People v. Elias CA4/2

INTRODUCTION

Defendant Reuben Elias appeals from his conviction of felony making criminal

threats (Pen. Code, § 422—count 1); misdemeanor battery (Pen. Code, § 242—count 2);

misdemeanor failure to perform duty following an accident (Veh. Code, § 20002,

subd. (a)—count 3); and misdemeanor driving under the influence (Veh. Code, § 23152,

subd. (a)—count 4). Defendant contends the trial court erred in failing to instruct sua

sponte on the lesser included offense of attempted criminal threats. We find no error, and

we affirm.

FACTS AND PROCEDURAL BACKGROUND

Because defendant’s sole contention on appeal relates only to his conviction of

making criminal threats, our statement of facts will be largely limited to that count.

On August 14, 2012, employees at a restaurant in Moreno Valley saw defendant

and a companion making lines of what appeared to be a white powdery drug on a bar

table. The restaurant’s assistant manager asked the men to leave. Defendant replied,

“Who the hell are you?” in a hostile manner, and the men did not leave. Defendant then

said, “Get the F out of here. I’ll pull my gun out and shoot you. I’m not going

anywhere.”

Defendant was wearing basketball…