Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 060125-2
Lambden, J.
Lance Jon Rebeles seeks reversal on several grounds of his conviction after jury trial of two counts of felony resisting an executive officer in violation of Penal Code section 69. We affirm.
All further statutory references are to the Penal Code unless otherwise specified.
BACKGROUND
The Contra Costa County District Attorney charged defendant with the section 69 violations, and sought a sentence enhancement based on prior prison terms, in January 2005. Defendant pled not guilty and a jury trial followed.
The Prosecution’s Case
The prosecution contended defendant violated section 69 by threatening two Antioch police officers, as described by Officer Aaron Sapp. Sapp testified that on December 20, 2005, he and his fellow officer, Jason Joannides, went to an Antioch residence after receiving a dispatch report that a man was out of control inside his residence and threatening his sister. Sapp spoke for a few minutes with defendant’s sister, Valerie Rebeles, who was about two houses away. He then joined Joannides and approached defendant, who was standing in his driveway. Sapp said to defendant, “How you doing, man? I’m Officer Sapp with the Antioch Police Department.” Defendant, who was “very agitated,” clenched his fists, “bowed up,” “shoulders puffed up,” and said “extremely violently”: “I know you’re a cop and I’m gonna kill you and your fucking family.” Sapp feared for his life, and testified that the threat affected his investigation because it kept him “from being able to contact [defendant] in a reasonable manner and speak with him regarding the incident that I was originally dispatched there to investigate.” He told defendant to remove his hands from his pockets, and asked if he had any weapons. Defendant seemed agitated, eventually removed his hands from his pockets, and said, “I don’t need any weapons to kill you.” Sapp conducted a pat search, and defendant said, “I’m gonna kill you and your family.” Sapp handcuffed defendant, who said, with Joannides directly in front of him, that he “would remove the handcuffs and kill” both officers, and tried unsuccessfully to pull his right wrist through the handcuffs. Sapp put defendant in the back of his patrol car as defendant continued to make threats.
Joannides did not testify at trial. Sapp testified that he was out of the country on his honeymoon.
Sapp did not smell the odor of an alcoholic beverage on defendant; he did not discuss alcohol or medications with defendant. Other than defendant’s resistance and threats, Sapp was not aware of any crime by defendant.
The prosecution also introduced evidence of two prior encounters between defendant and the police, which we discuss further in part IV, post.
The Defense Case
Defendant’s sister, Valerie Rebeles, testified that defendant lived in an “in-law” unit behind the Antioch residence. On the day of the incident, defendant, upset and smelling of alcohol, approached her as she pulled into the driveway in her car and yelled, “Where is my bike?” Valerie’s sister, who was talking to her on the phone as defendant pounded on the car window, called the police. Valerie testified that she told Sapp defendant had been drinking, and that she could not hear what defendant said to the officers.
Verdict and Sentencing
The jury found defendant guilty as charged. The trial court found the prior prison term allegations were true, suspended imposition of sentence for three years, and placed defendant on probation under certain terms and conditions, including that he spend his first year in a residential drug program. Defendant subsequently filed a timely notice of appeal.
DISCUSSION
I. The Evidence Supports Defendant’s Convictions
Defendant first argues that “saying annoying things to a police officer while otherwise cooperating with the arrest procedure does not in itself constitute a violation of Penal Code section 69.” To the extent he considers this to be a purely legal argument, as he suggests, the argument is wrong. To the extent he argues there is insufficient evidence to support his conviction, this is also incorrect.
A. Legal Standards
Section 69 states: “Every person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon such officer by law, or who knowingly resists, by the use of force of violence, such officer, in the performance of his duty, is punishable by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment in the state prison, or in a county jail not exceeding one year, or by both such fine and imprisonment.”
