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Filed 12/23/22 P. v. Safa CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

FARZAD SAFA,

Defendant and Appellant.

A164975

(Sonoma County 

Super. Ct. No. SCR-748749-1)

Defendant Farzad Safa appeals his conviction, challenging only two of 

the five counts on which the jury found him guilty. He contends that his 

conviction for making criminal threats (Pen. Code,

1 § 422) is not supported by 

substantial evidence and that the court erred in failing sua sponte to instruct 

on a lesser included offense. He also contends that he was prejudiced by the 

consolidation of that charge and the charge of assault with a nonfirearm 

deadly weapon, a sports utility vehicle (SUV) (§ 245, subd. (a)(1)), with a 

misdemeanor charge of battery. We find no error and shall affirm. 

Factual and Procedural History

In 2021 defendant lived in the same condominium complex as Michael 

Kennedy, Barry Corigliano, and Patrick Hawken. Kennedy and Hawken each 

testified that, starting sometime before May 2021, defendant often acted 

1 All statutory references are to the Penal Code.
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erratically and verbally abused and intimidated them and other residents of 

the complex. On one evening in May, Kennedy took a walk with his girlfriend, 

Ellen DeProto. When they stopped in an outdoor common area to speak with 

a neighbor, DeProto saw defendant walk toward Kennedy without breaking

stride and, as Kennedy began to turn toward him, punch him in the mouth.

Defendant agitatedly asked, “Who do you have coming after me?” and said, 

“You can’t be over here. You can’t be on this side of the complex. Don’t show 

your face around here.” He then “ran off.” Kennedy suffered a “small injury”

to his mouth. Soon thereafter, the district attorney filed a misdemeanor 

complaint charging defendant with one count of battery (§ 242). 

Three months later, on August 21, 2021, defendant drove by Kennedy 

and his neighbor Corigliano as the two were chatting at an interior roadway

in the complex. Defendant turned his SUV around and drove back toward the 

men, at a speed Kennedy estimated at 35 to 40 miles per hour and Corigliano 

at 55 miles per hour. Defendant stopped just short of them—within 10 feet 

(Corigliano’s estimate) or one to one and a half feet (Kennedy’s estimate).

Defendant exited the SUV and charged at Kennedy with a raised fist. 

Corigliano pushed him away and, after an exchange of words, defendant

drove away.2

Five days later, while going for his mail around 9:00 p.m., Hawken 

observed defendant harassing two elderly women. Hawken called the police.

When Santa Rose Police Officer Erick Arango-Nunez arrived, Hawken 

pointed out defendant, who got in his SUV and locked the doors. The officer

tried to speak with him, but defendant turned up his radio and rolled up his 

2 Corigliano also testified that, in an uncharged incident a “couple days” 

later, he took out his trash and saw defendant racing through the parking lot. 

Defendant “floor[ed] it” toward Corigliano, making him jump out of the way. 

The SUV, which he felt was going to hit him, passed within three or four feet.
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windows. After a second officer arrived, the two decided to de-escalate the 

situation by leaving.

Hawken got his mail and began walking back to his condominium.

En route, defendant pulled up to him in his SUV, yelling profanities, and 

said, “[W]ait right here. I got something in the house that will end you”; he 

then drove off. Hawken felt terrified. He had previously seen defendant with 

a high-powered pellet gun, knew that he owned “non-firearm stuff that could 

really do some damage,” and had heard rumors that he owned guns. Hawken 

believed that defendant planned to get a weapon, and he feared that 

defendant would hurt or kill him. He was also concerned about the safety of

his 12-year-old son.

Hawken walked directly back to his condominium, locked the door, and 

called Officer Arango-Nunez. He and the officer had two separate, recorded 

conversations, each of which the jury heard. After listening to the recordings,

Hawken testified that, in the first call, he felt “[f]rantic, to say the least” and 

“[v]ery shaken.” During the second call, he was “frazzled, emotionally, 

physically shaking”; he described his voice on the recording as “really, really

shaky,” which he attributed at trial to “fear.”

Officer Arango-Nunez, who learned that defendant had outstanding

misdemeanor arrest warrants, returned to the complex with the other officer.

They found defendant in his SUV and said they were going to arrest him.

