Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA348632, John S. Fisher, Judge.
Jeanine G. Strong, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Margaret E. Maxwell, Deputy Attorney General, for Plaintiff and Respondent.
MOSK, J.
INTRODUCTION
Defendant and appellant Edward C. Lucas (defendant) was convicted of making criminal threats (Pen. Code, § 422 ), and the trial court found several sentence enhancement allegations to be true. On appeal, defendant contends there was insufficient evidence to support the jury’s finding that defendant threatened immediate bodily injury, the trial court erred in allowing the introduction of evidence of defendant’s prior threats of bodily injury, and the trial court erred by failing to instruct the jury that defendant’s out-of-court statements should be viewed with caution. We affirm.
All statutory references are to the Penal Code unless otherwise stated.
BACKGROUND
1. Factual Background
Pursuant to the applicable standard of review discussed below, we state the facts in the light most favorable to the prosecution as the party for whom the judgment was entered. (People v. Mincey (1992) 2 Cal.4th 408, 432.)
In July 2008, Christina Lucas, who was 25 year old, lived in her mother’s home with her three siblings, all of whom were under 21 years of age, and Christina’s son. Defendant was Christina’s father, but he did not live with her. Christina had not had any contact with defendant for several years.
Because they share the same last name, we refer to Christina and, Debra, her mother, by their first names for purposes of clarity and not out of disrespect.
On July 17, 2008, defendant called Christina, who was surprised to hear from him, and told Christina that he was at the airport and he wanted her to drive him to a relative’s home. When Christina picked up defendant at the airport, he asked to see his other children. Christina agreed to a brief visit. Christina drove defendant to the family home and left him to visit her siblings while she returned to work. Christina did not return home until 6:00 or 7:00 a.m. the next day. Unbeknownst to Christina, defendant had stayed overnight at her home.
Early in the morning on July 18, as Christina drove back home, she received a telephone call from Felicia Wright, defendant’s niece. Wright resided in Georgia, but was in Torrance, California, to attend a family reunion. Wright, who was the trustee of an inheritance for defendant’s children under 21 years of age, told Christina that defendant had asked for “‘the kids’ money.” Christina initially did not believe Wright, so Wright told her to go into the house with defendant and that Wright would call back and Christina could hear defendant say it.
When Christina entered her house, she received a call from Wright’s number and handed the phone to defendant. Defendant took the phone and walked away from Christina. Christina followed defendant. Christina stood next to defendant and heard him ask Wright about money. During the conversation, defendant became agitated, angry, and loud. Christina repeatedly told defendant to leave, but he replied that “I’m not going anywhere.” Defendant said that he “would burn the mother fucker down just like I did before.” Defendant repeated this threat two or three times. Wright testified that defendant said that he “would burn the mother fucker down”-referring to the house.
Christina became very frightened because, according to her recollection, defendant had burned the same house in 1990 when she was eight years old. Christina was not at home when the fire occurred, but she was later told of the events. Christina was told defendant spread gasoline throughout the house, started the fire, and pushed her mother, Debra, into the house while she held Christina’s baby brother. Defendant testified that he knew that he had been accused of previously burning the house.
The trial court admitted Christina’s testimony regarding the 1990 arson, not for the truth of the matter asserted, but for Christina’s state of mind.
Christina, afraid that defendant would carry out his threat, put her siblings and her son in her car. In the process, Christina told her siblings that defendant said he was “going to burn the house down again.” Christina drove her siblings and her son around the corner but was shaking so hard she had to stopped driving.
Christina called 911 on her cellular telephone and reported the incident. Christina said, “My dad set the house on fire [unintelligible] he said he’s gonna burn us in the fire again. He... he set the house on fire before [unintelligible] and he said he is doing the same thing.” Christina reiterated, “he threatened to burn the house again, ” and said defendant had previously burned the house and tried to push her mother into it. Christina said to the operator that she was afraid.