Thus, the first part of section 69 “prohibits the use of threats of violence to attempt to deter or prevent an officer from performing any duty imposed by law,” including the performance of a duty imposed by law at some time in the future. (In re Manuel G. (1997) 16 Cal.4th 805, 816-817.) It is a specific intent crime, and “[t]he surrounding circumstances may establish the specific intent to interfere with the officer’s performance of his duties.” (In re M.L.B. (1980) 110 Cal.App.3d 501, 503.) The subjective state of mind of the officer threatened is not relevant (People v. Gutierrez (2002) 28 Cal.4th 1083, 1153 [inmate’s threat was evidence of a section 69 violation, although the deputy testified that “he did not take the threat personally”]), and “a present ability to carry out threats is not required if . . . the target of the threat could reasonably fear retaliatory action on some future occasion.” (People v. Hines (1997) 15 Cal.4th 997, 1060 (Hines).)
Our Supreme Court has specifically determined that section 69 is not unconstitutionally overbroad or vague. (Hines, supra, 15 Cal.4th at pp. 1061-1062.) “ ‘As long as the threat reasonably appears to be a serious expression of intention to inflict bodily harm [citation] and its circumstances are such that there is a reasonable tendency to produce in the victim a fear that the threat will be carried out,’ a statute proscribing such threats ‘is not unconstitutional for lacking a requirement of immediacy or imminence.’ ” (Id. at p. 1061.) A threat unaccompanied by force can be evidence of a section 69 violation, but “[t]o avoid the risk of punishing protected First Amendment speech . . . the term ‘threat’ has been limited to mean a threat of unlawful violence used in an attempt to deter the officer.” (In re Manuel G., supra, 16 Cal.4th at pp. 814-815.)
B. Analysis
Defendant makes a number of “legal arguments” which he contends are subject to our de novo review. In the course of doing so, he contends his “annoying” statements and “empty threats” did not rise to the level of intentional interference with the responding officers’ performance of their duty; that his conduct was merely “verbal abuse, unaccompanied by resistence [sic]”; and that “there was no showing sufficient to support finding that [defendant] harbored a specific intent to inflict bodily harm.” He further contends that “[a] reasonable officer would not have harbored fear for his life under the circumstances of [defendant’s] verbal abuse,” since he did not make threatening gestures and “simply answered the police questions with empty threats.” He analogizes his threats to one made by the defendant in Hines, supra, 15 Cal.4th 997. Although the appellate court in Hines found substantial evidence that a number of Hines’s threats violated section 69, it did not find Hines’s threat that “I am going to fuck you up” was one of them because “the record [did] not show that defendant made this statement for the purpose of deterring [the deputy] from his duties.” (Id. at p. 1061.) According to defendant, the court’s holding indicates that “sufficient evidence requires something more than a verbal threat in a vacuum.”
We disagree with defendant’s arguments. Hines, supra, 15 Cal.4th 997, is of no help to him because the court based its holding about the subject threat on the officer’s failure to recall any of the circumstances (ibid.), which is not the case here; as we discuss, post, defendant’s threats and the surrounding circumstances were sufficient to support his convictions. The facts of this case are more analogous to those found in In re Manuel G., supra, 16 Cal.4th 805. There, a gang member, a minor, made a number of threats to an officer who approached him on the street and started asking questions about a recent shooting; the threats included that “[m]e and my home boys are going to start killing you and your friends” that “we’re going to start knocking you guys off. (Id. at p. 811.) The juvenile court sustained an allegation of a section 69 violation against the minor (ibid.), but the appellate court reversed, concluding the officer had illegally detained the minor and, therefore, was not engaged in the lawful performance of his duties. (Id. at pp. 812-813.) Our Supreme Court found a section 69 violation because the minor’s threats of future harm to the officers “constituted an attempt to deter deputies from initiating further contacts with him or other gang members.” (Id. at p. 819.) The court also found that, even if the minor’s threats were construed solely as an attempt to deter the deputy from continuing to perform those actions in which the deputy was engaged when he encountered the minor, which included the questioning of the minor, there was substantial evidence that the encounter was consensual. (Id. at pp. 820-825, see also In re M.L.B., supra, 110 Cal.App.3d at pp. 503-504 [finding a section 69 violation where defendant returned to the scene of a police stop with family members and yelled threats to the officers about burning down their houses and getting their families].)
