Filed 7/27/21 P. v. De La Cruz CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B306524
(Super. Ct. No. 2019030890)
Plaintiff and Respondent, (Ventura County)
v.
ALEJANDRO DE LA CRUZ,
Defendant and Appellant.
Alejandro De La Cruz appeals a judgment following his
conviction for making criminal threats (Pen. Code, § 422) 1 (count
1); petty theft (§ 484, subd. (a)) (count 2); and possession of a
controlled substance (Health & Saf. Code, § 11377, subd. (a))
(count 3). De La Cruz fell within the purview of the “Three
Strikes” law. The trial court sentenced him to an aggregate
prison term of four years. We conclude, among other things, that
1) substantial evidence supports his conviction for making
All statutory references are to the Penal Code unless
1
otherwise stated.
criminal threats, and 2) the court did not err by not instructing
the jury on a lesser-included offense. We affirm.
FACTS
C.A. was an assistant manager at Walmart. On September
17, 2019, a coworker told her that De La Cruz was “rearranging
the candy” at the candy aisle. C.A. walked to that area and asked
De La Cruz, “Is there something I could help you with?”
De La Cruz became angry and said she was “profiling him.” He
said people like her “need to die.” C.A. asked De La Cruz to leave
the store.
De La Cruz told C.A., “I’m going to fucking kill you.” His
demeanor changed when he made this threat. His body “started
getting tight.” He was angry. C.A. believed De La Cruz was
going to “act on his threat.” She was “shaking.” She did not
know if he had a weapon. She said, “I thought about my
children.”
C.A. looked to see if any store employees were near because
she did not want to be alone with him. De La Cruz started
walking toward the front of the store. C.A. “scooted” her way
down the aisle toward the front registers. De La Cruz said the
store is “his” store and he “doesn’t have to leave.”
De La Cruz grabbed a mango and took a bite. He took a
coke. He refused to pay for those items. When C.A. told him that
he has to pay for the items he took, De La Cruz replied that “this
is [his] store and if [she does not] like it, then [she] can leave [his]
store.” C.A. told an associate to call 911.
De La Cruz walked out of the store. C.A. was scared. She
told store security guard Jeremy Marshall what had happened.
The police arrived.
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The prosecutor asked C.A., “Did the incident where
[De La Cruz] threatened you impact your state of mind for the
next 5, 10, 15, 20, 30 minutes?” C.A.: “I believe it did at the
time.”
C.A. testified that after De La Cruz left the store, she
“thought he was going to come back and act on his threat.” When
the police arrived, she was “still scared.”
Dwanesha Jones, a Walmart department manager, testified
that C.A. asked her to call 911 because “[C.A. had] just been
threatened.” C.A. had “a serious look on her face.”
Police Officer Jaime Miranda interviewed C.A. He testified
she told him that De La Cruz “threatened to kill her.” She said
“she was afraid.” Miranda said, “[T]hat’s what I documented.”
De La Cruz was arrested. He was drinking from a Coca-Cola
bottle. He had a gum packet and a plastic baggie containing
methamphetamine.
The People presented evidence about a prior incident
involving De La Cruz at another Walmart store in 2018. He had
taken a bicycle from the store. A store employee followed him.
De La Cruz asked the store employee if “a bicycle was worth
risking [her] life.”
In the defense case, store security guard Marshall testified
C.A. did not mention to him that she had been threatened. Later,
Marshall said, “I don’t remember if she did say that.” As a store
security guard, Marshall did not ask C.A. the “details” about the
incident.
DISCUSSION
Substantial Evidence
De La Cruz contends there was insufficient evidence to
establish that he committed a criminal threat. We disagree.
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“On appeal, we must view the evidence in the light most
favorable to the People and must presume in support of the
judgment the existence of every fact the trier could reasonably
deduce from the evidence.” (People v. Ochoa (1993) 6 Cal.4th
1199, 1206.) We do not reweigh the evidence or decide the
credibility of the witnesses. (Ibid.)
“In order to prove a violation of section 422, the prosecution
must establish all of 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 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,
italics added.)
De La Cruz cites some evidence and claims some inferences
support his position. But the issue is not whether some evidence
supports appellant, it is whether substantial evidence supports
the judgment.