Los Angeles Police Officer Lo Wong and his partner agreed to meet Christina on a sidewalk because Christina did not want to go back to the home for fear of defendant. When Officer Wong spoke to Christina, she was crying, frantic, and hysterical. Christina told Officer Wong that defendant said he was going to burn the house down with Christina and her siblings in it. Although Officer Wong was uncertain of the exact words Christina used, she told him that defendant said, “If I don’t get what I want I’m going to burn this bitch down with all of you in it.” Christina also told Officer Wong that when she and her siblings and her child were going to the car, defendant said, “I’ll burn this mother fucking house down.” Christina told Officer Wong that she was in fear for her life and that of her siblings. In addition, Christine told Officer Wong that defendant previously had attempted to burn the house to the ground and that Debra was almost killed in the incident.
Officer Wong indicated that Christina told him that defendant said, “I’m not leaving unless I get what I want. I’ll burn this bitch down with you all in it, with all of you in it.” Officer Wong further testified that Christina also may have told him that defendant said, “I’m going to get what I want or I’m going to burn this bitch down.”
After defendant was arrested, Christina went back to the home, gathered some personal belongings, left, and never went back. Christina and her siblings moved out of Los Angeles County because she was afraid of defendant. Christina also changed her cellular telephone number because she did not want defendant or his friends and relatives to have her number.
2. Evidence of Uncharged Offenses
a. 1990 Arson and Threats to Kill Debra
Defendant objected at trial to the introduction of evidence of defendant’s 1990 arson of the family home and threats to kill his wife on the grounds that it was substantially more prejudicial than probative. The trial court overruled defendant’s objection.
In June 1990, Gerald Mathews, an arson investigator with the City of Los Angeles Fire Department investigated a fire that occurred at the Lucas family home. The fire had been extinguished, but the fire department was still at the home. Mathews smelled the odor of gasoline throughout the house, and he determined that three fires had been deliberately set within the home using flammable liquid. Debra, defendant’s wife at the time, told Mathews in an agitated state that defendant had pushed her into the burning house. Debra said that she was terrified to talk to Mathews because defendant threatened to kill her if she testified about the incident. She told Mathews that if she said anything, “[defendant] would come back and kill me.” Debra told Mathews that she was afraid of defendant.
b. 2007 Threats to Kill Wright
Before Wright testified, defense counsel objected to her testimony on the ground that it would be “cumulative regarding the incident of July [2008].” The trial court overruled defendant’s objection. The trial court also ruled that the probative value of the evidence outweighed the probability that its admission would cause undue prejudice.
Wright testified that in November, 2007, defendant telephoned her at her home in Georgia. Defendant was upset and left a message on Wright’s answering machine stating that he would go to Georgia and “blow her head off.” The message made Wright very upset and fearful, and for safety reasons she filed a police report.
B. Procedural Background
The District Attorney of Los Angeles County filed an information charging defendant with two counts of making a criminal threat in violation of section 422-count 1 against Christina and count II against one of her sisters. The district attorney also alleged that defendant had served two prior prison terms, within the meaning of section 667.5, subdivision (b). Defendant pleaded not guilty and denied the special allegations.
Following trial, the first jury acquitted defendant on count two, but deadlocked on count one. The trial court declared a mistrial as to count one.
Following a retrial, the second jury convicted defendant of making criminal threats against Christina-count one. Defendant waived his right to a jury trial on the truth of the prior conviction allegations and the trial court found the prior conviction allegations to be true. The trial court sentenced defendant to five years in state prison.
DISCUSSION
A. Standard of Review
In reviewing a challenge to the sufficiency of the evidence, we apply the following standard of review: “[We]... consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.” (People v. Mincey, supra, 2 Cal.4th at p. 432, fn. omitted; People v. Hayes (1990) 52 Cal.3d 577, 631; People v. Johnson (1980) 26 Cal.3d 557, 576.) Our sole function is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Marshall (1997) 15 Cal.4th 1, 34; People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Barnes (1986) 42 Cal.3d 284, 303; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) The California Supreme Court has held, “Reversal on this ground is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” (People v. Bolin, supra, 18 Cal.4th at p. 331, quoting People v. Redmond (1969) 71 Cal.2d 745, 755.)
