Filed 4/14/15 P. v. Steffes CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

SCOTT STEFFES,

Defendant and Appellant. B253094

(Los Angeles County Super. Ct. No. NA091977)

ORDER MODIFYING OPINION [CHANGE IN JUDGMENT]

THE COURT:

It is ordered that the opinion filed herein on March 27, 2015, be modified as set

forth below. 1. On the first page, the seco nd full sentence should read: Affirmed in part as modified, and reversed in part.

2. On page 10, under Part II, Abstract of Judgment, the first paragraph is revised to read the following. The Attorney General correctly states th at the trial court orally imposed a one year term for defendant’s section 667.5, subdivision (b) enhancement, but neither the minute order for the sentencing hearing nor the abstract of judgment reflects that term. The Attorney Genera l asks that we order the abstract of2 judgment modified accordingly. Defendant does not address the issue in his reply brief. Although the trial court stated at the sentencing hearing that it was sentencing defendant to a term of 16 years, four months (the total term reflected on the abstract of judgment, but a term that would not include a one year term under section 667.5, subdivision (b)), it expressly st ated that it was impo sing “an additional year” “for the prior prison term.” The trial court was without jurisdiction to impose that one year term, however, beca use it imposed a five year term under section 667, subdivision (a)(1) based on the same prior conviction that served as the basis for its imposition of the one year term under section 667.5, subdivision (b). ( People v. Jones (1993) 5 Cal.4th 1142, 1149-1152 [only the greater enhancement under section 667, subdivisi on (a)(1) and section 667.5, subdivision (b) may be imposed with respect to th e same prior conviction].) We may review the trial court’s sentencing error in the absence of an objection in the trial court because the trial court imposed an unauthorized sentence. ( People v. Scott (1994) 9 Cal.4th 331, 354 [“a sentence is generally ‘unauthorized’ where it could not la wfully be imposed under any circumstance in the particular ca se”].) We reverse the trial court’s order imposing a one year term under section 667.5, subdivision (b).

3. On page 11, the disposition is revised to read as follows: The judgment is affirmed. The abstract of judgment is or dered modified to refl ect a total criminal conviction assessment of $90, and a total court security fee of $120.

Petition for Rehearing is Deni ed. Change in judgment.

MOSK, J. TURNER, P. J. KRIEGLER, J.Filed 3/27/15 (unmodified version) 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 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

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

SCOTT STEFFES,

Defendant and Appellant. B253094

(Los Angeles County Super. Ct. No. NA091977)

APPEAL from a judgment of the Superi or Court of Los Angeles County, Richard R. Romero, Judge. A ffirmed as modified. California Appellate Project, Jonathan B. Steiner, Executive Di rector, Ann Krausz, under appointment by the Court of Ap peal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Ge rald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistan t Attorney General, Susan Sullivan Pithey, Supervising Deputy Attorney General, David Zarmi, Deputy Attorney General, for Plaintiff and Respondent.2 INTRODUCTION A jury convicted defendant and appellant Scott Steffes of two counts of assault by means of force likely to produce great bod ily injury (P en. Code, § 245, subd. (a)(4) 1 ) and making a criminal threat (§ 422, subd. (a)). Defendant admitted that he suffered a prior conviction within the meaning of the “Three Strikes” la w (§§ 667, subds. (b)-(i) & 1170.12, subds. (a)-(d)); section 667, subdivis ion (a)(1); and section 667.5, subdivision (b). The trial court sentenced defendant to 17 years, four months in state prison. On appeal, defendant contends that the trial court erred in faili ng to instruct the jury, sua sponte, on attempted criminal th reat, a lesser includ ed offense of criminal threat. The Attorney General contends that the abstra ct of judgment does not accurately reflect

defendant’s sentence and the trial court faile d to impose certain mandatory assessments and fees. We affirm the judg ment and order the abstract of judgment modified as set

forth below.

