Filed 8/18/26 P. v. Malekmirzayans CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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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.
2
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.
3
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.
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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.).)
5
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
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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.
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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
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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
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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.)
10
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
11
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.
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DISPOSITION
We affirm the trial court’s judgment.
NOT TO BE PUBLISHED.
MOOR, J.
WE CONCUR:
HOFFSTADT, P. J.
BAKER, J.
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