Filed 11/25/14 P. v. Miller CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE, Plaintiff and Respondent,

v. CHRISTOPHER GREER MILLER, Defendant and Appellant. B249695 (Los Angeles County Super. Ct. No. NA094764)

APPEAL from a judgment of the Superior Court of Los Angeles County, Mark C. Kim, Judge. Affirmed. Nikoo N. Berenji, und er appointment by the Court of Appeal , for Defendant and Appellant. Kamala D. Harris, Attorney General, Lan ce E. Winters, Senior Assistant Attorney General, Linda C. Johns on, Supervising Deputy Attorney General, and Tita Nguyen, Deputy Attorney General, for Pl aintiff and Respondent.

——————————2 A jury found Christopher Greer Miller guilty of one count of resisting an executive officer, and one count of making a criminal threat. Miller co ntends there is insufficient evidence to support his conviction fo r making a criminal threat, an d that the trial court erred in failing to instruct on the lesser included o ffense of attempted crimin al threat. For reasons discussed below, we conclude Miller’s contentions lack merit and affirm. PROCEDURAL BACKGROUND In a two count information Miller was char ged with resisting an executive officer (count 1; Pen. Code, § 69 1 ) and criminal threats (count 2; § 422, subd. (a)). The information also alleged that Miller suffer ed a prior conviction within the meaning of sections 667, subdivisions (a)(1) and (d ), 667.5, subd ivision (c), 1170, subdiv ision (h)(3), 1170.12, subdivision (b), and 1192 .7. Miller pleaded not guilty and denied the special allegations. A jury convicted Miller as ch arged. After trial, the prosecution conc eded its inability to proceed with the prior conv iction enhancement a llegations, and the court granted Miller’s motion to dismiss those allegations. The trial court denied probation and sentenced Miller to a total of two years in state prison, 2 ordered him to pay various fines and fees and awarded custody cr edits. This appeal followed. FACTUAL BACKGROUND The prosecution’s case On February 13, 2013, Miller, a student at Long Beach Ci ty College (L BCC), parked in a parking lot reserved for st aff. Long Beach City Depart ment Police Officers Patricia Kampa and Elizabeth Velasco, were assigned to patrol duty at LBCC on February 13. The officers’ uniforms consisted of a khaki top wi th law enforcement patches and green pants, and each carried a gun, walkie talkie, radio and a taser. The campus was undergoing

