Filed 11/27/23 In re C.G. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

In re C.G., a Person Coming Under the Juvenile 

Court Law.

THE PEOPLE,

Plaintiff and Respondent,

v.

C.G.,

Defendant and Appellant.

F085494

(Super. Ct. No. 21JL-00088B)

OPINION

THE COURT*

APPEAL from an order of the Superior Court of Merced County. Jennifer O. 

Trimble, Judge.

Kristen Owen, under appointment by the Court of Appeal, for Defendant and

Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Dina 

Petrushenko, Deputy Attorneys General, for Plaintiff and Respondent.

* Before Hill, P. J., Detjen, J. and Meehan, J.
2.

-ooOooMinor C.G. (minor) contends on appeal that the juvenile court’s attempted 

criminal threat finding against him must be reversed because there is insufficient 

evidence on the record that the threat caused the victim sustained fear. The People 

disagree. We affirm.

PROCEDURAL SUMMARY

On June 9, 2022, an original juvenile wardship petition was filed pursuant to 

Welfare & Institutions Code section 602, subdivision (a), alleging that minor made a 

criminal threat against Ryan A.1(Pen. Code, § 422;2 count 1). 

On June 29, 2022, there was a detention hearing and minor was not detained. At 

the time the petition was filed, minor was on active deferred entry of judgment for an 

allegation of infliction of corporal injury resulting in a traumatic condition on a dating 

partner or parent of child (§ 273.5). 

On October 26, 2022, the juvenile court held a jurisdiction hearing. After 

presenting evidence, the People moved to amend the juvenile wardship petition to add 

two counts: criminal threat against Rosalinda (§ 422) and disturbing the peace (§ 415). 

Defense counsel submitted on the count of disturbing the peace but objected to the count 

of a criminal threat against Rosalinda. The court granted the People’s request to add 

disturbing the peace (§ 415; count 2). 

The same day, the juvenile court found minor guilty on count 1 of the lesser 

included offense of attempted criminal threat (§§ 422, 664) and on count 2 of disturbing 

the peace.3 

1 Victim Ryan has the same initials as his sister, Rosalinda, so we refer to them by 

their first names to prevent confusion. 

2 All statutory references are to the Penal Code unless otherwise noted.

3 The court also granted probation’s request that deferred entry of judgment be lifted 

in the prior matter and sustained the petition in that matter. 
3.

On December 21, 2022, the juvenile court held a disposition hearing. The court 

declared minor a ward of the court and placed him on electronic monitoring through a 

home commitment program and ordered other various terms and conditions of probation. 

On December 27, 2022, minor filed a notice of appeal. 

FACTUAL SUMMARY

On February 11, 2022, Rosalinda was outside her family’s house with her mother, 

father, and younger brother, Ryan, when minor drove down the street past their house and 

“[threw] up gang signs towards [Ryan].” Minor was Ryan and Rosalinda’s neighbor who 

lived across the street. Rosalinda testified that minor was the passenger in the vehicle 

and that she did not see who was driving. She stated that as minor drove past, he said, 

“It’s a 12th Street Gang.” 

After driving past Rosalinda’s house, the vehicle circled back towards them and 

minor and Ryan cursed at each other. The vehicle then parked across the street from 

Rosalinda’s family’s house, and minor exited the vehicle and continued to yell at Ryan 

from across the street. 

Minor “challenge[d]” Ryan to a fight. Rosalinda testified that minor was “trying 

to get [Ryan] to go across the street to where [minor] was, and [Ryan] kept asking him, 

‘Well, why do I need to come over there if you’re the one with the issue?’ ” Rosalinda 

stated that minor then said to Ryan, “I’m going to shoot you,” and lifted up his shirt and 

revealed a metal object tucked in the front waistband of his pants. 

Rosalinda testified that she believed the metal object was a silver gun handle 

based on its shape and color. She stated that, upon seeing the gun, she became afraid for 

herself and her parents “because you never know where a bullet can go.” She believed 

minor would carry out the threat and she thought she and her parents would be in the line 

of fire if minor began shooting. 
4.

Minor’s girlfriend attempted to keep him on his side of the street, but he pushed 

her away and kept arguing with Ryan. Rosalinda did not see if Ryan took cover or hid in 

any way. Rosalinda called the police and the incident ended when they arrived. 

Merced Police Officer Jesus Lopez was second to arrive on the scene, and spoke 

to minor initially, but did not take a statement from him. 

