Filed 5/4/23 P. v. Taylor CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

LEROY TAYLOR,

Defendant and Appellant.

 B317861

 (Los Angeles County 

 Super. Ct. No. 

 BA479706)

APPEAL from an order of the Superior Court of Los 

Angeles County, Norman J. Shapiro, Judge. Affirmed as 

modified.

Richard B. Lennon and Jennifer Peabody, under 

appointment by the Court of Appeal, for Defendant and 

Appellant. 

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

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Kenneth C. Byrne, Supervising 

Deputy Attorney General, and Blake Armstrong, Deputy 

Attorney General, for Plaintiff and Respondent.
2

A jury found defendant and appellant Leroy Taylor 

(defendant) guilty of assaulting his neighbor Shawn Joseph 

(Joseph), criminally threatening Joseph, and disobeying a civil 

restraining order Joseph previously obtained against him. The 

trial court sentenced defendant to six years in prison and issued 

a restraining order, ostensibly pursuant to Penal Code section 

136.2,1that prohibits certain contact with Joseph for ten years. 

We are asked to decide whether defendant’s conviction for 

criminal threats was supported by substantial evidence, whether 

the trial court had a sua sponte duty to instruct the jury on the 

lesser included offense of attempted criminal threats, and 

whether the protective order was authorized by section 136.2.

I. BACKGROUND

A. Joseph Obtains a Civil Restraining Order Against 

Defendant

In 2013, Joseph, his wife, and three children moved to a 

home on South Mansfield Avenue in the City of Los Angeles. At 

the time, defendant lived on the same block, just two houses 

away from Joseph and his family.

Four years after becoming neighbors, a dispute arose 

between defendant and Joseph over the upkeep of an apartment

building located on the same block. The building belonged to one 

of Joseph’s sisters. After his sister moved away, the grass on the 

building’s lawn grew, in Joseph’s words, “out of control. It was 

just wild.” Defendant complained to Joseph about the overgrown 

lawn, believing it was Joseph’s responsibility to maintain the 

1 Undesignated statutory references that follow are to the 

Penal Code.
3

property’s appearance. When Joseph did not cut the lawn,

defendant began to harass Joseph and his family, which led 

Joseph to obtain a civil restraining order protecting him and his 

family from defendant.

That restraining order, issued in October 2018, allowed 

defendant to access his home if he acted in a “peaceable” manner

but otherwise required him to stay 100 yards away from Joseph, 

his wife, and children; not contact them in any way; and not 

“[h]arass, intimidate, molest, attack, strike, stalk, threaten, 

assault (sexually or otherwise), hit, abuse, destroy personal 

property of, or disturb the[ir] peace . . . .” This order, which 

would be operative for three years, was personally served on 

defendant.

In the months following issuance of the restraining order, 

defendant continued to harass Joseph and his family on a weekly,

if not daily, basis. Some of defendant’s conduct was, as Joseph 

would later characterize it, “silly stuff” that was more of a 

“nuisance” than anything else: defendant would often spit near 

Joseph or members of his family and, on one occasion, defendant 

shouted at Joseph and his wife, pulled down his pants, exposed 

his buttocks, and brandished his middle finger at them.

As time passed, defendant’s harassing behavior escalated. 

In April 2019, defendant repeatedly threatened physical violence, 

stating he was going to either beat Joseph up or kill him and his 

family. The following month, while defendant was inside his 

house but within earshot of Joseph’s wife and minor daughter, 

defendant yelled, “[t]ell your husband I’m gonna shoot him in his 

mother fucking back.”

After these statements, Joseph was unsure of what 

“[defendant] was capable of doing.” Joseph’s wife would not go 
4

outside alone, and she and Joseph refused to allow their children 

to walk to a nearby convenience store unaccompanied. Both of 

Joseph’s daughters expressed fear of defendant, with one 

receiving counseling because she was “constantly afraid.”