1 All further statutory refere nces are to the Penal Code unless otherwise indicated.

2 The trial court sentenced Miller to state pr ison for two years as to each count, but stayed imposition of the sentence as to count 1. (§ 654.)3 renovation at the time, and the construction impacted student parking causing some students, including Miller, to park in the lot reserv ed for staff. The officer s issued a citation for Miller’s improperly parked car. As the offi cers left, Miller approach ed them yelling, cursing and demanding to know why he had received a citati on. Officer Kamp a had never seen Miller before. Miller was about 12 to 15 feet away from the officers, moving fast toward them. When he was about two or th ree feet away, Miller repeated , “Why the fuck did you cite me?” Officer Kampa asked him to calm down a nd stop yelling, to wh ich Miller responded, “Fuck you. I’m not taking shit.” When Officer Kampa agai n told Miller to stop yelling, he responded, “Obama made you do th is, didn’t he.” M iller told Officer Ve lasco, “you look like a fucking guy,” “a fucking dyke,” and called Officer Ka mpa a “wetback.” He refused the officers’ requests to calm down, and continued to yell and curse. Miller refused the officers request for identification, instead sayi ng, “Fuck you. I don’t have to listen to you. I don’t have to show you shit,” and “You ain’t sh it. You are not going to tell me what to do,” and began walking away. The officers followed Miller to a nearby building where his carpentr y instructor was teaching class outdoors. Th ey asked the instructor for appellant’s name and student identification number. The instructor saw that Miller was upset and heard him use a lot of profanity. The officers asked Miller to leave and told him he was violating the student conduct code by which LB CC students must abide. Miller refused to go . The instructor had Officer Kampa follow hi m to a classroo m where he had Miller’s information. Miller followed along, calling Officer Ka mpa “a fucking wetback,” and told his instructor not to “give that bitch any of my info rmation,” “Don’t give her shit.” Miller followed Officer Ka mpa and the instru ctor into the empty classroom, continuing to yell profanities. As Officer Kamp a and the instructor reviewed the class roster at the front of the room, Miller angrily paced back and forth. He profanely refused Officer Kampa’s directions to sit down or to remove his hands from his pockets. Miller had not been searched and Officer Kampa di d not know what was in his pockets. Neither o fficer saw4 anything to indicate that Miller had a weapon. Miller repeatedly clenched his hands into fists when they were no t in his pockets. Afte r Officer Velasco came in to the classroom, Miller continued to pace back and forth between the officers, who kept their distance. He was “mad-dogging” Officer Kampa the whole time, and adopted a figh ting stance (h e looked like he wanted to hurt her and his hands were sp read apart and fisted). At Officer Kampa’s direction, the instructor left the classroom, leaving the offi cers and Miller in the room. Officer Kampa, who f eared for her own and O fficer Velasco’s safety, 3 requested back-up units for assistance. Shortly thereafter she heard M iller mumble some thing to the effect that “Dorner is killing all of you mother fu ckers. That is why he is killing you mother fuckers.” 4 Miller was about 12 feet aw ay from Officer Kampa. He also angrily said, “I’m going to kill you and fe ed you some shit.” He repeated that threat several times, sometimes in a whisper and sometimes yell ing it loudly. Officer Velasc o heard some of the Miller’s comments regarding “Dorner,” an d about killing Officer Kampa and feeding her shit. The instructor did not hear appellan t threaten the officers. He heard Miller ma ke statements that female officers were incapable of doing a man’s job, and heard him say “shit” a couple of times. After making the threats, Miller continued to “pac[e] ba ck and forth.” Officer Kampa testified that Miller did noth ing aggressively to cause her to draw her weapons. A few moments after Officer Kampa’s call for assistance, several officers arrived, including Officers McCart and Moreno. Officer McCart noti ced that Officers Kampa and Velasco stood 10 to 15 feet fr om Miller, much furthe r away from a contacted individual than the arm’s length officers typically stand. Offi cer Kampa opened the classroom door she had locked behind the instructor to let Officer McCart in. Miller was angry and upset. When Officers McCart and Mo reno tried to detain him, Miller kicked at them wi th steel-toed boots. Miller continue d to struggle with the officers,

3 Officer Kampa is five feet tall, 130 pound s. She testified th at Miller was “a lot” taller and heavier, about five feet 10 inch es, 210 pounds.

4 At that time Officer Ka mpa believed the now-deceased Christopher Dorner was killing officers and had not been apprehended.5 even after being taken to the ground. Five to seven o fficers worked togeth er to take Miller into custody. The defense case Cournell McCullough and Kenn eth Jones had known Miller fo r a brief time; they met through a carpentry class at L BCC and carpentry cl ub. On February 13, they saw two officers follow Miller in to a classroom adjace nt to the tool room where McCullough and Jones were working. McCull ough did not hear the conversa tion between M iller and the officers. Neither student hear d Miller threaten to kill office rs. McCullough did not hear anything after the classroom door was shut after the instructor left. Jones could tell that Miller was upset about a ticket a nd heard him say something abou t “[f]ucking dyke s trying to do the job of a man.” He he ard the officers tell Miller to shut up. Jones and McCullough tried to calm Miller down before he went into the classroom. Af ter that the o fficers did not let anyone talk to him. DISCUSSION 1. There is substantial evide nce that Officer Kampa was re asonably in su stained fear Miller argues there was insu fficient evidence to support his convic tion of making a criminal threat. Specifically, he maintains the evidence does not show Officer Kampa was reasonably in sustaine d fear for her safety. 5 “‘A reviewing court faced with such a cl aim determines “whether, after viewing the evidence in the li ght most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonabledoubt.” [Citations.] We examine the record to determine “whether it show s evidence that is r easonable, credible and of solid value from which a rati onal trier of fact could find the defendant guilty beyond a reasonable doubt.” [Citation.] Further, “the appellat e court presumes in support of the judgment the existence of every fact the trier could reas onably deduce from the evidence.” [Citation.] This standa rd applies whether direct or circumstantial ev idence is involved.

