Filed 1/24/14 P. v. Zayer CA2/8

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

BASEM ELIAS ZAYER,

Defendant and Appellant.

 B246270

 (Los Angeles County

 Super. Ct. No. KA 098459)

APPEAL from a judgment of the Superior Court for the County of Los Angeles. 

Jon R. Takasugi, Judge. Affirmed as modified.

Landra E. Rosenthal, under appointment by the Court of Appeal, for Defendant 

and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr., and 

Robert C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent.

_______________________________
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SUMMARY

A jury convicted defendant Basim Elias Zayer of making criminal threats (Pen. 

Code, § 422, subd. (a)), a felony.1 The jury could not reach a verdict on a misdemeanor 

battery charge. On appeal, defendant contends there was insufficient evidence of 

criminal threats and, in the alternative, that the jury should have been instructed on the 

lesser included offense of attempted criminal threat. Defendant also contends the trial 

court erred when it instructed the jury with CALCRIM No. 361 (a testifying defendant’s 

failure to explain or deny evidence against him). We find no prejudicial error and affirm 

defendant’s conviction, but order the judgment modified to include additional 

presentence conduct credits.

FACTS

The victim, Joseph Guzman, owned a manufacturing company on Signal Drive in 

Pomona and lived nearby with his family. Mr. Guzman and a business associate, Thomas 

Zimmerman, were returning from lunch at a nearby restaurant, and drove into the parking 

lot of Mr. Guzman’s business. Defendant was in the parking lot, trying to get the 

attention of one of Mr. Guzman’s employees. Mr. Guzman pulled up in the car and 

asked defendant “what’s up, meaning ‘can I help you.’ ” Defendant asked Mr. Guzman 

for the name and phone number of a neighboring businessman. Mr. Guzman told 

defendant he did not know the name or phone number. Defendant responded by saying, 

“You just don’t want to fucking deal with me. Go fuck yourself.” This shocked 

Mr. Guzman, who got out of his car and told defendant to “get the fuck out of my parking 

lot.” Defendant punched Mr. Guzman on the left side of his mouth, knocking off his 

glasses (which were hanging from the collar of his shirt). When Mr. Guzman bent to 

retrieve his glasses, defendant hit him again. Mr. Guzman “got thrown back a little bit 

and then . . . stood up and proceeded to push [defendant] out of the property with [his] 

hands.”

 

1 All statutory references are to the Penal Code.
3

While Mr. Guzman was pushing defendant, “[defendant] wanted to wrestle, so I 

pushed him away more.” Defendant turned around and started walking away from the 

property, and Mr. Guzman followed him so he could close the gate behind defendant. 

Then Mr. Guzman decided to find out whether defendant would walk away or get into a 

vehicle, so he followed defendant outside the property. Then, defendant stopped and 

“started getting really verbally aggressive.” Defendant “was calling me [(Mr. Guzman)], 

‘You’re an idiot, you’re a moron, you don’t know who you’re dealing with. I’m going to 

come back and kill you.’ ” 

Mr. Guzman was “[k]ind of stunned, not sure how to interpret it.” Defendant 

“sounded very serious” and “was very angry.” “In a way I [(Mr. Guzman)] was [afraid], 

but I wasn’t really taking it all in.” He was concerned for his safety, and for the safety of 

his family, who lived near his business. 

Then, defendant started walking away, and Mr. Guzman followed him to see if he 

would get in a vehicle. Mr. Guzman took out his cell phone to call 911, and was looking 

at the screen when defendant turned around and hit him again, on the left cheek. The two 

men then “fought a little bit.” Defendant “was throwing some punches and 

[Mr. Guzman] was trying to block them.” Defendant threw more than five punches at 

Mr. Guzman, who was hit several times, and Mr. Guzman threw several punches and hit 

defendant on his face and chest. After that, defendant turned around and started walking

away. Mr. Guzman followed him and was able to call 911, telling the operator what had 

happened and the direction defendant was headed.

As Mr. Guzman was calling 911, defendant “proceeded to cuss and yell at me and 

call me names and continued to threaten.” This time, “[i]t was the same ‘You’re an idiot, 

you’re a moron, you don’t know who you’re fucking with. I’m going to come back and 

kill you.’ Over and over.” Mr. Guzman took this threat “[v]ery seriously. That’s why I 

dialed 911.” 

Mr. Guzman saw where defendant was going, but did not continue to follow him. 

Mr. Guzman was near the corner of Signal and Grand, and defendant went across to the 

opposite side of the intersection and stood there. As Mr. Guzman watched, defendant 
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rolled up “what I thought was a joint,” a marijuana cigarette (it was not). Eventually, the 

defendant walked out of sight, into an alley. 