We review defendant’s challenge to the trial court’s admission of evidence under an abuse of discretion standard. “A trial court’s exercise of discretion in admitting or excluding evidence is reviewable for abuse [citation] and will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice [citation].” (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10 ; People v. Ledesma (2006) 39 Cal.4th 641, 705.)
We review defendant’s claims of instructional error de novo. (People v. Cole (2004) 33 Cal.4th 1158, 1210; People v. Sweeney (2009) 175 Cal.App.4th 210, 223.) “The proper test for judging the adequacy of instructions is to decide whether the trial court ‘fully and fairly instructed on the applicable law....’ [Citation.] ‘“In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole... [and] assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given. [Citation.]”’ [Citation.] ‘Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.’ [Citation.]” (People v. Martin (2000) 78 Cal.App.4th 1107, 1111-1112.)
B. Sufficiency of the Evidence of Threatened Bodily Injury
Defendant contends that insufficient evidence supports the jury’s finding that defendant threatened immediate bodily injury as set forth in section 422. In People v. Toledo (2001) 26 Cal.4th 221, 227-228, the California Supreme Court held: “In order to prove a violation of section 422, the prosecution must establish all of the following: (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... is to be taken as a threat, even if there is no intent of actually carrying it out, ’ (3) that the threat-which may be ‘made verbally, in writing, or by means of an electronic communication device’-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.’” (See also People v. Bolin, supra, 18 Cal.4th at pp. 337-340 & fn. 13; In re Ryan D. (2002) 100 Cal.App.4th 854, 859-860; In re Ricky T. (2001) 87 Cal.App.4th 1132, 1136.)
Section 422 provides, in part, “Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is 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, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family’s safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.”
Section 422 “‘was not enacted to punish emotional outbursts, it targets only those who try to instill fear in others.’ [Citation.] In other words, section 422 does not punish such things as ‘mere angry utterances or ranting soliloquies, however violent.’ [Citation.]” (In re Ryan D., supra, 100 Cal.App.4th at p. 861, In re Ricky T., supra, 87 Cal.App.4th at p. 1137.) Section 422 is violated when threats, viewed in the context of the surrounding circumstances, are unequivocal, unconditional, immediate, specific, and conveyed to the victim with a “gravity of purpose and an immediate prospect of execution.” (People v. Bolin, supra, 18 Cal.4th at p. 340.)
There was evidence that immediately after the incident Christina telephoned the 911 operator and said “My dad set the house on fire [unintelligible] he said he’s gonna burn us in the fire again.” Within 20 to 30 minutes after Officer Wong arrived at the scene, Christina told him that defendant repeatedly threatened, “If I don’t get what I want I’m going to burn this bitch down with all of you in it.” In addition, both Christina and Wright testified at trial that defendant threatened to burn Christina’s house down.
Defendant argues that Wright and Christina did not testify that the threat was to Christina’s physical safety. The jury, however, could reasonably infer from their testimony, particularly in light of the previous threats made by defendant, and Christina’s statements to the 911 operator and to Officer Wong, that defendant’s threat to burn down the house was a threat to the physical safety of the occupants of the house, including Christina.
Defendant also contends that the evidence of defendant’s threat of physical harm as set forth in Christina’s 911 call and her statements to Officer Wong were not credible because at trial Christina and Wright did not repeat the reference that defendant was “gonna burn us in the fire again, ” or burn the house down “with all of you in it.” Defendant contends that evidence also was not credible because Christina’s recollection of defendant previously burning the house was faulty and Christina’s testimony “diverged” from Officer Wong’s testimony. We do not, however, weigh the evidence or evaluate a witness’s credibility. (People v. Guerra (2006) 37 Cal.4th 1067, 1129, overruled on other grounds in People v. Rundle (2008) 43 Cal.4th 76, 151.)
