Opinion
F040797.
11-7-2003
THE PEOPLE, Plaintiff and Respondent, v. REGINALD CARL SCOTT, Defendant and Appellant.
Richard D. Miggins, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, J. Robert Jibson and Justain P. Riley, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Reginald Carl Scott was convicted of making a criminal threat (Pen. Code, § 422; a felony) and resisting arrest (§ 148; a misdemeanor). He was sentenced to two years in prison. We will affirm.
All statutory references are to the Penal Code unless otherwise noted.
FACTS
Appellant and Debra lived together from 1984 to 1988, and had a son, S. Throughout their relationship, appellant physically abused Debra. When she was pregnant with S., appellant hit her in the stomach with a board. Another time, he hit her in the jaw and, after it healed, he hit her again in the same place. On another occasion, he hit her in the head and, as a result, she could not comb or brush her hair. Once, he choked her until she lost consciousness. He kicked her and spit on her. In 1990, the last prior occasion of violence between the two, appellant came to the apartment and, when Debra refused to have sex with him, he overturned the refrigerator and hit her in the eye and on the head. She went to the hospital for treatment and then obtained a restraining order against appellant.
Debra left the relationship because of the abuse she had endured. For the past 12 years, Debra and S., now 13 years old, lived in an apartment. Sporadically, appellant came to the apartment to see S., but he would never come inside because Debra was afraid of him and did not allow him in. Appellant would threaten to kill both Debra and S. Appellant told Debra once, "Ill spend the rest of my life in prison for killing you, but Im going to kill you." She did not call the police because she was afraid. On another occasion, appellant told S., "Im going to snap your neck."
On January 13, 2002, appellant came to see S. Appellant asked Debra where S. was and she said he was outside. Appellant asked Debra if she wanted company, but she refused, explaining that she was getting ready to go out and was going to be late. He said he needed S. and she should stop playing games with him. They argued for about 10 minutes. Appellant was upset, and he said, "[Y]oure this close to getting killed," holding his forefinger and thumb one-half inch apart. She said, "[W]hat? Now, youre going to go with the threats again[?]" He responded, "[N]o, this is no threat." Debra was frightened, so she slammed and locked the door. Appellant tried to open it and yelled, "Im going to cut you. Im going to cut your throat. Im going to snap your neck, come outside." Debra was frightened because of the abuse she had experienced during the four years of their relationship and she believed appellant could carry out his threat. She called the police.
Deborah Adams, the apartment building manager, heard appellant talking loudly. He was angry and agitated. Adams approached him and told him that he had to leave and that the police had been called. He called her poor White trash and told her to go into her apartment. He told her to get her husband and they would deal with the situation. Adams came within arms length of appellant, but she did not smell alcohol on appellant, nor did she believe he was acting as though he had been drinking. His speech was not slurred.
Police Officer Elness was one of the two officers dispatched to Debras apartment. When he contacted Debra, she was frantic, breathless, and speaking rapidly. After taking Debras statement, he placed appellant under arrest. Elness noticed that appellant smelled of alcohol, had watery eyes, and had slurred or mumbled speech. When Elness attempted to handcuff appellant, he tensed his arms straight down to his sides. Elness told him, "[I]f [you] fight[] Ill whip your ass and youll still go to jail." The other officer assisted Elness in handcuffing appellant. Elness then placed appellant in the back seat of the patrol car. As Elness was placing something in the trunk, appellant twice kicked the car door window with his feet. Elness saw the window frame bow out at least an inch and was surprised the window did not break. Elness opened the car door and swung his baton at appellants feet but missed. Appellant told Elness he should take the handcuffs off and appellant would assault him with the baton. Elness told appellant not to kick the window and stated that if he did, Elness would pepper spray him, yank him out of the car, hogtie him, and take him to jail that way. Appellant still refused to comply. He left one of his feet on the ground, and Elness told him to get his foot back in the car so he could shut the door. Appellant just stared at Elness for about 30 seconds. Elness repeatedly told him to get his foot in the car, and he finally complied. While Elness transported appellant in the patrol car, appellant said that he ought to kill Debra for making him go through all of this, and that he may as well kill Elness and S. too.
Debra remained frightened even after appellants arrest because she thought he would get out of jail and carry out his threat.
Defense
Adams, who was about 30 feet away when appellant was placed into the patrol car, saw Elness pull out his baton and swing at appellant three times. She thought Elness may have hit appellant once. Elness testified that when he swung his baton at appellant, he was trying to hit him.
