Opinion
A099358.
7-29-2003
THE PEOPLE, Plaintiff and Respondent, v. KEITH GREGGORY GUZMAN, Defendant and Appellant.
Based on threats to maim and kill an ex-girlfriend and others, Keith Greggory Guzman was charged with five counts of making criminal threats (Pen. Code, § 422, one count of attempted threat (id., §§ 422, 664), two counts of interfering with an officer (id., § 69), and one count of misdemeanor criminal contempt (id., § 166, subd. (c)(1)). He waived a jury, and the court found him guilty on four threat counts, the attempt and the contempt. The other counts, all related to police officers, resulted in dismissal or acquittal. Sentenced to a consecutive term of five years, Guzman appeals claiming evidentiary deficiency and errors. We affirm the judgment.
BACKGROUND
The court received testimony and exhibits on pretrial issues of psychotherapist- patient privilege, the dangerous-patient or Tarasoff exception (Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 131 Cal. Rptr. 14, 551 P.2d 334; Evid. Code, § 1024 [unspecified section references are to that code]) and Miranda advice (Miranda v. Arizona (1966) 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602). The court then received the same evidence for trial, often for different purposes. We summarize the evidence here for purposes of the guilt issues and separately consider, in the discussion of issues that follows, some of the motion-related evidence.
Heather D. testified about her prior relationship with Guzman. They had dated for two years, living together for about a year of that time, from May 1997 until she moved out in June 1998, after their son, Jacob, was born. The relationship was finished, and Heather moved in with her parents. Then on May 27, 2000, when Jacob was two and a half years old, Guzman assaulted her when she arrived at his Redwood City home for a court-ordered visit with Jacob. Upset that day about his child support payments, he left the living room for his bedroom and then emerged with a baseball bat and threatened to kill her and not let her leave the house alive. When she grabbed Jacob and ran out onto a balcony, Guzman grabbed a handful of her hair and held her there, still threatening to kill her, as she screamed and gripped the balcony railing. She begged him not to kill her in front of Jacob and told him she would get the child supported lowered if only he would let her leave. He ordered her into the bedroom, saying he was "going to fucking kill" her, but then a downstairs neighbor woman called out to see if she needed help. Guzman told Heather to "get the hell out" of the house and that if she called the police, "he was going to hunt me down and kill me." The neighbor called Redwood City police, who came and arrested Guzman. Frightened, Heather changed jobs and residence, got a restraining order against Guzman, and kept her new address secret from him. Guzman lost his visitation rights, and Heather did not hear from him again until the events of this case.
Around 10:13 a.m. on November 13, 2001, a police officer in the City of San Mateo saw Guzman weaving into an oncoming traffic lane and arrested him for driving under the influence. Intoxilyzer tests at 11:09 and 11:11 a.m. showed his blood alcohol content (BAC) to be .32 and .30. Guzman was cited and, since he had spoken of suicide, simultaneously placed on a hold pursuant to Welfare and Institutions Code section 5150 (the 5150 hold), under which he would be involuntarily hospitalized, for up to 72 hours, as someone gravely disabled or dangerous to himself or others (Ford v. Norton (2001) 89 Cal.App.4th 974, 979-980). After initial assessment at a program called First Chance, he was taken to San Mateo County General (aka Chope) Hospital, where he got an emer- gency room medical clearance and was taken to the hospitals psychiatric emergency services (PES) unit. A blood draw there at 2:40 p.m. showed a .316 alcohol reading.
Psychiatric nurse Lee Johnson, a registered nurse in PES, conducted Guzmans intake interview. Tearful and anxious, Guzman sobbed and said, "Nothing can stop me. I will kill her," and that he had a large collection of knives at home. Johnson asked who, and he said "my girlfriend," without giving a name. She went with Guzman to a private room, and he had no trouble walking. The room was ordinarily for children, with games, childrens decor and furniture, and, while it required entry with a card key, was unlocked from the inside. People could leave it for a dayroom, nurses station, phone and other amenities outside. She explained the access and amenities to him as part of their intake interview, also learning from intake questions that he had a four-year-old son. They sat opposite one another, and their interview went from about 2:30 to 3:30 p.m. Guzman asked early on if Johnson would call his ex-girlfriend and tell her that if she would just let the son "have his surname . . . everything would be okay." Asked more about this, he explained that there was a restraining order against him and that the day after it expired, on October 19 or 20 next year (2002), he was going to buy guns, shoot her sister, mother and father, and kill her with a knife. He said the ex-girlfriend would die last, making her suffer more, and that he would kill the son, too, which surprised Johnson given what he said earlier about him. Guzman said the child would go first, so as "not to suffer" and so that the ex-girlfriend would suffer more seeing him die. Everybody would die before her so as to "inflict the maximum amount of suffering"; she was "going to watch the rest of the family die . . . ." When Johnson suggested therapy or medications to try and create a relationship with the son, Guzman said this wasnt about love: "I dont love him. He goes first, its not his fault." This was because he wasnt allowed to see the son and had the restraining order against him. He wasnt interested in alternatives and would find no calm or peace "until he saw her bleed to death." He had to kill the family, too, and wanted the Redwood City Police Department involved, for they had arrested him or served the restraining order. He wanted to "shoot some of them until they shot him."
Johnson knew of the high BAC tests and smelled alcohol. Guzman looked "kind of drunk" and had some slurred speech and memory impairment (e.g., thought it was November 12), but "wasnt stumbling," "was also articulate, very clear, very coherent," had "very good eye contact although very eeried eye [sic], blurry" from drink, and under- stood her questions and responded appropriately. He was not at all resistant to talking. Throughout the interview he exhibited a very cold and calculated demeanor-not toward Johnson but about the topic. She took his homicidal threats seriously, taking his suicidal talk ("suicide by cop plan") seriously, too, but feeling it was not "his main objective." She felt that his drinking had "disinhibited him just enough" to disclose his plan, for he just shrugged when she asked him why he was talking about this now if he had kept it to himself for so long. Asked if he had expressed this to his domestic violence counselor, he said he should call or write to him and apologize "for not being honest with him."
Johnson had explained the 5150 hold to Guzman, that she was there to help assess whether and how long he would be held, that he might be transferred to another hospital if kept, and that any release before 72 hours would be up to a psychiatrist. A psychiatrist named Dr. Lewis participated in the interview at first.