Mr. Guzman waited for about 10 minutes before the police arrived. During this 

time, he was not afraid because “a few people had gathered then at the corner.” 

Mr. Guzman’s “biggest concern” was that defendant “might come back sometime in the 

future” and that was why he “wanted to make sure that the police caught” defendant. 

“His threats sounded very serious and my family is right next to the business. I was 

afraid for what he would come back and do.” When the police arrived, Mr. Guzman 

directed them to where he had last seen defendant. After a few minutes, the police 

returned with defendant, and Mr. Guzman identified him. 

Officer Jorge Aleman, who spoke to Mr. Guzman at the scene, testified that 

Mr. Guzman told him that he was “trying to get a license plate or address so [defendant] 

didn’t get away,” and “that was because he was scared of [defendant] . . . .” When 

Officer Aleman talked to Mr. Guzman, he appeared “[s]haken up. You could tell he’d 

been involved in some sort of struggle, so he was a little shooken [sic] up.” Officer 

Aleman had to ask Mr. Guzman certain questions multiple times because of his emotional 

state. Another officer, Rolando Betancourt, did not interview Mr. Guzman, but observed 

his demeanor and said, “He looked shaken.” 

Defendant was arrested and charged by information with violations of section 422, 

subdivision (a) (criminal threats), a felony, and section 242 (battery), a misdemeanor. 

The criminal threats charge was alleged to be a serious felony. The information also 

alleged defendant suffered one prior serious felony conviction (§ 1192.7, § 667, 

subd. (a)(1)), also alleged as a prior strike conviction (§ 1170.12, subds. (a)-(d) & § 667, 

subds. (b)-(i)), and three prior prison terms (§ 667.5, subd. (b)). 

Defendant testified in his own defense. He said he was going to a business across 

the street from his place of work in order to get an estimate for cement. He had just 

walked in when a truck pulled in behind him. He approached to talk to the driver 

(Mr. Guzman), saying he would like to have an estimate on cement, and Mr. Guzman 

told him that business was next door, not Mr. Guzman’s business. Mr. Guzman said, “Go 
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and ask him.” Defendant asked Mr. Guzman if he knew the name or phone number of 

the cement business, and Mr. Guzman said, “Get the hell out of my property, you piece of 

shit.” Defendant did not curse at Mr. Guzman; defendant turned and walked away. He 

walked three or four feet, heard the truck door slam hard, and heard steps coming toward 

him. He turned around and found Mr. Guzman right behind him, and Mr. Zimmerman on 

the side of the truck, “both of them aggressively coming toward me . . . .” 

Defendant said he did not hit Mr. Guzman when he got out of the truck, and that 

Mr. Guzman punched defendant first. Defendant “started going backwards, worrying 

about the two people.” Defendant started running backwards. Mr. Guzman was 

swinging and kicking. Defendant backed up out of the property and into the street. 

When he got to the street, he turned and walked away from the two men. He did not 

threaten them in any way, and did not make any statements when he turned to walk away. 

When defendant saw Mr. Guzman and Mr. Zimmerman coming at him, he kept his 

fists up to protect his face. When Mr. Guzman hit him, he “kept backing up all the way 

to the street.” His hands were in front of his face at about the forehead, with his forearms 

protecting his face area. He kept his hands in that position “[f]rom the time 

[Mr. Guzman] attacked me by his truck, all the way down around the corner from his 

property, down halfway to my landlord property.” 

When defendant was on the street and about 150 feet away from Mr. Guzman’s 

property, he told Mr. Guzman that he was “going to sue him for hitting me.” 

Mr. Guzman laughed and pulled out his telephone, and defendant said, “I hope you’re 

calling the police.” Defendant never made any statements to Mr. Guzman that he was 

going to kill him, or that he was going to come back and kill him; defendant never 

threatened Mr. Guzman in any way. When defendant was going down the street away 

from Messrs. Guzman and Zimmerman, he was “going home to call the police.” 

Defense counsel asked defendant whether he hit Mr. Guzman three to four times 

without any provocation, and defendant replied: “My hand never lift at him more than 

once accidentally, because when you go backwards you’re going to need support so you 

do not fall, so you move. Even if you go backwards, you can swing your hands, so I was 
6

going to swing my hand and my hands hardly slipped between his lip and soft area, you 

bleed a little.” Defendant was trying to get away from Mr. Guzman during the whole 

encounter and never attacked Mr. Guzman. On cross-examination, defendant said he 

never hit Mr. Guzman on purpose. When the prosecutor asked, “It was just an accident 

because you were moving backwards and your hand just came forward and kind of hit 

him in the lip?” defendant replied, “True.” 