DISCUSSION
I. SUFFICIENCY OF EVIDENCE — CRIMINAL THREAT
Appellant contends there was insufficient evidence to support his conviction for making a criminal threat because there was no immediate prospect that he would or could execute his threat to cut Debras throat or snap her neck. He argues that he did not have the means (weapons) to carry out the threat, did not take advantage of the ample opportunities he had had to harm Debra, did not intend to kill Debra, and did not intend his statements to be taken as a threat. Furthermore, he points out that his subsequent incarceration made execution of the threat impossible.
A criminal threat under section 422 is defined by five separate elements. To prove a violation of section 422, the prosecution must establish that (1) the defendant willfully threatened to commit a crime resulting in death or great bodily injury to another person; (2) the defendant made the threat with the specific intent that the statement be taken as a threat, even if he or she had no intent 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 of the threat; (4) the threat actually caused the person threatened to be in sustained fear for his or her own safety or for his or her immediate familys safety; and (5) the threatened persons fear was reasonable under the circumstances. (See People v. Toledo (2001) 26 Cal.4th 221, 227-228.)
Section 422 provides:
"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 familys safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison…."
Viewing the record in the light most favorable to the judgment (People v. Bolin (1998) 18 Cal.4th 297, 331), we find sufficient evidence that appellants statements, on their face and under the circumstances in which they were made, conveyed to Debra an immediate prospect of execution. Section 422 does not require that the threatener carry out the threat, have an immediate ability to carry out the threat, or even intend to carry out the threat. (People v. Lopez (1999) 74 Cal.App.4th 675, 679.) The gravamen of the offense is the threat to the victim, its apparent seriousness and immediacy, and the lasting nature of the impact on the victim. Here, appellant angrily told Debra she was close to getting killed. Although he denied he was threatening her, she was fearful and slammed the door. Appellant continued yelling through the door that he would cut her throat and snap her neck. Appellants angry demeanor, the seriousness of the threats, appellants lengthy past history of threatening to kill Debra and their son, appellants past history of physical violence against Debra, and Debras evident fearfulness, which persisted beyond appellants arrest, furnished ample evidence of an immediate prospect of execution. (People v. Mendoza (1997) 59 Cal.App.4th 1333, 1340 [all surrounding circumstances, including parties history, are relevant to the question whether there was substantial evidence of criminal threat].) The fact that the police arrived and arrested appellant did not eliminate Debras fear or the possibility that appellant could return and execute his threat. (People v. Franz (2001) 88 Cal.App.4th 1426, 1449 [presence of police officer, who escorted defendant from scene, did not eliminate immediacy of threat, which was present in surrounding circumstances].)
II. PRIOR ACTS OF DOMESTIC VIOLENCE AND THREATS TO OFFICER
Appellant contends the trial court abused its discretion by admitting evidence of appellants prior acts of domestic violence against Debra and of appellants postarrest threats against Officer Elness. He argues admission of this evidence violated Evidence Code sections 1101 and 352. The People assert that the evidence was admissible to prove elements of the section 422 offense.
A. Prior Acts of Violence
Before trial, defense counsel moved to exclude evidence of appellants prior violence against Debra. Counsel argued the evidence failed to meet any of the exceptions to Evidence Code section 1101, subdivision (b) and, additionally, was more prejudicial than probative. After hearing argument, the trial court concluded the evidence was admissible.
"THE COURT: … Im going to overrule the objection to the evidence and allow you to put in the five incidents, [prosecutor]. I believe … the evidence is probative as to three of the elements of the four-element [section 422] offense charged. It is potentially prejudicial as to the first element but the Court intends to instruct the jury that they are not permitted to use the evidence to find whether or not the threat did in fact occur. I must assume the jury will follow that instruction. And I conclude, even given that its desirable not to present evidence that doesnt pertain to an issue, the potential for prejudice here is outweighed by the probative value of the evidence."
The court later instructed the jury to limit its consideration of the evidence in this manner.
Also, in closing argument, the prosecutor placed the prior acts in the context of the element of Debras fear, as follows:
"Now, was the[re] sustained fear for her own or immediate family safety? Yes. Obviously those factors showing she was afraid. [¶] She got up and testified to you she was afraid and continued to be afraid. Okay. So we have direct evidence she was afraid. [¶] We also have circumstantial evidence to support that, being she slammed the door, she called the police …. [¶] Now, she testified for you that there have been alot of things that have happened in the past. She suffered violence. C[a]me to an end at some point in time. [¶] There have been additional threats, but it [had] gotten to the point where just became — where it just began escalating. [¶] … [& para;] Thats why on this particular occasion she called the police[,] where she hadnt before, she explained that to you. That things were escalating, [had] gotten to the point [that] this cant continue. Somethings really going to happen …."