5 Miller does not take issue with his convi ction for resisting an executive officer.6 “Although it is the jury’s duty to ac quit a defendant if it finds the circumst antial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not th e appellate court[,] that must be convinced of the defendant’s guilt beyond a reas onable doubt. [Citation.] ‘“If the circumstances reasonably justify the trier of fact’s findings, the op inion of the reviewing court that the circumstan ces might also reasonably be reconciled with a contrary fi nding does not warran t a reversal of the judgment.”’” [Citation .]’ [Citation.]” ( People v. Virgil (2011) 51 Cal. 4th 1210, 1263.) “In order to prove a violation of section 422, 6 the prosecution must establish all of the following: (1) th at the defendant ‘w illfully threaten[ed] to co mmit 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, un conditional, immediate, and specific as to convey to the person threatened, a gravity of purpos e and an immediate prospect of execution of the th reat,’ (4) that the threat actua lly caused the person threatened ‘to be in sustained fear for his or her own safe ty or for his or her i mmediate family’s safety,’ and (5) that the threat ened person’s fear was ‘reasonabl [e]’ under the circumstances.” ( People v. Toledo (2001) 26 Cal.4th 221, 227–228 .) The determination of whether there is sufficient evidence to support a crimin al threats conviction is ma de by evaluating the totality of the circumstances, including the parties’ prior contacts and the manner in which the

6 Section 422 provides: “Any person wh o willfully threaten s to commit a crime which will result in death or great bodily inju ry to another person, wi th the specific intent that the statement, made verb ally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if ther e is no intent of actuall y carrying it out, which, on its face and under the circumst ances in which it is made, is so unequivocal, unconditional, immediate, and specific as to c onvey to the pe rson threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reas onably to be in sustained fear for his or her own safety or for his or her immediat e family's safety, shall be punished . . . .”7 communication was made, to de termine whether the communication conveyed to the victim a gravity of purpose and animmediate prospect of execution of the threat. ( In re Ricky T. (2001) 87 Cal.App.4th 1132, 1137 ( Ricky T. ); People v. Solis (2001) 90 Cal.App.4th 1002, 1013 ( Solis ).) In determining whether a criminal th reat was made, the jury may consider “all of the circumstances;” “the thr eatening statement does not have to be the sole cause of the victim’s fear.” ( Solis , at p. 1014.) Officer Kampa testified that Miller threatened several times to kill her and feed her feces. Those threats followed on the heels of a verbal offens ive in which M iller loudly and with hostility hurled racist and sexist slurs and profanities. The threats were also made after a comment in which Miller expr essed empathy for Christopher Dorner (Dorner), a former police officer who had very recently been on a well-publicized rampage in which he tried to kill law enforcement of ficers and members of their families, and succeeded in some of his attempts. Miller does not dispute that the evidence was sufficient to s upport the first three elements of section 422. He ar gues only that the prosecutio n failed to prov e that Officer Kampa reasonably was in fear for the requisite su stained period of time. The record reflects that Miller’s threats we re made after Officer Kampa made a call requesting ba ck-up officers, and that two-to-five minutes elapsed before th at back-up assistance ar rived and Miller was subdued. Miller argues th at Officer Kampa’s fear was mome ntary and fleeting. He also contends there was an insufficient showing that Officer Kampa’s fear was reasonable because his angry words were not accompan ied by physical viol ence, there was no contentious history between himself and Offi cer Kampa, Officer Kampa had no reason to believe he carried a wea pon at the time of the threats and she felt no need to use any weapon she carried. Section 422 does not de fine “sustained fear.” Case la w has define d the term to mean “a period of time that extends beyond what is momentary, fleeting, or transitory.” ( People v. Allen (1995) 33 Cal.Ap p.4th 1149, 1156 ( Allen ).) The period need not be lengthy. (Ibid

