suspicion do not justify the
reversal of a judgment, for it is the exclusive province of the [fact-finder] to
determine the credibility of a witness and the truth or falsity of the facts
upon which a determination depends.’ [Citation.] Ultimately, it is within the
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[fact-finder’s] exclusive province to determine whether an inference that may
be drawn from the evidence is, in fact, the only reasonable one, a
determination that depends on its resolution of conflicting evidence and
weighing the credibility of witnesses. . . . ‘[F]ounded upon the evidence, the
[fact-finder] not only is authorized to make any logical and reasonable
deduction, but [it] is the exclusive judge of the weight and value of the
inference that may be drawn by it . . . .’ ” (Id. at p. 202.) “ ‘A reversal for
insufficient evidence “is unwarranted unless it appears ‘that upon no
hypothesis whatever is there sufficient substantial evidence to support’ ” the
jury’s verdict.’ ” (People v. Penunuri (2018) 5 Cal.5th 126, 142.)
Section 422 provides that the prosecution must prove “ ‘(1) the
defendant willfully threatened death or great bodily injury to another person;
(2) the threat was made with the specific intent that it be taken as a threat,
regardless of the defendant’s intent to carry it out; (3) the threat 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”; (4) the threat
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) this fear was reasonable
under the circumstances.’ ” (People v. Holmes, McClain and Newborn (2022)
12 Cal.5th 719, 809; see also In re George T. (2004) 33 Cal.4th 620, 630;
People v. Toledo (2001) 26 Cal.4th 221, 227-228; People v. Gaines (2023) 93
Cal.App.5th 91, 136.)
“With respect to the requirement that a threat be ‘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,’
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. . . the word ‘so’ in section 422 [means] that ‘ “unequivocality,
unconditionality, immediacy and specificity are not absolutely mandated, but
must be sufficiently present in the threat and surrounding circumstances
. . . .” ’ [Citations.] ‘The four qualities are simply the factors to be considered
in determining whether a threat, considered together with its surrounding
circumstances, conveys those impressions to the victim.’ ” (In re George T.
supra, 33 Cal.4th at p. 635; see People v. Bolin (1998) 18 Cal.4th 297, 340; In
re A.G. (2020) 58 Cal.App.5th 647, 654.) The word “immediate” has been
interpreted to mean “that degree of seriousness and imminence which is
understood by the victim to be attached to the future prospect of the threat
being carried out, should the conditions not be met.” (People v. Melhado
(1998) 60 Cal.App.4th 1529, 1538.)
B. Contentions
Tran contends the evidence does not support section 422’s requirement
that his text message be “ ‘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.’ ” He adds, “The threatening message,
although sent to [C.W.], was primarily directed to [K.M.] and only secondarily
and conditionally to [C.W.].” He also argues, “[K.M.’s] presence on [C.W.’s]
boat was the condition that would trigger [him] to carry out the threat
against both [women]. . . . All of the surrounding circumstances indicate
that [C.W.] believed that there was no immediate prospect that [he] would
carry out the threat. It was precisely for that reason that she waited so long
to report the threat to the police. After a month of waiting, any idea that the
threat was so ‘unequivocal, unconditional, immediate, and specific,’ etc. lost
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all meaning. The supposed urgency of the threat could not be retroactively
revived.”
C. Analysis
Tran’s words were unequivocal and specific—he told C.W. that if he
saw K.M. on C.W.’s boat, he was going to “kill [C.W.] too.” The jury could
reasonably infer from the circumstances that Tran’s statements indicated an
immediate prospect of execution. He sufficiently conveyed to C.W. “ ‘a gravity
of purpose’ ” in his threat when he immediately backed up the threat by
warning that he did not care anymore, implying he was prepared to act
recklessly. (See Bolin, supra, 18 Cal.4th at p. 338 [“hold[ing] that
prosecution under section 422 does not require an unconditional threat of
death or great bodily injury,” (italics added)]; People v. Brooks (1994) 26
Cal.App.4th 142, 144, 149 [“[c]onditional threats are true threats if their
context reasonably conveys to the victim that they are intended”; “ ‘ “If you go
to court and testify, I’ll kill you,” ’ ” constituted an unlawful criminal threat].)
“ ‘[Section 422] does not concentrate on the precise words of the threat.
Instead, the statute focuses on the effect of the threat on the victim, to wit,
communication of a gravity of purpose and immediate prospect of execution of
the threat. These impressions are as surely conveyed to a victim when the
threatened harm is conditioned on an occurrence guaranteed to happen as
when the threat is absolutely unconditional.’ ” (People v. Wilson (2010) 186
Cal.App.4th 789, 807.) Furthermore, the specific intent required by section
422 is not an intent to actually carry out the threatened crime, but an intent
that the victim receive and understand the threat. “ ‘A threat is not
insufficient simply because it does “not communicate a time or precise
manner of execution [since] section 422 does not require those details to be
expressed.” ’ ” (Wilson, at p. 807.) When the words of a threat are equivocal,
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ambiguous, or conditional, the intent that the words be taken as a threat
must be determined from all the surrounding circumstances and not just on
the words alone. (People v. Butler (2000) 85 Cal.App.4th 745, 753-755.)