Defense Case

Minor testified that he was driving down his street with his six-year-old brother in 

the car when Ryan threw up his hands like he was challenging minor to fight. Minor 

stated he and Ryan then argued back and forth from their respective front yards, 

approximately 40 feet across from each other. He testified that Ryan was throwing his 

hands up, gesturing that he wanted to have a physical fight. Minor said he raised his 

shorts up, a gesture which he stated was a challenge to fight, while Ryan removed his 

sweater. 

Minor testified he did not have anything in his waistband and denied owning a gun 

or being affiliated with a gang. Minor claimed he had “problems” with Ryan in the past 

involving “bickering” back and forth, but that he had never challenged him to fight. 

DISCUSSION

Minor contends that the evidence presented by the prosecution failed to establish 

the “sustained fear” element of the lesser included offense of attempted criminal threat. 

The People disagree. We agree with the People. 

A. Law

We review minor’s contentions using the same standard of review that applies in 

adult criminal cases. (In re V.V. (2011) 51 Cal.4th 1020, 1026.) “Specifically, we 

determine whether substantial evidence—‘evidence that is reasonable, credible, and of 

solid value’—supports the juvenile court’s findings. [Citation.] We view the evidence 

‘in the light most favorable to the prosecution and presume in support of the [findings] 

the existence of every fact the [court] could reasonably have deduced from the evidence.’
5.

[Citation.] We ‘accept [all] logical inferences that the [court] might have drawn from the 

... evidence’ [citation], but reject inferences ‘ “based on suspicion alone, or on 

imagination, speculation, supposition, surmise, conjecture, or guess work” ’ [citations].

We will reverse only if ‘ “it appears ‘that upon no hypothesis whatever is there sufficient 

substantial evidence to support’ ” the [court’s findings].’ ” (In re I.A. (2020) 48 

Cal.App.5th 767, 778.) 

We do not resolve credibility issues nor evidentiary conflicts in resolving a claim 

of insufficient evidence. (People v. Manibusan (2013) 58 Cal.4th 40, 87; People v. 

Young (2005) 34 Cal.4th 1149, 1181; People v. D’Arcy (2010) 48 Cal.4th 257, 293.) It is 

not our job to reweigh the evidence or assess the credibility of the witnesses. (People v. 

Perry (1972) 7 Cal.3d 756, 785 (Perry).) 

We must also rely on the evidence that was actually presented at trial instead of 

what we find lacking in the prosecution case. (People v. Medina (2009) 46 Cal.4th 913, 

921; People v. Rodriguez (1999) 20 Cal.4th 1, 12.) 

To make a criminal threat, the prosecution must show, “(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 ... 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); § 422.) To determine whether a 

communication constitutes a threat, the court considers the communication on its face 
6.

and in the context of its surrounding circumstances. (People v. Bolin (1998) 18 Cal.4th 

297, 339–340.) 

The lesser included offense of attempted criminal threat requires that: (1) minor 

specifically intended to commit a criminal threat; (2) minor committed an act that goes 

beyond mere preparation in committing the threat; and (3) under the circumstances, the 

intended threat was sufficient to cause a reasonable person to be in sustained fear. 

(People v. Chandler (2014) 60 Cal.4th 508, 525; Toledo, supra, 26 Cal.4th at pp. 230–

231; § 21a.) “An attempt to commit a crime consists of two elements: a specific intent to 

commit the crime, and a direct but ineffectual act done toward its commission.” (§ 21a.) 

The intent required for an attempted criminal threat is a specific intent “ ‘to 

threaten to commit a crime resulting in death or great bodily injury with the further intent 

that the threat be taken as a threat, under circumstances sufficient to convey to the person 

threatened a gravity of purpose and an immediate prospect of execution so as to 

reasonably cause the person to be in sustained fear for his or her own safety or for his or 

her family’s safety.’ ” (People v. Chandler, supra, 60 Cal.4th at p. 516; Toledo, supra, 

26 Cal.4th at pp. 230–231.) 

The crime of attempted criminal threat encompasses situations where a minor 

intends to commit a criminal threat “but is thwarted from completing the crime by some 

fortuity or unanticipated event.” (Toledo, supra, 26 Cal.4th at p. 232.) 

B. Analysis

Here, the evidence is sufficient to support the juvenile court’s finding that minor 

committed the offense of attempted criminal threat, as the record shows he had the 

specific intent to make a threat, and did so by pulling up his shirt to show a gun in his 

waistband while saying, “I’m going to shoot you,” which was sufficient to cause a 

reasonable person to be in sustained fear. 

