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Name: People v. Fierro
Case #: B209030
Court: CA Court of Appeal
District 2 DCA
Division: 8
Opinion Date: 01/11/2010

The sustained, reasonable fear element of Penal Code section 422 (criminal threats) means a period of time that extends beyond what is momentary, fleeting, or transitory, and can be as short as one minute. Appellant was convicted of criminal threats. According to the evidence presented at trial, appellant and the victims, an adult man and his 14-year-old son, arrived at a gas station at the same time. The victim believed that appellant was blocking his access to a pump and asked him to move. The situation soon deteriorated with profanities uttered and the victim extending his middle finger toward appellant. After appellant filled the gas tank of his car, he drove away and the victim positioned his car to fill the tank. Rather than leaving, however, appellant drove back around and approached the victim who was unable to leave as his car was blocked by other cars. Appellant again harangued the victim. As he did so, he lifted his shirt, revealing what the victim and his son believed was a gun, and then said I should kill you right now. He then ordered the victim to “get the fuck out of here,” and the victim obeyed. The victim called the police and appellant was arrested. He had no gun but was carrying a knife in a nylon holster. The victim testified that he feared for his life during the second exchange with appellant which lasted approximately one minute, as well as for fifteen minutes after, as he drove away on the freeway. The elements of section 422 are: willful threat to commit a crime that will result in death or great bodily injury; specific intent that statement is to be taken as a threat; threat is unequivocal, unconditional, and immediate; threat caused victim to be in sustained reasonable fear. (In re George T. (2004) 33 Cal.4th 620.) Here, appellant argued that there was insufficient evidence to sustain the conviction as the fifteen minutes of fear the victim felt should not be considered because the threat lasted a very short time. The court rejected this argument, noting that the victim reasonably sustained his fear even after he was no longer in the immediate vicinity of appellant. Even if appellant’s argument was accepted, the one minute of fear the victim experienced during the actual threat qualifies as “sustained reasonable fear,” because when a person believes he may die, a minute is longer than momentary, fleeting or transitory. (Compare People v. Allen (1995) 33 Cal.App.4th 1149.)