De La Cruz’s statement to C.A. constituted an
unconditional and unequivocal death threat. He told her, “I’m
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going to fucking kill you.” (People v. Toledo, supra, 26 Cal.4th at
p. 235 [words “I am going to kill you” made with the requisite
intent “was the type of threat that satisfied the provisions of
section 422”].) The words he uttered constituted a fully
completed specific threat, without any ambiguity, and they
constituted relevant evidence on his specific intent. (People v.
Fierro (2010) 180 Cal.App.4th 1342, 1348 [defendant’s actions
and “saying words to the effect that he could and would kill
them” were evidence on his specific intent]; People v. Gaut (2002)
95 Cal.App.4th 1425, 1432 [“ ‘A threat is sufficiently specific
where it threatens death’ ”].) This was a threat immediately and
personally conveyed to his victim.
The jury also could reasonably infer the manner in which
De La Cruz conveyed the threat showed an immediate gravity of
purpose and an immediate prospect of execution of the threat.
The trier of fact may consider the defendant’s “mannerisms,”
“affect,” and actions in making the threat and after the threat.
(People v. Solis (2001) 90 Cal.App.4th 1002, 1013) De La Cruz
was near C.A. when he made the threat. C.A. testified she saw
De La Cruz’s demeanor change when he made the threat. His
eyes “changed” and the “color of his skin changed.” He was angry.
His body “started getting tight.” C.A. testified his actions were
unpredictable.
The jury could find De La Cruz’s death threat, coupled with
his openly aggressive act of taking items without paying, and
telling C.A. this is “[his] store,” showed a pattern of brazen
conduct to intimidate her. C.A. testified she believed De La Cruz
was going to “come back and act on his threat.” “A threat is not
insufficient simply because it does ‘not communicate a time or
precise manner of execution, section 422 does not require those
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details to be expressed.’ ” (People v. Butler (2000) 85 Cal.App.4th
745, 752.) C.A. said that “he threatened [her]”; “it scared [her].”
She was “in fear for [her] life.” She had a coworker call 911.
“The words used and the circumstances surrounding the words
strongly evince a threat to commit a crime which would result in
death . . . .” (People v. Martinez (1997) 53 Cal.App.4th 1212,
1222.)
De La Cruz claims his statements were merely emotional
“rants of a resentful person” with no criminal intent. “Section
422 was not enacted to punish emotional outbursts, it targets
only those who try to instill fear in others.” (People v. Felix
(2001) 92 Cal.App.4th 905, 913.)
Here the jury rejected De La Cruz’s claims that his
statements were merely emotional rants made without the
requisite criminal intent under section 422. The jury was
instructed that jurors could not convict De La Cruz of this offense
unless they found “the defendant intended that his statement be
understood as a threat” and that “it communicated to [C.A.] a
serious intention and the immediate prospect that the threat
would be carried out.” (Italics added.) De La Cruz has not shown
these elements were unsupported by this record. Given the
instructions, had the jury believed he made only an emotional
rant, there would not have been a guilty verdict.
Moreover, whether the defendant intended his words to be
taken as a threat “can be based on all the surrounding
circumstances.” (People v. Franz (2001) 88 Cal.App.4th 1426,
1446.) The People suggest the jury could reasonably infer his
threat was intentionally made to achieve a goal. They note that
De La Cruz said he could “leave” the store, and that he had the
goal of not “paying for the merchandise.” From the record a
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reasonable inference is that C.A. had confronted him while he
was about to commit a crime. The jury could reasonably infer he
threatened her because she discovered what he was doing and his
death threat was calculated to intimidate her so she would not
report his activity. The People presented evidence showing that
De La Cruz had made death threats to female employees at two
Walmart stores in his attempts to steal items.
C.A. testified that, after his death threat, “[she] didn’t want
to be alone” there with him. She “scooted” down the aisle with
her back to the candy wall. She backed up with her back against
the shelf. C.A. testified, “I didn’t want my back to be facing him.”
The People note her conduct supported her testimony about her
fear. De La Cruz has not shown why the jury could not find
C.A.’s fear to be “ ‘reasonabl[e]’ under the circumstances.”
(People v. Toledo, supra, 26 Cal.4th at p. 228.)
De La Cruz claims there was no evidence that he had the
“ ‘means of accomplishing the threat.’ ” But this offense “ ‘does
not require an immediate ability to carry out the threat.’ ”
(People v. Wilson (2010) 186 Cal.App.4th 789, 807.) De La Cruz
notes that he was not armed. But he was not convicted of a
weapons offense, and the statute does not require the offense to
be committed with a weapon. Moreover, C.A. testified she did not
know whether De La Cruz had a weapon when he made the
threat or what he would do.