Convinced by the threats that she had a duty under the Tarasoff decision to warn the potential victims and police, Johnson advised Guzman of that duty. She told him that what they said was normally privileged but that she had a duty to call victims and police when, as he had done, threats were made against specific victims. Guzman made eye contact and, retaining a cold but somewhat resigned expression, said: "Fine. Nothing can stop me." He expressed no surprise or objection, asked no questions, and made no effort to stop her. She asked him for a phone number for the ex-girlfriend, and he said he did not have one, knew where her parents lived in Pacifica, but was not allowed to have the ex-girlfriends number. He volunteered, though, that his probation officer would know the number and that Johnson could call him to get it. She asked him for the phone number, and he recited it from memory, also giving her the officers name. She ended the interview by saying, again without reaction from him, that she was going to go make the calls. She also advised that the police would be coming to talk to him.
Johnson called the Pacifica Police Department and, after getting a phone number from the probation officer, the mother, Cynthia D. Deeming some details "too graphic" to give without "freaking [her] out," Johnson did not give the mother "specific quotes" but did convey the threats to kill her and the family and, saying they were taking them "very seriously," urged her to do the same and "take major steps to protect herself." The mother appeared shaken and called back within the hour to ask if Guzman would be released. Johnson assured her that she would be notified if that happened. Johnson went off duty at 5:00 p.m. but stayed another hour to write up her notes and leave them with the oncoming nurse. All of the victims except the child, Jacob, were warned that night.
Officer Adam Smith was dispatched to the hospital after a nurse and the D. family had reported the threats to the Pacifica Police Department. He interviewed Guzman for 30 to 45 minutes, starting at 6:00 p.m., in the same childrens room used earlier by the nurse. Smith was unarmed and assured Guzman he was not going to be arrested or handcuffed. They sat alone at a small table and spoke conversationally, on a first-name basis. Smith explained that he just wanted to know what Guzman had said earlier, to the nurse, and began the conversation by asking Guzman if he wanted to hurt his ex- girlfriend. "Youre damn right, I do," came the reply, and Guzman went from there on to give details. Smith asked questions about what Guzman said but never confronted him with information. A smell of alcohol and red, watery eyes showed that Guzman had been drinking, but he walked and conversed as if unimpaired and had no slurred speech.
Guzman amplified on his earlier statements, saying he did not want to be a killer and knew it was wrong and sounded bad, but that it was the only way he would be able to have any peace. He planned to kill his ex-girlfriend Heathers family, their son and then a Redwood City police officer. He would take knives from his knife collection, a black trench coat, two sawed-off shotguns and, because it would be Halloween of 2002, wear a mask. He chose Halloween because a domestic violence restraining order against him would be lifted and he could purchase guns. He would go to the D. home and "take the house over by force." Making Heather watch, he would kill her sister Michelle first, by slicing her throat and cutting off her ears. She was first because he disliked her and she had always showed up at restraining order hearings. Next he would kill son Jacob, with a knife, because he felt the boy didnt deserve to suffer by watching him kill the rest of the family. Next he would kill the mother, Cindy, slicing her throat and cutting her ears. Next would be the father, also with a knife, because it would hurt Heather more to watch her father die. Then he would cut Heathers eyes out and cut off her hands and feet "so she would have to depend on someone else the rest of her life." He wanted her to be last so she would "have to live with the pain of seeing her family die." Then he would burn down the house, so she had "nothing left," and go to Redwood City. There he would shoot an officer in the back of the head with a shotgun and "basically go to war with the police department," killing "as many as he could" because they had "stepped too far into his life when they arrested him" for domestic violence. He would do this because he didnt get to see his son. He had planned it for a year, thought about it "every minute of every day," "didnt believe he could be helped, and [felt] nothing could stop him." If Smith happened to respond to a 911 call from the D. home, Guzman would "take [him] out, too," for Smith was an officer and had to be accountable for the things the police do.
Toward the end of the interview, Smith asked if Guzman would write things down. He left Guzman in the room with paper and pencil for five or ten minutes, but Guzman came out, saying he did not want to write anything-that it might incriminate him. Smith honored his wishes and left. He later returned and arrested Guzman but not until 2:00 or 2:30 a.m. Smith took the threats seriously and was frightened by them.
Each of the four adult victims testified to having been warned by a nurse, the officer, and/or each other that afternoon or evening, and that they were placed in fear of harm. Officer Smith personally paid them a visit late that night. The youngest victim, four-year-old Jacob, was not told given his age, and because the threat was made but ultimately not communicated to him, the count concerning him was charged as an attempt (People v. Toledo (2001) 26 Cal.4th 221, 224, 227-230, 235).
Kenneth Allen Mark testified for the defense as an expert in forensic toxicology and the effects of alcohol in the human body, shedding light on the state of Guzmans alcohol-induced impairment during his 2:30 p.m. interview with the nurse and 6:00 p.m. interview with the police officer. Taking the breathalyzer readings of .32 and .30 from 11:00 a.m., and using an average rate of elimination or "burnoff" (.015 to .02 per hour), he estimated that Guzman had a BAC of .27 during the nurse interview and .20 to .22 during the officer interview. He found the hospitals later .316 reading from 2:40 p.m. also consistent with a .27 BAC for the nurse interview, assuming the hospital had used a customary blood-serum rather than whole-blood test. On the effects of those levels, Mark assumed Guzman had a high tolerance to alcohol given his BAC of .30 or .32 that morning and his ability to walk and drive, whereas vomiting or unconsciousness would have kept most people from reaching that level. At .27 a tolerant drinker would be very intoxicated but could be functional; mental process would be impaired, but this might not be physically obvious. One could-and with reduced inhibitions probably would-speak whatever was on his mind and respond appropriately to simple questions; one would have poor judgment and insight and tenuous impulse control. While planning and forethought would be limited, one could talk about a preexisting plan. Even at .32, one might give wrong answer but comprehend questions. At a .20 (police interview) level, a highly tolerant person could appear completely rational yet smell of alcohol and be impaired.
Psychiatrist Jeffrey Weiner testified for the defense as an expert in psychiatry, and forensic and clinical psychiatry. Much of his testimony went specifically to privilege and Tarasoff warnings, and his view was that an assessment about giving warning should not have been made until Guzman was sober. However, he had also interviewed Guzman, those who knew him and people involved in the 5150 hold, including two psychiatrists. A Dr. Kilcrease had evaluated Guzman in the early evening of the hold and found that he "basically was sober," and later tests given by a Dr. Fricke showed "no psychotic illness or other major psychiatric disorder," although Guzman was "embittered" and "extremely angry" about his ex-girlfriend, had thoughts of harming her even when "clearly sober," and had been thinking about it for almost two years before the 5150 hold. Weiner felt that suicidal and homicidal ideation were "not unusual" for someone on a 5150 hold, but homicidal ideation was less common.
