Filed 10/14/22 P. v. Navarro 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

THE PEOPLE,

Plaintiff and Respondent,

v.

RUDY NAVARRO,

Defendant and Appellant.

F083216

(Super. Ct. No. 21CMS0124)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Kings County. Michael J. 

Reinhart, Judge.

Kieran D. C. Manjarrez, 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, Christopher J. Rench and Darren 

K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

* Before Franson, Acting P. J., Peña, J. and Meehan, J.
2.

Defendant Rudy Navarro was convicted by jury trial of second degree robbery and 

criminal threats. On appeal, he contends there was insufficient evidence to support his 

criminal threats conviction because the victim did not suffer “sustained fear,” an element 

of the crime. We affirm.

PROCEDURAL SUMMARY

On May 24, 2021, the Kings County District Attorney filed a first amended 

information charging defendant with second degree robbery (Pen. Code, § 211; count 1)1

and criminal threats (§ 422, subd. (a); count 2). The amended information specially 

alleged personal use of a firearm (§ 12022.53, subd. (b)) as to both counts. It was further 

alleged defendant had suffered five prior strike convictions within the meaning of the 

“Three Strikes” law (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)) and five prior 

serious felony convictions (§ 667, subd. (a)(1)). 

On May 27, 2021, the jury found defendant guilty of both counts, but found the 

firearm special allegations not true. It found true the prior strike convictions and prior 

serious felony convictions.2 

On August 5, 2021, the trial court sentenced defendant to 15 years in state prison. 

On count 1, defendant was sentenced to five years doubled to 10 years pursuant to the 

Three Strikes law, plus five years for the prior serious felony conviction. On count 2, he 

was sentenced to three years, doubled to six years pursuant to the Three Strikes law, 

which was stayed pursuant to section 654. 

On August 19, 2021, defendant filed a notice of appeal. 

1 All further statutory references are to the Penal Code.

2 One prior strike conviction was dismissed prior to submission to the jury. 
3.

FACTUAL SUMMARY

On January 8, 2021, C.S. was working at a discount store when defendant3 caught 

her attention due to the way he was acting. She noticed he had been looking at her, so 

she approached him and asked him if he needed help as she put products away. He 

refused help and continued to shop, putting things in his shopping cart. At one point, she 

walked out of the back room and caught him shoving items into new reusable bags. She 

again asked him if he needed help. He responded that he was putting his items in the bag 

because they were falling through the shopping cart holes. He had two bags full of 

merchandise. She asked him to purchase the bags before using them and then stood by 

the front door to divert him from taking the merchandise without paying. Defendant was 

wearing a mask due to COVID-19 requirements and had been in the store for 

approximately 20 minutes. 

Defendant eventually began walking out with the unpaid merchandise. C.S. was 

still standing by the front door entrance. When she asked him to pay, he lifted up his 

shirt and she saw what she believed to be the handle of a gun. He told her to move, or he 

would “f[***]ing shoot” her while approximately three feet away. She described the gun 

as “pleated black” with silver on it. She was familiar with guns as she had held and shot 

one before. She was shocked, scared, and angry. She felt he would follow through with 

his threat and feared for her safety. She said the fear stayed with her after the incident 

and it still had an effect on her on the day of trial. She said, “I am a little bit more—kind 

of like don’t like to ask customers if they need help, I think more about what I do now.” 

After making the statement, defendant left with the unpaid merchandise. She watched 

him walk out and took pictures as he got into his vehicle and called 911. 

3 C.S. identified defendant in court as the person in the store on the date of the 

incident. 
4.

An 11-second video showing defendant as he walked out of the store was admitted 

into evidence and played for the jury. The video depicted the moment he raised his shirt, 

exposing the handle of an alleged gun as he made the statement to C.S. Defendant’s back 

faced the camera, but C.S. could see the front of his body. 

After the incident, C.S. spoke with law enforcement. They showed her a photo 

lineup a few hours later, but she was unable to make an identification. At the preliminary 

hearing, C.S. identified defendant by the shape of his eyes and tattoos.

DISCUSSION

Defendant contends his conviction for criminal threats (§ 422, subd. (a)) must be 

reversed because there is insufficient evidence to establish that C.S. suffered sustained 

fear. We disagree.