The jury found defendant guilty on the criminal threats count, but could not reach 

a verdict on the battery count. The court found true defendant’s second degree robbery 

conviction (§ 211) and a conviction for making a false bomb threat (§ 148.1, subd. (c)), 

and found defendant served a prison sentence on those convictions. The court also found 

defendant had served a prison term for a violation of section 273.5, subdivision (a)

(infliction of injury on a spouse or cohabitant). 

Defense counsel moved to dismiss the strike in the interest of justice, arguing that 

defendant had a long history of mental illness and had stopped taking his prescribed 

medication when this incident occurred. The court denied the motion. After hearing 

arguments on sentencing, the court sentenced defendant to the midterm (two years), 

doubled for the strike, plus five years for the prior felony conviction (§ 667, subd. (a)(1)), 

for a total of nine years. The court imposed but suspended three 1-year terms for the 

prison priors. 

The court awarded 176 days of actual custody credits, plus 88 days of conduct 

credits, and imposed fines not at issue on appeal. The misdemeanor battery charge was 

dismissed in the interest of justice. 

Defendant filed a timely appeal.

DISCUSSION

Defendant challenges the sufficiency of the evidence; contends the jury should 

have been instructed on the lesser included offense of attempted criminal threat; and 

asserts the jury should not have been instructed on a testifying defendant’s failure to 

explain or deny evidence against him. Except for defendant’s claim he is entitled to 
7

additional presentence conduct credits (a claim respondent concedes), we find no merit in 

defendant’s arguments.

1. Sufficiency of the Evidence

We review a claim of insufficient evidence by determining whether, viewing the 

whole record in the light most favorable to the prosecution, the record discloses 

substantial evidence – evidence which is reasonable, credible, and of solid value – from 

which a reasonable trier of fact could have found the essential elements of the crime 

beyond a reasonable doubt. (People v. Osband (1996) 13 Cal.4th 622, 690.) We 

presume in support of the judgment the existence of every fact the trier could reasonably 

deduce from the evidence. (Ibid.) 

To prove the crime of criminal threat, the prosecution must establish five 

elements: “(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).)

Defendant contends the evidence “did not show Guzman to have been in sustained 

fear, and [defendant’s] statement did not express an unconditional intention immediately 

to inflict injury,” especially “considering the fact that by Guzman’s own description of 

the interaction between the two men, [defendant] kept on walking away.” Defendant 

points out that Mr. Guzman continued to follow defendant, even though the 911 operator 

told him not to do so, and the evidence did not show his fear was reasonable because 

defendant kept walking away. 
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We disagree. The evidence showed that defendant repeatedly threatened to come 

back and kill Mr. Guzman, and that Mr. Guzman took the threat “[v]ery seriously” and 

“[t]hat’s why I dialed 911.” The evidence, including the 911 call, showed Mr. Guzman 

followed defendant because he did not want him to get away. In addition to 

Mr. Guzman’s own testimony that defendant’s threats “sounded very serious” and he was 

“afraid for what [defendant] would come back and do” because his family was “right next 

to the business,” Officer Aleman’s testimony confirmed that Mr. Guzman told him that 

he did not want defendant to get away and “that was because he was scared of 

[defendant] . . . .” Both Officer Aleman and Officer Betancourt said that Mr. Guzman 

appeared “shaken.” In short, there was sufficient evidence to allow the jury to find all the 

elements of a criminal threat beyond a reasonable doubt. 

2. Lesser Included Offenses - Attempted Criminal Threat

Defendant next argues that the trial court should have instructed the jury on the 

lesser included offense of attempted criminal threat. Again, he is mistaken.

The trial court must instruct the jury, sua sponte, on lesser included offenses “if 

there is substantial evidence the defendant is guilty only of the lesser.” (People v. Kraft 

(2000) 23 Cal.4th 978, 1063.) “On the other hand, if there is no proof, other than an 

unexplainable rejection of the prosecution’s evidence, that the offense was less than that 

charged, such instructions shall not be given.” (Ibid.)