The testimony of the defense experts, given pretrial, was considered for trial but not for any opinion on the ultimate question of Guzmans intent (see Pen. Code, § 29).
Linda Nelson, a good friend of Guzmans and a reluctant prosecution witness, had known Guzman since before his breakup with, or assault on, Heather and had lived with him for six to eight months. She testified that he drank often and, when he did, would say Heather deserved to die and speak of killing her and her family, of videotaping the killings and of having his teenage daughter (from a prior relationship) watch the tape. He spoke of taking Heather from her house (on her way to work) to a parking lot by the Cliff House, killing her there and driving down the coast to kill himself. He made those threats before and after his arrest for assaulting Heather. Nelson knew of his knife collection and had refused when he asked her once to buy a gun for him. His drinking did not keep him from understanding what she was saying or making logical replies. She took his threats seriously and would talk to him until he felt better. He would calm down, but Nelson was never sure she had talked him out of it permanently. She attributed his threats to the drinking and had never told Heather or her family.
Russell Mayall, who roomed in the same Sunnyvale house with Guzman, testified that Guzman called him from jail, after his arrest for the current case, and asked him to remove some papers from the bottom draw of a red toolbox. Mayall said he did so and put them behind a coffee table in the dining room. Later, seeing among the papers an apparent action plan for the murder, handwritten on the back of the envelope of a love letter from Heather, and a check register (for apparent child support) bearing entries of "bitch for Jacob" and "Redwood City P.D. bitch," he grew concerned and replaced the papers, before a second search of Guzmans room by probation officer Rossi Bradford. Mayall denied in testimony that Guzman had asked him to remove any specific item, but Officer David Bertini testified that Mayall told him that Guzman specified a handwritten plan and asked that he remove and throw away "anything else suspicious" in his room. Mayall was aware that Guzman, a chef, had a collection of knives in his room, one of which had brass knuckles on the handle.
Post-arrest probation searches of Guzmans room in Sunnyvale produced, among other things, a collection of 33 knives, the handwritten plan and the check register.
DISCUSSION
Guzmans claims are all evidentiary. He sees (1) insufficient evidence on the threats counts, (2) violation of the psychotherapist-patient privilege ( § 1014) in the use of his statements to the psychiatric nurse, (3) violation of Miranda and due process in the admission of his statements to the police officer, and (4) lack of relevance in the items found in his residence. We will reject each claim, in that order.
I. Sufficiency of Threats Evidence
In deciding the sufficiency of the evidence, we determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. We resolve neither credibility issues nor evidentiary conflicts; we only look for substantial evidence. (People v. Felix (2001) 92 Cal.App.4th 905, 909-910 (Felix).) The essential elements for a criminal threat under Penal Code section 422 are that: (1) the defendant willfully threatened to commit a crime which would result in death or great bodily injury; (2) he or she made the threat with the specific intent that it be taken as a threat, even if there was no intention of actually carrying it out; (3) 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; (4) the threat actually caused the person to be in sustained fear for his or her own or immediate familys safety; and (5) the persons fear was reasonable under the circumstances. (People v. Toledo, supra, 26 Cal.4th at pp. 227-228.)
Guzman challenges the elements that we will call, by his shorthand terms, specific intent (2) and true threat (3). He claims the evidence shows only the drunken ravings of a troubled man who did not expect his statements to be conveyed and posed no serious or imminent threat. We reject the challenge and, relying on our detailed background statement already set out above, restate only the evidence key to each of his arguments.
On whether his threats were meant to be conveyed, Penal Code section 422 can be violated without the defendant personally communicating a threat to the victim, as long as he intends that the threat be so conveyed. (In re Ryan D. (2002) 100 Cal.App.4th 854, 861; In re David L. (1991) 234 Cal. App. 3d 1655, 1659, 286 Cal. Rptr. 398.) Guzman relies on Felix, supra, in which defendant Felix told a jail psychologist that he would kill his ex-girlfriend when released, and the psychologist warned the woman consistent with his duty under Tarasoff. (Felix, supra, 92 Cal.App.4th at pp. 909, 911.) The appellate court found no evidence of an intent to have the threats conveyed. While the People urged that Felix should have expected conveyance, the record contained no evidence that Felix "knew about Tarasoff," had wanted the threat conveyed or had been told by the psychologist "that he would contact" the ex-girlfriend, and he had given the psychologist only the ex-girlfriends first name. (Id. at p. 913.) Nor did the context support the intent, for "Felix made his remarks while discussing highly personal thoughts about homicide, suicide, and his emotions for [the ex-girlfriend] . . . in a setting where the patient has an expectation of confidentiality." (Id. at p. 914.) In policy, the court feared that imposing criminal liability in such circumstances "would mean that those who need therapy for their homicidal thoughts would not seek it. [Citation.] They could view the jail psychologist as a police agent and the therapy session as self-incrimination. [Citation.] Instead of exposing their thoughts for treatment they might repress them and act on them. Such a result would not further the interests of victims, psychotherapy, or the criminal justice system." (Id. at p. 915.)
The most critical distinction here is that Guzman was told, by the nurse, that she had a duty to report his homicidal threats to the victims (and the police). He replied, with a cold and calculating expression: "Fine. Nothing can stop me." Guzman would have us infer only that he was resigned to her reporting him. On review for substantial evidence, however, evidence that rests in part on circumstantial, as here, is not insubstantial merely because the evidence is also reconcilable with a conclusion contrary to one drawn by the trier of fact. (People v. Earp (1999) 20 Cal.4th 826, 887-888, 978 P.2d 15.) It was reasonable to view "Fine" as meaning that Guzman wanted the nurse to convey his threats and would not be deterred if she did. Guzman insists that an inference of intent to convey is unreasonable because the nurse advised him of her Tarasoff duty only after he had already uttered the threats, but we disagree. His reply, to her announced duty to alert the victims, reasonably indicates an intent to convey, as do the facts that he never urged her not to tell, after she said she would, and that he went on to discuss the matter with a police officer, in greater and more graphic detail, after the nurse had warned him that she would have to tell the police and victims. Also, Guzman had asked the nurse, at the start of the interview in the childrens room, to call his ex-girlfriend "and tell her that everything would be okay, if she would just allow the child to have his surname." To tell her "everything would be okay" implies that he wanted the victim to know of his threats-i.e., the not okay part-and he invited her to communicate with the main victim, who would surely relay the threat to the others (except for the young child). He then assisted the nurse by giving her Heathers name, whereabouts and his probation officers phone number so that she could contact the victims through the officer.