A. Applicable Law

1. Sufficiency of the Evidence

In reviewing the sufficiency of the evidence, “ ‘we review the whole record in the 

light most favorable to the judgment to determine whether it discloses 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. Cravens (2012) 53 Cal.4th 500, 507.) “We must presume in support of the 

judgment the existence of every fact that the trier of fact could reasonably deduce from 

the evidence.” (People v. Medina (2009) 46 Cal.4th 913, 919.) “The conviction shall 

stand ‘unless it appears “that upon no hypothesis whatever is there sufficient substantial 

evidence to support [the conviction].” ’ ” (Cravens, at p. 508.) The reviewing court 

“neither reweigh[s] the evidence nor reevaluate[s] the credibility of the witnesses.” 

(People v. Mohamed (2011) 201 Cal.App.4th 515, 521.)

2. Criminal Threats

Section 422, subdivision (a) provides that, “[a]ny person who willfully threatens to 

commit a crime which will result in death or great bodily injury to another person, with 
5.

the specific intent that the statement, made verbally, in writing, or by means of an 

electronic communication device, is to be taken as a threat, even if there is no intent of 

actually carrying it out, which, on its face and under the circumstances in which it is 

made, is 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, and thereby causes that person reasonably to be in sustained fear for his or her 

own safety or for his or her immediate family’s safety, shall be punished ....”

Our Supreme Court has explained section 422’s requirements in terms of 

five elements: “The prosecution must prove ‘(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.’ ” (In re George T. (2004) 33 

Cal.4th 620, 630.)

a. Sustained Fear

Regarding the fourth element, section 422 “requires that the threat be such as to 

cause a reasonable person to be in sustained fear for his personal safety. The statute is 

specific as to what actions and reactions fall within its definition of a [criminal] threat.

The phrase to ‘cause[ ] that person reasonably to be in sustained fear for his or her own 

safety’ has a subjective and an objective component. A victim must actually be in 

sustained fear, and the sustained fear must also be reasonable under the circumstances.” 

In re Ricky T. (2001) 87 Cal.App.4th 1132, 1139–1140 (Ricky T.).) “Sustained fear” is 
6.

defined by “a period of time that extends beyond what is momentary, fleeting, or 

transitory.” (People v. Allen (1995) 33 Cal.App.4th 1149, 1156 (Allen).)

A line of cases illustrate a range of statements that have been found to support a 

finding that the victim suffered sustained fear. In Allen, the defendant had previously 

assaulted and stalked the victim’s daughter, and broke into the daughter’s apartment. 

(Allen, supra, 33 Cal.App.4th at pp. 1151–1153.) On the day of the incident, the victim 

saw the defendant pass by her house several times and then saw him talking to someone 

near her back door. (Id. at p. 1154.) When the victim approached the door, the defendant 

started cussing at her and told her, “ ‘I’m gonna kill you. I’m gonna kill you and your 

daughter.’ ” While making the statement, he took out a gun and pointed it at the victim. 

(Ibid.) The victim called 911, but the defendant left before police arrived. (Ibid.) The 

victim saw that police took the defendant into custody about 15 minutes later. (Ibid.) He 

was charged and convicted with making a criminal threat against her. (Id. at p. 1151.) 

On appeal, the defendant argued the victim did not suffer sustained fear because 

he was arrested within 15 minutes. (Allen, supra, 33 Cal.App.4th at p. 1155.) The court 

in Allen held that the victim’s knowledge of the defendant’s prior conduct was relevant to 

establish a state of sustained fear, and that “[f]ifteen minutes of fear of a defendant who is 

armed, mobile, and at large, and who has threatened to kill the victim and her daughter, is 

more than sufficient to constitute ‘sustained’ fear for purposes of this element of 

section 422.” (Id. at p. 1156.)