The evidence of appellants prior violence against Debra was relevant to and probative of appellants intent that his statements be taken as a threat and not merely as "angry utterances or ranting soliloquies, however violent." (People v. Teal (1998) 61 Cal.App.4th 277, 281.) The evidence was also relevant to and probative of the reasonableness of Debras fear. (People v. McCray (1997) 58 Cal.App.4th 159, 172; People v. Garrett (1994) 30 Cal.App.4th 962, 967.) The evidence was therefore not barred by Evidence Code section 1101. (Evid. Code, § 1101, subd. (b) [admission of prior acts evidence not inadmissible when relevant to prove a fact, such as intent, other than the defendants disposition to commit such an act].)
Furthermore, admission of the prior acts did not violate Evidence Code section 352, as appellant argues. Although appellants physical violence against Debra had ended many years earlier, that history placed appellants statements to Debra, her perception of them, and her reaction to them, into the context of reality. The prior acts were not too remote to serve this purpose. And, without that evidence, the jury might not fully and accurately have evaluated the elements of the offense. The probative value of the evidence to prove these elements was substantial, as the trial court recognized.
The trial courts ruling finds support in similar cases. In People v. Garrett, supra, 30 Cal.App.4th 962, the defendant made a statement to his wife over the phone threatening that he would shoot her in the head when they finished the call. The wife testified that she experienced fear because her husband had been convicted of voluntary manslaughter by firearm, owned a gun, and had beaten her numerous times. On appeal, the court held that this evidence was relevant to the elements of the victims fear and the defendants specific intent that the statement be taken as a threat. Moreover, its admission did not violate Evidence Code section 352 because it provided primary evidence of elements of the offense.
Similarly, in People v. McCray, supra, 58 Cal.App.4th 159, the court held that, in light of its probative value with respect to the elements of intent and reasonable fear, evidence of the defendants past violence against the victim was not inadmissible under Evidence Code section 352, even though those incidents occurred years before the threats at issue. The court observed, "indeed, it is difficult to imagine how the jury could have properly assessed [the victims] response to appellants conduct without knowledge of these past incidents." (McCray, supra, at p. 172.)
The trial court did not abuse its discretion by admitting evidence of appellants prior violence against Debra. (People v. Lewis (2001) 25 Cal.4th 610, 637 [trial courts rulings under Evid. Code § 1101 and § 352 reviewed for abuse of discretion].)
B. Subsequent Statements to Elness
Before trial, defense counsel also moved to exclude any statements made between appellant and Elness in the patrol car during transport to the jail. Counsel argued that the evidence was not relevant and that he had not had the opportunity to cross-examine Elness on this matter at the preliminary hearing. The court denied the motion.
As the People correctly note, defense counsel did not object below to the statements appellant made to Elness on the basis of Evidence Code section 1101 or section 352. Nevertheless, ignoring the waiver (Evid. Code, § 353), we find no abuse of discretion under either provision. The statements appellant made to Elness in the patrol car — that appellant should kill Debra, S. and Elness — were relevant to prove that appellant was angry at Debra and intended his previous statements to be taken as a threat. For the reasons previously explained, the trial court did not err.
III. UNANIMITY INSTRUCTION ON CRIMINAL THREAT
Appellant argues the prosecution presented evidence of many separate and distinct statements made by appellant at different times and/or places and to different people, such that the jury should have been told that it was required to agree on which statement constituted the single section 422 offense. The People counter that a unanimity instruction was not required because the information specified that the offense was based on a statement made to Debra on January 13, 2002, and that the various statements appellant made on that date were all part of one continuous course of criminal conduct.
CALJIC No. 17.01 (Verdict May Be Based on One of a Number of Unlawful Acts) provides: "The defendant is accused of having committed the crime of _______ [in Count _______]. The prosecution has introduced evidence for the purpose of showing that there is more than one [act] [or] [omission] upon which a conviction [on Count _______] may be based. Defendant may be found guilty if the proof shows beyond a reasonable doubt that [he] [she] committed any one or more of the [acts] [or] [omissions]. However, in order to return a verdict of guilty [to Count _______], all jurors must agree that [he] [she] committed the same [act] [or] [omission] [or] [acts] [or] [omissions]. It is not necessary that the particular [act] [or] [omission] agreed upon be stated in your verdict."