BACKGROUND 2 Kimberly D. met defendant again after many years in September 2011, and dated

him on and off for about five mo nths. In April 2012, they began to date more regularly. On April 9, 2012, Kimb erly moved back into her home after it had been rebuilt following a fire. She was not fully move d in at the time and was sleepi ng on the floor. She invited defendant to stay with her. About 7:30 p.m. on April 15, 2012, Cindy Juarez, Kimberly’s next door neighbor, heard Kimberly screaming for help. She went outside and saw Kimb erly jump out of a window on the side of her house. Kimberly was wearing only a bra and jeans. Kimberly was bleeding from her mouth and had marks on her neck and a bump on her head. She

1 All statutory citations are to th e Penal Code unless otherwise noted.

2 Because defendant’s claim on appeal con cerns only his criminal threat conviction, we focus our recitation of the evidence on that offense and set forth evidence concerning one of his assault convictions for context.3 seemed nervous and scared and was shaking and crying. Kimb erly told Juarez that a man

had hit and choked her. Anot her neighbor called 911 and ga ve the phone to Kimberly. Kimberly’s conversation with th e 911 operator was played fo r the jury. Kimberly told the operator that defendant tried to strangle her and that she had been assaulted. When Los Angeles Police Department O fficer Edwin Nelson arrived, Kimberly was sitting on the ground moaning in pain and crying. She appeared to be afraid. Kimberly told Officer Nelson that defendant had choked her. She believed that he might

still be inside the house and ar med with a knife. Officer Ne lson went to the front of the house. The front door was open, and he could see inside. While at the front door, Officer Nelson smelled a strong odor of natural gas. He decided to wait for the Fire Department

to arrive to determine if it was safe to ente r. Upon determining that it was safe to enter,

Officer Nelson entered the hous e and observed that all four knobs on the stove were

turned on to “full blast.” O fficer Nelson turned off the gas. Officer Nels on did not find defendant during a sear ch of the house. Officer Nelson interviewed Kimberly at the hospital. Kimberly was “very emotional,” crying, and “fearful.” Officer Nelson had a hard time interviewing her. When he asked her questions, she looked away and made statements along the lines of, “I can’t believe he did this to me. He’s gone too far.” Kimberly told Officer Nelson that defendant had been smoking methamphetamine and taking Xanax a nd had not slept in three nights. Defendant had become paranoi d and thought the police were coming to get him, so he pulled down all of the window bl inds in the bedroom. When Kimberly pulled up the blinds and told defendant that no one was “out to get [him],” he became angry. He grabbed Kimberly with both hands, pushe d her against the wall, and choked her. Kimberly fought back and freed herself. As she tried to run away, defendant punched her

numerous times in the head. Ki mberly tried to run out the front door, but was unable to reach it; she left the house through a side window. Officer Nelson asked Kimberly why the st ove was on and gas was being emitted. Kimberly responded that she did not know why the stove was on and that it was not on when she exited through the windo w. During that part of the interview, Kimberly still4 appeared to be “hysterical.” According to Officer Nelson, it was “quite common” for domestic violence victims to provide informa tion at a later day that was not initially reported at the scene of the crime. On April 16, Los Angeles Police Department Officers Lana Maya and Christopher Eick responded to a burglary call a few bloc ks from Kimberly’s house. There, Officer Maya saw defendant jumping from house to ho use from the houses’ rooftops. Defendant was arrested. After defendant’s arrest, Offi cer Maya returned to the police station and called Kimberly. Kimberly told Officer Maya that defendant told her that he was going to blow up the house if she di d not come back and that she saw him turn on the gas to the stove. Kimberly said that she heard that statement while she was in the house. Later, Kimberly and her father, Jerry D., went to the police station and Kimberly spoke with Officer Maya. Ki mberly described the domes tic violence incident with

defendant. She said that defendant became mad at her and said that he was “gonna fucking blow up the house if sh e didn’t come back in the house.” Kimberly said that she saw defendant turn on the gas on the “oven.” She was afraid and left through a window. At the preliminary hearing, Officer Maya te stified that Kimberly said that defendant

turned the knobs on to the “oven” without the flames burning so that gas was emitting, that Kimberly left the house in fear, and that defendant then shouted that if she did not come back, he would “fucking blow it up.” At trial, Kimberly recanted her ear lier statements about defendant’s domestic