Viewing the surrounding circumstances here, the record shows that
from the outset, Tran knew that C.W. and K.M. were good friends. He was
upset by their spending time together. The jury could reasonable infer based
on evidence of their friendship that he would continue to see C.W. and K.M.
together on C.W.’s boat, which was the condition for his threat. Even a
conditional threat is actionable if it is based on a contingency “highly likely to
occur.” (People v. Wilson, supra, 186 Cal.App.4th at p. 806; accord, People v.
Stanfield (1995) 32 Cal.App.4th 1152, 1158.) Tran’s threat was further made
actionable by his adding that he did not care anymore. The reasonable
implication of that is he was aware of the grave consequences of his
threatened action to both women and to himself as a result of killing them, he
had weighed those consequences, and the consequences did not matter to
him.
Tran further argues: “The evidence also falls short of what is required
because it fails to show that the threat caused [C.W.] ‘reasonably to be in
sustained fear’ for her own safety.”
The People must prove not only that the defendant had the subjective
intent to threaten, but also that the threat was objectively threatening, i.e.,
“that the intended threat under the circumstances was sufficient to cause a
reasonable person to be in sustained fear.” (People v. Chandler (2014) 60
Cal.4th 508, 511, 518, 525.) Sustained fear is a fear over a period of time
“ ‘that extends beyond what is momentary, fleeting, or transitory.’ ” (In re
Ricky T. (2001) 87 Cal.App.4th 1132, 1140.) No specific amount of time is
required to render a victim’s fear “sustained.” (People v. Allen (1995) 33
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Cal.App.4th 1149, 1156, fn. 5.) Case law has characterized a victim’s fear as
sufficiently sustained within the meaning of section 422 when the fear lasts
anywhere between one and 15 minutes. (See Allen, at p. 1156 [Fifteen
minutes sufficient to qualify as sustained fear].) The jury must consider the
communication and the surrounding circumstances together, including a
prior relationship between the defendant and the victim. (People v. Wilson,
supra, 186 Cal.App.4th at p. 814.)
Tran contends that C.W. “believed that there was no immediate
prospect that [he] would carry out the threat. It was precisely for that reason
that she waited so long to report the threat to the police.” However, C.W.
explained at trial that she declined to report it initially because she hoped to
defuse the situation. She also believed K.M. would leave Tran, thus
rendering moot any further action on her part. Finally, she did not want to
get Tran in trouble by reporting him to police. None of those reasons
undermine the claim that Tran’s threat was also unequivocal, unconditional
and immediate.
We conclude substantial evidence supports the jury’s finding that C.W.
was in sustained fear after Tran’s threat. She already knew of Tran’s
temper, and that he mistreated K.M, including by pushing her twice such
that she almost fell. The jury saw C.W.’s demeanor as she testified, and it
could reasonably conclude C.W. believed Tran would carry out his threat
because he acted erratically in the two years C.W. knew him. C.W. testified
that she was fearful of Tran since he threatened her. She showed M.G.
Tran’s threatening text message. These facts, considered together, constitute
substantial evidence that C.W. was in actual sustained fear following Tran’s
threat. The offense “does not require an immediate ability or even an actual
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intention, to carry out the threat.” (People v. Holmes, McClain and Newborn,
supra, 12 Cal.5t at p. 810.)
II. Jury Instruction on Attempted Criminal Threat
Tran contends the court prejudicially erred by failing to sua sponte
instruct the jury on attempted criminal threat as a lesser included offense,
given that sufficient evidence in the record supported such an instruction.
“ ‘ “[A] trial court must instruct on lesser included offenses, even in
the absence of a request, whenever there is substantial evidence raising
a question as to whether all of the elements of the charged offense are
present.” ’ ” (People v. Cole (2004) 33 Cal.4th 1158, 1215.) “ ‘ “Substantial
evidence is evidence sufficient to ‘deserve consideration by the jury,’ that is,
evidence that a reasonable jury could find persuasive.” ’ ” (Ibid.) The
reviewing court applies the independent judgment standard of review to the
trial court’s failure to instruct on a lesser included offense. (People v. Waidla
(2000) 22 Cal.4th 690, 739.)
The crime of attempted criminal threat is a lesser included offense of
the crime of making a criminal threat. (People v. Toledo, supra, 26 Cal.4th at
p. 230.) “[I]f a defendant, . . . 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.” (Id. at p. 231.) In that situation, “only a fortuity,
not intended by the defendant, has prevented the defendant from
perpetrating the completed offense of criminal threat itself.” (Ibid.)
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Here, no intervening fortuity prevented C.W. from being in actual,
sustained fear. The facts of this case are materially different than those in
Toledo, where the victim reported her fear to an investigator but later
testified that she was not actually frightened. (People v. Toledo, supra, 26
Cal.4th at p. 225.) Under those circumstances in Toledo, the attempt
instruction was appropriate because there was substantial evidence that the
victim was not in sustained fear. By contrast, C.W. was consistent in her
claim that she was scared of Tran at all times since she got his text message,
and continuing until trial. Accordingly, all the evidence indicated the
criminal threat was made, and there was no substantial evidence to merit a
jury instruction on mere attempt.
DISPOSITION
The judgment is affirmed.
O’ROURKE, Acting P. J.
WE CONCUR:
CASTILLO, J.
RUBIN, J.
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