A defendants constitutional right to a unanimous jury verdict requires that when the evidence shows more than one unlawful act that could support a single charged offense, the prosecution must either elect which act to rely upon or the trial court must sua sponte give a unanimity instruction telling the jurors they must unanimously agree which act constituted the crime. (People v. Melhado (1998) 60 Cal.App.4th 1529, 1534.) The unanimity instruction is designed to eliminate the danger that the defendant will be convicted even though there is no single offense that all the jurors agreed the defendant committed. (Ibid.) However, if the record shows the prosecution clearly communicated an election to the jurors so as to inform them that they must unanimously agree on a particular act, no unanimity instruction is required. (See id. at p. 1539; People v. Diaz (1987) 195 Cal.App.3d 1375, 1383.)
In this case, we agree with the People that the charges in the information limited the threat supporting the offense to a threat made to Debra on January 13, 2002. That limitation, which disposed of all prior threats to Debra and all threats to other people, was communicated to the jurors. As for threats made to Debra on January 13, the evidence established that appellant angrily told Debra she was close to getting killed. In response, Debra slammed the door, but appellant continued yelling through the door that he was going to cut her throat and snap her neck. We thus must address whether a unanimity instruction was required because these two statements, separated by Debras slamming of the door, were two discrete acts and the jurors may not have agreed on which act supported the conviction.
A unanimity instruction is not required in all cases where the evidence shows that more than one act could suffice for a conviction of a particular offense. "`"A unanimity instruction is required only if the jurors could otherwise disagree which act a defendant committed and yet convict him of the crime charged." [Citations.] "[W]here the acts were substantially identical in nature, so that any juror believing one act took place would inexorably believe all acts took place, the instruction is not necessary to the jurys understanding of the case." [Citations.]" (People v. Champion (1995) 9 Cal.4th 879, 932, disapproved on another ground in People v. Ray (1996) 13 Cal.4th 313, 363, 369, fn. 2.) In Champion, the defendant raped the victim, left, then returned a short while later and raped her again. The court held that a unanimity instruction was not required on the single charge of rape that was supported by two acts of penetration when the evidence supporting the acts was "virtually identical" and the theory of the defense was that the defendant had not participated in any of the acts. (People v. Champion, supra, 9 Cal.4th at p. 932.) The court found it inconceivable that a juror would believe the defendant committed one of the rapes but not the other. (Ibid.)
The danger of conviction, despite juror disagreement on a single act, "does not automatically arise in every case where a confused and distraught victim happens to recall additional instances of the … crime charged. Rather, the possibility of disagreement exists where the defendant is accused of a number of unrelated incidents, such as alleged rapes at different times or places, leaving the jurors free to believe different parts of the testimony and yet convict the defendant. [Citations.] Disagreement may also exist where the defendant offers a defense which could be accepted or rejected as to some but not all of the acts. In this situation, the jurors again may disagree as to which act the defendant was guilty of and yet convict him. [Citations.] [¶] If under the evidence presented such disagreement is not reasonably possible, the instruction is unnecessary." (People v. Gonzalez (1983) 141 Cal.App.3d 786, 791-792, fns. omitted [failure to give unanimity instruction not error when record showed that two acts of penetration involved the same victim, occurred at the same location within minutes of each other, and the defense argument that victim had consented to one of the rapes was not supported by the evidence], disapproved on other grounds in People v. Kurtzman (1988) 46 Cal.3d 322, 330.)
Furthermore, a "unanimity instruction is not required when the acts are so closely connected in time as to form part of one transaction. [Citations.] This branch of the `continuous conduct exception [citation] applies if the defendant tenders the same defense or defenses to each act and if there is no reasonable basis for the jury to distinguish between them. [Citations.]" (People v. Crandell (1988) 46 Cal.3d 833, overruled on other grounds in People v. Crayton (2002) 28 Cal.4th 346, 364-365.) In People v. Salvato (1991) 234 Cal.App.3d 872, which appellant cites, the court concluded that section 422 does not come within the continuous course of conduct exception. The court explained that "[t]he language of section 422 focuses on an individual act — a threat — although an effect (fear) is also required. The criminal action is denoted by a verb — `threaten — which ordinarily refers to an act taken at a particular moment in time rather than as a continuous course. The outcome, instilling of fear in the victim, does not come within the statute unless it is produced by a specific means, the `unequivocal, unconditional, immediate, and specific threat." (Salvato, supra, at p. 883.) In Salvato, the defendant threatened his wife during divorce proceedings on various occasions and in various contexts over the course of about four months. (Id. at pp. 876-877.) The court found the presentation of the evidence so unfocused, diffuse, and confusing that it decided the defendant was prejudiced by the trial courts refusal to order an election by the prosecution, despite the giving of a unanimity instruction. (Id. at p. 884.)