violence. She denied that defendant had hit or choked her. She testified that she and defendant engaged in sexual activity that incl uded defendant choking her. She attributed an injury to her eye to that activity. She said that on April 15, she got into a fight with a fellow female longshoreman near the longshorem en’s hall. Kimberly lost the fight and attributed other of her injuries to that fight . When the police later interviewed her at the hospital, she said she had falsely said that defendant, and not the female longshoreman, had caused her injuries. According to Kimberly, when she returned home after the fight, defendant told her that he wanted to break up with her. She became angry and berated and punched5 defendant. As defendant tried to pack his be longings in a bag, Ki mberly hit him with a wooden paddle. Although she taunted defendant, he did not hit or choke her. Defendant took the bag containing his belongings and pl aced it near the front door. As he leaned over to place the bag on th e floor, Kimberly struck him with a brick. Kimberly testified that, having bludge oned defendant with a brick, she did not

want to remain in the house. She exite d through a window because defendant was blocking the front door and to “show some dr ama to the situation.” When she screamed for help, she was doing so to make a scene so everyone would see her. In her interview with the police at the hospital, she made sure not to reveal e nough about the incident that

she would be arrested. Kimberly testified that she did not te ll Officer Nelson about “statements about blowing the house up if you d on’t get back.” She did not hear about such a statement until April 16, when she heard about it from her father. At some point after the domestic violence incident, Kimberly’s father spoke with a neighbor who said “something to the effect th at she heard that the gas was being left on again.” He never heard the neighbor say, “I’m going to fucking blow up the house if you don’t come back” or say the words “fucking ” or “blow up.” Although it was possible that he told Kimberly about the neighbor’s statement, he did no t think he had. It was also possible that he told her before they went to the police station on April 16. Kimberly’s father later testified that he was “almost pos itive” and “pretty sure” that his conversation with the neighbor took place afte r he went with Kimberly to the police station. He also said that he initially thought that Kimberly told him that defendant said, “I’m going to fucking blow up the house if you don’t come back,” but changed his mind when Kimberly said she had not told him of that. He then testified that he “probably” heard the statement from Kimberly, absent the “F” word, prior to taking her to the police station.6 DISCUSSION I. Attempted Criminal Threat

Defendant contends that th e trial court erred in failing to instruct the jury, sua sponte, on the lesser included offense of atte mpted criminal threat because there were reasonable bases for doubting that Kimberly received and understood the threat or that

she was in sustained fear. The trial court did not err. A trial court has a duty to instruct the ju ry, sua sponte, on a le sser included offense

“whenever there is substantial evidence rais ing a question as to whether all of the elements of the charged offense are present. [Citations.]” ( People v. Lewis (2001) 25 Cal.4th 610, 645.) The “substa ntial evidence” required to tr igger a trial court’s duty to instruct the jury on a lesser included offense is not any evidence, no matter how weak, but evidence that a ju ry composed of reasonable persons could conclude that the lesser offense, but not the greater offense, was committed. ( People v. Cruz (2008) 44 Cal.4th 636, 664; People v. Breverman (1998) 19 Cal.4th 142, 1 77 [“the sua sponte duty to

instruct on a lesser included offense arises if th ere is substantial evid ence the defendant is guilty of the lesser offense, but not the charged offense”].) A trial court has no duty to instruct the jury on a lesser included offense when “no evid ence supports a finding that the offense was anything less than th e crime charged. [Citations.]” ( People v. Gutierrez (2009) 45 Cal.4th 789, 826.) We review de no vo a claim that a trial court erred in failing to instruct the jury, sua sponte, on a lesser included offense. ( People v. Waidla (2000) 22 Cal.4th 690, 733.) To prove a criminal threat in violation of se ction 422, the prosecution must prove the following: “(1) that the defendant ‘willf ully threaten[ed] to commit a crime which will result in death or great bo dily injury to anot her 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 wh ich it [was] made, . . . so unequivocal, unconditional, immediate, and spec ific as to convey to the pe rson threatened , a gravity of7 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 safe ty,’ and (5) that the threat ened person’s fear was ‘reasonabl[e]’ under the circumstances. [Citation.]” ( People v. Toledo (2001) 26 Cal.4th 221, 227-228.) Attempted criminal threat is a lesser included offense of criminal threat. ( Id. at pp. 226, 230-231.) “Section 422 requires that the threat be ‘ so unequivocal, unconditional, immediate, and specific [that it] convey . . . a gravity of purpose a nd an immediate prospect of execution of the threat . . . .’ (It alics added.) It is clear that the nature of the threat cannot be determined only at face value. Secti on 422 demands that the purported threat be

examined ‘on its face and under the circ umstances in which it was made.’ The surrounding circumstances must be examined to determine if the threat is real and genuine, a true threat. [Citations.]” ( In re Ricky T. (2001) 87 Cal.App.4th 1132, 1137.)