. [under the circumstances, 15 mi nutes of fear was sufficient]; People v. Fierro (2010) 1808 Cal.App.4th 1342, 1348–1349 & fn. 5 ( Fierro ) [sustained fear el ement satisfied where defendant’s threat to kill the victim and display of a we apon lasted just “a minute or so,” but victim remained afraidfor 15 minutes after r eaching a place of safe ty and calling police]; Ricky T ., supra , 87 Cal.App.4th at pp. 1139–1140; CALCRIM No. 1300.) The element of sustained fear also “requires proof of a ment al element in the victim.” ( Allen , supra , 33 Cal.App.4th at p. 1156.) The threat must “be such as to cause a reasonable person to be in sustained fear for his personal safety . . . . The phrase to ‘cause[ ] that person reasonably to be in sustained fear for his or her own safety’ has a subjective an d an objective component. A victim must actual ly be in sustained fear, and th e sustained fear must also be reasonable under the circumstances.” ( Ricky T. , supra , 87 Cal.App.4th at pp. 1139–1140.) “Section 422 requires th at the communication mu st be sufficient ‘on its face and under the circumstances in which it is made’ to constitute a criminal threat.” (In re Ryan D. (2002) 100 Cal.App.4th 854, 860.) In determ ining whether a criminal thre at has been made the jury should consider “all of the surrounding circumstances” an d “the threatening statement does not have to be the sole cause of the victim’s fear.” ( Solis , supra , 90 Cal.App.4th at p. 1014.) Neither the statute or case law requires a partic ular length of tim e for a finding of sustained fear. A “sustained” period is th at “period of time that extends beyond what is momentary, fleeting, or transitory.” ( Allen , supra , 33 Cal.App.4th at p. 1156 & fn. 6 [“no minimum time period is required, on ly a period ‘not insubstantial’”]; Ricky T ., supra , 87 Cal.App.4th at pp. 1139–1140.) Obviously, not every fearfu l experience satisfies this standard. ( Ricky T ., at p. 1140 [“Clearly, if any experience of fear constitutes a ‘sustained’ experience, then the term is superfluous.”].) Case law has established parameters. In Allen , supra , 33 Cal.App.4th 1149, the co urt found 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 constit ute ‘sustained’ fear fo r purposes of this element of section 422.” ( Id . at p. 1156.) In Allen , the defendant had prev iously broken into the victim’s daughter’s home and had repeatedly stalked an d assaulted the vi ctim’s daughter. ( Id . at pp. 1151–1152.) Th e victim had filed police reports on th ose incidents. (Id . at9 p. 1153.) The defendant, who ha d a practice of looking insidethe victim’s home, went by the victim’s house several times on the day of the incident at issue. (Id . at pp. 1155, 1156.) He approached the victim’s b ack door brandishing a gun and threatened to kill her and her daughter. The victim ca lled the police who arre sted the defendant within “‘about fifteen minutes or so.’” (Id . at p. 1156.) The court found the victim’s knowle dge of the defendant’s prior conduct was relevant to establ ish a state of sustained fear. ( Ibid .) In Ricky T. , supra , 87 Cal.App.4th 1132, the court applied Allen ’s definition of sustained fear and found that a teacher’s fear was fleetin g and insufficient to support a section 422 offense. ( Id . at p. 1140.) In Ricky T ., a high school student left the classroom to use the restroom and found th e door locked upon hi s return. He pounded on the door and as the teacher opened it, the door accidentally hit the student. Th e student became angry, cursed the teacher and threatened to “get” him (stating “I’m going to kick your a ss”), but made no physical movements or gestures. The teacher felt threatened and sent the student to the school office. ( Id . at pp. 1135–1136.) The court found the teacher’s fe ar insufficient in the absence of evidence showing he felt fear beyond the mome ntary angry ut terances. (Id . at p. 1140.) It observed that th e police were not calle d about the incident until the following day, there was no history of disagreements between the student and the teacher, and the threat was not accompanied by a s how of force or violence. (Id . at pp. 1138, 1140.) Indeed, the student complied with the teacher’s demand , left the scene and went to the school office. The court in Ricky T. concluded that the student’s “state ment was an emotional response to an accident rather than a death threat that indu ced sustained fear.” ( Id . at p. 1141.) More recently, the appellate court in Fierro , supra , 180 Cal.App.4th 1342, considered again the sustained fear element. In Fierro, the victim and his son had an altercation with the defendant (whom they did not know) at a gas station. ( Id . at p. 1344.) Th e defendant drove off, but returned. ( Id . at p. 1345.) The victim attempted to drive away . Before he was able to leave the defendant confronted him in his car, displayed a weapon in his waistband while yelling obscenities, and threatened to kill the victim and his son. ( Id . at pp. 1345–1346.) This second encounter lasted abou t one minute; the threat itself lasted about 40 seconds. ( Id