Here, appellants two statements, before and after Debra slammed the door, could each support a criminal threat conviction. However, the two statements were substantially identical in nature and very closely connected in time. They were essentially indistinguishable in content in that they both threatened death (or at least great bodily harm) and instilled fear in Debra. They were separated in time only by the moment it took Debra to slam the door; they were not separated by hours, days, or months. And they were separated in space only by the closed door, through which appellant continued to threaten Debra; they did not occur in various locations or under various circumstances. As in Champion, we find it inconceivable that the jurors would have concluded that appellant made one of the statements, but not the other, or that appellant intended one of the statements, but not the other, to be taken as a threat, or that one of the statements, but not the other, caused a reasonable and sustained fear in Debra. The evidence, which was presented in a straightforward and comprehensible manner, simply does not support any of these possibilities. Consequently, a unanimity instruction was not necessary to the jurys understanding of the case.
In addition, consistent with the theory that the statements were substantially identical and closely connected, the prosecutor argued, in effect, that the single charge was based on both statements as one threat. The prosecutor explained the first element (appellants threat) in this way: "`Im this close to killing you, … and then `I am going to snap your neck. I am going to cut your throat...." The prosecutor continued: "Is that a threat? To commit a crime resulting in death or great bodily injury? Absolutely. Okay. Without question. Those are the things he was threatening."
As to the third element, the prosecutor argued,
"Again, you have to look at the circumstantial evidence, what circumstantial evidence is there that the victim felt this threat was unconditional, unequivocal, immediate, specific that there was a threat — that there was a gravity of purpose and immediate prospect of execution. [¶] Well, what happened when he made the first threat. `This close to killing you. [¶] What [did] she[] do[?] Well, she slammed the door shut on him right then. What did she do? She went immediately to the phone and called the police. [¶] … [¶] What does that tell you. It tells you she was scared. All right. He made the threat, she slammed the door on his face. He made additional threats after the door was closed. [¶] She immediately ran and called the police. Shes standing — on the phone as hes standing out the living room window looking at her. Shes on the phone calling the police."
The prosecutor continued:
"… [I]ts quite clear that threat was made specifically to be a threat. [¶] I mean, the language is unequivocal. Basically, `Im going to kill you. `Im going to snap your neck. `Im going to cut your throat. Its obvious[] that was specifically intended to be a threat."
Furthermore, appellant did not offer different defenses to the two threats; defense counsel argued that defendant was angry and agitated but that he did not intend his statements, if he in fact made them, as threats. Thus it was a matter of credibility, and the jury was required to decide if Debra was being truthful about the statements and the circumstances under which they were made. The jury obviously rejected the defense that appellant did not intend his statements to be taken as threats, and, having found Debras account credible, the jury had no rational basis for accepting one part of her testimony but not the other. (People v. Bergschneider (1989) 211 Cal.App.3d 144, 156.) Thus, a unanimity instruction would not have assisted the jury in its deliberations. (See People v. Riel (2000) 22 Cal.4th 1153, 1199 [unanimity instruction unnecessary where jury does not believe only defense presented].)
IV. INEFFECTIVE ASSISTANCE OF COUNSEL
Appellant argues he was deprived of effective counsel because his trial counsel failed to request an instruction on voluntary intoxication and its effect on appellants ability to form the specific intent element of a criminal threat. He maintains that there was uncontradicted evidence he may have been under the influence of alcohol, and he points out that the prosecution argued such a theory.