Defendant attempts to distinguish In re Manuel G., supra, 16 Cal.4th 805, and In re M.L.B., supra, 110 Cal.App.3d at pages 503-504, by arguing the threat-makers were a known gang member and a person who brought a “mob” to the scene respectively, suggesting that as a result their threats were of a significantly more serious nature than those he made. To the extent he is suggesting his actions did not rise to such a serious level as a matter of law or fact, we disagree.
Defendant makes some other, obviously flawed arguments. He states “there was no showing sufficient to support finding that [defendant] harbored a specific intent to inflict bodily harm” so as to interfere with the officers’ performance of their duties. (Italics added.) His effort to remove his handcuffs immediately after threatening to kill the officers contradicts this contention (defendant contends he was merely engaged in “a testing of restraints,” but he also incorrectly focuses on an intent to inflict bodily harm, rather than on the use of a “threat that reasonably appears to be a serious expression of intent to inflict bodily harm.” (Hines, supra, 15 Cal.4th at p. 1061; see also In re Manuel G., supra, 16 Cal.4th at pp. 814-815 [referring to “a threat of unlawful violence used in an attempt to deter the officer”].) Defendant also argues it was significant that, other than his threats, he was cooperative in the arrest procedure. This too is contradicted by his efforts to remove his handcuffs, and sidesteps the obvious import of his repeated threats. (See In re Manuel G., supra, 16 Cal.4th at pp. 814-815 [no force is necessary for a person making threats to violate section 69]). Defendant also points out there was no evidence Joannides was placed in fear by defendant’s threats, but Joannides’s subjective state of mind is not relevant to determining if defendant violated section 69. (People v. Gutierrez, supra, 28 Cal.4th at p. 1153.)
In short, defendant is wrong that his statements cannot be found to rise to the level of a section 69 violation. Our Supreme Court has made clear that similar threats, whether of immediate or future harm, including those made to prevent further questioning from an investigating officer, can constitute a section 69 violation depending on the facts and circumstances involved. (In re Manuel G., supra, 16 Cal.4th 805.) As the People do in their reply brief, we must review defendant’s contentions about the insufficiency of the evidence under a substantial evidence standard of review (In re M.L.B., supra, 110 Cal.App.3d at p. 504 [finding “substantial evidence” supports the finding of a section 69 violation]; In re Manuel G., supra, 16 Cal.4th at p. 822 [applying a substantial evidence standard of review in determining if the minor threatened the officer during a consensual encounter]), a task to which we now turn.
“In assessing a sufficiency-of-evidence argument on appeal, we review the entire record in the light most favorable to the prevailing party to determine whether it shows evidence that is reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] We draw all reasonable inferences in support of the judgment.” (People v. Wader (1993) 5 Cal.4th 610, 640.) In other words, we examine the record for “ ‘substantial evidence . . . such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ ” (People v. Horning (2004) 34 Cal.4th 871, 901.)
The record contains substantial evidence which supports defendant’s convictions. His statements to the officers, rather than constituting “empty” threats, “annoying” statements, and “verbal abuse,” were direct threats to kill them or family members, stated with evident fury. Therefore, they were of the most serious and frightening nature. Upon Sapp identifying himself to defendant at the residence, defendant, whose sister had just reported a problem there, said “violently” that he knew Sapp was “a cop,” and that he would kill him and his family. Several things can be reasonably inferred from this evidence, including that defendant knew the officers were there to investigate his conduct rather than because they randomly happened upon him, and that defendant threatened to kill Sapp and his family in the future in order to cause the officers to fear that, regardless of what they might be able to require of him in the moment, they could not protect themselves or their families from his future actions. We also think it is reasonable for local officers in this circumstance to think that an adult living in the community who repeatedly threatens to kill them and acts (with the handcuffs) in a manner consistent with his threats could and well might find and attack the officers at a later date, discover where they live, or discover the identity of their family members.