Next, on a public policy level, we have no concern here of inhibiting therapeutic disclosure or reducing expectations of confidentiality in a therapeutic setting. Guzmans words and actions imply that he wanted the victims told, and he surely had no reasonable expectation of confidentiality after the nurse warned him of her duty to report. Nor was he interested in therapy. When the nurse suggested dealing with his homicidal feelings through therapy and medication, Guzman said he was not interested and that it would do no good. These were not remarks confined to the therapeutic setting, either, he repeated them in greater detail to a police officer and does not argue that he expected therapeutic confidentiality in what he told the officer. Guzman does argue that he did not intend for the officer, who gave him no Tarasoff-type warning, to convey his threats to the victims, but this is an untenable argument on a review for substantial evidence. The court could reasonably conclude, especially given Guzmans past domestic violence and threats and related dealings with the police, that he fully expected the officer to relay his threats.
Finally, Guzman argues that his threats were the product of drunken ravings, not intention, and that his own expert estimated him to have a blood alcohol level of .27 at the start of his statements to the nurse, a level that would probably render the average person unconscious. Still, that expert testified that Guzman seemed to be highly tolerant to alcohol and that one with his level of intoxication could still understand and respond to simple questions. Witness Linda Nelson, who had lived with Guzman and knew him far better, likewise testified that he could converse with and comprehend others when drunk. Also, when Guzman spoke to the police officer over three hours later, his estimated blood alcohol level was lower (.20 to .22 according to his expert), yet he continued with the very same threats, this time in graphically expanded detail. Also, there was the evidence of the homicide plan as revealed in the evidence taken from Guzmans room, showing a plan that went beyond drunken impulses. One of his experts testified that he held these desires to harm Heather even when "clearly sober" and had no major psychiatric disorder. His other expert testified that Guzmans level of intoxication would reduce inhibitions. The court was supported in concluding: "We dont have the ramblings of a drunk man who simulates these matters of inconsequence. Instead, we have, perhaps, ramblings, but theyre intended ramblings. Its a look inside his mind. His intoxication has apparently made him more carefree in how he addresses those who ask him questions. And in this carefree state, he exposes a plan to do harm to an entire family."
Specific intent to have the threats conveyed is abundantly supported.
On the "true threat" element, Guzman stresses the 5150 hold, his past failures to carry out threats against Heather and her family, and his stated plan to act on these threats on the next Halloween, to argue that his threats were not so imminent as to convey a gravity of purpose and immediate prospect of execution. These arguments, too, fail on substantial evidence review.
As to failures to act upon past threats, we believe Guzmans briefing adopts a misguided perspective. True, Linda Nelson testified that he had made several past threats to kill Heather and her family and had not followed through, but Penal Code section 422 concerns threats as conveyed to the persons threatened (People v. Toledo, supra, 26 Cal.4th at p. 228), not as appearing from all the circumstances that may appear from a criminal trial. A close look at Nelsons testimony shows that she never communicated the past threats to Heather or her family. She replied, "No, I have never spoken to them," and that she had not been asked to tell them. Nor did any family member testify that Nelson had warned or advised them about any past threats. Thus Nelsons testimony is irrelevant to the "true threat" elements of these offenses.
Nor, of course, did it matter to the "specific intent" element that Guzman might not have actually intended to carry out his threats. His intent to have the threats taken as threats was all that mattered. (People v. Toledo, supra, 26 Cal.4th at p. 228.)
Properly confining ourselves to what the victims knew about past threats, we see only that Heather D. had been threatened before and had been physically assaulted by Guzman in May 2000. There was little reason for her to discount the seriousness of this latest, homicidal threat on the whole family, and testimony by the other family members likewise shows no reason to doubt the threat. The plan, it appears, was conveyed to them in enough detail that they understood the time, the manner and (for two victims) the order of their deaths, leading further credence to the threat. Heather was especially afraid; she had changed her address to elude him after the past violence, had secured a restraining order, and had been told by Guzman that he would hunt her down and kill her.
Guzman claims lack of imminence based on his 5150 hold and his having said he planned to carry out the plan on the following Halloween, which would have been 11 1/2 months after he uttered the threats. In the full circumstances, we find no obstacle to guilt. Legally, the 5150 hold was for only 72 hours unless further institutionalization were sought (Welf. & Inst. Code, §§ 5250 [14 days, 5300 [beyond]), and there was even a risk that a psychiatrist might order his release before 72 hours elapsed (Ford v. Norton, supra, 89 Cal.App.4th at pp. 979-981). Factually, Guzman points to nothing in the record showing that any of the victims had reason to believe he would be held beyond 72 hours.