Defendant states, without legal analysis, that Officer Wong’s testimony was inadmissible hearsay. But, to demonstrate error defendant must present meaningful legal analysis supported by citations to authority and citations to facts in the record that support the claim of error. (City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239, fn. 16; In re Marriage of Nichols (1994) 27 Cal.App.4th 661, 672-673, fn. 3.) When a point is asserted without argument and authority for the proposition, “it is deemed to be without foundation and requires no discussion by the reviewing court.” (Atchley v. City of Fresno (1984) 151 Cal.App.3d 635, 647; accord, In re Groundwater Cases (2007) 154 Cal.App.4th 659, 690, fn. 18; Berger v. Godden (1985) 163 Cal.App.3d 1113, 1117 [argument forfeited where parties fail[ed] to make a coherent argument or cite any authority to support their contention].) In addition, defendant’s brief “must” “[s]tate each point under a separate heading or subheading summarizing the point....” (Cal. Rules of Court, rule 8.204, subd. (a)(1)(B); see Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830-1831, fn. 4.) Moreover, even assuming defendant presented meaningful legal analysis in support of his hearsay objection to Officer Wong’s testimony, the testimony concerning Christina’s out-of-court statements qualified under the spontaneous statements exception to the hearsay rule. (Evid. Code, § 1240.) The trial therefore did not err in exercising its discretion to admit the testimony.
C. Admissibility of Evidence of Defendant’s 2007 Threat Against Wright
Evidence Code section 1109, provides in part: “(a) (1) Except as provided in subdivision (e) or (f), in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant’s commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352. [¶] (d)... (3) Subject to a hearing conducted pursuant to Section 352, which shall include consideration of any corroboration and remoteness in time, ‘domestic violence’ has the further meaning as set forth in Section 6211 of the Family Code, if the act occurred no more than five years before the charged offense.”
Defendant contends the evidence that in 2007 he left a voice mail message on Wright’s telephone threatening to “blow off her head” was not admissible under Evidence Code section 1109. We agree.
Evidence Code section 1101 makes inadmissible evidence of specific instances of conduct except when the evidence is relevant as provided in section 1109. (Evid. Code, § 1101, subds. (a).) As noted, section 1109, subdivision (a)(1) provides that in a criminal action in which the defendant is accused of domestic violence, evidence of defendant’s commission of other domestic violence is not made inadmissible by section 1101.
Evidence Code section 1101, provides that, “(a) Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion. [¶] (b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act. [¶] (c) Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness.”
This is a criminal action in which defendant was accused of committing an act of domestic violence against Christina, his child, under Evidence Code section 1109. Section 1109, subdivision (d)(3) provides that the meaning of “domestic violence” includes the definition as set forth in Family Code section 6211. “Domestic violence” is defined by Family Code section 6211 as an abuse perpetrated against certain persons including, under subdivision (e), a child. Family Code section 6203, subdivision (c) defines abuse as, inter alia, placing “a person in reasonable apprehension of imminent serious bodily injury to that person or to another.”
Family Code section 6211 provides that, “‘Domestic violence’ is abuse perpetrated against any of the following persons: [¶] (a) A spouse or former spouse. [¶] (b) A cohabitant or former cohabitant, as defined in Section 6209. [¶] (c) A person with whom the respondent is having or has had a dating or engagement relationship. [¶] (d) A person with whom the respondent has had a child, where the presumption applies that the male parent is the father of the child of the female parent under the Uniform Parentage Act (Part 3 (commencing with Section 7600) of Division 12). [¶] (e) A child of a party or a child who is the subject of an action under the Uniform Parentage Act, where the presumption applies that the male parent is the father of the child to be protected. [¶] (f) Any other person related by consanguinity or affinity within the second degree.”