To safeguard his family, Joseph began working from home. 

In addition, he planted barrier hedges to block defendant’s view 

of his family’s house and installed multiple security cameras. 

Joseph also reported defendant’s conduct to the police.

B. The Incident That Led to Defendant’s Arrest

On the evening of July 19, 2019, Joseph and his wife were 

out walking their dog. Joseph crossed the entrance to a dead-end 

alley, and from out of the ally’s depths, defendant appeared and 

yelled at Joseph, “Come in the alley, mother fucker. Come in the 

alley.” Joseph thought defendant appeared “angry, very angry.”

Defendant advanced on Joseph while holding a two-foot 

long white stick, approximately the width of a half-dollar coin. 

Joseph recognized the stick as one defendant had used on a prior 

occasion to smash a metal mailbox as he threatened Joseph.

2

 

Recalling the incident with the mailbox and believing defendant 

was “really, really strong,” Joseph retreated. As defendant 

followed Joseph, he raised the stick from a 45-degree angle 

pointed at the ground to head level, said, “I’m going to beat you to 

death,” and swung the stick toward Joseph. If Joseph had not 

moved back, the stick would have hit him in the face; the stick 

2 On that prior occasion, as he struck the mailbox, defendant 

said to Joseph, “Motherfucker, come over here. Come over here, 

motherfucker. I’m going to whoop your ass.”
5

passed so close to his face that Joseph could feel the wind from 

the passage of the stick through the air.

After defendant repeated his threat to beat Joseph to 

death, he turned in the direction of Joseph’s wife who was 

standing some distance away and said, “you’re next.” In 

response, Joseph ran to interpose himself between defendant and 

his wife. Although he was “scared” for himself, he was more 

concerned for his wife who was unaware defendant had 

confronted him.

After Joseph moved toward his wife, defendant ran across 

the street and entered a different alley, laughing as he went. 

Having lost sight of defendant, Joseph left his wife and ran 

toward the entrance of the alley into which defendant 

disappeared so as not to be caught off guard if defendant decided 

to make good on his threats against him and his wife. After less 

than a minute, Joseph and his wife returned home where they 

called 911. Joseph waited outside for the police to arrive because,

in light of defendant’s actions, he was “afraid” and “didn’t know 

what was next.”

Shortly after Joseph and his wife left to return inside their

home, defendant reemerged from the second alley with his stick 

and disappeared. He later returned to his home where,

beginning at 7:51 p.m., he and Joseph engaged in a verbal “back 

and forth” from their respective properties for several minutes. 

During the parties’ verbal confrontation, which one of Joseph’s

surveillance cameras recorded, defendant repeatedly cursed at

Joseph. Joseph told defendant he was not scared in the alley, 

challenged defendant to “keep stalking” him and his family, and 

repeatedly questioned defendant’s bravery.
6

After this verbal jousting, and after police failed to respond 

to Joseph’s first 911 call, Joseph called 911 a second time at 8:24 

p.m. He told the operator that a neighbor, against whom he had 

an “active restraining order,” “charged [him] with a stick and said 

that he was going to beat [him] to death.” Following the second 

911 call, the police arrived at Joseph’s home but were unable to 

locate defendant. Two hours later, at 10:24 p.m., Joseph placed a 

third call to 911. He told the operator his “neighbor had 

threatened to assault [him] . . . with a stick he had in his hand 

[¶] . . . [¶] and he swung it at me. And the police came out . . . but 

they couldn’t get him to come outside. But he’s outside right 

now . . . .”

Defendant was arrested later that night. The Los Angeles 

County District Attorney charged him with two felonies, assault 

with a deadly weapon (§ 245, subd. (a)(1)) (count one) and 

criminal threats (§ 422, subd. (a)) (count two), and one 

misdemeanor, disobeying a court order (§ 166, subd. (a)(4)) (count 

three). The information against defendant alleged, in connection 

with the felony counts, that defendant suffered a prior serious or

violent felony conviction in 2015.