In the context of criminal threats, “[a] variety of potential circumstances fall 

within the reach of the offense of attempted criminal threat.” (Toledo, supra, 26 Cal.4th 

at p. 231.) Among other examples of attempted criminal threat, “if 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. In . . .

these situations, 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, defendant’s opening brief nowhere mentions what evidence would support 

an instruction on attempted criminal threat, saying only that the evidence “left open 

questions about the elements of the offense.” This is because there is no substantial 

evidence of an attempted criminal threat. We will not reiterate the evidence, already fully 

described, that established “sustained fear” on the part of Mr. Guzman, and defendant 

points to no evidence supporting a contrary conclusion. Indeed, defendant’s testimony 

was that no threats were ever made. In short, there was “no proof, other than an 

unexplainable rejection of the prosecution’s evidence, that the offense was less than that 

charged” (People v. Kraft, supra, 23 Cal.4th at p. 1063), so an instruction on attempted 

criminal threat was not appropriate. (Cf. People v. Abilez (2007) 41 Cal.4th 472, 515

[“Although defendant claims the failure to instruct on theft left the jury with an all-ornothing choice, such a choice did not violate his rights because, on the state of the 

evidence presented, the crime was either robbery or nothing.”].) There was no error.

3. The Jury Instruction – CALCRIM No. 361

Defendant contends he was prejudiced when the trial court instructed the jury with 

CALCRIM No. 361. We are not persuaded.

The jury was instructed, over defense objection, that: “If the defendant failed to 

explain or deny evidence against him, and if he reasonably could be expected to have 

done so based on what he knew, you may consider any such failure to explain or deny. 

Any such failure is not enough by itself to prove guilt. The People must still prove the 

defendant guilty beyond a reasonable doubt. [¶] If the defendant failed to explain or 

deny, it is up to you to decide the meaning and importance of that failure.” 

Our review of a claimed instructional error is de novo.

CALCRIM No. 361 has no constitutional or other infirmity. (People v. Saddler

(1979) 24 Cal.3d 671, 675 (Saddler) [addressing CALJIC No. 2.62, a similar instruction]; 

People v. Rodriguez (2009) 170 Cal.App.4th 1062, 1064 [same, CALCRIM No. 361].) 

Thus, the court’s role is to determine if there were any “facts or evidence in the People’s 

case which defendant failed to explain that were in his particular knowledge to 

explain . . . .” (Saddler, at p. 683.) If there were not, it was error to give the instruction. 
10

(People v. Kondor (1988) 200 Cal.App.3d 52, 57 [the instruction (CALJIC No. 2.62) is 

unwarranted “when a defendant explains or denies matters within his or her knowledge, 

no matter how improbable that explanation may appear”].) A contradiction is not a 

failure to explain or deny. (Saddler, at p. 682.) 

When a defendant testifies and “fails to deny or explain inculpatory evidence or 

gives a ‘bizarre or implausible’ explanation, the instruction is proper.” (People v. 

Sanchez (1994) 24 Cal.App.4th 1012, 1029-1030 [CALJIC No. 2.62].) Thus in some 

circumstances, plausibility may be a proper consideration in giving the instruction. (See 

People v. Mask (1986) 188 Cal.App.3d 450, 455 [the instruction (CALJIC No. 2.62) is 

warranted “if the defendant tenders an explanation which, while superficially accounting 

for his activities, nevertheless seems bizarre or implausible”]; see also People v. 

Belmontes (1988) 45 Cal.3d 744, 784, quoting People v. Mask, supra, at p. 455; People v. 

Roehler (1985) 167 Cal.App.3d 353, 393.) In general, the precedents show trial courts

must proceed with caution in deciding whether to give this instruction.

Defendant argues that his testimony explained “all the facts that could reasonably 

be considered to be within his knowledge,” so the instruction was not applicable and 

“unfairly called attention to any possible omissions in [defendant’s] testimony.” 

Respondent, on the other hand, points to two “bizarre” or “implausible” answers in 

defendant’s testimony. Both relate to his testimony that Mr. Guzman was the aggressor

who got out of his truck and aggressively came at defendant and hit him. 

First, respondent says defendant failed to explain why Mr. Guzman attacked him 

without provocation. The prosecutor asked, “And you’re saying that Mr. Guzman just 

attacked you for no reason whatsoever?” Defendant’s answer was: “I would say he got a 

trigger on a problem with that cement business, not cause right when I said to him – when 

he told me, no, you got to go ask him, and I said to him ‘Do you know who it is.’ It is a 

new person who owned the business. Because I assumed he’s the owner, that’s when he 

went mad, upset, harsh, ‘Get the hell out of my property, you piece of shit,’ and 

aggressively coming out of the truck. . . .”
11

Second, respondent points to defendant’s implausible explanation of the 

substantial injuries to Mr. Guzman’s face. Defendant testified (as quoted in full ante, at 

pp. 5-6) that he never hit Mr. Guzman on purpose, and that his hand hit Mr. Guzman 

accidentally as he was moving backwards. 