Family Code section 6203 provides that, “For purposes of this act, ‘abuse’ means any of the following: [¶] (a) Intentionally or recklessly to cause or attempt to cause bodily injury. [¶] (b) Sexual assault. [¶] (c) To place a person in reasonable apprehension of imminent serious bodily injury to that person or to another. [¶] (d) To engage in any behavior that has been or could be enjoined pursuant to Section 6320.”
Although this is a criminal action involving a qualifying act of domestic violence, for Wright’s testimony to be admissible under Evidence Code section 1109 as “evidence of the defendant’s commission of other domestic violence” (Evid. Code, § 1109, subd. (a)(1)), Wright also must be one of the persons described in Family Code section 6211. Defendant correctly argues that there was no evidence that Wright was “a cohabitant” with defendant under Family Code section 6211, subdivision (b). The prosecution does not dispute defendant’s contention, and instead, argues that Wright’s testimony was admissible under subdivision (f), because under that subdivision domestic violence can also be perpetrated against a “person... related by consanguinity or affinity within the second degree.” The prosecution concludes that subdivision (f) is satisfied because Wright testified that defendant was her “uncle.”
In People v. Williams (1997) 16 Cal.4th 635, the defendant, found guilty of four counts of first-degree murder, claimed it was error for the trial judge to preside over the trial because the judge’s family relationship with a witness who testified at trial created a conflict of interest under Code of Civil Procedure section 170.1. (Code Civ. Proc., § 170.1, subd. (a)(1).) Under Code of Civil Procedure section 170.1, subdivision (a), a judge shall be disqualified if he “has personal knowledge of disputed evidentiary facts concerning the proceeding.” (Code Civ. Proc., § 170.1, subd. (a)(1)(A).) A judge is deemed to have such personal knowledge if “the judge, or the spouse of the judge, or a person within the third degree of relationship to either of them, ... is to the judge’s knowledge likely to be a material witness in the proceeding.” (Code Civ. Proc., § 170.1, subd. (a)(1)(B), italics added.)
In People v. Williams, supra, 16 Cal.4th 635, the witness was the nephew of the trial judge’s son-in-law. In holding that the witness did not qualify as “a person within the third degree of relationship” to the trial judge (id. at p. 652), the court stated the “witness... is the nephew of [the trial judge’s] son-in-law. Thus, as uncle and nephew, the relationship between the witness and the son-in-law is in the third degree.” (Id. at p. 653.) The court noted the explanation in Robinson v. Southern Pacific Co. (1895) 105 Cal. 526, that, “‘“In the collateral line the degrees are counted by generations from one of the relations up to a common ancestor, and from the common ancestor to the other relations. In such computation, the decedent is excluded, the relative included, and the ancestor counted but once. Thus, brothers are related in the second degree; uncle and nephew in the third degree..., and so on.’” (Robinson [v. Southern Pacific Co.], supra, 105 Cal. at p. 557, italics added.)” (People v. Williams, supra, 16 Cal.4th at p. 653.)
The relationship between an uncle and a niece, therefore, is not within the second degree; it is of the third degree. Therefore, evidence of the 2007 threatening voice mail message defendant left on Wright’s telephone was not admissible under Evidence Code section 1109.
Defendant also contends the trial court erred in admitting evidence of the 2007 threatening voice mail message because it was not admissible under Evidence Code section 1101, subdivision (b). The court did not abuse its discretion in admitting the evidence under this section.
Evidence Code section 1101, subdivision (a) provides that evidence of a character trait is inadmissible to prove conduct on a specified occasion. Subdivision (b) of Evidence Code section 1101, however, makes clear that the limitation does not prohibit the “admission of evidence that a person committed a crime... when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident...) other than his or her disposition to commit such an act.”