Defendant refused to leave the SUV; eventually, the officers removed him

forcibly. In the SUV they found two guns, one loaded and one disassembled.

The district attorney then filed a second complaint, ultimately charging 

defendant with three felonies—assault with a deadly weapon (the SUV)
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(§ 245, subd. (a)(1)),

3 making criminal threats (§ 422, subd. (a)), and carrying

a loaded, unregistered firearm in public (§ 25850, subds. (a) & (c)(6))—and 

one misdemeanor count of resisting a peace officer (§ 148, subd. (a)(1)). The 

district attorney later moved to consolidate the second complaint with the 

earlier misdemeanor battery complaint, contending that they involved 

“offenses of the same class of crime” that were “connected together in their 

commission” by shared evidence. Over opposition, the court granted the 

motion, and the district attorney filed an amended information combining all

five counts.

The case proceeded to a two-day trial at which Kennedy, Corigliano,

DeProto, and Hawken testified. After the prosecution rested, defendant 

moved for acquittal (§ 1118.1) on the criminal-threat count, contending that 

the prosecution had not offered substantial evidence of the element of 

sustained fear. The court denied the motion.

The jury found defendant guilty on all five counts. The court sentenced 

him to an aggregate prison term of four years and four months.4 Defendant 

timely appealed.

3 The operative pleading alleged that defendant committed the crime on 

or about August 21, the day of the incident involving both Kennedy and 

Corigliano. At trial, a unanimity instruction told the jury that they could find 

him guilty of assault with a deadly weapon based only on his conduct on that 

date, not based on conduct on any other day.

4 The sentence comprises a three-year middle term on the primary 

count, assault with a deadly weapon; consecutive sentences of one-third of the 

middle term, or eight months each, on the criminal-threat and firearm 

counts; and concurrent sentences, each of six months, on the misdemeanor 

counts of resisting a peace officer and battery.
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Discussion

1. The Criminal Threat 

The elements of the section 422, subdivision (a) offense are (1) willfully 

threatening to commit a crime that would cause death or great bodily injury 

(2) with a specific intent that one’s words be taken as a threat (3) in terms so 

unequivocal, unconditional, immediate, and specific as to convey a gravity of 

purpose and immediate prospect of execution, causing the victim to experience 

fear for their own or an immediate family member’s safety that is (4) sustained 

and (5) reasonable in the circumstances. (People v. Toledo (2001) 26 Cal.4th 

221, 227–228.) 

Defendant contends the prosecution failed to offer substantial evidence 

of only the “sustained fear” element of the offense, and that the trial court 

erred in failing to instruct sua sponte on the lesser included offense of 

attempted criminal threat.

To assess the sufficiency of the evidence, we review “ ‘the entire record 

in the light most favorable to the judgment to determine whether it contains 

substantial evidence—that is, evidence that is reasonable, credible, and of 

solid value—from which a reasonable trier of fact could find the defendant 

guilty beyond a reasonable doubt.’ ” (People v. Maciel (2013) 57 Cal.4th 482, 

514–515.) Even if the evidence can “be reasonably reconciled with a contrary 

finding,” we must affirm so long as any rational trier of fact could have found 

the defendant guilty. (People v. Wear (2020) 44 Cal.App.5th 1007, 1019.)

Fear is “sustained” if it lasts for a time that “extends beyond what is 

momentary, fleeting, or transitory.” (People v. Allen (1995) 33 Cal.App.4th 

1149, 1156; accord, People v. Fierro (2010) 180 Cal.App.4th 1342, 1349.)
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Defendant does not question that Hawken was reasonably placed in fear5 but 

contends there is no evidence that his fear was sustained because there is no

testimony quantifying how long he remained in fear. But Hawken testified 

that, after defendant told him to “wait right here. I got something in the 

house that will end you,” he walked home, locked his door, and called the 

police. During the first call he felt “[f]rantic, to say the least” and “[v]ery 

shaken.” During the second call he was still feeling “frazzled” and “physically 

shaking,” while speaking in a “really shaky” voice that he attributed to “fear.” 

Regardless of the number of minutes that elapsed, this evidence amply 

supports a finding that Hawken’s fear was not “momentary, fleeting, or 

transitory.”