Sapp’s testimony also provided other substantial evidence to support defendant’s convictions. The seriousness of defendant’s threats was underlined by his repetition of them. Defendant’s effort to remove the handcuffs, having just threatened to take them off and kill the officers, was substantial evidence that he intended to attack the officers then and there if possible, thereby further establishing that he threatened them with a specific intent to interfere with their investigation and their efforts to control him by placing him in handcuffs.
Based on these facts and circumstances, it is reasonable to conclude that defendant made threats that “ ‘reasonably appear[ed] to be a serious expression of an [intent] to inflict bodily harm’ ” on the officers, and that there was “ ‘a reasonable tendency to produce . . . fear that the [threats would] be carried out.’ ” (Hines, supra, 15 Cal.4th at p. 1061.) Accordingly, we find defendant’s arguments about the insufficiency of the evidence are without merit.
II. The Court Properly Instructed the Jury
Defendant argues the trial court committed prejudicial error by failing to clear up instructional confusion expressed by the jury. This is not the case.
A. The Court Proceedings
Among the court’s instructions to the jury was CALCRIM No. 2651, which states in relevant part:
“The defendant is charged in Counts 1 and 2 with trying to prevent or deter an executive officer from performing that officer’s duty. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant willfully and unlawfully used a threat of violence to try to prevent or deter an executive officer from performing the officer’s lawful duty; [¶] [and] [¶] 2. When the defendant acted, he intended to prevent or deter the executive officer from performing the officer’s lawful duty.”
CALCRIM No. 2651 also states that “[a] peace officer is not lawfully performing his or her duties if he or she is unlawfully arresting or detaining someone,” and that CALCRIM No. 2670 “explains when an arrest or detention is unlawful.”
CALCRIM No. 2670, also provided to the jury, states in relevant part that “[a] peace officer is not lawfully performing his or her duties if he or she is unlawfully arresting or detaining someone. [¶] A peace officer may legally detain someone if: [¶] 1. Specific facts known or apparent to the officer lead him or her to suspect that the person to be detained has been, is or is about to be involved in activity relating to a crime; [¶] [and] [¶] 2. A reasonable officer who knew the same facts would have the same suspicion. [¶] Any other detention is unlawful.” It also states that section 69 is a felony, and that “[i]n order for an officer to lawfully arrest someone for a felony without a warrant, the officer must have probable cause to believe the person to be arrested committed a felony.” It does not refer to other specific duties a peace officer may perform.
The jury made several requests after it began its deliberations. Among other things, it asked a few hours after deliberations began for “[c]larification of if a police officer is threatened is it ‘immediate arrest’ is that the law?” The court directed the jury to CALCRIM Nos. 2651 and 2670.
The next morning, the jury announced it was at an impasse and asked “[i]s there any instruction or interpretation of law to help us determine if ‘wanting to stop an officer from questioning or wanting the officer to leave is equivalent to Sec. 69 part 2 (intent to prevent or deter officer from duties.’ ” The judge presiding in the court that day, after conferring off the record with counsel, and with the trial judge, responded: “Please refer to instructions #2651 and 2670. This is as much guidance as I can give you. It is for you to determine whether the conduct you find satisfies the element of the instruction.” Later, the jury asked for the “written law of Sec. 69,” and the court responded by referring them to CALCRIM No. 2651.
A couple of hours later, the jury sent the court a note indicating no unanimous vote could be reached. The presiding judge spoke again with the trial judge and reconvened the jurors and attorneys. The court provided the jury with a so-called “Allen” instruction, stating that the jurors had to apply the facts as they found them to the law provided in the instructions, that it was the jury’s responsibility to apply the facts to the law, and that the court did not want to interfere with their duty. After the jury foreperson indicated that further read back of testimony would not be helpful, and that the jury was divided 10-2, the court stated that often times a jury that is initially unable to reach a unanimous verdict is able to do so after further deliberations, and that jurors should not hesitate to change a view once they are convinced it is wrong or suggest that other jurors change views that they are convinced are wrong. The court asked each juror to decide the case for themselves after consideration of all the evidence, to arrive at a unanimous verdict if they could do so without doing violence to their individual judgment, to use new methods to attempt to reach a verdict, and to re-read the jury instructions. The court requested that the jury resume their deliberations and the jury left to do so, whereupon defense counsel objected to the court’s request; the court overruled the objection. The jury then asked for a copy of the court’s latest instruction, to which defense counsel objected, stating the instruction had been given without input from counsel. The court, noting an identical instruction had been approved of in People v. Moore, supra, 96 Cal.App.4th 1105, overruled the objection.