In Ricky T., a high school student left his classroom to use the restroom. (Ricky T., 

supra, 87 Cal.App.4th at p. 1135.) When he returned, he found the door locked and 

pounded on it. (Ibid.) The teacher opened the door and accidentally hit him. The student 

became angry, cursed the teacher, and threatened him, saying “ ‘I’m going to get you.’ ” 

(Ibid.) He also admitted telling the teacher he was “ ‘going to kick [his] ass.’ ” (Id. at 

p. 1136.) However, he did not make any physical movements or gestures. (Ibid.) The 

teacher felt threatened, even though he acknowledged the student did not make any 
7.

specific threats. (Id. at p. 1135.) As a result, he sent him to the front office and the 

student complied. (Ibid.) The police were called the next day and the student was later 

found to have violated section 422. (Ibid.) On appeal, the court held the evidence was 

insufficient to support the conviction because the teacher’s fear was fleeting and the 

statement “was an emotional response to an accident rather than a death threat that 

induced sustained fear.” (Id. at p. 1141.) While the teacher stated he felt threatened, the 

court found his fear “did not exist beyond the moments of the encounter” because the 

statements were not accompanied by a show of force or violence, the student followed 

the teacher’s directive to go to the front office, and the police were not notified until the 

next day. (Id. at p. 1140.)

In People v. Fierro (2010) 180 Cal.App.4th 1342, 1344–1345 (Fierro), the victim 

and his son were at a gas station where he asked the defendant to move his car several 

times because he was blocking the pumps. After exchanging words, the defendant 

drove away but circled back around to confront the victim. (Id. at p. 1345.) He walked 

up to the victim who was already in his car and lifted up his shirt, revealing a weapon in 

his waistband and began cussing at the victim and his son. (Id. at pp. 1345–1346.) The 

defendant told him, “ ‘I ought to kill you and’ ... ‘the stupid mother f[***]er too.’ ” (Id.

at p. 1346.) He said he ought to kill them “ ‘right now.’ ” (Ibid.) The defendant exposed 

the weapon for approximately a minute. (Id. at p. 1348.) He then told the victim to 

leave. (Id. at p. 1346.) The victim drove away and within 15 minutes reached a safe 

place, called 911, and told the operator he was scared “ ‘scared shitless.’ ” (Ibid.) 

The court in Fierro held the defendant’s threat caused sustained fear, concluding 

“that the minute during which [the victim] heard the threat and saw [the defendant’s] 

weapon qualifies as ‘sustained’ under the statute. When one believes he is about to die, a 

minute is longer than ‘momentary, fleeting, or transitory.’ ” (Fierro, supra, 180 

Cal.App.4th at p. 1349.) The court stated the facts differed “sharply” from those in Ricky 

T., explaining that the defendant in Ricky T. “made no physical movements or gestures. 
8.

The teacher responded by sending the student to the school office; the teacher did not call 

the police until the next day; and there had been no prior history between defendant and 

the victim.” (Ibid.)

B. Analysis

Defendant argues this case is similar to Ricky T. because there is no evidence 

C.S.’s fear lasted beyond the moment of the encounter. The facts of this case differ 

substantially from those of Ricky T. 

In the present case, C.S. confronted defendant and asked him to pay for the 

merchandise as he walked out of the store. He responded by lifting his shirt and exposing 

what appeared to be a handgun and threatened to “f[***]ing shoot her” while he was 

approximately three feet away from her. (See Fierro, supra, 180 Cal.App.4th at pp. 

1345–1346 [there was substantial evidence the victim felt sustained fear when he heard 

someone say, “ ‘I ought to kill you’ ... ‘right now,’ ” coupled with seeing a weapon].) 

When he left, C.S. immediately called the police. (See Ricky T., supra, 87 Cal.App.4th at 

p. 1140 [evidence that “police were not notified until the day after the incident” shows 

the victim was not in sustained fear]; see also People v. Melhado (1998) 60 Cal.App.4th 

1529, 1538 [calls to the police are evidence the victim is in fear of his or her safety].) 

She testified she felt shocked, scared, and angry. She feared for her safety and felt he 

would follow through with his threat. Defendant’s threat that he was going to “f[***]ing 

shoot” C.S. while brandishing an alleged weapon is not similar to the angry utterances of 

an adolescent like in Ricky T., where the student did not make any specific threat and 

“there was no evidence offered that [the student’s] words were accompanied by any show 

of physical violence—nothing indicating any pushing or shoving or other close-up 

physical confrontation.” (Ricky T., at p. 1138.) To the extent the confrontation lasted 

only 11 seconds, there is no minimum amount of time an incident must last before the 

victim may experience sustained fear. (See Allen, supra, 33 Cal.App.4th at p. 1156 & fn. 

6.) 
9.

Accordingly, we conclude there is sufficient evidence that C.S. suffered sustained 

fear.

DISPOSITION

The judgment is affirmed.