(Super. Ct. No. 07CR12057)
The opinion of the court was delivered by: Butz, J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Eric Charles Olson of one count of issuing a criminal threat (Pen. Code, § 422),*fn1 three counts of misdemeanor assault (§ 240), and one count of misdemeanor exhibiting a deadly weapon (§ 417, subd. (a)(1)). With enhancements for two prior serious felony convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and three prior prison terms (§ 667.5, subd. (b)), the trial court sentenced defendant to a state prison term of 28 years to life. Jail sentences for the misdemeanor convictions were ordered to run concurrently.
Defendant appeals, contending (1) insufficient evidence supports his conviction of issuing a criminal threat, (2) the trial court erred by failing to instruct on the lesser included offense of attempted criminal threat (§§ 664, 422), and (3) under section 654, the trial court should have stayed the sentences for defendant's convictions of assault and exhibiting a weapon (§§ 240, 417, subd. (a)(1)), committed against R.S.
We shall modify the judgment to stay the sentence for exhibiting a deadly weapon. (§ 417, subd. (a)(1).) In all other respects, we shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
During the early afternoon on February 9, 2007, 15-year-old R.S. was walking to a bus stop with his 13-year-old sister, E.R., and his 13-year-old friend, A.S. The minors were walking along Highway 88 near Pioneer, California, to catch a bus to church.
Defendant drove by in his pickup truck, honked his horn, and "flipped off" the minors. The minors had done nothing to provoke defendant, and R.S. had never before seen him. The minors crossed the road and continued to walk to the bus stop.
A few minutes later, defendant drove up from the rear, pulled onto the shoulder, and nearly struck R.S. and E.R. Defendant drove 30 to 40 miles per hour at the minors, and slammed on his brakes to slide to a stop. Had R.S. not stepped back and E.R. not run forward, they would have been hit by defendant's truck. The truck separated R.S. from E.R. and A.S. by approximately 15 feet.
R.S. was standing next to the door used by defendant to get out of his truck. At his waist, defendant held in his hand a box cutter with an exposed three-inch blade. R.S. was only two to two and a half feet away from the knife. Defendant yelled at R.S., "Why didn't you tip your hat to me, you fucking nigger?" R.S. did not know what defendant meant and became scared.
R.S. testified that defendant said "right then he could slit my throat if he wanted to and that he knows where my family lives and he lives across the street from me and he can kill my whole family." Defendant was waving the box cutter back and forth in front of R.S. R.S. then testified:
"Q. And at that point in time, how did you feel?
"Q. Did you think [defendant] was serious?
"Q. And were you concerned for your safety?
"Q. What did you think [defendant] was ...