3

3

In a sentencing memorandum filed after defendant’s trial 

and conviction in this case, the prosecution advised the trial court 

that the victim of defendant’s 2015 crime was another of 

defendant’s neighbors. The prosecution maintained defendant 

“terrorized” that neighbor before ultimately “displaying a knife in 

a threatening manner while saying, ‘I’m going to finish you off.’”
7

C. Defendant’s Trial, Conviction, and Sentencing

At trial, only two witnesses testified for the prosecution:

the investigating detective, who described his collection of 

relevant footage from various surveillance cameras, and Joseph. 

Joseph testified he had been concerned for his safety from the 

time defendant first called to him from the alley to when the 

police arrived at his home in response to his second 911 call, a 

period of approximately 45 minutes. Defendant elected not to 

testify or present any witnesses.

The jury found defendant guilty on all counts. The trial 

court sentenced defendant to an aggregate term of six years in 

prison: three years for assault with a deadly weapon, doubled as 

a result of his prior felony conviction (§ 1170.12, subds (a)-(d));

two years for criminal threats, stayed pursuant to section 654;

and six months for disobeying the restraining order, also stayed 

pursuant to section 654. In addition, the trial court (without a 

request from the prosecution) stated it was issuing a 10-year 

protective order pursuant to section 136.2 that would prohibit

defendant from annoying, harassing, threatening, or striking

Joseph, or otherwise disturbing his peace.

II. DISCUSSION

We reject as meritless defendant’s principal argument for 

reversal: that there was insufficient evidence Joseph was in 

sustained fear to support the criminal threats conviction (for 

which sentence was stayed). Joseph testified he was in fear or 

“scared,” and that testimony was well corroborated by 

defendant’s escalating threats and harassment, the precautions 

taken by Joseph to safeguard his family, the contemporaneous 

assault with the stick, and Joseph’s repeated calls for police 
8

assistance. We additionally hold the absence of an instruction on 

the lesser included offense of attempted criminal threats does not 

warrant reversal of the criminal threats conviction. Even 

viewing the evidence in the light most favorable to defendant, 

there is no substantial evidence Joseph did not suffer sustained 

fear, and regardless, there is certainly no reasonable probability 

the jury would have convicted on the lesser, and not the greater, 

offense.

Defendant’s challenge to the 10-year protective order the 

trial court issued, however, has merit—as the Attorney General 

concedes. The protective order was unauthorized because, on the 

facts here, section 136.2 limits the duration of a protective order

to the pendency of the criminal proceeding. Accordingly, we will 

modify the judgment to strike the protective order and otherwise 

affirm.

A. There Is Substantial Evidence of the Sustained Fear 

Required for Conviction of Making Criminal Threats

“In order to prove a violation of section 422, the prosecution 

must establish all of the following: (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—which may be 

‘made verbally, in writing, or by means of an electronic 

communication device’—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 
9

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. [Citation.]” (People v. Toledo (2001) 26 Cal.4th 

221, 227-228 (Toledo); accord, People v. Orloff (2016) 2 

Cal.App.5th 947, 953.) Defendant challenges the sufficiency of 

the evidence regarding the fourth element: whether Joseph 

suffered from sustained fear.

Sustained fear for purposes of section 422 means 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 victim’s fear need not last for an extended period, 

such as days or weeks. Several courts, for example, have found 

“[f]ifteen minutes of fear . . . is more than sufficient to constitute 

‘sustained’ fear for purposes of . . . section 422.” (Id. at 1153, 

1156 [15 minutes between threat and defendant’s arrest 

sufficient for finding of sustained fear]; accord, People v. Fierro

(2010) 180 Cal.App.4th 1342, 1346, 1348-1349 [affirming a 

finding of sustained fear where the defendant threatened to kill 

the victim during an incident at a gas station and the victim was 

still in fear 15 minutes after he had left the station].) In 

considering whether the element of sustained fear was met, a 

trier of fact may rely on evidence indicating the victim had 

knowledge of the defendant’s prior threatening conduct and had

previously reported this conduct to the police. (Allen, supra, 33 

Cal.App.4th at 1156.)