Defendant likens this case to In re Ricky T. (2001) 87 Cal.App.4th 1132, 

in which this court held that a juvenile court erred in finding that a high 

school student caused “sustained fear” when he reacted to a teacher 

accidentally hitting him with a classroom door by “getting in [his] face” and 

saying, “I’m going to get you” (id. at p. 1135). The teacher promptly told the 

student to go to the office, which he did. The student was suspended, and no 

one called the police until the next day. (Id. at pp. 1135–1136.) While the 

teacher “said he felt physically threatened” (id. at p. 1135), we noted that 

“[w]hatever emotion—fear, intimidation, or apprehension—[the teacher] felt 

during the moment of the verbal encounter, there was nothing to indicate 

that the fear was more than fleeting or transitory” (id. at p. 1140). We 

5 Although defendant did not visibly possess a weapon while making 

the threat, as did the defendants in two cases cited by the Attorney General,

which defendant attempts to distinguish on that basis (People v. Allen, supra, 

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

p. 1349), Hawken understood that defendant was going to his nearby home to 

retrieve one, which was sufficient to place him in fear. 
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rejected the contention that “even momentary fear can support a finding of 

sustained fear within the meaning of section 422” because it would make the 

statutory term “sustained” superfluous. (Ibid.) Here, in contrast, Hawken did 

testify to experiencing fear as he returned home following the threat and 

during his two calls to the police. Ricky T. is plainly distinguishable.

Defendant’s alternative contention is that even if the evidence of 

sustained fear was substantial, the trial court should have instructed

sua sponte on the lesser included offense of attempted criminal threat. A 

defendant is guilty of that crime if he makes a comment that satisfies every 

element of a criminal threat except that it fails to cause sustained fear. 

(People v. Toledo, supra, 26 Cal.4th at p. 231.)

Such an instruction should have been given if the record reveals 

substantial evidence “ ‘from which a jury composed of reasonable persons 

could conclude “that the lesser offense, but not the greater, was 

committed.” ’ ” (People v. Wilson (2021) 11 Cal.5th 259, 298; People v. 

Breverman (1998) 19 Cal.4th 142, 177.) Here, defendant cites no evidence 

that Hawken’s fear was momentary, fleeting, or transitory. (People v. Allen, 

supra, 33 Cal.App.4th at p. 1156.) To the contrary, as just indicated, the 

uncontradicted evidence was that he remained fearful at least through the two 

calls he made to the police. Therefore, there was no basis for the court to 

instruct sua sponte on a lesser included offense.

2. Consolidation 

A court may consolidate accusatory pleadings that allege offenses 

“connected together in their commission” or “of the same class of crimes.”

(§ 954; People v. Soper (2009) 45 Cal.4th 759, 769 & fn. 2 (Soper).) To avoid 

duplicative trials, joinder “ ‘is the course of action preferred by the law.’ ”

(Soper, supra, at p. 772.) On appeal, we assess whether, given the showings 

made and facts known when the trial court ruled, its decision was “outside 
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the bounds of reason,” and whether defendant has made a “clear showing of 

prejudice.” (People v. Merriman (2014) 60 Cal.4th 1, 37.) But “ ‘[e]ven if a . . .

joinder ruling is correct [when] made, a reviewing court must reverse the 

judgment if the “defendant shows that joinder actually resulted in ‘gross 

unfairness’ amounting to a denial of due process.” ’ ” (People v. Macklem (2007) 

149 Cal.App.4th 674, 698; accord, Soper, supra, at p. 783.) Whether the 

actual trial was so grossly unfair as to deny due process is a mixed question of 

law and fact that is predominantly legal; this court reviews such issues

de novo. (People v. Aguilera (2020) 50 Cal.App.5th 894, 908–909.) However, a

defendant’s burden of persuasion on a claim of gross unfairness is heavy. 

(Soper, supra, at p. 783.)

As defendant concedes, the battery alleged in the misdemeanor case is 

of the same class—crimes of violence—as the assault with a deadly weapon 

and criminal threat, making joinder permissible. But a court may still deny 

joinder in such a case in the interest of justice. (Williams v. Superior Court 

(1984) 36 Cal.3d 441, 447, abrogated in part on other grounds by statute as 

stated in Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1229, fn. 19.)

