Filed 5/13/22 P. v. Griffin CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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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.

PHILLIP DEAN GRIFFIN,

Defendant and Appellant.

 B310849

 (Los Angeles County

 Super. Ct. No. BA476482)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Laura F. Priver, Judge. Affirmed as modified.

Bess Stifflelman, 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, Zee Rodriguez and Michael C. 

Keller, Deputy Attorneys General, for Plaintiff and Respondent.
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I. INTRODUCTION

A jury convicted defendant Phillip Dean Griffin of 

attempted criminal threat and found true the allegation that he 

used a deadly and dangerous weapon. On appeal, defendant 

contends that the trial court erred in instructing the jury on the 

elements of his crime and the sentencing enhancement. The 

Attorney General concedes both errors, but maintains that 

defendant was not prejudiced by the court’s failure to instruct 

adequately on attempted criminal threat. We affirm the 

judgment as modified.

II. BACKGROUND

A. Information

On April 25, 2019, the Los Angeles County District 

Attorney charged defendant by information with assault with a 

deadly weapon, in violation of Penal Code section 245, 

subdivision (a)(1) (count 1);1 and making a criminal threat, in 

violation of section 422, subdivision (a) (count 2). The District 

Attorney additionally alleged, among other sentencing 

enhancements, that defendant personally used a deadly and 

dangerous weapon, within the meaning of section 12022, 

subdivision (b)(1), in connection with count 2.

1 All further statutory references are to the Penal Code.
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B. Trial Evidence

On March 26, 2019, Francisco Ramirez, a security guard, 

was working at a strip mall in Los Angeles. At around 4:30 p.m., 

Ramirez observed that customers were rushing away from 

defendant, who stood in the parking lot.

Ramirez approached defendant and asked him what was 

going on. When Ramirez was about three or four feet away, 

defendant made a swiping motion with a kitchen knife. 

Defendant then ran toward a Rite-Aid in the strip mall. Ramirez 

“cut him off,” took out a pepper spray canister (which he then 

noticed was empty), and, when defendant approached some 

customers, screamed at him to “‘go back.’” When defendant saw 

the pepper spray canister, he ran toward some palm trees and 

stabbed one with a knife as he said, “‘This is what’s going to 

happen to you if you get near me.’” He next picked up a crowbar 

and began striking the tree, as he said, “‘This is what’s going to 

happen to you if you pepper spray me.’” At the time defendant 

made his threats, Ramirez was about 18 feet away. Although 

Ramirez was scared, he was able to remain calm because of his 

prior experience with “other situations.” Ten to 15 minutes later, 

Ramirez called 911.

C. Jury Instructions and Closing Arguments

As relevant for purposes of this appeal, the trial court 

instructed the jury that, to prove defendant guilty of making 

criminal threats, “the People must prove that:

“1. The defendant willfully threatened to unlawfully kill or 

unlawfully cause great bodily injury to Francisco Ramirez;
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“2. The defendant made that threat orally;

“3. The defendant intended that statement be understood 

as a threat;

“4. The threat was so clear, immediate, unconditional, and 

specific that it communicated to Francisco Ramirez a serious 

intention and the immediate prospect that the threat would be 

carried out;

“5. The threat actually caused Francisco Ramirez to be in 

sustained fear for his own safety;

“AND

“6. Francisco Ramirez’s fear was reasonable under the 

circumstances.”

The trial court also instructed the jury on the lesser 

included crime of attempted criminal threat:

“To prove that the defendant is guilty of attempted 

Criminal Threats . . . the People must prove that:

“1. The defendant took a direct but ineffective step toward 

committing Criminal Threats;

“AND

“2. The defendant intended to commit Criminal Threats.”

Regarding the sentencing enhancement for use of a deadly 

or dangerous weapon, the trial court instructed the jury that a 

“deadly weapon other than a firearm is any object, instrument, or 

weapon that is inherently deadly or one that is used in such a 

way that it is capable of causing and likely to cause death or 

great bodily injury.”

The jury found defendant not guilty of assault with a 

deadly weapon and the lesser included offense of simple assault. 

The jury also found defendant not guilty of criminal threat but 

found him guilty of the lesser included offense of attempted 
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criminal threat. The jury found true the allegation that 

defendant personally used a deadly and dangerous weapon.

Following a bench trial on prior conviction sentencing 

enhancements, the trial court sentenced defendant to three years 

for attempted criminal threat and one additional year for the 

weapons enhancement.

We previously granted defendant relief from default for 

failure to timely file a notice of appeal and accepted his notice.

III. DISCUSSION

A. Attempted Criminal Threat

Defendant contends, the Attorney General concedes, and 

we agree that the trial court erred when it failed to instruct the 

jury that, to find defendant guilty of attempted criminal threat, it

must conclude that the intended threat was sufficient under the 

circumstances to cause a reasonable person to be in sustained 

fear. (People v. Chandler (2014) 60 Cal.4th 508, 525 (Chandler).) 

The parties, however, disagree about whether this error 

prejudiced defendant.

We determine whether the trial court’s instructional error 

was prejudicial by applying the Chapman2 standard of review. 

Such an error is harmless if “no reasonable juror could have 

failed to find defendant’s threats sufficient under the 

circumstances to cause a reasonable person to be in sustained 

fear.” (Chandler, supra, 60 Cal.4th at p. 525.)

In Chandler, the defendant, who was known to his 

neighbor victims, “expressly threatened to kill both victims.” 

2 Chapman v. California (1967) 386 U.S. 18, 24.
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(Chandler, supra, 60 Cal.4th at p. 525.) Further, the defendant 

“made th[ose] threats while face-to-face with the victims (and, in 

[one victim’s] case, while swinging a golf club) on the street where 

the victims lived.” (Id. at p. 526.) “Neither the prosecution nor 

the defense ever suggested that [the] defendant could be 

convicted of attempted criminal threat based solely on his 

subjective intent to threaten . . . . Moreover, the defense theory 

at trial did not contest the reasonableness of the victim’s fear. 

Instead, [the] defendant argued that there was reasonable doubt 

as to whether he made any of the alleged threats and that the 

threats, if made, did not cause actual or sustained fear.” (Id. at 

p. 525.)

Similarly, here, defendant used a knife and a crowbar to 

strike at a tree to indicate what he would do to Ramirez. 

Further, defendant made his threats to Ramirez during a face-toface encounter and Ramirez testified that he was scared as a 

result. Finally, neither the prosecution nor the defense suggested 

that defendant could be convicted of attempted criminal threat 

based solely on his subjective intent to threaten. On this record, 

we conclude that “defendant’s threats were sufficient under the 

circumstances to cause a reasonable person to be in sustained 

fear—indeed, defendant did not argue otherwise at trial—and no 

reasonable juror could have concluded otherwise.” (Chandler, 

supra, 60 Cal.4th at p. 526.)
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B. Weapons Enhancement

The Attorney General concedes defendant’s next argument, 

that the imposition of the one-year weapons enhancement under 

section 12022, subdivision (b)(1) must be vacated because the 

trial court’s instruction allowed the jury to conclude that a knife 

was an inherently dangerous weapon. (People v. Aledamat (2019) 

8 Cal.5th 1, 15–16). We accept the concession.
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IV. DISPOSITION

The judgment is modified by striking the one-year weapon 

enhancement pursuant to section 12022, subdivision (b)(1). The 

clerk of the court is directed to issue an amended abstract of

judgment and forward it to the Department of Corrections and 

Rehabilitation. As so modified, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KIM, J.

We concur:

RUBIN, P. J.

BAKER, J.