We review the sufficiency of the evidence supporting the

trier of fact’s conclusion using the substantial evidence standard 

of review. (People v. Westerfield (2019) 6 Cal.5th 632, 713.)
10

There is strong evidence Joseph was in sustained fear 

following his encounter with defendant in the alley. Joseph 

testified clearly and without qualification he was afraid for 

himself and his wife during the encounter at the alley and 

remained in a state of fear until after the police finally arrived in 

response to his second call to 911, a period of time which was 

considerably longer than 15 minutes. Contrary to defendant’s 

assertion, Joseph’s testimony was not “inherently incredible”—

certainly not in view of defendant’s escalating threats following 

the issuance of the restraining order, the precautions and 

expense Joseph undertook in response to defendant’s earlier 

harassment and threats, the assault with the deadly weapon that 

occurred essentially simultaneously with the death threat giving 

rise to the criminal threats conviction, and Joseph’s multiple calls 

to 911 on the night in question (two of which came after Joseph, 

in the presence of his wife, claimed defendant had not scared 

him—a comment that, as Joseph put it, was made to “show some 

courage” while defendant continued his threatening and 

berating).

B. The Absence of an Instruction on Attempted Criminal 

Threats Does Not Warrant Reversal

“[E]very lesser included offense, or theory thereof, which is 

supported by the evidence must be presented to the jury.” 

(People v. Breverman (1998) 19 Cal.4th 142, 155 (Breverman), 

italics omitted.) This is true even absent a request for such an 

instruction. (People v. Birks (1998) 19 Cal.4th 108, 112.) 

However, “the existence of ‘any evidence, no matter how weak’ 

will not justify instructions on a lesser included offense.” 

(Breverman, supra, 19 Cal.4th at 162.) Rather, “such 
11

instructions are required whenever evidence that the defendant 

is guilty only of the lesser offense is ‘substantial enough to merit 

consideration’ by the jury. [Citations.] ‘Substantial evidence’ in 

this context is ‘“evidence from which a jury composed of 

reasonable [persons] could . . . conclude [ ]”’ that the lesser 

offense, but not the greater, was committed.” (Ibid.)

An instruction on the crime of attempted criminal threats

(see Toledo, supra, 26 Cal.4th at 231 [confirming the existence 

and constitutional validity of the crime]; accord, People v. 

Chandler (2014) 60 Cal.4th 508, 514) is required when there is 

substantial evidence “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 . . . .” 

(Toledo, supra, at 231.) We review a claim that the trial court

should have instructed on a lesser included offense de novo 

(People v. Nelson (2016) 1 Cal.5th 513, 538), considering the 

evidence in the light most favorable to the defendant (People v. 

Aguilar (2019) 41 Cal.App.5th 1023, 1027; People v. Brothers

(2015) 236 Cal.App.4th 24, 30).

Contrary to defendant’s claims, evidence of Joseph’s goads 

and taunts made from the sanctuary of his doorstep was not 

sufficiently substantial to convince a reasonable jury that 

defendant committed the lesser offense of attempted criminal 

threats, but not the greater offense of criminal threats. In 

contrast to the victim’s trial testimony in Toledo that she was not 

in fear of her husband’s threats (Toledo, supra, 26 Cal.4th at

225), Joseph testified in plain and categorical terms that 
12

defendant’s words and conduct at the alley frightened him and 

that he remained in a state of fear until the police arrived 

approximately 45 minutes after the encounter at the alley. In 

addition, there was abundant evidence showing Joseph was 

indeed fearful: when defendant threatened him at the first alley, 

he never advanced on defendant and only retreated; he moved 

with speed to protect his wife when defendant threatened her; 

when defendant disappeared from view into another alley, Joseph 

raced to, but not into the second alley, in an attempt to keep 

defendant under observation; and after his encounter with 

defendant at the alleyway, Joseph returned home without 

appreciable delay and repeatedly called the police. This evidence, 

even viewed in the light most favorable to defendant, defeats any 

suggestion that a lesser included offense instruction was 

required.