An appellants claim that he was denied effective assistance of counsel has two components. First, he must show counsels performance was deficient when assessed against an objective standard of reasonableness under prevailing professional norms. (People v. Lewis (1990) 50 Cal.3d 262, 288; People v. Ledesma (1987) 43 Cal.3d 171, 216;People v. Fosselman (1983) 33 Cal.3d 572, 583-584.) Second, he must show prejudice, i.e., that it is reasonably probable, but for counsels failings, the result would have been more favorable to the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 691-692; People v. Jackson (1996) 13 Cal.4th 1164, 1217.) Prejudice must be a demonstrable reality, established on the basis of fact, not speculation. (People v. Williams (1988) 44 Cal.3d 883, 917, fn. 12, 937.) "It is not sufficient to allege merely that the attorneys tactics were poor, or that the case might have been handled more effectively …. [¶] Rather, the defendant must affirmatively show that the omissions of defense counsel involved a critical issue, and that the omissions cannot be explained on the basis of any knowledgeable choice of tactics." (People v. Floyd (1970) 1 Cal.3d 694, 709, disapproved on other grounds in People v. Wheeler (1978) 22 Cal.3d 258, 287, fn. 36.) Appellate review of counsels performance is highly deferential. (People v. Duncan (1991) 53 Cal.3d 955, 966.)
An intoxication instruction is not automatically required whenever the evidence shows that a defendant may have been drinking prior to committing an alleged criminal act. A defendant is entitled to a requested instruction on voluntary intoxication as a defense to a specific intent crime only when there is substantial evidence both that the defendant was intoxicated and that the intoxication affected the defendants actual formation of the necessary specific intent. (People v. Williams (1997) 16 Cal.4th 635, 677.) Evidence is substantial if a reasonable jury could find it persuasive. (People v. Barton (1995) 12 Cal.4th 186, 201 & fn. 8.) Absent substantial evidence informing the jury of the effect of a defendants intoxication on his actual formation of the relevant specific intent and mental state, the court does not err in not instructing on voluntary intoxication. (People v. Horton (1995) 11 Cal.4th 1068, 1119-1120.)
For example, in People v. Williams, supra, 16 Cal.4th 635, one witness testified that the defendant was "probably spaced out" on the morning of the charged killings, and the defendant made statements to police that around the time of the killings he was "doped up" and "smokin pretty tough then." (Id. at p. 677.) The Supreme Court held that the trial court correctly refused a requested instruction on voluntary intoxication. Characterizing the evidence of intoxication as "scant," the Supreme Court reasoned that even if the evidence qualified as substantial, there was no evidence at all that the intoxication had any effect on the defendants ability to formulate the requisite intent. (Id. at pp. 677-678.) In People v. Ivans (1992) 2 Cal.App.4th 1654, the court found insufficient evidence to support an intoxication instruction despite the defendants own testimony that, at the time of the shooting, he had been high on speed for a month and had been awake for three or four days. (Id. at p. 1662.) The court concluded there was insufficient evidence to show how the defendants drug use affected his mental state, noting that the defendant gave detailed testimony about his activities at the time of the offense and that other witnesses did not observe any specific symptoms of drug usage. (Ibid.) Similarly, in People v. Greenberger (1997) 58 Cal.App.4th 298, no error was found in the trial courts refusal to instruct on the effects of intoxication, although evidence was presented that the defendants had consumed a bottle of wine prior to the homicide and one of the defendants was described as drunk. (Id. at p. 378.) The court noted there was no evidence presented that any of the defendants drank enough wine to have any effect on their mental states. (Ibid.)
In this case, the only evidence of appellants intoxication was Elnesss testimony that appellant smelled of alcohol, had watery eyes, and had slurred or mumbled speech. However, Elness did not testify that appellant was drunk or intoxicated. Nor did he testify that appellants condition affected his ability to form the intent to threaten Debra. Defense counsel presented no evidence of appellants intoxication; on the contrary, he elicited testimony that appellant was not intoxicated. Adams testified that she came within arms reach of appellant before the police arrived, that she did not smell any alcohol on appellants breath, that she did not see any alcohol in his possession, and that he was not acting like someone who had had too much to drink. She described his speech as crystal clear and not slurred. Furthermore, in closing argument, defense counsel stressed the disparity between Elnesss and Adamss assessment of appellants condition. Counsel argued that Adams was the "only truly unbiased witness that was interviewed by the police," and urged the jury to find Adams more credible than Elness. The defense relied on the strategy of convincing the jurors that Debra and Elness were lying about the threats and the smell of alcohol, among other things.
In the prosecutions rebuttal argument, the prosecutor argued that appellant was the type of person who could not control his temper or his violent behavior.
"[PROSECUTOR:] I would point out to you, ladies and gentlemen, this Defendant on that day, according to the officer[ ] whos a trained observer, trained to observe things like this, indicated that the Defendant appeared to be under the influence of alcohol or at least been drinking.