.10 at p. 1349 & fn. 5.) Wh en the victim was able to reach a safe place he called the police, still afraid. ( Id . at p. 1346.) The court found the evidence supported a finding that the victim experienced sustained fear. ( Fierro , supra , 180 Cal.App.4th at pp. 1348–1349.) The court observed that the victim “testified clearly and more than once that he was horribly scared, and his fright was not fleeting.” ( Id . at p. 1348.) The evidence was sufficient for a finding that “[t]he fear lasted not only through the minute or so th at [Fierro] stood there exposing his weapon, but for up to 15 minu tes after [the victim] drove away,” and “[ i]t is entirely reasonable that [the victim] would react as he did for as long as he did.” ( Ibid .) The court explained that, even though the victim was not physical ly threatened after driving away, the jury could reasonably find that he was still in an emotional state of fear. A “person who hear s someone say, ‘I will kill you . . . right now,’” coupled with seeing a weapon, is quite justified in remaining ‘scared shitless’—as [the victim] put it—for 15 minutes.” ( Id . at p. 1349.) The co urt further stated that “even if” it accepte d appellant’s argument that the only relevant time period was while the weapon was displayed, it be lieved “that the minu te during which [the victim] heard the threat and saw appellant’s wea pon qualifies as ‘sus tained’ under the st atute. When one believes he is about to die, a minute is longer than ‘momentary, fleeting, or transitory.’” ( Ibid .) Miller compares the present circumstances to Ricky T. , supra , 87 Cal.App.4th 1132. He argues that unl ike cases such as Allen , supra , 33 Cal.App.4th 1149 or Fierro , supra , 180 Cal.App.4th 1342, in which th e victim had prior knowledge of the defend ant or the defendant’s past conduc t (albeit brief in Fierro ), there was no prior inte raction or relationship between him and Officer Kampa, he never attempted to follow through with his threat, and Officer Kampa did not testify th at she suffered any continuing fear after the back-up officers arrived. Nor, unli ke the victim in Fierro , did Officer Kampa testify that she believed she was “about to die.” Conseque ntly, Miller contends that, li ke the teacher’s fear in Ricky T ., Officer Kampa’s fear was no mo re than fleeting, and ceased to exist beyond the moments of the encounter. He argues the ci rcumstances of his threats to Officer Kampa, coupled with11 the brevity of time before the backup officers arrived, demonstrates a lack of substantial evidence supporting a fi nding that Officer Kampa reasonably suffered more than momentary fear of what was essentially no more than an hyper bolic “emotional res ponse [to receiving a parking citation] rather th an a death threat that induced sust ained fear.” (Ricky T ., at p. 1141.) We conc lude otherwise. Section 422 does not re quire a victim to be so immobilized by frigh t that he or she is unable to function. Th e statute requires sustaine d fear, not paralysis. (§ 422.) The record contains sufficient evidence th at Officer Kampa’s fear was more than momentary or fleeting. Miller was belligerent and confrontational wi th Officer Kampa and her partner from the outset. He became combative al most immediately, refused to show his identification, hurled profanity and racial and sexist slurs at the officers as he followed them and his instructor into a classroom. Inside the cla ssroom, Miller continued to re fuse Officer Kampa’s orders, “maddogging” her, and angrily pa ced back and forth or adopte d a fighting stance with clenched fists then, shortly befo re he repeatedly th reatened to kill Officer Kampa and feed her feces, Miller expressed empathy for Dorn er, a man with a vend etta against police officers. Officer Kampa testified she was afraid for her safety. She also feared for others, and so had Miller’s instructor leave the room, then locked the door be hind him while she waited maintained a signif icant distance from Mille r and summoned backup. Officer Kampa