The prior act evidence was relevant to prove defendant’s intent to have his statement understood as a threat. Defendant’s 2007 threat to Wright was similar to his charged threat against Christina because both were threats of bodily injury made against a family member. Additionally, because the threat against Wright was made one year prior to the charged offense, it was not remote in time. (See People v. Branch (2001) 91 Cal.App.4th 274, 284-285 [prior acts 30 years old were not remote as a matter of law]; People v. Waples (2000) 79 Cal.App.4th 1389, 1393-1395 [prior offenses between 15 and 22 years old were not too remote].) The trial court had discretion to admit the evidence under Evidence Code section 1101.
Evidence Code section 352 provides, “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
Defendant argues that Wright’s testimony concerning defendant’s 2007 threat against her was substantially more prejudicial than it was probative. At trial, however, defendant did not object on that ground. Defendant objected to Wright’s proposed testimony on the ground that it would be “cumulative regarding the incident of July [2008].” The trial court overruled defendant’s objection. By failing to interpose an objection or argue that the evidence was substantially more prejudicial than probative, defendant forfeited that argument on appeal. (People v. Sisneros (2009) 174 Cal.App.4th 142, 154.)
Defendant does not contend on appeal that the court abused its discretion in overruling defendant’s objection. In any event, the charged criminal act here and the threats made against Wright in 2007 concerned two separate incidents. The trial court, therefore, did not abuse its discretion in admitting the evidence. The court’s exercise of discretion was not arbitrary, capricious, or patently absurd nor did it result in a manifest miscarriage of justice. (People v. Rodriguez, supra, 20 Cal.4th at p. 9-10; People v. Ledesma, supra, 39 Cal.4th at p. 705.)
Moreover, even assuming defendant had made an objection based on Evidence Code section 352, the trial court did not abuse its discretion in admitting the evidence of the 2007 threat against Wright. “Evidence of uncharged crimes is inherently prejudicial but may still be admitted if it has substantial probative effect.” (People v. Carpenter (1997) 15 Cal.4th 312, 380, superseded by statute on other grounds as stated in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1107-1108; see also People v. Steele (2002) 27 Cal.4th 1230, 1245.) As discussed above, the evidence is probative of defendant’s intent. Also, defendant suffered no prejudice in the legal sense. “‘The “prejudice” referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, “prejudicial” is not synonymous with “damaging.”’ [Citation.]” (People v. Karis (1988) 46 Cal.3d 612, 638; People v. Morton (2008) 159 Cal.App.4th 239, 249.) The trial court stated that the probative value of the evidence outweighed any probability that its admission would cause undue prejudice
In addition, the trial court eliminated any potential prejudice by instructing the jury, pursuant to CALCRIM No. 375, that evidence of uncharged offenses defendant committed prior to July 2008, could be considered only for assessing (i) whether defendant possessed the requisite intent, motive or knowledge concerning the July 2008, threat, or (ii) whether defendant’s July 2008, threat was the result of a mistake-and then only if the jury first found defendant committed those uncharged offenses by a preponderance of the evidence. Further, the jury was admonished not to consider the evidence of the prior act (if believed) as showing “defendant has a bad character or is disposed to commit crime.” The jury also was instructed that the prior act evidence was “only one factor to consider along with all the other evidence” and was “not sufficient by itself to prove” defendant’s guilt which the prosecution must prove beyond a reasonable doubt.
It is well established as an “‘almost invariable assumption of the law that jurors follow their instructions.’ [Citation.] ‘[We] presume that jurors, conscious of the gravity of their task, attend closely the particular language of the trial court’s instructions in a criminal case and strive to understand, make sense of, and follow the instructions given them.’ [Citations.]” (United States v. Olano (1993) 507 U.S. 725, 740-741.) There is nothing in the record to suggest the jury did otherwise here.
Defendant also notes in his opening brief, without argument, that the trial court allowed the introduction of evidence of defendant’s 1990 arson of the family home and threats to kill his wife over his objection that the evidence had only minimal value that was far outweighed by its prejudicial effect. As noted above, when a point is asserted without argument and authority for the proposition, it is deemed to be without merit and requires no discussion by the reviewing court. (Atchley v. City of Fresno, supra, 151 Cal.App.3d at p. 647.) We, therefore, do not have to address it. We note, however, that the evidence of the arson was a basis for the victim’s fear of the threat. Accordingly, it was relevant, and the trial court could conclude that the relevance outweighed any prejudicial effect.
