Filed 8/18/26 P. v. Malekmirzayans CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE
THE PEOPLE, B344614
Plaintiff and Respondent, (Los Angeles County Super. Ct. No. 24PDCF00280)
v.
KHAZHOGH MALEKMIRZAYANS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Abraham C. Meltzer, Judge. Affirmed.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Zee Rodriguez and Patricia Rosman, Deputy Attorneys General, for Plaintiff and Respondent.
The jury found Khazhogh Malekmirzayans guilty of assault with a deadly weapon (Pen. Code,1 § 245, subd. (a)(1), count 1), exhibiting a deadly weapon (§ 417, subd. (a)(1), count 2), and criminal threats (§ 422, subd. (a); count 3). The jury found true aggravating factors alleged as to counts 1 and 2. In a bifurcated proceeding, Malekmirzayans admitted to suffering a prior strike conviction. (§§ 667, subds. (b)–(i); 1170.12 (a)–(d)). The trial court sentenced Malekmirzayans to six years in prison in count 1 (the mid-term doubled pursuant to the Three Strikes law), plus a concurrent term of 16 months in count 3 (one-third the mid-term doubled pursuant to the Three Strikes law). The court stayed the sentence in count 2 pursuant to section 654.
On appeal, Malekmirzayans contends that his conviction in count 3 must be reversed because (1) there was insufficient evidence to support the jury’s findings that the threats were clear and unequivocal and that the victim was in sustained fear; and (2) the trial court did not instruct on attempted criminal threats. We affirm the trial court’s judgment.
FACTS
On December 13, 2023, John Sobbi was working as Store Director at Jons Market when his assistant Art Nazaryan asked for his assistance with an angry customer. Sobbi went to help resolve the issue and found an irate Malekmirzayans yelling at the staff because Malekmirzayans wanted a refund on a gift card. Sobbi described Malekmirzayans’s behavior as “unusual, kind of
1 All further statutory references are to the Penal Code unless otherwise indicated.
3
not normal.” Sobbi tried to deescalate the situation. He told Malekmirzayans the store policy did not permit refunds, but that Malekmirzayans could go make a purchase and receive cash back for the balance. Malekmirzayans then began screaming at Sobbi. He said, “bad words”, like “ ‘I’m going to fuck you.’ ” Sobbi asked Malekmirzayans to leave the premises.
Sobbi and Nazaryan began escorting Malekmirzayans to the door. Malekmirzayans stopped at the exit just outside the store, about two to three feet away from Sobbi and Nazaryan. Malekmirzayans drew his right hand from his pocket and swung at Sobbi’s chest. At first Sobbi did not see anything in Malekmirzayans’s hand, but Nazaryan told Sobbi, “ ‘He has a knife.’ ” Initially, Sobbi was in shock. Then Malekmirzayans said “I’m going to fuck you up[,]” and Sobbi saw the point of the knife. The blade was about two inches long and looked sharp. Sobbi became scared. He “pulled [Nazaryan] and right away we called 911.”2 Sobbi did not say anything to Malekmirzayans. He just grabbed Nazaryan and went to call the police. Sobbi thought that Malekmirzayans was going to stab him. Malekmirzayans continued holding the knife and screaming at Sobbi. He yelled things like “ ‘Just come outside I’m going to show you, I’m going to fuck you up.’ ” Malekmirzayans said he was going to come back, which frightened Sobbi. Sobbi believed that Malekmirzayans was going to stab him. An officer arrived and arrested Malekmirzayans soon afterwards.
2 At trial, Sobbi’s 911 call was played for the jury.
4
Nazaryan testified that Malekmirzayans took a step toward him and Sobbi while holding the knife.3 Sobbi was telling Malekmirzayans to leave, but Malekmirzayans said that he did not want to leave. As he was holding the knife, Malekmirzayans told Nazaryan and Sobbi that he was going to “fuck [them] up[.]” Nazaryan did not feel safe.