The “sustained fear” element is satisfied when there is “evidence that the victim’s fear is more than fleeting, momentary or transitory.” ( People v. Culbert (2013) 218 Cal.App.4th 184, 190; People v. Allen (1995) 33 Cal.App.4th 1149, 1151, 1156 [15 minutes of fear may be sufficient to es tablish the “sustained fear” element]; People v.

Fierro (2010) 180 Cal.App.4t h 1342, 1349 [one minute of fear may be sufficient].) In establishing whether the victim was in a state of sustained fear, the victim’s knowledge of the defendant’s prior co nduct is relevant. ( People v. Allen, supra, 33 Cal.App.4th at p. 1156.) A defendant commits an attempted crimin al threat when he intends to commit a

criminal threat “but is thwarted from completing the crime by some fortuity or unanticipated event.” ( People v. Toledo, supra, 26 Cal.4th at p. 232.) The Supreme Court has explained that “if a defendant, w ith the requisite intent, orally makes a sufficient threat directly to the threatened person, but for some reason the threatened person does not understand the threat, an atte mpted criminal threat also would occur. Further, if a defendant, again acting with the requisite intent, makes a sufficient threat

that is received and understo od by the threatened person, but, for whatever reason, the8 threat does not actually cause the threatened pe rson to be in sustained fear for his or her safety even though, under th e 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.)

A. Evidence that Kimberly R eceived and Understood the Threat

Defendant contends that there was evid ence from which a reasonable jury could conclude that Kimberly did not directly hear the threat from defendant that he would blow up the house if she did not return—she did not tell the 911 operator or Officer

Nelson about defendant’s threat and she told Officer Nelson that she did not know why the gas was on and that it was not on when she left the house through a window. At trial, Kimberly denied hearing the threat from defenda nt and said that her father told her about the threat. Defendant argues that the only ev idence that Kimberly heard the threat was Officer Maya’s testimony that Kimberly told her of the threat at the police station on April 16. Defendant further claims his ar gument is “underscored by the fact that although Kimberly was initially so willing to give a detailed report of what occurred that night, she never mentioned” the threat to the 911 operator or to Officer Nelson.

The evidence shows that Kimb erly told Officer Maya on the phone that defendant said to her he was going to blow up the hous e if she did not come back and that she saw him turn on the gas to the stove . Kimberly said that she he ard that statement while she was in the house. When Kimberly went to th e police station with her father to speak with Officer Maya she again told th e officer that defendant said to her that he was going to blow up the house if she did not return and sa id that she saw defend ant turn on the gas. As for Kimberly’s claim that she heard about the threat fr om her father, her father’s testimony about his conversation with the neig hbor was so equivocal that it was largely without probative value. However, in his description of his conversation with the neighbor, he said that she never said the words “blow up.” Moreover, although Kimberly

denied that she heard the thr eat from defendant, she also de nied that defendant hit or9 choked her or inflicted injuries on her, but the jury necessarily found that testimony incredible and rejected her denials when it co nvicted defendant of two counts of assault. As for defendant’s claim that his argum ent is supported by Kimberly’s failure to tell the 911 operator or Officer Nelson of th e threat even though she was initially “so willing” to provide the details of the domestic violence inci dent, defendant overstates the record. The transcript of the 911 call consis ts of three pages. Apart from Kimberly’s statement that she had been assaulted, defendan t tried to strangle her, and that she “had to jump out,” the transcript contains no details of defendant’s assault. Of his interview of Kimberly at the hospital, Officer Nelson said , “It was very difficult to interview her. I would ask her a question. Then she would just kind of look off and say things like, ‘I can’t believe he did this to me. He’s gone too far.’” He further testified that domestic violence victims quite commonly provide inform ation at a later time that they did not initially report. Based on the evidence, r easonable jurors could not conclude that Kimberly did not hear defend ant threaten to blow up the house unless she returned and

that she instead h eard about the threat from her father.