"Thats consistent with his behavior. His behavior is that of a person whos completely out of control, either normally, or as a result of intoxication. [¶] [He] [i]s a person who is violent, who has the inability to control his violence, hes the person who obviously when he gets frustrated, makes threats, and at least in the past has carried those threats out. [¶] The Defendant is the type of person who will try to kick the window out of a patrol car. For what purpose? I dont know. Just because hes uncontrollably violent. [¶] The Defendant … is the person who went to that apartment that day and told [Debra], for whatever reason, because he got frustrated, or for whatever reason, `Im this close to killing you. Im going to snap your neck. Im going to slice your throat. [¶] Hes the person who in the patrol car said, `Ill — Ill just kill her for putting me through this. I ought to kill you and [S.], too. Thats the person he is."
Appellant now suggests the prosecutors argument — that Elnesss testimony indicated appellant appeared to be under the influence of alcohol — affected the state of the evidence, weighing in favor of an intoxication instruction. Argument, however, is not evidence (People v. Perez (1992) 2 Cal.4th 1117, 1126), and the prosecutors reference to Elnesss testimony cannot increase the body of evidence beyond that presented at trial. Significantly, the prosecutors argument did not in any manner suggest that appellants drinking rendered him unable to form the intent to threaten Debra. In fact, the prosecutor attempted to cast appellant as a violent and uncontrollable person who might become even more violent, frustrated, and threatening while under the influence of alcohol.
In sum, the evidence of appellants alleged intoxication was scant, and there was no evidence whatsoever suggesting that appellants possible consumption of alcohol affected his ability to form the required intent to threaten Debra. Thus, an instruction on voluntary intoxication was not justified. It is not incompetence to fail to request irrelevant instructions. (People v. Ochoa (1998) 19 Cal.4th 353, 434 [counsel cannot have been ineffective for failing to seek instruction for which there was no supporting evidence].)
V. PROSECUTORIAL MISCONDUCT
Appellant lastly contends the prosecutor committed misconduct when he elicited testimony from Debra in violation of the trial courts pretrial ruling. Appellant argues that the prosecutions questions elicited testimony that appellant threatened to kill his son and invited the jury to conclude appellant was a bad man. The People respond that the prosecutor did not violate the courts ruling and that, in the event we find otherwise, the violation was not intentional.
A. Facts
During in limine motions, defense counsel brought a motion to exclude certain evidence:
"[DEFENSE COUNSEL]: Your Honor, we would respectfully request the Court to exclude any potential testimony of the alleged beating of [S.] by [appellant]. … [W]e would argue, Number 1, that its 352, and Number 2, most importantly, its not relevant to the matter before the Court. [Appellant] is not charged with this type of battery or 273.5 as it pertains to [S.] [S.] isnt a percipient witness in this matter, Judge.
"THE COURT: Do you intend to offer such evidence, [Prosecutor]?
"[PROSECUTOR]: … I believe that what I would intend to introduce with regard to [S.] is the fact he was in the apartment complex that afternoon — that night, that he found out that his father was in the apartment complex, he went and hid and he did not want to see his father because he was scared of him. And I believe, although I dont think I talked to him specifically about this issue, Id have to do so before you put him on the stand but at this point I would plan to ask him if he was present at any time in the past when the defendant has in fact threatened his mother. So I would propose that, that limited amount of evidence. I think Defense Counsel probably has a valid point as far as the actual beating of him. I suppose the only way that would come up is if Defense Counsel tried to challenge his assertion that hes scared of his father on cross-examination.
"THE COURT: Okay. … What is your motion, [Defense Counsel], requesting that the Court exclude evidence of the beating?
"[DEFENSE COUNSEL]: Of [S.], yes.
"THE COURT: Yes.
"[DEFENSE COUNSEL]: And Id also ask, Judge, now hearing what I heard, Id ask for offer of proof as to what the relevancy would be on [S.]s testimony. The fact that [S.] was in the apartment complex, so what, thats not necessarily relevant to the issue before the Court. The fact that he hid from his father, so what, thats not before the court. The fact that hes afraid of his father, so what, hes not
"THE COURT: What is the relevance of that, [Prosecutor]?
"[PROSECUTOR]: The relevance that is presumed the Defense is going to attack the victim in this and claim that it really wasnt a death threat, he was blowing off steam. She had no reason to be afraid, that it wasnt really a threat at all, and its relevant to the point that in fact not only is the victim afraid, the victims son is afraid of him, knows the victim is afraid of him and has in fact witnessed prior threats himself. Its evidence which corroborates the victims testimony.