4. Any Error in Admitting the Challenged Evidence Was Harmless
Even assuming the trial court erred in admitting the evidence of defendant’s prior threat against Wright, it is not reasonably probable that the jury would have reached a more favorable verdict had the trial court excluded that evidence. (See People v. Benavides (2005) 35 Cal.4th 69, 91 [generally, violations of state evidentiary rules do not rise to the level of federal constitutional error]; People v. Watson (1956) 46 Cal.2d 818, 835.) The jury was instructed with CALCRIM No. 1300, which explains the elements of the charged crime of making criminal threats. (See also, § 422 ; In re George T. (2004) 33 Cal.4th 620, 630; People v. Melhado (1998) 60 Cal.App.4th 1529, 1536). As discussed above, there was substantial evidence, other than the threat against Wright, that defendant willfully threatened to kill or cause great bodily injury to Christina. There was other evidence that defendant intended that the threat be communicated to Christina and that it be understood as a threat. Christina was next to defendant when the threat was made, and it concerned her home, siblings, and child. In addition, defendant testified that he knew that he had been accused of previously burning the home. A jury reasonably could infer from that testimony that defendant knew that Christina believed or suspected that accounts of that incident to be true. The threat, on its face and under the circumstances, appears sufficiently unequivocal, unconditional, immediate, and specific that it conveyed to Christina a gravity of purpose and an immediate prospect that the threat would be carried out.
There is evidence that the threat caused Christina to be in sustained fear for her own safety or for her immediate family’s safety-including that she moved from the County and changed her telephone number. This evidence is sufficient for the jury to find that Christina’s fear was reasonable under the circumstances. The evidence shows that defendant had threatened to set fire to the house in which Christina and her immediate family resided, and there is evidence that Christina also believed that defendant set fire to the house in 1990 and pushed her mother into the burning structure. As a result, any error in admitting evidence of the prior threat against Wright was harmless.
D. Failing to Instruct the Jury With CALCRIM No. 358
CALCRIM No. 358 provides, “You have heard evidence that the defendant made [an] oral or written statement[s] (before the trial/while the court was not in session). You must decide whether the defendant made any (such/of these) statement[s], in whole or in part. If you decide that the defendant made such [a] statement[s], consider the statement[s], along with all the other evidence, in reaching your verdict. It is up to you to decide how much importance to give to the statement[s]. [Consider with caution any statement made by (the/a) defendant tending to show (his/her) guilt unless the statement was written or otherwise recorded.]”
Officer Wong testified that Christina told him that defendant said, “I’ll burn this bitch down with all of you in it.” Officer Wong also testified that Christina said that defendant previously attempted to burn the house and that her mother was almost killed in the incident. Based on that testimony, defendant contends that the trial court committed prejudicial error by failing to instruct the jurors with CALCRIM No. 358-viewing defendant’s out of court statement with caution. Defendant argues the trial court had a sua sponte duty to give the jury instruction because by analogy, under People v. Beagle (1972) 6 Cal.3d 441, 455, superseded by statute on other grounds as stated in People v. Rogers (1985) 173 Cal.App.3d 205, 208-209, People v. Carpenter, supra, 15 Cal.4th at p. 392, and People v. Dickey (2005) 35 Cal.4th 884, 905, the trial court has a duty to instruct the jury that it should view with caution evidence of a defendant’s out-of-court oral “admission.” The trial court did not err by failing to instruct the jury with CALCRIM No. 358.