The name apparently referred to the United States Supreme Court’s approval of a minority juror instruction in Allen v. United States (1896) 164 U.S. 492, 501-502. (See People v. Moore (2002) 96 Cal.App.4th 1105, 1120.)
About two hours later, the jury informed the court that it had reached a verdict. It announced its guilty verdicts soon thereafter.
B. Analysis
Defendant argues that the CALCRIM No. 2651 was inadequate because, although it refers to “duty,” it “does not resolve whether that includes asking un-Mirandized questions.” Characterizing the jury’s inquiry as expressing a confusion of the issue of mens rea, he contends the instruction’s general reference to an officer’s “lawful duty” “did not aid in resolving the [jury’s] inquiry [about] whether ‘wanting to stop an officer from questioning or wanting the officer to leave is equivalent to Sec. 69 part 2 (intent to prevent or deter officer from duties.’ ” According to defendant, the court’s answer to this inquiry had to be in the negative, “ ‘unless the defendant also intended to deter the officer in the performance of a “duty imposed upon such officer by law.” ’ ” Defendant argues that “[s]uch an answer would have focused the jury on the issue of whether it deemed the questioning by the officers to be part of a lawful duty imposed upon the officer, as opposed to other, discretionary activity not necessarily required in the performance of that duty. Defendant further argues that CALCRIM No. 2670 did not answer the jury’s inquiry sufficiently because it did little to describe police activity other than a detention or an arrest. As a result, the jury was not properly focused on determining whether defendant had any intention of interfering with the officers’ “work,” rather than “simply . . . not want[ing] to cooperate with their questioning.”
Defendant also argues that the court responded inappropriately to the jury’s section 69 inquiry by simply repeating the original instructions and later giving an “Allen” instruction encouraging the minority jurors to reexamine their views. He argues the trial court should have answered the jury’s inquiry instead.
As the People point out, we must reject all of these arguments because defendant did not object to the court’s response to the jury’s section 69 inquiry. A party forfeits any claim on appeal that an instruction correct in law was too general or incomplete unless the party has first requested the appropriate clarifying or amplifying language before the trial court. (People v. Hudson (2006) 38 Cal.4th 1002, 1011-1012; accord People v. Horning, supra, 34 Cal.4th at p. 909.)
In any event, assuming for the sake of argument that no forfeiture occurred and that the trial court somehow erred in its response to the jury’s section 69 inquiry, conclusions we do not reach herein, any such error would have been harmless, whether evaluated under state (People v. Watson (1956) 46 Cal.2d 818, 836-837) or federal (Chapman v. California (1967) 386 U.S. 18, 24) standards. Notwithstanding defendant’s reference to “un-Mirandized” questions and his suggestion that Sapp and Joannides were somehow engaged in “discretionary” actions rather than official duties when they greeted him, there was overwhelming evidence that the officers engaged with defendant in the course of their lawful duties, i.e., as a part of their investigation of the domestic disturbance reported to the police. (See, e.g., In re Manuel G., supra, 16 Cal.4th at p. 821 [discussing police consensual encounters with individuals].) Furthermore, contrary to defendant’s view, the jury’s section 69 inquiry as stated plainly indicates the jury was not considering whether or not defendant could be found guilty if he “simply” did not want to cooperate with the officers’ questioning. The jury’s reference to, and summary of “part 2” of section 69 indicates it had no questions about “part 1” of CALCRIM No. 2651, which, as we have stated, requires proof that “defendant willfully and unlawfully used a threat of violence to try to prevent or deter an executive officer from performing the officer’s lawful duty.” (Italics added.) Thus, the jury’s inquiry could only have been whether defendant could be found guilty of violating section 69 if he intended by his threats of violence to prevent or deter Sapp and Joannides from questioning him or to cause them to leave. As we have already indicated in part I, ante, such conduct can be a violation of section 69 (In re Manuel G., supra, 16 Cal.4th at pp. 820-825), and any further clarification of the law by the court would have had to recognize as such. Therefore, defendant undoubtedly would not have received a more favorable verdict if the court had instructed further regarding the officers’ performance of their lawful duties.