The question why Mr. Guzman would hit defendant without provocation relates to 

Mr. Guzman’s motivation, and is not “evidence against [defendant]” that he could 

“reasonably be expected” to explain or deny. (CALCRIM No. 361.) While it may be 

inexplicable that Mr. Guzman would hit defendant with no reason, the same might be 

said of defendant’s conduct; the reasons for Mr. Guzman doing so (if he had done so) 

would not be within defendant’s knowledge. In short, defendant’s testimony that 

Mr. Guzman hit him for no reason is not one of the “facts or evidence in the People’s 

case which defendant failed to explain that were in his particular knowledge to 

explain . . . .” (Saddler, supra, 24 Cal.3d at p. 683.) 

However, defendant’s failure to explain the evidence of significant injuries to 

Mr. Guzman’s face is another matter. Defendant failed to explain how Mr. Guzman’s 

face could have been significantly injured as a result of defendant accidentally swinging 

his hands while walking backward after Mr. Guzman inexplicably struck defendant. 

Defendant’s explanation, quoted above, was “inherently implausible” (People v. Mask, 

supra, 188 Cal.App.3d at p. 455), and the instruction was therefore proper.

But even if the instruction should not have been given, we would not reverse the 

judgment. An error in instructing with CALCRIM No. 361 does not require reversal 

unless it is reasonably probable that defendant would have obtained a more favorable 

result absent the error. (See Saddler, supra, 24 Cal.3d at p. 683, citing People v. Watson 

(1956) 46 Cal.2d 818, 836.) There is no such probability in this case. 

CALCRIM No. 361 provides language beneficial to defendant. It specifically 

warns the jury that any failure to deny or explain “is not enough by itself to prove guilt”

and then reiterates that the burden remains with the prosecution to prove the defendant 

guilty beyond a reasonable doubt. The instruction contains discretionary language stating 

that the jury “may” consider any purported failure to deny or explain. Jurors are 
12

presumed to have followed the law. (People v. Williams (1995) 40 Cal.App.4th 446, 

456.) In addition, the jury was instructed that “[s]ome of the instructions may not apply, 

depending on your findings about the facts of the case. Do not assume just because I give 

a particular instruction that I am suggesting anything about the facts. After you have 

decided what the facts are, follow the instructions that do apply to the facts as you find 

them.” This instruction mitigates any potentially prejudicial effect of giving CALCRIM 

No. 361. (See People v. Lamer (2003) 110 Cal.App.4th 1463, 1472 [“the fact that juries 

are instructed, pursuant to CALJIC No. 17.31, to ‘disregard any instruction which applies 

to a state of facts which you determine does not exist,’ also mitigates any prejudicial 

effect related to the improper giving of CALJIC No. 2.62” (the precursor instruction)]; 

see also Saddler, supra, 24 Cal.3d at p. 684.) 

Further, as in People v. Haynes (1983) 148 Cal.App.3d 1117, 1122, the jurors

“closely evaluated the evidence and afforded [defendant] the benefit of all reasonable 

doubt,” as demonstrated by their failure to reach a verdict on the battery count. And, the 

only failure to explain or deny evidence against defendant that was cited to the jury 

related to the battery count. Under these circumstances, “any theoretical error occasioned 

by” CALCRIM No. 361 was harmless. (Haynes, at p. 1122.)

4. Additional Presentence Custody Credits

Defendant contends he is entitled to additional presentence conduct credits under 

section 4019, subdivision (f). Respondent concedes the point, and we agree.

Defendant was arrested on June 27, 2012, for an offense committed that day, and 

was convicted on October 9, 2012. Defendant was in custody continuously from June 27 

through sentencing on December 19, 2012, a total of 176 days. At the hearing, defendant 

received custody credits of 176 days, but all parties agreed, erroneously, that he was 

entitled to conduct credits of only 88 days.

Section 4019, subdivision (f) states (and stated at the time of defendant’s offense) 

that: “It is the intent of the Legislature that if all days are earned under this section, a 

term of four days will be deemed to have been served for every two days spent in actual 

custody.” While prisoners committed for serious felonies were not eligible for credit at 
13

this rate under previous law, the Legislature deleted that restriction in 2010. (People v. 

Brown (2012) 54 Cal.4th 314, 318, fn. 5.) Consequently, defendant should have received 

176 days of conduct credits, for a total of 352 days of presentence credit.

DISPOSITION

The matter is remanded to the trial court with directions to modify the abstract of 

judgment to state that defendant has earned 352 total credits and 176 local conduct 

credits. The trial court is directed to forward the modified abstract to the Department of 

Corrections and Rehabilitation. The judgment as modified is affirmed.

GRIMES, J.

We concur:

RUBIN, Acting P. J.

FLIER, J.