Filed 8/26/24 P. v. Garibay CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

LOUIS ALBERTO GARIBAY,

Defendant and Appellant.

 B330504

 (Los Angeles County

 Super. Ct. No. BA510065)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, David R. Fields, Judge. Affirmed.

Ava R. Stralla, 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, Wyatt E. Bloomfield and Lindsay 

Boyd, Deputy Attorneys General, for Plaintiff and Respondent.

________________________
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INTRODUCTION

Louis Alberto Garibay appeals from a judgment of 

conviction for making a criminal threat against a security guard 

patrolling Union Station in Los Angeles. He contends the record 

lacks substantial evidence to support a finding the victim 

experienced “sustained fear,” an element of the offense. Garibay 

further contends the trial court erred in failing to instruct the 

jury on the lesser-included offense of an attempted criminal 

threat. Garibay argues the jury could reasonably have concluded 

he did not complete the crime of making a criminal threat. We 

conclude the trial court did not err, and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On November 22, 2022, the People filed an information 

alleging Garibay made a criminal threat against Isamar 

Gonzalez (Pen. Code, § 422).1 The People further alleged Garibay 

engaged in violent behavior that indicated a serious danger to 

society and that he was armed with a weapon. (Cal. Rules of 

Court, rule 4.421(a)(2) & (b)(1).)

At trial, the prosecution presented testimony from 

Gonzalez and other witnesses. Gonzalez testified she had been a 

security guard since 2019 and had worked as a supervisor at 

Union Station in Los Angeles for four months before the incident. 

On October 22, 2022, at approximately 3:40 a.m., Gonzalez was 

patrolling the area of Union Station East when Gonzalez heard 

1 All undesignated statutory references are to the Penal 

Code.
3

Garibay yell obscenities about the police while looking in her 

direction. She was wearing a blue uniform and testified she did 

not think Garibay was directly speaking to her but she also “[felt]

like he was indirectly speaking to me, if that makes sense.”

Garibay followed Gonzalez into an elevator, and Gonzalez 

immediately exited because she thought to herself “this is 

obviously not a good situation to be in.” Gonzalez recalled they 

both looked at each other as she exited the elevator, and Garibay 

gave her a “weird, goofy look.”

Garibay followed Gonzalez out of the elevator. Once 

outside, Gonzalez tried to assess the situation and whether

Garibay needed help. She then saw the blade of a three-and-a 

half-inch knife glinting in the overhead lights. Garibay was 

holding the knife in his hand toward the top of his thigh. 

Gonzalez “froze because passengers were going by. . . . [She] did 

not know if he intended to hurt [her], hurt himself or hurt 

someone passing by.”

When Gonzalez instructed a male passenger to move away 

from the area, Garibay said, “oh setup,” which she understood to 

mean she was trying to set him up. As Gonzalez tried to offer 

Garibay help, Garibay walked toward her with the knife and 

said, “I’m going to cut your . . . head off.” Garibay was about 

10 to 12 feet away from Gonzalez when he made the threat. 

Gonzalez believed Garibay was capable of causing her bodily 

injury and took the threat seriously. She attempted to keep the 

distance between them and started walking backwards, facing 

Garibay, to the middle of a bus turnaround.

Gonzalez called a code yellow using her radio, requesting 

immediate assistance from security officers. She testified that 

she would not call a code yellow unless she was “in fear” for her 
4

safety. She also knew a code yellow would cause security 

personnel to “run” to provide assistance. Approximately five 

security guards arrived at the scene. Garibay stood on top of a 

bench and began “intimidating passengers” while brandishing 

the knife.

Gonzalez also called 911, and Los Angeles Police 

Department officers responded. She estimated she called 911 five 

to 10 minutes after Garibay said he would cut off her head. 

Gonzalez testified that, since patrolling the station, she has 

called 911 more than 10 times but does not typically call 911 if 

deescalation is possible.

After police officers arrived, Garibay attempted to flee, but 

after a short chase, turned and faced the officers with the knife in 

hand, took a fighting stance, and stepped toward the officers. 

Officers tased Garibay, recovered the knife, and took him into 

custody.

Garibay waived his right to testify at trial. Garibay’s 

defense was that there was insufficient evidence to prove he 

intended his statements as threats or that they were clear, 

immediate, unconditional, and specific enough to convey a serious 

intention and immediate possibility of being carried out. He also 

argued the evidence created reasonable doubt Gonzalez was in 

sustained fear for her safety, pointing to the physical distance 

between them at the time he made his threat, the repeated 

nature of such incidents at her workplace, and her calm 

demeanor during the 911 call.

The jury found Garibay guilty of making a criminal threat 

and also found true that he used a weapon in the commission of 
5

the crime.2 The court sentenced Garibay to the three-year upper 

term. Garibay timely appealed.