Defendant argues the court’s purported instructional error was not harmless. The People, believing no error was made, do not brief the issue.
III. The Verdict Did Not Rely on an Incorrect Legal Theory
Defendant also argues we must reverse his conviction because the jury may have reached its verdict based on an improper legal theory presented to it by the prosecution. This is incorrect as well.
When “ ‘the prosecution presents its case to the jury on alternative theories, some of what are legally correct and others legally incorrect, and the reviewing court cannot determine from the record on which theory the ensuing general verdict of guilt rested, the conviction cannot stand.’ ” (People v. Guiton (1993) 4 Cal.4th 1116, 1122.)
In her closing argument, defense counsel suggested several things that defendant might have been thinking when he issued his threats, including hatred of the police. In rebuttal, the prosecutor stated:
“If you hate the police and you threaten them when they come up to you, that is the specific intent necessary for this crime. Why? Because you hate them. You don’t want to see them. I want you to use your common sense and think about everyday examples, and I doubt many of you threaten people on a regular basis, but there are times in our lives when we are angry, we’ve said things, we threaten people with things. Why do you threaten somebody? Why do you say, ‘I’m gonna hurt you if you don’t knock that off?’ Why do you do that? Because you want them to stop it. Why do you say, ‘I hate you. I’m gonna hurt you?’ You want them to stop it.
“So if you think that that’s what was in the defendant’s mind, that he hates the police, that’s enough. That’s the specific intent necessary for this crime. I don’t wan to see you, police, please leave me alone is what’s underlined, the hatred which is what underlies the threats.”
According to defendant, the prosecutor communicated to the jury in his statement that if they found defendant hated the police, this was sufficient specific intent to find he violated section 69. Defendant argues that “a verdict based on a realistic threat to kill would be valid. However, a verdict based on ‘get the hell away from me, I don’t want to talk to you’ would not.”
We do not agree with defendant’s characterization of the prosecutor’s remarks. They were far from a model of clarity, but it appears the prosecutor was arguing that defendant’s specific intent to use his threats to interfere with the officers’ performance of their lawful duties could be inferred from his hatred, because in his hatred he was acting to intimidate the police so that they would leave him, the object of their investigation, alone. This is a somewhat convoluted argument, but it does not necessarily present an improper legal theory.
In his closing argument remarks, the prosecutor repeatedly referred to the proper elements of a section 69 violation.
Also, the trial court’s jury instructions resolved any issues raised by the prosecutor’s remarks. “The court’s instructions are determinative in their statement of law, and we presume the jury treated the court’s instructions as statements of law, and the prosecutor’s comments as words spoken by an advocate in an attempt to persuade.” (People v. Sanchez (1995) 12 Cal.4th 1, 70.) As explained in People v. Morales (2001) 25 Cal.4th 34 (Morales), critical to the analysis in People v. Guiton, supra, 4 Cal.4th 1116, is that “the court presented the state’s case to the jury on an erroneous legal theory or theories.” (Morales, supra, at p. 43.) Our Supreme Court determined, in a case where a trial court instructed the jury on the proper law and to follow the court’s instructions over conflicting attorney statements about the law, that a prosecutor’s misstatement of the law might amount to prosecutorial misconduct, but that a trial objection was necessary to preserve the issue for appeal. (Id. at pp. 40, 43-44.)