Defendant’s alleged statement that “I’ll burn this bitch down with all of you in it” constituted the charged crime-making a criminal threat. In People v. Zichko (2004) 118 Cal.App.4th 1055, the defendant, as in this case, was charged with making criminal threats. The court held that the trial court did not have a duty to instruct with CALJIC No. 2.71-instructing that defendant’s out-of-court admissions should be viewed with caution-because the defendant’s statements constituted the charged offense of making of criminal threats. (Id. at p. 1057, 1059.) The court in People v. Zichko reasoned that because the defendant’s out-of-court statement was an element of the charged offense, “instructing the jury with CALJIC No. 2.71... would have been inconsistent with the reasonable doubt standard of proof. The purpose of CALJIC No. 2.71 is to direct the jury to use caution in deciding whether an admission was made. Here, as the trial court instructed, the People had the burden of proving [the defendant] guilty beyond a reasonable doubt and that he must be found not guilty unless the elements of the crime were proven beyond a reasonable doubt. Therefore, a guilty verdict required the jury to conclude beyond a reasonable doubt that [the defendant] made the threatening statements. To also instruct the jury that the statements ‘should be viewed with caution’ (CALJIC No. 2.71) would have been at least superfluous and may have been confusing to the jury. It could have misled the jury into believing that it could find [the defendant] guilty even if it did not conclude beyond a reasonable doubt that the statements were made, as long as the jury exercised ‘caution’ in making its determination.” (People v. Zicho, supra, 118 Cal.App.4th at p. 1060.)
In this case, defendant’s alleged out-of-court statement that “I’ll burn this bitch down with all of you in it” was the criminal act charged. The trial court instructed the jury that it must conclude defendant committed the offense of making criminal threats beyond a reasonable doubt. Instructing the jury with CALCRIM No. 358 “could have misled the jury into believing” that it could find defendant guilty “even if it did not conclude beyond a reasonable doubt that the statements were made, as long as the jury exercised ‘caution’ in making its determination.” (People v. Zicho, supra, 118 Cal.App.4th at p. 1060.)
Moreover, any error in failing to instruct the jury on CALCRIM No. 358 was harmless. A failure to instruct is not “‘reversible error if upon a reweighing of the evidence it does not appear reasonably probable that a result more favorable to defendant would have been reached in the absence of the error.’” (People v. Stankewitz (1990) 51 Cal.3d 72, 94, quoting People v. Beagle, supra, 6 Cal.3d at p. 455.) In addition to Officer Wong’s testimony that Christina told him that defendant said, “I’ll burn this bitch down with all of you in it, ” there was substantial evidence that defendant said he would do so. Christina telephoned the 911 operator and said “My dad set the house on fire [unintelligible] he said he’s gonna burn us in the fire again.” Furthermore, both Wright and Christina testified that defendant threatened to set the house on fire. Officer Wong’s testimony merely corroborated this other evidence.
Also, “In assessing potential prejudice, .. the primary purpose of the cautionary instruction ‘is to assist the jury in determining if the statement was in fact made.’” (People v. Stankewitz, supra, 51 Cal.3d at p. 94, quoting People v. Beagle, supra, 6 Cal.3d at p. 456.) We, however, review the instructions as a whole in evaluating instructional error. (People v. Roybal (1998) 19 Cal.4th 481, 526-527; People v. Mendoza (1998) 18 Cal.4th 1114, 1134; People v. Frye (1998) 18 Cal.4th 894, 957, disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) The jury was instructed on evaluating witness credibility. Both common sense and that jury instruction would have caused the jury to consider the weight to give Officer Wong’s testimony even without CALCRIM No. 358. Thus, there is no reasonable probability that the jury would have reached a verdict more favorable to defendant had CALCRIM No. 358 been given.
Defendant also argues that the trial court should have given the CALCRIM No. 358 jury instruction based upon Officer Wong’s testimony that Christina said that she was in fear for her life and that of her siblings, and that her mother was almost killed in the incident. That testimony, however, did not concern an out-of-court statement by defendant, and CALCRIM No. 358 was not relevant to it.
DISPOSITION
The judgment is affirmed.
We concur: ARMSTRONG, Acting P.J., KREIGLER, J.