The Halloween timeframe is more troubling but also not a legal impediment on substantial evidence review. Our high court has stressed that the adjective "imminent" in Penal Code section 422, like other adjectives used there, is a relative term. "The use of the word "so" indicates that unequivocality, unconditionality, immediacy and specificity are not absolutely mandated, but must be sufficiently present in the threat and surround- ing circumstances to convey gravity of purpose and immediate prospect of execution to the victim." (People v. Bolin (1998) 18 Cal.4th 297, 340, 956 P.2d 374, italics added.) This is not a case where the threat was couched in conditional language, where it would be carried out only upon some occurrence set to happen far in the future. He did speak of Halloween and the expiration of the restraining order, but in context, the threats were made because of an ongoing problem-since his domestic abuse of the mother (Heather) over a year earlier-of being forbidden to see his four-year-old son. There was no assurance that he would not act before Halloween. Evidence showed that he had a knife collection ready for use and that knives were his stated method of execution or mayhem for each victim. He mentioned Halloween as coinciding with the end of a restraining order that kept him from buying a shotgun, which he wanted to use to take the family home by storm. But again, we do not see how that inhibition on gun buying can be considered on this element of the offense, where our sole concern is the perception conveyed to each victim (People v. Toledo, supra, 26 Cal.4th at p. 228), not to a judge or jury. We are cited no evidence indicating that the victims were told that Guzman felt he could not get a shotgun until the restraining order lapsed, that they knew a restraining order prevented his owning one or, as to anyone but Heather (who obtained the order), whether an order existed. We might infer on this record that, since Heather lived in the same Pacifica home with her family, she had told them about the restraining order, but this leaves purely to conjecture whether the family understood that the order kept Guzman from having a gun or whether any of them felt secure that this was an effective deterrent. It would be bizarre, of course, to think that Guzman was determined to murder three generations of the family yet deterred by the thought of violating a court order. The court could also reasonably infer that since the threat was to storm a house and kill everyone at once, Guzman suspected that they lived together and needed only to find out where in order to act. The parties history is an important factor in deciding the true-threat factor (In re Ryan D., supra, 100 Cal.App.4th at pp. 858-859, 864-865 [art-class picture of student shooting officer who had found marijuana on him was not enough, where officer and others had not reacted as though it was a true threat]; In re Ricky T. (2001) 87 Cal.App.4th 1132, 1135-1136, 1138 [students curses to "get you" or "kick your ass," made to high school teacher who accidentally hit him while opening a door, held insufficient absent any prior history of animosity or hostility]), and the prior history here with the mother of Guzmans son strongly supported the true-threat element (cf. People v. Gaut (2002) 95 Cal.App.4th 1425, 1431 [history of prior threats and assaults made threat from prison true]; People v. Mendoza (1997) 59 Cal.App.4th 1333, 1340-1341 [vague gang-retaliation threat sufficient given past gang relationships]; People v. McCray (1997) 58 Cal.App.4th 159, 172 [sufficient given prior actual violence]). And finally, Nurse Johnson testified at one point (italics added): "After I explained the Tarasoff procedure to him and also explained, you know, the duration of the 5150 . . . he said you can lock me up for a day, you can lock me up for three days, you can lock me up for five years, nothing can stop me, I will kill her when I get out." Johnson summarized by saying that "when he got out he would do this."
Substantial evidence supports the convictions.
II. Nurse Interview
Pretrial debate about the nurse interview focused on whether the circumstances justified a Tarasoff warning so as to render the threats unprivileged. No challenge to the Tarasoff justification is pursued on appeal; rather, Guzman attacks details of the Tarasoff procedure, mostly on points not raised below. We find them all waived and/or meritless.
A. "Psychotherapist" status. First, he claims Johnson was unqualified to issue warnings because she was not proven to be a "psychotherapist" for privilege purposes. The record shows she was a registered nurse, held a two-year nursing degree, had worked on the PES unit since August 1996, had worked in child, adolescent and adult psychiatric wards and, in fact, had done nothing but psychiatric nursing since graduating in 1995. Still, Guzman correctly notes that the code version of the Tarasoff exception says "there is no privilege . . . if the psychotherapist has reasonable cause to believe that the patient is in such mental or emotional condition as to be dangerous to himself or to the person or property of another and that disclosure of the communication is necessary to prevent the threatened danger"( § 1024, italics added) and that "psychotherapist" is specially defined in various ways ( § 1010), none of which is specifically established by the record. Given that all of his assertedly privileged statements were made to the same nurse, this might seem counterproductive in that lack of "psychotherapist" status would seem fatal to his claim of privilege ( § 1014 [confidential communications "between patient and psycho- therapist"]), as well as the section 1024 exception, but Guzman points out that case law has extended persons bound by the privilege to "psychiatric personnel," including even psychiatrically untrained persons " who take histories for the purpose of recording state- ments for the use of psychiatrists" (Grosslight v. Superior Court (1977) 72 Cal. App. 3d 502, 508 & fn. 4, 140 Cal. Rptr. 278). Thus he concedes that Johnson would count as among psychiatric personnel, but he urges that the list of such persons "is larger than the list of persons who may violate the privilege" under section 1024 and thus that the "violation" was unauthorized here. We find no error.
Two possibilities under section 1010, Guzman notes, were: "A person licensed as a registered nurse pursuant to Chapter 6 (commencing with Section 2700) of Division 2 of the Business and Professions Code, who possesses a masters degree in psychiatric-mental health nursing and is listed as a psychiatric-mental health nurse by the Board of Registered Nursing" (subd. (k)) or "An advanced practice registered nurse who is certi- fied as a clinical nurse specialist pursuant to Article 9 commencing with Section 2838) of Chapter 6 of Division 2 of the Business and Professions Code and who participates in expert clinical practice in the specialty of psychiatric-mental health nursing" (subd. (l)).
Initially, the claim is waived for not raising it anytime below. Reversal cannot be predicated on error in admitting evidence unless the record shows a timely objection making clear that specific ground ( § 353, subd. (a)); lack of such objection deprives the proponent of the evidence a chance to establish a better record or some alternative basis for admission (People v. Waidla (2000) 22 Cal.4th 690, 717, 996 P.2d 46). The People note a lack of specific objection about the nurses status, but Guzman counters that there is no waiver because, by generally claiming privilege, ones communications are "presumed to have been made in confidence and the opponent of the claim of privilege has the burden of proof to establish that the communication was not confidential" (§ 917, subd. (a))-i.e., that the privilege did not exist. We reject his reasoning. The prosecutions burden under the dangerous-patient exception was to show that "the psychotherapist had reasonable cause to believe" Guzman was "dangerous" to others and that disclosure was "necessary to prevent the threatened danger" ( § 1024). The prosecution did prove that, for as already noted, Guzmans claim of privilege necessarily assumes that the nurse did qualify, in case law, as a confidence-bound recipient of his communications. His claim of no status goes only to the nurses role as a conveyor of Tarasoff warnings to victims and police, a point unnecessary to negate the existence of privilege. The point is therefore waived for failure to raise it below, regardless of section 917, subdivision (a). Nor does People v. Wharton (1991) 53 Cal.3d 522, 280 Cal. Rptr. 631, 809 P.2d 290 (Wharton), excuse the failure. The failure there was not reiterating a pretrial objection when evidence was actually presented at trial, and the court found reiteration excused because a pretrial ruling had been made on a well-defined body of evidence and in sufficiently full context to resolve the issue. (Id. at pp. 549-550, fn. 3.) The failure here was not reiteration, but failure to fairly frame the objection at all.