The trial court in the present case instructed the jury that “[y]ou must follow the law as I explain it to you, even if you disagree with it. If you believe the attorney’s comments on the law conflict with my instructions, you must follow my instructions.” Defendant does not argue that the trial court’s instructions were incorrect statements of the law. The instructions are very similar to those in Morales, supra, 25 Cal.4th 34. Therefore, the only appellate claim available to defendant was prosecutorial misconduct, which he does not raise, and which he has in any event forfeited in the absence of an objection below.
Although the People do not raise the distinctions between the incorrect legal theory analysis in People v. Guiton, supra, 4 Cal.4th 1116, and the prosecutorial misconduct theory in Morales, defendant refers to it in his opening brief.
In any event, there is overwhelming evidence in the record that the jury considered this case under the correct legal theory. The jury’s inquiries to the court, discussed in part II, ante, indicate they were following the court’s instructions, and the court’s responses directed the jury to legally correct CALCRIM instructions. Defendant’s argument is without merit.
IV. Admission of Evidence of Past Misconduct Was Not Prejudicial
Finally, defendant argues the court committed prejudicial error by allowing the prosecution to introduce evidence of two prior uncharged incidents involving him. This argument also lacks merit.
A. Trial Court Proceedings
Prior to trial, the court granted the prosecution’s motion pursuant to Evidence Code section 1101, subdivision (b), to admit evidence of two prior, uncharged incidents in which defendant threatened to kill police officers. The court found his prior acts were “identical” to the present ones, were relevant to showing his present intent and motive, and were not more inflammatory than the present allegations.
At trial, Antioch police officers Trevor Schnitzius and Kevin Rogers testified that they arrested defendant in April 2001, and placed him in a patrol car, where a handcuffed defendant kicked and shattered the car’s window. Defendant was combative as the officers removed him from the patrol car, and said, “I know what you look like, I know where you live. When I get out, I’m going to find you and kill you.” He repeated several times, “Wait till I get out, I’ll kill you,” and threatened to “kick [your] asses.” The officers placed defendant in a safety restraint device. Both officers recalled the odor of alcohol and noted that defendant had bloodshot, watery eyes.
Concord Police Officer Shawn Phalen testified that, in January 2003, he and another officer arrested defendant for public intoxication. After he was placed in handcuffs, defendant became “suddenly agitated” and began threatening to kill the officers. He threatened to kill both officers, and said “I’m going to kill you. When I get out, I’m going to kill both of you.” Defendant continued to threaten the officers as he was transported to the police station, saying, “I’m going to fucking kill you.” A breath test revealed he had a .15 percent blood-alcohol level. When Phalen transported defendant to a detention facility, defendant told him that he was going to kill him when he got out of jail, and that Phalen would be dead within three hours of leaving him at the facility.
In the midst of this testimony, the court instructed the jury that “[t]his evidence, if believed, may not be considered by you to prove that the defendant is a person of bad character. It may be considered by you for the limited purpose of determining, if it tends to show, the defendant’s intent at the time of this incident or his motive for his conduct with regard to the charged incident.” The court later instructed the jury along these same lines regarding all the prior conduct evidence.
B. Analysis
Defendant argues the court should not have admitted evidence of his prior threats to police because the evidence “did little to shed light on whether or not [defendant] actually harbored the intent to deter the police by his use of language,” and did not show he thwarted his prior arrests or gained reason to believe his statements would get the police to stop their activity. He also argues “[t]he issue remained essentially a legal one in the eyes of the jury, whether ‘wanting to stop an officer from questioning or wanting the officer to leave is equivalent to [section] 69 part 2,’ ” and that evidence of motive “was not truly relevant” to the instant proceedings because his identity was not an issue. These arguments are not persuasive.