De La Cruz contends there was insufficient evidence that
C.A. was in “sustained” fear. We disagree.
Sustained fear involves a period of time that is beyond
“momentary, fleeting, or transitory.” (People v. Allen (1995) 33
Cal.App.4th 1149, 1151, 1153, 1156; People v. Fierro, supra, 180
Cal.App.4th at p. 1348 [sustained fear finding affirmed where the
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fear lasted 15 minutes after the defendant drove away].) “[A]
victim can experience sustained fear even if the fear exists only
during the incident itself, as long as the fear during the incident
is more than ‘momentary, fleeting, or transitory.’ ” (People v.
Brugman (2021) 62 Cal.App.5th 608, 634.)
Sustained fear is fear that is not “ ‘instantly over.’ ” (People
v. Culbert (2013) 218 Cal.App.4th 184, 191.) “When one believes
he is about to die, a minute is longer than ‘momentary, fleeting,
or transitory.’ ” (People v. Fierro, supra, 180 Cal.App.4th at
p. 1349.)
The jury could reasonably infer C.A. believed she was about
to die. C.A. testified she was “shaking” in fear after De La Cruz
made the death threat. She immediately thought about her
“children.”
De La Cruz claims C.A.’s fear was only momentary. But
the evidence does not support that claim. C.A. testified that she
backed up with her back against a shelf for three to four minutes.
She did this because she did not want her “back to be facing him.”
C.A. said that even after De La Cruz left the store, her fear
continued. She testified, “I thought he was going to come back
and act on his threat.” “[I]f he didn’t go to jail, I was afraid he
was going to come back into the store . . . .” She testified her fear
lasted up to 30 minutes. By convicting De La Cruz, the jury
necessarily found “[t]he threat actually caused [C.A.] to be in
sustained fear for her own safety.” This finding about sustained
fear was also supported by the testimony of Jones and Miranda.
De La Cruz has not shown the evidence is insufficient.
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Instructional Error
De La Cruz contends the trial court erred in failing to issue
sua sponte an instruction for the lesser-included offense of
attempted threat. We disagree.
Attempted criminal threat is a lesser-included offense of
the section 422 crime. “[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.” (People v.
Toledo, supra, 26 Cal.4th at p. 231.)
The trial court has a duty to instruct on lesser-included
offenses “whenever evidence that the defendant is guilty only of
the lesser offense is ‘substantial enough to merit consideration’ by
the jury.” (People v. Breverman (1998) 19 Cal.4th 142, 162, italics
added.) “[T]he existence of ‘any evidence, no matter how weak’
will not justify instructions on a lesser included offense . . . .”
(Ibid.)
De La Cruz contends a lesser-included instruction on
attempted criminal threat was required because there was
evidence “that could have led a jury to entertain a reasonable
doubt as to whether [his] actions actually caused [C.A.] to be in
sustained fear.”
The People respond that 1) “[e]vidence of the sustained fear
element was substantial,” and 2) “there was simply no evidence
from which a jury could conclude that [De La Cruz] committed an
attempted criminal threat but not a completed one.” We agree.
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“An instruction on a lesser included offense must be given
only if there is substantial evidence from which a jury could
reasonably conclude that the defendant committed the lesser,
uncharged offense but not the greater, charged offense.” (People v.
Thomas (2012) 53 Cal.4th 771, 813, italics added.)
Here the evidence of C.A.’s sustained fear was strong. She
testified at the time of the death threat she was “shaking.” She
did not know if De La Cruz had a weapon or how he would react.
Her fear lasted up to 30 minutes. When the police arrived, C.A.
said, “I’m still scared.” “I thought he was going to come back and
act on his threat.” “[W]e called the cops on him” “[I]f he didn’t go
to jail, I was afraid he was going to come back into the store . . . .”
De La Cruz has not shown that a reasonable juror would
conclude that he had committed only an attempted criminal
threat based on the evidence about sustained fear. He claims
C.A.’s demeanor after the incident showed “the fleeting nature” of
her fear. The defense at trial claimed C.A. was not credible in
claiming sustained fear and that Miranda was not credible in his
testimony about her fear. But the jury rejected these credibility
claims. De La Cruz has not cited to any evidence showing that
C.A. had any motive to falsify or exaggerate her testimony about
her fear. The People note, “If any [juror] believed such fear was
lacking, the jury as a whole would not have convicted
[De La Cruz of] criminal threats.”