testified that Miller’s demeanor an d behavior caused her to be afraid during the duration of her contact with him inside the classroom, which lasted at least a few minutes. This was l ong enough to surpass a “momentary, fl eeting, or transitory” period of time. Further, when co nsidering whether the el ements of section 422 are met, we consider the circumstances surround ing the threats, including the ma nner in which th e communication was made. “[A]ll of th e circumstances can and should be considered in determining whether a terrorist threat [pursuant to section 422] has be en made.” ( Solis , supra , 90 Cal.App.4th at p. 1014 [stating that “it is clear a jury can pr operly consider a later action taken by a defendant in evaluating whether the crime of maki ng a terrorist threat has been committed”].) Miller yelled at Officer Kampa and made unambiguous, uncondi tional threats to kill her.12 Officer Kampa took the threats made by a very hostile Miller se riously and was afraid. (See People v. Martinez (1997) 53 Cal.App.4t h 1212, 1221 [that defendant was “extremely angry,” “cursing,” and in “very cl ose proximity” to the victim when making the threat could show that he meant seri ous business when he made the threat].) Th e circumstances here did not resemble those in Ricky T. , supra , 87 Cal.App.4th 1132, in whic h an angry student left and went to the office after be ing told to do so by a teacher whom he threatened, and in which, “[w]hatever emotion—fear, intimidation , or apprehension—[the teacher] felt during the moment of the verbal encoun ter, there was nothing to indicate that the fear was more than fleeting or transitory.” ( Id. at p. 1140.) We also disagree with Miller that the jury coul d not have found Of ficer Kampa’s fear to be reasonable because, unlike the victim in Fierro , supra , 180 Cal.App.4t h 1342, Officer Kampa had no reason to believ e he had access to a weapon and he did not enga ge in physical violence. A defendant’s “manne risms, affect, and actions” be fore and after the threat may provide evidence that a victim ’s fear was reasonable. ( Solis , supra , 90 Cal.App.4th at pp. 1013–1014.) Here, as discusse d above, Miller exhibi ted unreasonably a ngry, belligerent and combative behavi or from the outset of his contact wi th the officers, r eactions vastly out of proportion to the anger one might reasonably exp ect from someon e who received a parking citation. And Miller’s behavior only became worse as time progre ssed, as he began hurling racial, sexist and ethnic slurs, refu sed to follow the officer’s orders, expressed admiration for a murder er and repeatedly thre atened Officer Kampa’s life. The fact that Officer Kampa had the in structor leave the r oom, and that she main tained a significant distance from Miller (10 to 15 f eet away, in contrast to the typical arm’ s length) after he threatened her and while waiting for assistance, constitute evid ence she was in actual fear. That fear was justified. M iller’s anger did not ab ate and it ultimately took up to seven officers to take him into cu stody and subdue him as he kick ed and strugg led. Taken together, Officer Kampa’s testimony and Mille r’s erratic behavior, constitute sufficient evidence to support an inference from whic h the jury could conclude Officer Kampa was reasonably in sust ained fear. (See Allen , supra , 33 Cal.App.4th at p. 1156 [victim taking13 immediate steps to protect him or herself, or ot hers, from the threatening individual provides further evidence of actual and reasonable fear, and may show that the fear was more than “momentary, fleeting, or transitory”].) Miller also misconstrues sect ion 422 when he ar gues that Officer Kampa’s fear was unreasonable because he did not follow up his threats with physical vi olence. “[S]ection 422 does not require an intent to actually carry ou t the threatened crime.” ( Martinez , supra , 53 Cal.App.4th at p. 1220.) In Martinez , an extremely angry defend ant cursed at the victim while in very close proximity to the