DISCUSSION
A. Sufficiency of the Evidence
1. Legal Principles
When reviewing for sufficiency of the evidence, the “ ‘ “ ‘court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ ” ’ ” (People v. Casares (2016) 62 Cal.4th 808, 823; see Jackson v. Virginia (1979) 443 U.S. 307, 321 [federal due process requires proof “sufficient to have led a rational trier of fact to find guilt beyond a reasonable doubt”].) “ ‘The standard of appellate review is the same in cases in which the People rely primarily on circumstantial evidence.’ [Citation.] ‘. . . [I]t is the jury rather
3 In the Information and at trial, the People’s theory was that Malekmirzayans assaulted and threatened Sobbi; although present with Sobbi during the confrontation with Malekmirzayans, Nazaryan was not identified as a victim in any of the charges.
5
than the reviewing court that weighs the evidence, resolves conflicting inferences and determines whether the People have established guilt beyond a reasonable doubt.’ [Citation.]” (Casares, at p. 823.) On appeal, “ ‘[w]e do not reweigh evidence or reevaluate a witness’s credibility. [Citation.]’ [Citation.]” (People v. Scott (2011) 52 Cal.4th 452, 487.)
The elements of a criminal threat are: “(1) The defendant willfully threatened to commit a crime that will result in death or great bodily injury to another person. (2) The defendant had the specific intent that the statement be taken as a threat. (3) The threat was on its face and under the circumstances ‘ “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) The threat caused the victim ‘ “to be in sustained fear for his or her own safety or for his or her immediate family’s safety.” ’ (5) The victim’s fear was reasonable under the circumstances. (§ 422; [People v.] Toledo [(2001)] 26 Cal.4th [221,] 228.) [(Toledo)]” (People v. Jackson (2009) 178 Cal.App.4th 590, 596.)
“[T]he nature of the threat cannot be determined only at face value. Section 422 demands that the purported threat be examined ‘on its face and under the circumstances in which it was made.’ The surrounding circumstances must be examined to determine if the threat is real and genuine, a true threat. (People v. Bolin (1998) 18 Cal.4th 297, 339−340; United States v. Kelner (2d Cir. 1976) 534 F.2d 1020, 1026−1027.)” (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1137 (Ricky T.).)
6
2. Analysis
Malekmirzayans contends that his case is analogous to Ricky T., supra, 87 Cal.App.4th 1132. The contention is without merit.
The defendant in Ricky T. was a 16-year-old high school student. (Id. at p. 1135.) He left teacher Roger Heathcote’s class to use the restroom. (Ibid.) When the defendant returned, the classroom door was locked. (Ibid.) The defendant banged on the door. Heathcote opened the door, which swung outward striking the defendant in the head. (Ibid.) The defendant cursed at Heathcote and threatened “ ‘I’m going to get you.’ ” (Ibid.) Heathcote felt physically threatened by the defendant, so he sent the defendant to the school office. (Ibid.) Heathcote contacted the police the following day. (Id. at 1138.) The defendant was interviewed in the principal’s office. (Ibid.) The defendant told an officer that he was “ ‘getting in [Heathcote’s] face[,]’ ” (id. at p. 1135), and that he told Heathcote he would “ ‘kick [his] ass’ ” (id. at p. 1136). The defendant said that he did not intend to sound threatening, however. (Id. at p. 1135.)
On appeal, the defendant in Ricky T. argued that there was insufficient evidence to establish that the threat he made was unequivocal and immediate or that it caused Heathcote to be in sustained fear for his safety. (Ricky T., supra, 87 Cal.App.4th at p. 1137.) The appellate court observed that there was no prior disagreement or hostility between the defendant and Heathcote, and that the defendant made no show of physical violence. (Id. at p. 1138.) Additionally, the trial court had acquitted the defendant of threatening an employee of a public or private
7
education institution pursuant to section 71. (Id. at p. 1139.) In doing so, the trial court found no evidence that the defendant intended to prevent Heathcote from doing his duties or that the defendant created a reasonable belief that he could carry out the threat. (Ibid.) The Court of Appeal found that the circumstances did not support the conclusion that the threat was a “true threat” (Ibid.) The court also concluded that there was insufficient evidence that Heathcote was in sustained fear. (Id. at p. 1140.) The fact that Heathcote did not call the police until the next day indicated that Heathcote’s fear was not sustained. (Ibid.) Moreover, the defendant did not take advantage of Heathcote’s fear. He went to the school office when Heathcote told him to do so. (Ibid.) The appellate court concluded: “[The defendant’s] statement was an emotional response to an accident rather than a death threat that induced sustained fear. Although what [the defendant] did was wrong, we are hesitant to change this school confrontation between a student and a teacher to a terrorist threat. Students who misbehave should be taught a lesson, but not, as in this case, a penal one.” (Id. at p. 1141.)