Had the point been fairly presented, moreover, substantial evidence would support an implied finding against Guzman, even if Johnson lacked "psychotherapist" status ( § 1010) for warning purposes. The nurse gave this explanation of her interaction with a staff psychiatrist regarding the warnings: "Dr. Lewis interviewed the patient. I started the interview, Dr. Lewis came in and joined me, asked some questions. I brought him up to speed on what was going on, then he asked him questions and talked to him a little bit. Then he excused himself, and we continued to talk for some time after that. [P] So when I came out, you know, I told Dr. Lewis about what had been said since he left and that I felt that we should Tarasoff him and that I would make the phone calls. [P] Q. And Dr. Lewis said go ahead? [P] A. Yeah. [P] Was he saying its your call or did you interpret it as that or that he concurred? [P] A. Im sure it was a concurrence. I think if he had thought that it wasnt the time to Tarasoff somebody he would have said, well, I dont see that you really need to do that. But its really a judgment call from the interviewer, and I think I got most of the information." "[The patient] told me first and so I made the calls." "I probably told Dr. Lewis when I came out of the room that, you know, this is what we should do and I11 go ahead and take care of it," and he "basically" said, "Fine."
From that testimony, the court could reasonably find that Lewis, an undisputedly qualified "psychotherapist" for purposes of the section 1024 dangerous-patient exception ( § 1010, subd. (a) [one authorized to practice medicine who devotes a substantial portion of his time to the practice of psychiatry]), was familiar enough with Guzmans threats to make his own evaluation, did so and authorized the nurse to give the warnings.
B. Actual threats. In the Felix case, a trial court had inexplicably excluded, as irrelevant and hearsay, testimony of what a psychologist had said in giving a victim of a threat a Tarasoff warning, thus helping to leave the record without substantial evidence of a criminal threat. (Felix, supra, 92 Cal.App.4th at pp. 909, 912.) The appeal court noted the obvious potential relevance of the excluded testimony but added in dictum: "If [the psychologist] had merely told [the victim] that Felix was dangerous and that she should be careful, the objection should have been sustained . . . ." (Id. at p. 912.) Based on that dictum, Guzman says: "That is the situation here. Nurse Johnson merely told Mrs. D[.] of the threat in general terms and told her she should take steps to protect herself. That statement is not admissible under Felix." We are initially baffled at why Guzman would be concerned about such a general statement, one that could not have harmed him on the merits of the criminal-threat counts, especially given all of the specific threats identified. Moreover, the point is waived by his failure to raise it anytime below.
Alternatively, the point lacks merit. We agree with the People that the unstated rationale for the Felix dictum is evidently that a warning in such general terms would not support the sustained-fear element of a criminal threat. Guzman counters that Felix "did not say" this was the reason the statements were inadmissible, which is true, but he offers no other rationale. Here, not only was the sustained-fear element uncontested, but there were specifics about Nurse Johnsons warning. Johnson testified that she told Cynthia D. that Guzman had threatened to kill all of the family members, and Cynthia D. confirmed that Johnson told her Guzman had laid out a plan to murder all family members. This warning of mass murder was not just an amorphous warning that Guzman was dangerous.
C. Non-trigger statements. Our Supreme Court stated in Wharton, supra, 53 Cal.3d at page 554: "Although the [trial] court permitted the prosecutor to inquire about statements by the defendant himself which [led] to the impressions and diagnosis and ultimate conclusion to communicate with the victim, the court went on to rule that necessarily excluded are any statements that did not trigger the . . . warning. . . . Thus, the court expressly limited application of section 1024 to those confidential communica- tions that triggered their decision to warn the victim. By circumscribing the scope of the exception to the privilege, the trial court acted in accordance with both the intent of the Legislature and this courts prior pronouncements on the subject." Guzman invokes that precedent to argue that his reply to Nurse Johnsons announced duty to notify the victims and police was not a triggering statement under section 1024. He did object on this ground below, but we find no error. Guzmans reply was: "Fine. Nothing can stop me." While this was not a threat of harm in itself, it was in the context of the interview. Also, Wharton includes within admissible statements "statements by the defendant himself which [led] to the impressions and diagnosis and ultimate conclusion to communicate with the victim" (Wharton, supra, at p. 554), and Johnson testified that Guzmans ominous reply contributed to her conclusion that he posed a real threat.
III. Officer Interview
Guzman moved pretrial to exclude his statements to the police officer at the hospital as the product of "custodial" interrogation within the meaning of Miranda. It was stipulated that no Miranda warnings were given, but the motion was denied for lack of Miranda "custody." Guzman challenges that conclusion and urges, for the first time on appeal, that the record shows that his statements were involuntary. We find no error.
A. Miranda "custody"
A ruling on Miranda "custody" is a mixed question of fact and law to which we apply de novo review after deferring to all supported matters of basic fact and credibility. (Thompson v. Keohane (1995) 516 U.S. 99, 109-110, 112-113, 133 L. Ed. 2d 383, 116 S. Ct. 457.) "Two discrete inquiries are essential to the determination: first, what were the circumstances surrounding the in- terrogation; and second, given those circumstances,[] would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave. Once the scene is set and the players lines and actions are reconstructed, the court must apply an objective test to resolve the ultimate inquiry: [was] there a "formal arrest or restraint on freedom of movement" of the degree associated with a formal arrest." (Id. at p. 112; People v. Ochoa (1998) 19 Cal.4th 353, 401-402, 966 P.2d 442.)
Confining ourselves to the pretrial testimony, the surrounding facts are these: Guzman spoke with Officer Smith at 6:00 p.m., about three hours after speaking with Nurse Johnson. Johnson had explained to Guzman that he was under a 5150 hold for up to 72 hours, and had told him she was obligated to tell the victim and police about his threats of harm. Smith came without any other officers and went first to Guzmans room. Then a nurse called Guzman and led them to a room usually used for children, furnished with toys, games and furniture, including a table and chairs. This was the same room in which Guzman had spoken with Johnson. The room was private, requiring a card key to enter but unlocked for anyone wanting to leave, and the premises had been explained to Guzman earlier. The greater psychiatric ward itself was locked. Smith told Guzman he was not under arrest and was not going to be handcuffed or arrested. Smith said he was there to find out what Guzman had said to the nurse and began by asking Guzman if he wanted to hurt his ex-girlfriend. From then on Guzman talked in detail and Smith asked him questions about what he said. They sat throughout the interview, which lasted 30 to 45 minutes, and spoke conversationally, on a first-name basis. Smith never said he was investigating a crime or confronted Guzman with information. Smith wrote up a report of the interview hours later, apparently from memory, did not tell Guzman that no report would be made, and did not recall telling Guzman that he did not have to talk. Guzman was not physically restrained in any way. Toward the end of the interview, Smith asked Guzman if he would write some things down. Guzman declined at first but then said he would. Smith gave him some paper and a pencil and left the room, but when he returned after five or ten minutes, Guzman came out saying something to the effect that he did not want to write because it might be used against him. Smith told him goodbye and left the hospital. He did later return and arrest Guzman, but not until 2:00 or 2:30 a.m.