DISCUSSION

A. There Is Substantial Evidence To Support the Jury’s 

Finding Gonzalez Experienced Sustained Fear

Garibay’s principal argument on appeal is that there is not 

substantial evidence Gonzalez experienced sustained fear as a 

result of his threat. We conclude the evidence was sufficient to 

support the jury’s finding that Garibay’s threat to Gonzalez that 

he would cut off her head, which he made while he brandished a 

knife and advanced toward her, caused Gonzalez to reasonably 

fear for her safety for a “period of time that extends beyond what 

is momentary, fleeting, or transitory.” (People v. Allen (1995) 

33 Cal.App.4th 1149, 1156 (Allen).)

1. Standard of Review and Governing Law

“Claims challenging the sufficiency of the evidence to 

uphold a judgment are generally reviewed under the substantial 

evidence standard. Under that standard, “‘an appellate court 

reviews the entire record in the light most favorable to the 

prosecution to determine whether it contains evidence that is 

reasonable, credible, and of solid value, from which a rational 

trier of fact could find [the elements of the crime] beyond a 

reasonable doubt.”’” (In re George T. (2004) 33 Cal.4th 620, 630-

2 On January 24, 2023, the trial court dismissed the serious 

danger to society allegation made pursuant to California Rules of 

Court, rule 4.421(b)(1).
6

631.) “In deciding the sufficiency of the evidence, a reviewing 

court resolves neither credibility issues nor evidentiary conflicts. 

[Citation.] Resolution of conflicts and inconsistencies in the 

testimony is the exclusive province of the trier of fact. [Citation.] 

Moreover, unless the testimony is physically impossible or 

inherently improbable, testimony of a single witness is sufficient 

to support a conviction.” (People v. Young (2005) 34 Cal.4th 1149, 

1181.)

In order to prove the crime of criminal threats in “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 

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.” (People v. Toledo (2001) 26 Cal.4th 221, 227-228

(Toledo).)

Garibay challenges only the fourth element that the threat 

actually caused Gonzalez to be in sustained fear for her own 

safety. Fear is “sustained” within the meaning of section 422 if it 

lasts for a “period of time that extends beyond what is
7

momentary, fleeting, or transitory.” (Allen, supra,

33 Cal.App.4th at p. 1156 [15 minutes was “more than sufficient” 

to show sustained fear where the defendant was “armed, mobile, 

and at large” and had threatened to kill the victim and her 

daughter]; accord, People v. Fierro (2010) 180 Cal.App.4th 1342, 

1349 (Fierro) [the one minute during which the defendant 

threatened to kill the victim and displayed what appeared to be a 

gun in his waistband was sufficient to establish the victim was in 

sustained fear]; see People v. Culbert (2013) 218 Cal.App.4th 184, 

188 [substantial evidence supported a finding of sustained fear

when the victim saw the defendant bring in a gun, hold it to the 

victim’s head, and pull the trigger, notwithstanding the 

defendant’s contention the gun was not loaded and there was 

only a “split second” between the time he held it to the victim’s 

temple and he pulled the trigger].)

2. Analysis

Garibay contends the evidence was insufficient to support 

the element of sustained fear because a person in Gonzalez’s 

position—“a security guard supervisor” who “was used to seeing 

individuals acting in strange ways”—would not reasonably be in 

sustained fear even if she experienced an instant of fear when 

she saw the knife.3 Garibay argues Gonzalez testified she was in 

3 To the extent Garibay challenges the reasonableness of 

Gonzalez’s fear because she was a security guard, he has forfeited 

any such argument by failing to present any argument or legal 

authorities in support. (See People v. Hovarter (2008) 44 Cal.4th 

983, 1029; People v. Stanley (1995) 10 Cal.4th 764, 793.) In all 

events, it is clear that being a security guard does not preclude 

Gonzalez from being in reasonable fear for her life. (See People v. 
8

fear when he threatened to cut her head off but “within minutes 

she segued into professional work mode, radioed for another 

supervisor, and called 911.” He highlights Gonzalez’s calm 

demeanor when speaking to the 911 operator and her testimony 

that she thought Garibay needed help as demonstrating that 

Gonzalez was not in sustained fear. Garibay’s argument is 

unpersuasive.

Gonzalez testified that five to 10 minutes elapsed between 

the time Garibay threatened to cut her head off and when she 

called 911. Gonzalez testified she believed Garibay could carry 

out his threat and that she feared for her safety and that of 

others. During this five- to 10-minute time period, Garibay 

advanced towards Gonzalez, brandishing a knife. She testified 

she retreated, walking backwards to keep him in her sight and to 

maintain some distance between them. She also called a code 

yellow on her radio for immediate assistance from security 

guards. She testified she would not call a code yellow “for 

nothing” and that security guards “run for code yellow,” 

demonstrating her view that the situation was urgent. This is 

more than substantial evidence for a reasonable jury to make a 

finding Gonzalez was in sustained fear for a “period of time that 

extends beyond what is momentary, fleeting, or transitory.” 

(Allen, supra, 33 Cal.App.4th at p. 1156.)

Wilson (2010) 186 Cal.App.4th 789, 817 [inmate’s threats 

reasonably placed correctional officer in sustained fear]; People v. 