This case is readily distinguishable. In Ricky T., the defendant was a high school student. The defendant’s teacher was an authority figure, and when he asserted his authority, the defendant complied and went to the school office. The defendant in Ricky T. reacted to being hit with a door. He had not quarreled with his teacher or acted violently before he told his teacher he would “get” him. The defendant in Ricky T. was not armed with a weapon. The People’s claim that Heathcote was in sustained fear was undermined by the fact that Heathcote did not report the incident to the police until the next day.
8
Here, Malekmirzayans was an adult over whom Sobbi possessed no authority. Whereas in Ricky T. the defendant reacted badly but understandably to Heathcote’s physical act of hitting him with a door, here Malekmirzayans became irrationally angry over restrictions on his use of a gift card. Sobbi was called to assist by his coworker Nazaryan to deal with an already angry Malekmirzayans. Malekmirzayans’s behavior was both unprovoked and unpredictable, which would reasonably create fear. When Sobbi began escorting Malekmirzayans from the grocery store, Malekmirzayans attacked Sobbi with a knife and swung the knife within inches of Sobbi’s body. After this unprovoked and disproportionate display of rage, Malekmirzayans threatened to “fuck [Sobbi] up.” The threat was unequivocal, unconditional, immediate and specific. Malekmirzayans had the means to cause death or great bodily injury with the knife. It was clear from his attack only seconds earlier that he intended to use the knife to “fuck [Sobbi] up.” Malekmirzayans’s taunt that he would show Sobbi that he would “fuck [Sobbi] up” if Sobbi came outside did not render Malekmirzayans’s threat conditional or undermine its immediacy. Malekmirzayans had just attacked Sobbi in the entrance of the store. He refused to leave the premises. Malekmirzayans also gave no indication that he intended to stay outside, and given his erratic behavior, there was no reason for Sobbi to believe that Malekmirzayans would not come into the store after Sobbi. That Sobbi’s fear was sustained was corroborated by the fact that he immediately called the police. Sobbi testified that Malekmirzayans stated that he would return and that he feared Malekmirzayans would come back and stab
9
him. Substantial evidence supports Malekmirzayans’s conviction of criminal threats.
B. Instructions on Attempted Criminal Threats
1. Legal Principles
The trial court is obligated to submit instructions for lesser included offenses if the record contains substantial evidence to support the instructions. (People v. Breverman (1998) 19 Cal.4th 142, 162 (Breverman).) “On the other hand, if there is no proof, other than an unexplainable rejection of the prosecution’s evidence, that the offense was less than that charged, such instructions shall not be given.” (People v. Kraft (2000) 23 Cal.4th 978, 1063.) “In deciding whether evidence is ‘substantial’ in this context, a [trial] court determines only its bare legal sufficiency, not its weight.” (Breverman, supra, 19 Cal.4th at p. 177.) “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.)
“[A] defendant is guilty of an attempted criminal threat ‘whenever, acting with the specific intent to commit the offense of criminal threat, the defendant performs an act that goes beyond mere preparation and indicates that he or she is putting a plan into action.’ ([People v. Toledo, supra, 26 Cal.4th] at p. 230.) [The Supreme Court has] qualified this broad definition, explaining that, in view of the elements set forth in section 422, ‘a defendant acts with the specific intent to commit the offense of criminal threat only if he or she specifically intends to threaten to commit a crime resulting in death or great bodily injury with the
10
further intent that the threat be taken as a threat, under circumstances sufficient to convey to the person threatened a gravity of purpose and an immediate prospect of execution so as to reasonably cause the person to be in sustained fear for his or her own safety or for his or her family’s safety.’ (Toledo, supra, at pp. 230–231, italics added.)” (People v. Jackson, supra, 178 Cal.App.4th at pp. 596–597.)