Moreover, the evidence De La Cruz cites does not support
the lesser-included instruction. He contends C.A. did not
mention fear to her other store employees, and after De La Cruz
left the store, she did not appear to show physical signs of
distress. But C.A. told Jones to call 911 because she had been
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threatened. When asked about C.A.’s demeanor, Jones testified
C.A. had “a serious look on her face.”
Moreover, C.A.’s outward appearance was not an indication
of lack of fear. A person’s outward conduct or demeanor does not
necessarily reflect his or her inner feelings or emotions. (Cf.
People v. Mayfield (1993) 5 Cal.4th 142, 168; State v. Smith (Utah
1995) 909 P.2d 236, 241 [victim’s “withdrawn demeanor” may be
caused by fear or other emotions]; Harris v. State (Md.Ct.App.
1988) 539 A.2d 637, 640, fn. 2 [“outward demeanor does not
always accurately reflect one’s underlying mental state”].) C.A.
testified that as a store manager she was “trying to stay strong”
even though she was in fear, and the jury found her to be
credible. De La Cruz notes that his encounter with C.A. did not
last long. But a relevant factor is that her “fear continued . . .
after” he left the store. (People v. Fierro, supra, 180 Cal.App.4th
at p. 1349, fn. 6.)
The defense called store security guard Marshall. But this
testimony was not helpful to De La Cruz. Marshall initially said
C.A. did not state that she had been threatened. But later, he
admitted, “I don’t remember if she did say that.” De La Cruz
claims C.A. did not discuss the details of the incident with
Marshall. But De La Cruz has not shown why C.A. would be
expected to discuss the “details” of crimes with store employees or
a security guard after the police had been called. Marshall was
not conducting the criminal investigation of De La Cruz. C.A.
only quickly contacted Jones to call 911. Given the short
emergency time constraints, jurors could reasonably infer store
employees were not in a position to conduct a detailed interview
with C.A. before the police arrived.
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De La Cruz notes that Police Officer Miranda testified he
had a “casual conversation” with C.A. He suggests this evidence
about C.A.’s demeanor impeaches her credibility. But this
conversation occurred when she was interviewed after
De La Cruz left the store and after the police detained him.
Jurors could reasonably infer C.A. may have experienced relief at
being in the presence of a police officer, but that “is not the same
thing . . . as having one’s fear evaporate.” (People v. Culbert,
supra, 218 Cal.App.4th at p. 191.) C.A. said she was trying to be
strong as a store manager.
Moreover, Miranda’s testimony did not impeach C.A.’s
credibility; it supported her claim of fear. Miranda testified C.A.
said that “she was afraid,” and “that’s what [he] documented.” In
opposing a defense claim that his interview technique was
suggestive, Miranda testified that while interviewing her he
determined “her mindset” was that “fear had been instilled
already.” Her statement to him about her fear “accurately
depicted” how she felt. De La Cruz’s argument omits
consideration of Miranda’s highly corroborative evidence. A
defendant’s speculative inferences drawn from only portions of
weak evidence “will not justify instructions on a lesser included
offense.” (People v. Breverman, supra, 19 Cal.4th at p. 162.) The
defense case was weak.
Moreover, even had De La Cruz shown instructional error,
the result would not change. Many of the claims De La Cruz now
raises about lack of sustained fear are essentially claims his trial
counsel argued to the jury. But the jury’s verdict was a rejection
of those claims. (People v. Campbell (2015) 233 Cal.App.4th 148,
167 [jury’s finding on a common factual issue required by other
12
instructions is relevant in deciding whether the alleged
instructional error is prejudicial].)
Given the strength of the People’s case, it is not reasonably
probable a more favorable result would have been obtained
absent the alleged instructional error. (People v. Beltran (2013)
56 Cal.4th 935, 955.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J.
TANGEMAN, J.
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Benjamin F. Coats, Judge
Superior Court County of Ventura
______________________________
Miriam R. Arichea, under appointment by the Court of
Appeal, for Defendant and Appellant.
Matthew Rodriquez, Acting Attorney General, Lance E.
Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Assistant Attorney General, Scott A. Taryle and Lindsay
Boyd, Deputy Attorneys General, for Plaintiff and Respondent.
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