victim when making the threats. ( Ibid .) The court recognized that “[t]his type of situation can be very intim idating and can car ry an aura of serious danger.” Similarly, here, Miller’s disproportionally hostile reaction to a parking citation and his repeated threats to kill Offi cer Kampa were “very intimidating” and carried an “aura of seri ous danger.” ( Id . at p. 1221.) Miller need not carry out th e threat, so long as Officer Kampa reasona bly feared an assault as the record sufficiently demonstrates she did. A criminal threat is an act of “psychic violence” and “the know ing infliction of mental terror is [as] deserving of moral condemnation” as the infliction of physical injury. ( Solis , supra , 90 Cal.App.4th at p. 1024, italic s omitted.) In sum, th e record contains su fficient evidence to support Miller’s conviction fo r violation of section 422. 2. No instruction as to the lesse r included offens e was required Miller argues the trial court committed reversib le error by failing to instruct on the lesser included offense of a ttempted criminal threats, re iterating his contention that substantial evidence of Officer Kampa’s sustained fear was simp ly not present. We are not persuaded. Whether requested to do so or not, a trial court must “instruct on a lesser included offense . . . if there is substant ial evidence the defend ant is guilty of the le sser offense, but not the charged offense.” ( People v. Moye (2009) 47 Cal.4th 537, 556; People v. Breverman (1998) 19 Cal.4th 142, 177 .) There is no duty, howev er, to instruct on a lesser included offense if there is insufficient evidence that the offense committed was le ss than that charged. ( Breverman , at p. 154; People v. King (2010) 183 Cal.App.4th 1281, 1319.) A lesser offense14 is included in a greater offense, triggering th e court’s instructional duty, when either the statutory elements test or the acc usatory pleading test is satisfied. If the statutory elements, or the facts alleged in the acc usatory pleading, include all of the elements of the lesser offense, such that the great er offense cannot be committe d without committing the lesser offense, the trial court generally must instruct on the lesser offense. ( People v. Smith (2013) 57 Cal.4th 232, 240.) In assessing a claim of failu re to instruct on a lesser incl uded offense, “we review independently the qu estion whether the trial court failed to instruct on a lesser included offense.” ( People v. Cole (2004) 33 Cal. 4th 1158, 1215.) Attempted criminal threat is a lesser in cluded offense of criminal threat. ( People v. Toledo , supra , 26 Cal.4th at pp. 230–231.) In Toledo , the Supreme Court explained that a person commits an attempted crim inal threat “if a de fendant, . . . acting with the requisite intent, makes a sufficient threat that is receive d 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 place d in such fear, the defendant pr operly may be found to have committed the offense of attemp ted criminal threat.” ( Id . at p. 231.) Miller contends the evidence that Officer Kampa expe rienced sustained fear was lacking so the court had a duty to instruct on attemp ted criminal threat. As we explained above, Of ficer Kampa’s testimony satis fied the sustained fear element of section 422. Officer Kampa descri bed her intense fear du ring the threatening episode, fear that continued at least until the back- up officers she summon ed arrived to help subdue Miller. Thus, Officer Kampa endured fear of Miller for “a peri od of time that extend[ed] beyond wh at is momentary, fleeti ng, or transitory.” ( Allen , supra , 33 Cal.App.4th15 at p. 1156.) Evidence as to that element of fear was not sufficiently we ak to require the trial court to instruct on attempted criminal threat. DISPOSITION The judgment is affirmed. NOT TO BE PUBLISHED.

JOHNSON, J.

We concur:

CHANEY, Acting P. J.

MILLER, J. *

* Judge of the Los Angeles Superior Cour t, assigned by the Ch ief Justice pursuant to article VI, section 6 of the California Constitution.