Minor first contends that there is insufficient evidence to support the juvenile 

court’s finding that he made an attempted criminal threat because the record does not 
7.

contain evidence showing his threat caused Ryan sustained fear. He argues that because 

Ryan did not testify, “we have no way of knowing or evaluating whether Ryan was afraid 

for himself or his family, or if the alleged threat did not actually cause him to be in 

sustained fear.” He contends that, “[w]here the victim/listener has not testified to the 

effect of the alleged threat, this court should not guess and make a determination based 

on a hypothetical reasonable person.” 

However, “absence of proof of that element [of sustained fear] does not defeat a 

conviction for attempted criminal threat.” (In re Sylvester C. (2006) 137 Cal.App.4th 

601, 607 (Sylvester C.).) “[A]ffirmative evidence proving beyond a reasonable doubt 

whether [the defendant] succeeded or failed [to cause sustained fear] appears unnecessary 

and its absence no reason for acquitting [the defendant] of the crime of attempted 

criminal threat.” (Id. at p. 611.) 

In Toledo, the victim heard the threat, but testified that the threat did not cause her 

sustained fear. The court found that her lack of fear was a “fortuity or unanticipated 

event” that thwarted the defendant’s efforts to commit a criminal threat. (Toledo, supra, 

26 Cal.4th at p. 232.) Here, as in Toledo, all elements of the crime of criminal threat 

were established, except whether the victim, Ryan, experienced sustained fear.4 

However, unlike Toledo, the victim here, Ryan, did not testify. The witness, Rosalinda, 

only testified as to her own fear caused by the threat. She did not testify about whether 

Ryan heard the threat or whether the threat caused him sustained fear. 

However, in Sylvester C., the victim, like Ryan, also did not testify. (Sylvester C., 

supra, 137 Cal.App.4th at p. 604.) There, the court found that the “ ‘unintended 

fortuity,’ ” thwarting the completion of the criminal threat was that the victim did not 

4 The court was entitled to find credible Rosalinda’s testimony about minor pulling 

his shirt up to reveal a gun in his waistband and yelling, “I’m going to shoot you,” as it is 

not our job to reweigh the evidence. (See Perry, supra, 7 Cal.3d at p. 785.) 
8.

testify and there was no evidence on the record as to whether the threat caused the victim 

to suffer sustained fear. (Sylvester C., at p. 607.) It explained:

“the ‘unintended fortuity,’ was not proof the victim experienced no 

fear [as in Toledo] but a failure of proof whether he did or did not. This 

failure of proof resulted largely from the absence of that victim from the 

trial and thus the absence of evidence from him about his state of mind 

upon hearing [the minor] utter his threat. Nor did the prosecution produce 

sufficient evidence from any other source regarding [the victim’s] actual 

state of mind on that occasion.” (Sylvester C., supra, 137 Cal.App.4th at 

p. 607.)

The Sylvester C. court concluded that “the failure to prove the defendant

succeeded is capable of supporting an attempted criminal threat conviction just as would 

affirmative evidence he failed to do so.” (Sylvester C., supra, 137 Cal.App.4th at p. 608.) 

It explained that, while the prosecution failed to prove beyond a reasonable doubt the

defendant’s threat was ineffectual in arousing sustained fear in the victim or that the 

defendant failed to complete or was prevented from completing the crime of criminal 

threat, 

“[o]bviously, the prosecutor was not trying to prove [the 

defendant]’s failure but rather his success in instilling fear in the [victim] he 

was threatening. So all the prosecution did in this instance was fail to 

prove [the defendant] succeeded in completing this intended crime rather 

than affirmatively proving he was frustrated in his attempt to do so. [¶] 

We conclude ... it would be anomalous and contrary to the Legislature’s 

obvious intent in punishing attempted crimes to completely absolve a 

defendant if the evidence falls just a bit short of proving he succeeded in 

completing his intended crime, while at the same time punishing other

defendants when the evidence demonstrates they failed miserably. One 

who gets close and may or even probably (but not beyond a reasonable 

doubt) did succeed in achieving his criminal goal is at least as dangerous 

and worthy of punishment as one who is a demonstrable failure. [¶] It 

would be absurd to construe the attempt statutes to produce such absurd 

results. And we refuse to do so. Rather we take a commonsense approach. 

In practical terms, there is no difference whether the failure element of an 

attempt crime is satisfied because the prosecution proves failure or because 

it fails to prove success in committing the completed crime. In this context, 

at least, it is a zero sum game—success and failure are opposites—success 
9.

and nonsuccess. Whether the evidence proves the defendant failed or fails 

to prove his success, one element of the completed crime is missing. Yet, 

as they are in this case, the intent to commit that crime and all the acts 

necessary to constitute an attempt may be present.” (Sylvester C., supra, 

137 Cal.App.4th at pp. 608–609.) 

Here, as in Sylvester C., “affirmative evidence proving beyond a reasonable doubt 

whether” minor’s threat succeeded or failed to cause Ryan sustained fear “appears 

unnecessary and its absence no reason for acquitting [the defendant] of the crime of 

attempted criminal threat.” (See Sylvester C., supra, 137 Cal.App.4th at p. 611.)