Defendant contends that the court’s failure to do so here was a clear abuse of 

discretion, as it created a risk of prejudice due to the “spillover effect” that 

inflammatory evidence on the battery count was likely to have on the assault 

and threat counts, and that this spillover effect did in fact occur, making the 

trial so grossly unfair as to deny him due process.

A spillover effect occurs if the evidence on two or more charges is not 

cross-admissible, so that evidence of each count would not be admissible at a 

trial of the other, and if a jury not otherwise unconvinced of a defendant’s guilt 

on some charges “might permit the knowledge of defendant’s other criminal 

activity to tip the balance” in favor of conviction. (People v. Armstrong (2016) 
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1 Cal.5th 432, 455.) If all evidence of the joined offenses would be crossadmissible, their joinder cannot be prejudicial. (People v. Merriman, supra,

60 Cal.4th at pp. 44–45.)6

Assuming non-cross-admissibility, two factors are relevant to determine 

whether discretion has been abused: “(1) whether some of the charges are

particularly likely to inflame the jury against the defendant [and] (2) whether 

a weak case has been joined with a strong case or another weak case so that 

the totality of the evidence may alter the outcome as to some or all of the 

charges.” (Soper, supra, 45 Cal.4th at p. 775.) 

Neither factor supports defendant’s contention here, whether viewing 

the record at the time of the joinder ruling or viewing the trial retrospectively.

Defendant’s act of punching Kennedy was if anything less inflammatory than 

the alleged conduct underlying the felony counts—an assault by driving at 

high speed towards Kennedy and Corigliano, and threatening to “end”

Hawken after retrieving apparently a weapon from his home.

Defendant contends that evidence of the punch suggested a “propensity 

for violence” that bolstered the assault and threat charges which he depicts as 

weak cases. He deems the assault charge weak because there is little 

evidence that he “intended” to assault Kennedy and Corigliano with his SUV, 

6 The Attorney General contends that defendant has forfeited the issue 

of cross-admissibility by not addressing it in his opening brief. While 

defendant did not make an express argument as to why evidence of the punch 

would not have been admissible at a trial limited to the assault and threat 

counts, his brief did note the need to establish non-cross-admissibility and 

did convey his theory as to why the evidence was not cross admissible: 

namely, in a trial of only the threat and assault counts, evidence of the punch 

would have been excluded as improper character evidence showing a 

propensity for violence. For present purposes we shall assume that the 

evidence was not cross-admissible and resolve the prejudice issue on its 

merits.
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but assault with a deadly weapon has no intent element. The offense requires 

a willful act but, as explained by the unchallenged, standard jury instruction 

that defined the offense at trial, one “commits an act willfully when he or she 

does it willingly or on purpose”; it is “not required that he or she intend to . . . 

hurt someone.” (CALCRIM No. 875.)

Nor, contrary to defendant’s contention, was the evidence that he

previously punched Kennedy likely to have influenced the jury’s evaluation of 

Kennedy’s testimony that defendant stopped the SUV one foot short of him in 

contrast to Corigliano’s estimate of 10 feet. Indeed, in his closing argument, 

defense counsel tacitly conceded that defendant drove toward Kennedy and 

Corigliano at high speed and stopped some distance short of them. The only 

disputed elements were whether his driving was an act that “by its nature 

would directly and probably result in the application of force,” and whether 

he knew of “facts that would lead a reasonable person to realize” as much. 

Evidence that he punched Kennedy three months earlier had no bearing on 

either issue. 

Similarly, there is no basis to conclude that evidence of the prior 

assault on Kennedy had any effect on the jury’s evaluation of whether the 

fear Hawken experienced as the result of defendant’s threat was sustained. 

Indeed, there is no evidence that Hawken even knew of the prior assault.

Moreover, any such knowledge would tend to go only to the issue of whether 

Hawken’s fear was genuine and reasonable, elements that defendant did not 

dispute. 

In short, defendant has failed to sustain the heavy burden of showing 

that consolidating the misdemeanor battery charge with the charged felonies 

rendered his trial so grossly unfair as to amount to a denial of due process. 

(Soper, supra, 45 Cal.4th at p. 783.)
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Disposition

The judgment is affirmed.

POLLAK, P. J.

WE CONCUR:

STREETER, J.

BROWN, J.