"THE COURT: [Defense Counsel]?
"[DEFENSE COUNSEL]: Judge, the witness can testify that she was afraid of these threats. The witness can testify as to what was allegedly said. The witness can also testify to any prior alleged threats that were made. This is simply cumulative and its — Judge, we also argue that allowing this 13-year-old boy [to] come in and testify against his father about things that the mother could testify to … is potentially 352 also, and its also cumulative. She can testify to those things. Now, if I open a door, Judge, they can try and close it.
"THE COURT: This is the ruling then, [Prosecutor], Im going to sustain the in limine objection to the evidence but I will take the matter up again should you request to put the evidence forward on rebuttal.
"[PROSECUTOR]: Okay.
"THE COURT: Okay.
"[PROSECUTOR]: Specifically, though, with regard to his witnessing prior threats made to his mother.
"THE COURT: Yes.
"[PROSECUTOR]: I think that should be relevant.
"THE COURT: Why?
"[PROSECUTOR]: Corroboration. I mean, if hes a natural witness to the threats that have been made in the past then that goes to establish the elements of the crime that
"THE COURT: I think that if you need that well take it up again on rebuttal.
"[PROSECUTOR]: All right. Thats fine.
"[DEFENSE COUNSEL]: Thank you, Your Honor."
At trial, during the prosecutors direct examination of Debra, the following occurred:
"[THE PROSECUTOR:] Prior to January 13th of this year had he made any threats to you?
"[DEBRA:] He mostly made them to [S.] He would say them to [S.]
"THE COURT: [Debra], just answer the question thats asked. Restate your question.
"[THE PROSECUTOR:] Did he make any threats to you?
"[DEBRA:] Yes.
"[THE PROSECUTOR:] ... When was the last time he made a threat to you? [¶] … [¶]
"[DEBRA:] Boy, it was last year. He said that he didnt care how long he stayed in prison. He said, I dont care. Ill spend the rest of my life in prison for killing you, but Im going to kill you."
A few moments later, the following took place:
"[THE PROSECUTOR:] Now, you indicated there was — there seem[ed] to be an escalation in the threats. What do you mean by that?
"[DEBRA:] Well, it just seemed that when he would talk — when he was talking to [S.] Id hear him say, Im going to snap your neck. And the way that [S.] when — after [S.] would come into the house or after [appellant] would leave [S.] would just say, you know, he just keeps on talking on how hes going to kill me and how hes going to kill you and it just seems like its getting worse, worse, and worse. You know, instead of just talking to [S.] it would be threats.
"[THE PROSECUTOR:] Now, you indicated one occasion in which he was actually violent and prior to that and that occasion in 1990 or so, are there other occasions that stand out in your mind of particular violence that he committed against you during your relationship?"
At this point, Debra described various prior acts of violence appellant committed against her.
B. Misconduct
We agree with the People that the trial courts ruling, although not entirely clear, appears to have excluded (1) all testimony about appellants beating of S. and (2) all testimony by S. In arguing the motion to the court, defense counsel stressed that S.s testimony was not necessary because it would be cumulative of Debras testimony. Defense counsel argued that Debra, rather than S., could testify to matters such as appellants prior threats ("any prior alleged threats that were made"), what appellant said, and Debras resulting fear. The court appeared to agree with defense counsel and granted his motion. As far as we can discern, this ruling did not exclude testimony by Debra about threats appellant made to S. Defense counsel seemed to agree with this proposition, and thus the record supports a conclusion that the prosecutor did not violate the trial courts ruling by eliciting such testimony.
Furthermore, the record demonstrates that the prosecutor did not intentionally elicit the subject testimony from Debra. Her mention of appellants threats against S. was not responsive to the prosecutors questions, and both the prosecutor and the court attempted to focus her on the questions asked. Thus, even assuming the evidence violated the trial courts ruling, we find no prosecutorial misconduct. (People v. Scott (1997) 15 Cal.4th 1188, 1218 [although it is misconduct for a prosecutor to intentionally elicit inadmissible testimony, merely eliciting evidence is not misconduct].)
Because we find no error in this case, we need not address appellants final contention that the cumulative effect of the asserted errors was prejudicial.
DISPOSITION
The judgment is affirmed.
WE CONCUR : Vartabedian, J., Cornell, J.