Filed 7/24/26 P. v. Malveaux CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 FOUR
THE PEOPLE, B342436
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. YA104272)
v.
SHANNON MALVEAUX,
Defendant and Appellant.
APPEAL from judgment of the Superior Court of Los
Angeles County, Lowynn Young, Judge. Affirmed.
Ryan Peabody, Jennifer Peabody, and Ava Wallace, under
appointments by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Zee Rodriguez, Supervising Deputy
Attorney General, and Lauren N. Guber, Deputy Attorney
General, for Plaintiff and Respondent.
Defendant Shannon Malveaux appeals from judgment
following his conviction for making criminal threats against
Alfonso Barron, the boyfriend of a woman defendant was
stalking. Defendant contends the record is insufficient to support
the finding his threats placed Barron in “sustained fear.” He
further contends the court erred in its sua sponte duty to instruct
the jury on the lesser included offense of attempted criminal
threats. We affirm.
FACTUAL BACKGROUND
In late 2017, defendant befriended an unhoused woman
named Genevieve Bernatchez and offered her a place to live.
Bernatchez stayed in defendant’s home for two “very short
period[s] of time” in early 2018. Bernatchez told defendant she
had no interest in dating, but defendant ignored her and began
exhibiting a pattern of controlling behavior. Bernatchez moved
out permanently after defendant threatened to kill her with a
machete.
Defendant kept track of Bernatchez’s whereabouts between
2018 and 2020. He left love notes and large banners in places she
was living and, on several occasions, confronted and violently
assaulted her. During one incident in 2020, defendant used
homemade incendiary devices to set fire to an encampment where
Bernatchez and her boyfriend, Barron, were living. Defendant
returned a few weeks later, removed fire extinguishers from the
area, and set fire to another encampment while Bernatchez and
Barron were sleeping. Barron screamed after he discovered the
fire.
Around 12:00 p.m. on July 27, 2021, defendant appeared at
a new encampment with what Bernatchez described as a
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homemade flamethrower. Bernatchez testified that she was
changing clothes inside a tent when she heard Barron scream
out, “‘He’s here. Run. Get out.’” Bernatchez stepped away as the
tent around her burned. She saw defendant shooting
six-foot-long flames from the flamethrower. From about 20 to
25 feet, defendant yelled at Barron he was “going to kill [him].
And then he proceeded [to] actually turn the flamethrower on
him.” The flames “[a]lmost touch[ed]” Barron as he pushed over
a grocery cart to block defendant’s path and attempted to get
away. Minutes later, defendant’s flamethrower malfunctioned or
ran out of fuel. As he left the area, defendant told Barron he
would kill him if he did not leave Bernatchez. The fire killed two
of Bernatchez’s domesticated cats.
Los Angeles County Sheriff’s Department Deputy Rene
Diaz responded to a 911 phone call and spent more than 30
minutes reviewing the scene and speaking with Bernatchez and
Barron. Diaz noticed Barron “seemed very stressed” and
“disheveled.” Barron and Bernatchez showed Diaz parts of their
bodies that were either burned or singed by the fire. Barron
looked “almost like charred” with soot covering his body.
Defendant was arrested in a nearby area later that evening.
PROCEDURAL BACKGROUND
An amended information charged defendant with two
counts of attempted murder (Pen. Code, §§ 664/187, subd. (a)),1
one count of arson of an inhabited dwelling (§ 451, subd. (b)), one
count of making criminal threats against Barron (§ 422), and one
count of stalking Bernatchez (§ 646.9, subd. (a)). The information
1 Subsequent unspecified references to statutes are to the Penal
Code.
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also alleged aggravating sentencing factors (Cal. Rules of Court,
rule 4.421(a)(1), (a)(8), (b)(1)).
Following trial, the jury acquitted defendant of the
attempted murders, convicted him of all other charges, and found
the aggravating sentencing factors true. Defendant was
sentenced to an overall term of nine years four months
imprisonment.
DISCUSSION
A. Sufficiency of Evidence of Making Criminal Threats
Defendant contends insufficient evidence supports his
conviction for making criminal threats. We disagree.
“‘“[W]e review the entire record in the light most favorable
to the judgment to determine whether it contains substantial
evidence—that is, evidence that is reasonable, credible, and of
solid value—from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.”’” (People v.
McCurdy (2014) 59 Cal.4th 1063, 1104.) We presume in support
of the judgment every fact the jury could reasonably deduce from
direct and circumstantial evidence. (People v. Baker (2021) 10
Cal.5th 1044, 1103; People v. Vargas (2020) 9 Cal.5th 793, 820.)
Reversal is unwarranted unless it appears “‘“that upon no
hypothesis whatever is there sufficient substantial evidence to
support”’” the verdict. (People v. Penunuri (2018) 5 Cal.5th 126,
142.)
The following elements comprise a violation of section 422
for making criminal threats: “(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 . . . be taken as
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a threat, even if there is no intent of actually carrying it out,’
(3) that the threat . . . 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).)
Defendant contends the evidence was insufficient to
establish the fourth element requiring “sustained fear,” or fear
for a period of time extending “beyond what is momentary,
fleeting, or transitory.” (People v. Allen (1995) 33 Cal.App.4th
1149, 1156.) He argues (1) Barron did not testify at trial; and
(2) no additional testimony established his sustained fear.