Minor next contends that there is insufficient evidence of attempted criminal threat 

because the record does not show whether Ryan personally heard the threat. However, 

the reasoning of Sylvester C. also extends to the lack of evidence as to whether Ryan 

personally heard minor’s threat. The lack of evidence about whether Ryan personally 

heard minor’s threat is another unintended fortuity that prevented minor from being 

prosecuted for committing a completed criminal threat, but, as discussed above, its 

absence is “no reason for acquitting [the defendant] of the crime of attempted criminal 

threat.” (See Sylvester C., supra, 137 Cal.App.4th at p. 611.) 

Minor further contends there is insufficient evidence that his threat was 

unequivocal, unconditional, immediate and specific enough to convey gravity and a sense 

of purpose and immediate prospect of execution because there is not evidence Ryan 

heard the threat. He argues, “[t]his court has no way of knowing what Ryan saw and 

cannot guess whether Ryan saw, or thought he saw, a gun in minor’s waistband, or 

whether Ryan just thought minor was hiking his pants up to fight.” 

The People first contend minor waived this argument because minor failed to give 

it its own subheading in his opening brief. 

Minor argues that it is only an extension of his argument that there is insufficient 

evidence that Ryan personally heard his threat, because if he did not hear it, it did not 
10.

convey an immediate prospect of execution, and thus, this argument was not required to 

have its own heading. 

We may disregard arguments not properly presented under appropriate headings. 

(See Cal. Rules of Court, rule 8.204 (a)(1) [“Each brief must: [¶] ... [¶] (B) State each 

point under a separate heading or subheading summarizing the point, and support each 

point by argument”]; Winslett v. 1811 27th Avenue, LLC (2018) 26 Cal.App.5th 239, 248, 

fn. 6 [“Arguments not raised by a separate heading in an opening brief will be deemed 

waived.”]; Alameida v. State Personnel Bd. (2004) 120 Cal.App.4th 46, 59 [“We may 

disregard arguments not properly presented under appropriate headings.”]; Opdyk v. 

California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830, fn. 4 [“The failure to 

head an argument ... constitutes a waiver.”].)

Regardless, we conclude there is sufficient evidence that minor’s threat was 

unequivocal, unconditional, immediate and specific enough to convey gravity and a sense 

of purpose and immediate prospect of execution, even without evidence that Ryan 

personally heard it. As discussed above, the lack of evidence as to whether Ryan heard 

the threat and saw a gun, or just thought minor was hiking up his pants, is an “unintended 

fortuity” that is unnecessary, and “no reason for acquitting [the defendant] of the crime of 

attempted criminal threat.” (See Sylvester C., supra, 137 Cal.App.4th at p. 611.) Further, 

the juvenile court was entitled to credit Rosalinda’s testimony that minor raised his shirt, 

showing a gun in his waistband and yelled to Ryan that he would shoot him, causing her 

to fear for herself and her family who were in the same front yard as Ryan. (See Perry, 

supra, 7 Cal.3d at p. 785.) Based on that testimony, the court could make the reasonable 

inference that minor attempted to make a threat that was specific enough to convey an 

immediate prospect of execution. 

Minor further argues that Rosalinda’s testimony was not corroborated by other 

evidence. However, “[t]he uncorroborated testimony of a single witness is sufficient to 

sustain a conviction, unless the testimony is physically impossible or inherently 
11.

improbable,” and it is not our job to reweigh the evidence or assess the credibility of 

witnesses. (People v. Scott (1978) 21 Cal.3d 284, 296; see People v. Panah (2005) 35 

Cal.4th 395, 489; see also Perry, supra, 7 Cal.3d at p. 785.) Here, Rosalinda’s testimony 

was neither physically impossible, nor inherently improbable. Accordingly, there is 

sufficient evidence that minor attempted to make a threat that was “unequivocal, 

unconditional, immediate and specific enough to convey gravity and a sense of purpose 

and immediate prospect of execution,” regardless of whether Ryan personally heard the 

threat. 

Because we find all the other elements of an attempted criminal threat fully 

satisfied and conclude the absence of proof minor succeeded to make a criminal threat is 

sufficient to satisfy the failure element, we affirm the juvenile court’s finding of 

attempted criminal threat.

DISPOSITION

The juvenile court’s order is affirmed.