Recognizing that no single factor is dispositive, courts look to factors like the site of the interrogation, whether the investigation has focused on the suspect, whether indicia of arrest are present, and the length and form of the questioning. (E.g., People v. Morris (1991) 53 Cal.3d 152, 197, 279 Cal. Rptr. 720, 807 P.2d 949.) Early cases citing the focus factor (e.g., People v. Layton (1972) 29 Cal. App. 3d 349, 353-354, 105 Cal. Rptr. 509 (Layton)) must be read in light of clarification that a focus of suspicion is irrelevant unless somehow manifested to the suspect (Stansbury v. California (1994) 511 U.S. 318, 323-325, 128 L. Ed. 2d 293, 114 S. Ct. 1526.) Miranda warnings are not required simply because questioning takes place in the station house or the questioned person is one whom the police suspect. (California v. Beheler (1983) 463 U.S. 1121, 1125, 77 L. Ed. 2d 1275, 103 S. Ct. 3517.) Also, a suspect who is already confined, like a prison inmate, is not automatically in custody for Miranda purposes. In such a case, "the usual test of whether a reasonable person would have believed he was free to leave ceases to be useful. [Citation.] Obviously, the inmate is not free to leave. The question must therefore shift to whether some extra degree of restraint was imposed upon the inmate to force him to participate in the interrogation. Four factors are significant in this inquiry: (1) the language used to summon the inmate for questioning, (2) the physical surroundings of the interrogation, (3) the extent to which the inmate is confronted with evidence of his guilt, and (4) the additional pressure exerted to detain him." (People v. Fradiue (2000) 80 Cal.App.4th 15, 20-21 [no custody where correctional officer interviewed inmate through cell bars about heroin discovery, cellmate was present, no additional restraints were used, and inmate was told he could reject that officer as the investigator].) As the trial court below did, we find those extra-restraint criteria applicable to a civil confinement-the "5150 hold" in this case.
Traditional factors favor the courts no-custody ruling: the site was a childrens room; focus-of-suspicion was never communicated to Guzman, beyond what he should have surmised from earlier making the threats and being told that the police would have to be informed; there were no indicia of arrest; the length of questioning was just 30 to 45 minutes; and the form was conversational and non-accusatory. Extra-restraint criteria also support the ruling: the language of summons was evidently neutral; the physical surroundings were not threatening; Guzman was not confronted with any evidence of his guilt, beyond the implicit fact that the officer had learned of his earlier statements to the nurse; and we see no additional pressures exerted to detain him. He was free to leave the childrens room, left without giving a written statement, and was not pressured to continue the interview after he declined and left the room. In summary, a reasonable person would not have felt there was a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.
Guzmans three cited cases of found "custody" are distinguishable. The Layton case, from 1972, predated the clarification that a focus of suspicion is irrelevant unless conveyed to the suspect, and it does not, as Guzmans briefing seems to suppose at one point, equate a 5150 hold with Miranda custody. The defendant had been taken by police to a county hospital after admittedly taking LSD, was advised there that he could be held for 72 hours for his own protection and, while he later was so held, was not yet under the hold when he produced an LSD tablet in response to the officer asking him, "Are you holding anything?" (Layton, supra, 29 Cal. App. 3d at pp. 351-352.) The court relied, rather, on the officers investigation of LSD possession having focused on the suspect (the only one "upon whom the inquiry could possibly focus") and on the suspect being asked, point blank, whether he was holding the drug. The court held, without elaboration on the circumstances at the county facility, "It cannot reasonably be argued that [he] was ever free to leave at any time after the arrival of [the officer]" (id. at p. 354), from which we gather that the court was impressed that he had been pat-searched at an initial hospital facility and then driven to the county facility in the locked part of an officers patrol car, with the officer apparently always in his company thereafter. (Id. at p. 352.) Here, there was no continual escort. Guzman spent hours at the hospital before Officer Smith arrived and interviewed him, with no indicia of arrest attending the encounter.
Frankly, Layton is hard to square with later authority that Miranda warnings are not required simply because questioning takes place in the station house or because the questioned person is one whom the police suspect. (California v. Beheler, supra, 463 U.S. at p. 1125). Also, while Layton relied on Miranda language about custody being "deprived of [ones] freedom in any significant way" (Layton, supra, 29 Cal. App. 3d at p. 354; Miranda, supra, 384 U.S. at p. 444), more refined phrasing today asks if there was "a "formal arrest or restraint on freedom of movement" of the degree associated with a formal arrest" (Thompson v. Keohane, supra, 516 U.S. at p. 112).
Also hard to square with current authority-but nonetheless distinguishable-is Guzmans New York case, People v. Turkenich (A.D. 2 Dept. 1988) 529 N.Y.S.2d 385. The only similarity to ours is that the suspect was confined to a psychiatric ward when interviewed by police. The investigation concerned the death of the suspects mother. The suspect confessed, spoke only Russian (with a doctor translating for him), responded incoherently at times, and had such diminished mental capacity that, when one police detective wanted to issue Miranda warnings, a doctor told him not to bother because the suspect would not understand. (Id. at pp. 386-387.) While the court ostensibly found Miranda custody, its reasoning sounds in the language of due process coercion: "We conclude that the hospital interrogation was conducted in an atmosphere and in physical surroundings which were inherently coercive. Therefore the interrogation was custodial in nature. . . . The circumstances of the interrogation may be said to have substantially affected the defendants "will to resist and compelled him to speak where he would not otherwise [have done] so freely."" (Id. at pp. 387-388; see generally People v. Massie (1998) 19 Cal.4th 550, 576, 967 P.2d 29.) The case here is not similar, and we will hold (part IIIB, post) that the record does not show a due process violation.