“A variety of potential circumstances fall within the reach of the offense of attempted criminal threat. For example, if a defendant takes all steps necessary to perpetrate the completed crime of criminal threat by means of a written threat, but the crime is not completed only because the written threat is intercepted before delivery to the threatened person, the defendant properly may be found guilty of attempted criminal threat. Similarly, if a defendant, with the requisite intent, orally makes a sufficient threat directly to the threatened person, but for some reason the threatened person does not understand the threat, an attempted criminal threat also would occur. Further, if a defendant, again 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, the defendant properly may be found to have committed the offense of attempted criminal threat. In each of these situations, only a fortuity, not intended by the defendant, has prevented the defendant from perpetrating the completed offense of criminal threat itself.” (Toledo, supra, 26 Cal.4th at p. 231.)
11
On review, we do not defer to the trial court’s ruling.
Instead, we apply “the independent or de novo standard of review” to the trial court’s decision to decline to instruct about lesser included offense based upon its conclusion that substantial evidence has not been presented to support the instructions. (People v. Cole (2004) 33 Cal.4th 1158, 1218.)
If we conclude that the trial court erred, “[t]o determine whether this error was prejudicial, we must consider whether, ‘ “after an examination of the entire cause, including the evidence” (Cal. Const., art. VI, § 13), it appears “reasonably probable” the defendant would have obtained a more favorable outcome had the error not occurred ([People v.] Watson [(1956)] 46 Cal.2d 818, 836).’ (Breverman, supra, 19 Cal.4th at p. 178.) The question is not what a jury could have done, but what a jury would likely have done if properly instructed. (Id. at p. 177.)” (People v. Reeves (2001) 91 Cal.App.4th 14, 53.)
2. Analysis
Here, the trial court did not err by not instructing on attempted criminal threats because there was not substantial evidence to support Malekmirzayans’s theory that Sobbi was not in sustained fear. Such a finding would have required the jury to inexplicably reject Sobbi’s testimony. Sobbi did not stay in Malekmirzayans’s vicinity after Malekmirzayans threatened him. He immediately retreated to safety, also taking Nazaryan with him and away from Malekmirzayans, and called the police. Sobbi testified that he was afraid that Malekmirzayans would return and stab him. His fear was well-founded—Malekmirzayans had already threatened him with a knife, not just brandishing it, but
12
swinging it within inches of Sobbi’s body. Malekmirzayans threatened to come back. There was no contrary evidence to suggest that Sobbi was not afraid that Malekmirzayans would stab him before police arrived, and thus no basis for the trial court to give an instruction on attempted criminal threats. Toledo, supra, 26 Cal.4th 221, upon which Malekmirzayans relies, is readily distinguishable. There, the victim testified that she did not fear the defendant. (Id. at p. 225.) There is no such contrary evidence in this case.
Further, Malekmirzayans has failed to show he was prejudiced by the lack of an attempted criminal threats instruction. The evidence described above overwhelmingly supported the conclusion that Sobbi was in sustained fear and that a reasonable person would have been in sustained fear. Additionally, the jury convicted Malekmirzayans of assault with a deadly weapon. In so doing, the jurors had to find that Malekmirzayans “did an act with a deadly weapon . . . that by its nature would directly and probably result in the application of force to a person. . . .” and that Malekmirzayans “was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force . . . .” In light of these findings, and the uncontroverted evidence that Sobbi immediately retreated, called the police for help, and professed a fear that Malekmirzayans would return and stab him, it is not reasonably probable that a jury would have found Sobbi was not in sustained fear and returned a verdict convicting Malekmirzayans of the lesser offense of attempted criminal threats, even if the jury had been instructed on attempted criminal threats.
13
DISPOSITION
We affirm the trial court’s judgment. NOT TO BE PUBLISHED.
MOOR, J.
WE CONCUR:
HOFFSTADT, P. J.
BAKER, J.