Moreover, even if an instruction on the lesser included 

offence was required, it was harmless not to give it on these facts

because it is not reasonably probable defendant would have 

obtained a more favorable result if the jury was instructed on 

attempted criminal threats. (Breverman, supra, 19 Cal.4th at 

165, 177 [when assessing prejudice we “focus[ ] not on what a 

reasonable jury could do, but what such a jury is likely to have 

done” and we “consider, among other things, whether the 

evidence supporting the existing judgment is so relatively strong, 

and the evidence supporting a different outcome is so 

comparatively weak, that there is no reasonable probability the 

error of which the defendant complains affected the result”].) 

The jury found defendant assaulted Joseph with a deadly 

weapon, and the key criminal threat was intimately bound up in 

that assault; there is no likelihood under the circumstances that 
13

the jury would have believed defendant was not in sustained fear 

and reached a more favorable verdict.

C. The Protective Order Is Unauthorized

Section 136.2 permits the trial court in a criminal case to 

protect a witness or a victim by issuing a protective order. In 

pertinent part, subdivision (a)(1) of the statute provides, “[u]pon 

a good cause belief that harm to, or intimidation or dissuasion of, 

a victim or witness has occurred or is reasonably likely to occur, a 

court with jurisdiction over a criminal matter may issue orders 

including, but not limited to, the following: [¶] . . . [¶] (D) An 

order that any person described in this section shall have no 

communication whatsoever with any specified witness or any 

victim . . . .” (§ 136.2, subd. (a)(1)(D).)

Protective orders issued pursuant to section 136.2 to 

protect witnesses and victims, are of a “limited duration”; they 

may be issued “only during ‘“the pendency of [a] criminal 

action.”’”

4

 (People v. Ponce (2009) 173 Cal.App.4th 378, 382

[striking three-year postjudgment protective order] (Ponce); 

accord, People v. Corrales (2020) 46 Cal.App.5th 283, 285-287

[striking unlimited “stay away” order imposed at sentencing 

because section 136.2 “does not authorize a trial court to impose a 

postjudgment restraining order against a criminal defendant”]; 

People v. Selga (2008) 162 Cal.App.4th 113, 118-119 [striking 

4 Section 136.2, subdivision (i)(1) provides for postjudgment 

protective orders extending for as long as 10 years but only under 

circumstances not applicable here, e.g., for defendants convicted 

of a crime involving domestic violence as defined by section 13700 

or Family Code section 6211.
14

protective order issued during trial and later made a posttrial 

probation condition, because “protective orders issued under 

section 136.2 were operative only during the pendency of the 

criminal proceedings”].)

Although defense counsel did not object to the trial court’s 

issuance of a postjudgment protective order, defendant has not

waived his claim on appeal that the order was unauthorized. 

(People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6 [“A claim that a 

sentence is unauthorized, . . . , may be raised for the first time on 

appeal, and is subject to judicial correction whenever the error 

comes to the attention of the reviewing court”]; accord, People v. 

Codinha (2021) 71 Cal.App.5th 1047, 1083.) 

Because the protective order here was not authorized by 

section 136.2, and not available to the trial court under its 

inherent judicial authority (Ponce, supra, 173 Cal.App.4th at 

383), we will strike it.
15

DISPOSITION

The 10-year criminal protective order issued on January 

25, 2022, is stricken. In all other respects, the judgment is 

affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BAKER, Acting P. J.

We concur:

MOOR, J.

KIM, J.