Guzmans last cited case, State v. Stott (N.J. 2002) 171 N.J. 343, 794 A.2d 120 (Stott), likewise involved interrogation during involuntary confinement in a state psychiatric hospital, and the court took that "massive curtailment of liberty" into account in assessing Miranda custody (id. at p. 134), for the defendant was unable to move freely "within any area" of his ward (id. at p. 135), beyond his own room, without an escort (id. at pp. 123-124). His roommate had died of a drug overdose, and the defendant was interviewed by hospital police twice, not within the ward, but in a basement room reserved for police use, with either two officers or an officer and escort present, and the interviews were partially tape recorded. The defendant admitted sharing drugs with the roommate and having been involved in distributing drugs to others. (Id. at pp. 124-126.) Stott found assurances to the defendant of freedom to leave outweighed by his inability to move about without an escort (id. at p. 135) and, overall, a custodial interrogation in violation of Miranda. The court cited seclusion and isolation in the basement room, interviews by four officers over two days, and objective evidence that the defendant had been singled out in the criminal investigation. (Id. at pp. 133-134.) Guzmans situation is far different. He was able to moved about the ward unescorted, was interviewed in a childrens room right in the ward, and met with just one officer, in a nonthreatening atmosphere, for just 30 to 45 minutes.
B. Due-Process Coercion
Guzman argues, based on his despondency and intoxication, that his statements were involuntary under due process standards. We find the point waived for failure to raise it below. (People v. Ray (1996) 13 Cal.4th 313, 339, 914 P.2d 846.) Guzman notes that such a claim was reached without a trial-court objection in In re Cameron (1968) 68 Cal.2d 487, 67 Cal. Rptr. 529, 439 P.2d 633, but the case is distinguishable in that a habeas corpus record established "as a matter of law" that two confessions were involuntary. (In re Cameron , supra, at p. 503.) Similarly to our case, the defendant had confessed while confined to a psychiatric ward, with a .18 blood alcohol level, and spoke in a seemingly coherent, rational and responsive manner. Critically, however, he was heavily under the influence of Thorazine, having received a dosage at least 10 times the usual, and expert testimony showed that he would have been in a borderline state of shock, unable to resist confessing to suggestive questions. He had been subjected to leading questions, had been highly distraught, and had even provided details that never occurred. (Id. at pp. 495-497, 501-502.)
Involuntariness is not established here as a matter of law. Even looking beyond the pretrial motions, to trial testimony, the full circumstances do not show Guzmans free will having been overborne (see generally People v. Massie, supra, 19 Cal.4th at p. 576). His only impairment was an alcohol level that left him able to speak calmly, logically and responsively. There is no evidence of another drug, and he was not distraught when he spoke to the officer. Nor is there any sign of coercion in the manner in which he was questioned. His involuntariness claim is therefore waived for failure to raise it below.
Anticipating waiver, Guzman argues that his trial counsel rendered ineffective assistance by not objecting below, but the record-largely for the reasons just noted-does not show a reasonable probability of a more favorable result had trial counsel raised the issue (People v. Ray, supra, 13 Cal.4th at p. 339; Kimmelman v. Morrison (1986) 477 U.S. 365, 374-375, 91 L. Ed. 2d 305, 106 S. Ct. 2574 [defendant must show that Fourth and Sixth Amendment claims were meritorious, and a reasonable probability of different verdict at trial]; cf. People v. Hart (1999) 20 Cal.4th 546, 623-625, 976 P.2d 683). The claim thus fails, even if we indulge the assumption that competent trial counsel might have raised the issue.
IV. Admission of Seized Items
Guzman objected to admitting a photo of his knife collection, his check-register epithets against Heather, and his handwritten plan to harm her, urging that the items were irrelevant. The court admitted them for "intent" and, in later explaining its guilt findings, remarked: "A search of his room revealed particular items that would indicate an intent to do harm, perhaps, on the victim. At least it would support an argument that he has great animosity towards the victim. And particularly that list of things to do, which I think is an exhibit. [P] . . . [P] Is a rather bone-chilling list that one my infer intends harm." Correctly noting that intent to carry out his threats, as opposed to intent to have threats taken as true, is not an element of a criminal threat (People v. Toledo, supra, 26 Cal.4th at p. 228), Guzman argues that the court must have misused the evidence to show propensity (see generally People v. Falsetta (1999) 21 Cal.4th 903, 913-914, 986 P.2d 182).
We see no such error. Guzman fails to quote the remark that immediately follows the ones he stresses: "So, in sum, we dont have the ramblings of a drunken man who simulates [sic] these matters of inconsequence. Instead, we have, perhaps, ramblings, but theyre intended ramblings. Its a look inside his mind. His intoxication has apparently made him more carefree in how he addresses those who ask him questions. And in this carefree state, he exposes a plan to do harm to an entire family. [P] And because of the circumstantial evidence here, before and after these statements, I think its very clear and well presented that the defendant willfully threatened to commit a crime. And he did so with specific intent that these statements be taken as true." (Italics added.) Clearly, the court was using the items to resolve whether the threats were the product of a drunken mind or, rather, something more, and the courts preceding remarks were about the criminal-threat elements as listed in CALJIC No. 9.94, which confirms that the court understood that intent to carry out the threat was not required.
Guzman thus does not show any misuse of the evidence for propensity, and he overlooks that the items from his room were relevant to-that is, had some tendency in reason to disprove ( § 210)-his key defense position that his statements were drunken ramblings rather than true threats. Surely, if he previously harbored such malice toward Heather, had written plans to harm her, and kept them stashed away in a toolbox in his room, then this tended to prove state of mind-that his words at the hospital were meant as threats and not just drunken ramblings. The record also suggests that Guzman himself drew the same evidentiary inference, for after his arrest, he called Mayall to have him remove the plan from his toolbox, an act reasonably tending to show consciousness of guilt (CALJIC No. 2.06; People v. Breaux (1991) 1 Cal.4th 281, 303-304, 821 P.2d 585; People v. Crandell (1988) 46 Cal.3d 833, 870-871, 251 Cal. Rptr. 227, 760 P.2d 423). The plan was clearly relevant for that purpose.
The knives were also relevant. There is no direct evidence that they were kept or collected for an attack on Heather or her family, but the court could rationally connect them to intent to threaten since the threats involved knife use. Also, while Heather gave no direct testimony on the point, the court could reasonably infer that, having had a two- year relationship with Guzman, she knew of his knife collection, which made the knives relevant to whether the threats of mayhem and death by knife reasonably placed her in sustained fear (People v. Toledo , supra, 26 Cal.4th at p. 228). In any event, it appears that admission of the photo of the collection was cumulative and thus not harmful. Also in evidence were Nelsons and Mayalls testimony that Guzman had one, and Guzmans own statement to the nurse that he had a large collection of knives at home.
Finally, Guzmans claim is that all of this evidence was irrelevant ( § 210), not that, if relevant, it should have been excluded as substantially more prejudicial than probative (§ 352). Irrelevance is not shown.
DISPOSITION
The judgment is affirmed.
We concur: Kline, P. J., Haerle, J.