Evidence Code section 1101, subdivision (b), provides that evidence of prior criminal conduct or other acts is admissible when relevant to prove such facts as motive and intent, but not for a defendant’s disposition to commit such an act. A trial court’s ruling admitting evidence of uncharged crimes is “essentially a determination of relevance [and] is reviewed for abuse of discretion.” (People v. Kipp (1998) 18 Cal.4th 349, 369.) Evidence of uncharged conduct may be admitted to show intent under certain circumstances because “ ‘[t]he recurrence of a similar result . . . tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act . . . .’ ” (People v. Ewoldt (1994) 7 Cal.4th 380, 402, superseded by statute on other grounds as stated in People v. Britt (2002) 104 Cal.App.4th 500, 505.) However, “[e]vidence of uncharged offenses ‘is so prejudicial that its admission requires extremely careful analysis.’ ” (Ewoldt, at p. 404.) “ ‘Since “substantial prejudicial effect [is] inherent in [such] evidence,” uncharged offenses are admissible only if they have substantial probative value.’ ” (Ibid.) In other words, “[t]he probative value of the uncharged offense evidence must be substantial and must not be largely outweighed by the probability that its admission would create a serious danger of undue prejudice, of confusing the issues, or of misleading the jury.” (People v. Kipp, supra, 18 Cal.4th at p. 371.)
Defendant’s arguments in effect ignore the discretion we must afford to the trial court’s decision to admit the evidence of his prior conduct. The court acted well with its discretion, even in the face of the “ ‘ “substantial prejudicial effect . . . inherent in [such] evidence” ’ ” (People v. Ewoldt, supra, 7 Cal.4th at p. 404), given the similarity of the prior incidents to the present one and their relevance to intent and motive. The prior conduct evidence was particularly relevant because defendant’s intent in making his threats to Sapp and Joannides was a central issue in the trial, as seen by defense counsel’s opening remarks in her closing argument. She stated: “Why. Why? Why. That is the question, the issue of this case. Threats made by [defendant], but why?” Evidence that defendant had made murderous threats to officers twice before in similar circumstances and had escalated his actions upon being handcuffed (knocking out of a car window in one case and making threats in the other), supported the inference that defendant intended his threats to interfere with Sapp and Joannides performance of their duties, as opposed to simply express his sentiments. Thus, contrary to defendant’s suggestion that the prior incidents evidence did no more than “restate the obvious” about his dislike for the police (see People v. Ewoldt, supra, 7 Cal.4th at p. 406 [noting that the defendant’s intent could not reasonably be disputed]), the evidence was relevant given that he heavily disputed intent at trial. The court also properly concluded that the evidence of these prior incidents was not more inflammatory than the evidence of defendant’s threats in the present case.
As for motive, while the prosecution was not necessarily required to prove it, it had the right to do so. “Proof of the presence of motive is material as evidence tending to refute or support the presumption of innocence.” (People v. Beyea (1974) 38 Cal.App.3d 176, 194-195.)[1] Given that the prior incidents were no more inflammatory than the present one, and that intent was put at issue, we cannot say the court erred in relying on motive evidence for its ruling.
Even assuming for the sake of argument that the trial court had erred by admitting the prior conduct evidence, it would have been harmless error in light of the gravity of defendant’s present threats, his repetition of them, and, as we have discussed, his efforts to remove his handcuffs as he was threatening to kill the officers, which was particularly revealing of his intent to threaten in order to interfere with the officers’ performance of their lawful duties. Also, the trial court’s repeated limiting instructions to the jury about the past conduct evidence helped minimize any prejudicial impact. (People v. Waidla (2000) 22 Cal.4th 690, 725 [“The presumption is that limiting instructions are followed by the jury”].) Accordingly, a more favorable result for defendant was not reasonably probable if the prior conduct evidence had been excluded. (People v. Watson, supra, 46 Cal.2d 818, 836-837; People v. Rodriguez (1994) 8 Cal.4th 1060, 1125 [applying the Watson harmless error standard regarding the trial court’s discretionary exclusion of evidence].)
DISPOSITION
The judgment is affirmed.
We concur:
Kline, P.J., Haerle, J.