We reject both arguments. To begin with, Barron’s
testimony was not required to establish his fear. (People v. Ortiz
(2002) 101 Cal.App.4th 410, 417.) The existence of fear “may be
proved with circumstantial evidence” and “inferred from the
circumstances in which a crime is committed . . . .” (People v.
Holt (1997) 15 Cal.4th 619, 690.) Indeed, “the surrounding
circumstances should be taken into account to determine if a
threat falls within the proscription of section 422.” (People v.
Solis (2001) 90 Cal.App.4th 1002, 1013 (Solis).)
The only reasonable construction of the evidence here is
that defendant placed Barron in sustained fear. The
flamethrower incident lasted several minutes and began when
defendant set Barron’s (and Bernatchez’s) home ablaze with
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Bernatchez inside. After Barron cried out for Bernatchez,
defendant threatened to kill him and “actually turn[ed] the
flamethrower on him,” shooting flames that “[a]lmost touch[ed]”
him as he tried to get away. After defendant’s flamethrower
malfunctioned or ran out of fuel, he left while threatening to kill
Barron again. These “mannerisms, affect, and actions” (Solis,
supra, 90 Cal.App.4th at p. 1013) practically compelled the jury
to find defendant’s threats placed Barron in sustained fear. That
the incident lasted several minutes is of no legal effect, as any
“minute during which [Barron] heard the threat and saw
[defendant’s] weapon qualifies as ‘sustained’ under the statute.
When one believes he is about to die, a minute is longer than
‘momentary, fleeting, or transitory.’ [Citation.]” (People v. Fierro
(2010) 180 Cal.App.4th 1342, 1349; see also People v. Culbert
(2013) 218 Cal.App.4th 184, 190–191 [“split second” sufficient].)
Sufficient evidence supported defendant’s conviction for making
criminal threats to Barron.
B. Sua Sponte Duty to Instruct Lesser Included Offense
Anticipating we would conclude the evidence sufficiently
supports defendant’s conviction, defendant further contends the
trial court erred in its sua sponte duty to instruct the jury with
the lesser included offense of attempted criminal threat. Again,
we disagree.
The duty to instruct the jury on a lesser included offense
arises when there is substantial evidence “‘from which a
reasonable jury could conclude that the defendant committed the
lesser, but not the greater, offense.’” (People v. Landry (2016) 2
Cal.5th 52, 96.) “‘This substantial evidence requirement is not
satisfied by “‘any evidence . . . no matter how weak,’” but rather
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by evidence from which a jury composed of reasonable persons
could conclude “that the lesser offense, but not the greater, was
committed.”’ [Citation.]” (People v. Wilson (2021) 11 Cal.5th 259,
298; see also People v. Valdez (2004) 32 Cal.4th 73, 116.) We
review this claim independently. (People v. Nelson (2016) 1
Cal.5th 513, 538.)
Attempted criminal threat is a lesser included offense of
making a criminal threat. (Toledo, supra, 26 Cal.4th at pp. 230,
235.) This lesser offense may occur if the defendant “makes a
sufficient threat directly to the threatened person, but for some
reason the threatened person does not understand the threat.”
(Id. at p. 231.) It may also occur if the defendant “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.” (Ibid.;
see id. at p. 232 [a “fortuity or unanticipated event” may thwart
completion of the crime].)
We conclude that insufficient evidence supported
defendant’s committing only an attempted criminal threat. As
discussed, the evidence practically compelled the finding that
Barron was placed in sustained fear. Defendant threatened to
kill him while nearly setting him on fire. As defendant admits,
the actions Barron took during the incident to “get out of the line
of fire and knocking the grocery cart over to create an obstacle”
sufficiently demonstrated this “fear during the incident.” Beyond
these actions, Barron appeared visibly stressed and disheveled
long after the incident. Defendant identifies no countervailing
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evidence to suggest Barron was not actually placed in sustained
fear.
Even assuming the evidence warranted the instruction
defendant now seeks on appeal, any error in failing to give it was
harmless. “The failure to instruct on a lesser included offense in
a noncapital case does not require reversal ‘unless an
examination of the entire record establishes a reasonable
probability that the error affected the outcome.’ [Citation.] ‘Such
posttrial review focuses not on what a reasonable jury could do,
but what such a jury is likely to have done in the absence of the
error under consideration.’” (People v. Thomas (2012) 53 Cal.4th
771, 814, fn. omitted.)
At trial, neither the prosecution nor the defense argued
that defendant’s threats failed to place Barron in sustained fear.
Rather than disputing Barron’s fear, the defense attacked
Bernatchez’s character to raise questions about the truth of her
testimony. On these facts, we conclude a reasonable jury would
have convicted defendant of making a criminal threat, not simply
attempting to make a criminal threat. “[I]ndeed, defendant did
not argue otherwise at trial—and no reasonable juror could have
concluded otherwise.” (People v. Chandler (2014) 60 Cal.4th 508,
525–526 [instructional error harmless beyond reasonable doubt
where defendant threatened to kill victim “while face-to-face” and
wielding weapon].)
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MORI, J.
We concur:
ZUKIN, P. J.
TAMZARIAN, J.
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