Mosley (2007) 155 Cal.App.4th 313, 324-325 [similar re sheriff’s 

deputies].) 
9

Indeed, even under Garibay’s own version of the events 

that night, Gonzalez’s fear lasted only “minutes” until “she 

segued into professional work mode.” But the law recognizes that 

even one minute of fear or less is sufficient to constitute 

sustained fear for purposes of the criminal threats statute. (See, 

e.g., Culbert, supra, 218 Cal.App.4th at p. 190 [“split second” 

sufficient]; Fierro, supra, 180 Cal.App.4th at p. 1349 [one minute 

sufficient].)

Garibay further contends the evidence supports a finding 

Gonzalez did not experience fear beyond the moment she saw the 

knife, citing her calm demeanor during the 911 call and her 

attempt to determine whether he needed help. That Gonzalez 

handled the situation with poise and professionalism does not 

mean she did not experience sustained fear for her safety. 

Gonzalez clearly testified that she feared for her safety during 

her encounter with Garibay. In all events, we do not reweigh the 

evidence on appeal, and our role is merely to determine whether 

substantial evidence supported the jury’s finding of sustained 

fear. (See In re George T., supra, 33 Cal.4th at p. 631; Fierro, 

supra, 180 Cal.App.4th at p. 1347.) We conclude there was more 

than sufficient evidence supporting the jury’s finding that 

Garibay’s threat to Gonzalez that he would cut her head off while 

he was carrying a knife actually caused Gonzalez to be in 

sustained fear for her safety.

B. The Court Had No Duty To Instruct on the Lesser-included 

Offense of Attempted Criminal Threat

Garibay also argues the trial court had a sua sponte duty to 

instruct the jury with the lesser-included offense of attempted 

criminal threat and erred by not doing so.
10

“A trial court has a sua sponte duty to instruct the jury on 

a lesser included uncharged offense if there is substantial 

evidence that would absolve the defendant from guilt of the 

greater, but not the lesser, offense. [Citation.] Substantial 

evidence is evidence from which a jury could conclude beyond a 

reasonable doubt that the lesser offense was committed. 

[Citations.] Speculative, minimal, or insubstantial evidence is 

insufficient to require an instruction on a lesser included offense.” 

(People v. Simon (2016) 1 Cal.5th 98, 132 (Simon).) A lesserincluded instruction need not be given when there is no evidence 

that the offense is less than that charged. (See People v. 

Mendoza (2000) 24 Cal.4th 130, 174.) Our review is de novo. 

(See Simon, at p. 132; People v. Manriquez (2005) 37 Cal.4th 547, 

584.)

Attempted criminal threat is a lesser-included offense of 

the completed offense of making a criminal threat. (See Toledo, 

supra, 26 Cal.4th at p. 226; In re Sylvester C. (2006) 

137 Cal.App.4th 601, 610.) A defendant commits an attempted 

criminal threat if he or she takes all steps necessary to complete 

the crime, but a fortuity intervenes to prevent the completion; for 

example, a written threat is intercepted, or the threat is received, 

but the intended victim either misunderstands the threat or “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, at p. 231.)

According to Garibay, there was substantial evidence his 

threat did not actually cause Gonzalez to experience sustained 

fear because Gonzalez acted calmly and professionally. Gonzalez

immediately radioed for assistance from other security guards 
11

and also called 911. Gonzalez told the 911 operator, “Yeah, I’m 

okay. I’m just kinda startled.” Gonzalez simultaneously spoke 

with the 911 operator, engaged with the other security

supervisor, stated that a police vehicle had arrived, and also 

stated police officers may be needed for an unrelated event 

involving another individual at Union Station who was “‘stabbing 

poles.’”

Again, Gonzalez’s calm and professional demeanor does not 

mean she did not fear for her safety when Garibay told her he 

would cut her head off while he was carrying a knife. Indeed, 

Garibay relies only on Gonzalez’s conduct during the 911 call, 

which took place five to 10 minutes after the threat from Garibay 

and after other security guards had arrived on the scene, as 

evidence Gonzalez had no sustained fear. As discussed above, 

her testimony was sufficient evidence demonstrating she had 

sustained fear in the time period before the 911 call. Gonzalez 

testified she feared for her safety when she saw Garibay holding 

a knife. He threatened to cut off her head and she believed he 

could do it. He then advanced towards her with the knife as she 

attempted to move away from him. She called a code yellow, 

which she knew would cause other security guards to run 

towards her. There is no evidence from which the jury could 

conclude Gonzalez did not fear Garibay for the five to 10 minutes 

before she called 911.

In short, Garibay’s reliance on Gonzalez’s demeanor and 

conduct during and after the 911 call is misplaced. Garibay has 

not demonstrated the trial court erred by not instructing the jury 

on attempted criminal threat under these circumstances.
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DISPOSITION

The judgment is affirmed.

MARTINEZ, P. J.

We concur:

FEUER, J.

STONE, J.