B. Evidence that Kimberly Was in Sustained Fear

Defendant contends that th ere was substantial evidence that Kimberly was not in

sustained fear because she did not tell Officer Maya on April 16 that she was still in fear from defendant’s threat and because Kimberly did not accept her father’s invitation to stay with him after defendant’s assault and before defendant was apprehended but, instead, insisted on returning home where she would be alone . Defendant’s claim fails.

Defendant turned on all of the burners on the gas stove and threatened to blow up the house if Kimberly did not return, causing her to jump out of a window dressed only in jeans and a bra. Juarez testified that Kimberly appeared to be afra id when she found her after she had jumped out the wi ndow. Officer Nelson testifie d that when he arrived on the scene, Kimberly appeared to be afraid. Officer Nelson tes tified that when he tried to interview Kimberly later at th e hospital, she was “fearful.” Until Kimberly was taken to the hospital, she remained outside the house and in danger from defendant blowing up the10 house. Kimberly remained in fear from the time she left her house through the window

until at least the time she arrived at the hos pital. Under the circumstances, Kimberly endured fear of defendant for a period of tim e that was “more than fleeting, momentary or transitory.” ( People v. Culbert, supra, 218 Cal.App.4th at p. 190; People v. Allen,

supra, 33 Cal.App.4th at pp. 1151, 1156; People v. Fierro, supra, 180 Cal.App.4th at p. 1349.)

C. No Substantial Evidence Justified a Lesser Included Offense Instruction

In view of the evidence discussed abov e, the trial court did not err by failing to instruct on attempted criminal threat as a lesser included offense of criminal threat

because there is no substantia l evidence that de fendant committed the lesser offense, but not the greater. ( People v. Breverman, supra, 19 Cal.4th at p. 162.)

II. Abstract of Judgment The Attorney General correctly states that the trial cour t orally imposed a one year term for defendant’s section 667.5, subdivis ion (b) enhancement, but neither the minute order for the sentencing hearing nor the abstr act of judgment reflects that term. The Attorney General asks that we order the abstract of judgment modified accordingly. Defendant does not address the issue in his repl y brief. Although the trial court stated at the sentencing hearing that he was sentencing defendant to a term of 16 years, four months (the total term reflected on the abstr act of judgment, but a term that would not include a one year term under section 667.5, subdivision (b)), it expressly stated that it was imposing “an additional year” “for the prior prison term.” Accordingly, we order the abstract of judgment modified to reflect th e trial court’s oral imposition of a one year term for defendant’s section 667.5, subdivision (b) enhancement. ( People v. Crabtree (2009) 169 Cal.App. 4th 1293, 1328.) The trial court imposed a single $30 crim inal conviction assessment (Gov. Code, § 70373) and a single $40 court security fee (§ 1465.8, subd. (a)(1)). The Attorney General argues that the trial court should have impos ed a criminal conviction assessment and a11 court security fee for each of defendant’s three convictions. ( People v. Sencion (2012) 211 Cal.App.4th 480, 483 [the criminal conv iction assessment and court security fee apply to each of a de fendant’s convictions] .) The Attorney Gene ral requests that we order the abstract of judgment modified to reflect an additional $140 in assessments and fees—i.e., $60 in criminal conviction assess ments and $80 in court security fees. Defendant does not address the issue in his repl y brief. The Attorney General is correct. We order the abstract of judgment modified to reflect a total criminal conviction assessment of $90 and a total court security fe e of $120 for defendan t’s three convictions. ( People v. Harbison (2014) 230 Cal.App.4th 975, 986, fn. 14.)

DISPOSITION The judgment is affirmed. The abstract of judgment is ordered modified to reflect a total sentence of 17 years, four months, in cluding a one year term under section 667.5, subdivision (b), a total criminal conviction assessment of $90, and a total court security fee of $120.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

MOSK, J.

We concur:

TURNER, P. J.

KRIEGLER, J.