P. v. Zuniga

Filed 1/29/09 P. v. Zuniga CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Michele D. Levine, Judge. Affirmed.

James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Gil Gonzalez, Deputy Attorney General, for Plaintiff and Respondent.

Defendant Salvador Elias Zuniga was charged with one count of making a criminal threat (Pen. Code 422),^[1]one count of discharging a firearm in a grossly negligent manner ( 246.3) with an enhancement allegation that defendant personally used a firearm ( 667, 1192.7, subd. (c)(8)), and one count of burglary ( 459).

After a jury trial, defendant was found not guilty of the negligent discharge of a firearm count and the burglary count. He was found guilty of making a criminal threat. The trial court sentenced defendant to the midterm of two years in state prison.

On appeal, defendant contends that, (1) the trial court should have given an instruction on attempted criminal threat as there was substantial evidence the victim did not experience sustained fear, (2) the trial court erroneously admitted prior uncharged misconduct because there werent any significant features in common between the charged and uncharged acts, and (3) the courts failure to instruct on expert opinion testimony was prejudicial error. Finding no error, we affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

A. The Prosecutions Case.

1. Background.

Michelle Castro is the mother of defendants two children, ages four and two. Although she referred to defendant as her husband, the two have never married. Castro and defendant were involved in a five-year relationship until they broke up in December 2006. On March 23, 2007,^[2]Castro and her children resided in a house in Beaumont. Although defendant did not live there at that time, he used to live in the home and still possessed a key.

2. The 911 Call.

In the early morning hours of March 24, 2007, Castro called 911 and spoke with a dispatcher at the Beaumont Police Department. Castro asked the operator to send an officer to her home because defendant had argued with her 20 minutes earlier. She told the dispatcher that defendant was carrying a loaded shotgun, the gun went off, and he shot a hole in her floor. The dispatcher asked Castro whether defendant had threatened her. Castro replied Yes. She said that defendant told her, if [she] didnt shut up already, he was gonna shoot [her]. She stated Im afraid if they dont get him, hes really gonna hurt me. Hes told me plenty, plenty. Castro also reported that defendants aunt had called in the night before, because defendant had pulled a gun on his aunt the previous evening.

3. Castros Initial Interview with Police.

At approximately 4:00 in the morning on March 24, Detective Jared Rutkoff (Rutkoff) responded to Castros home and met with her on her front driveway. Castro was wearing a black shirt; her hair was disheveled and fell to her shoulders as if she had been sleeping. She was crying and the eyeliner that she wore ran down her face. She appeared semi-hysterical, but understandable. Her voice fluctuated and was trembling.

Castro told Detective Rutkoff that defendant woke her at approximately 3:30 in the morning. Defendant stood at the foot of her bed, holding a shotgun in his right hand with the barrel pointed towards the floor. Defendant argued with her about why she failed to answer her cell phone. Castro told Detective Rutkoff that the shotgun went off. It sounded like a loud explosion, which she assumed came from the shotgun defendant was holding. Castro then said to defendant, What the fuck is the matter with you? Defendant replied, Shut the fuck up, or Ill shoot you, bitch. Castro saw the hole in the floor at the foot of her bed. Castro told Detective Rutkoff defendant left because he thought the police might arrive due to the loudness of the shotguns blast. When Detective Rutkoff asked Castro whether she believed defendant would shoot her, Castro responded, she believed him because . . . he was crazy. However, Castro also told Detective Rutkoff she thought defendant accidentally pulled the trigger and that he looked startled when it went off.

Castro described the weapon to Detective Rutkoff: Its length, color, and the pump action (the necessity to pull the slide in order to load the weapon). Castro told the detective that the weapon was a Mossberg. Castro had seen defendant carry that weapon on several occasions. Detective Rutkoff looked at the hole in the floor and saw an approximately one-inch hole in the carpet with black burn marks around the edges of the hole. By inserting a pen into the hole, Detective Rutkoff estimated the hole was six inches deep.

4. Castros Subsequent Interview with Police.

Beaumont Police Detective George Walter testified he spoke with Castro on three separate occasions after the incident regarding the events of March 24, although he testified regarding only two of them.

Detective Walter first spoke with Castro on March 26 in front of her residence. Castro nervously looked up and down the street and all around throughout the whole conversation, and appeared uncomfortable to be speaking with law enforcement.

Later, on March 28, Detective Walter asked Castro to clarify her comment to Detective Rutkoff that she believed the shooting was an accident. Detective Walter asked Castro, You believe it was an accident? Why did you tell the officer you believed it was an accident? Castro replied, I dont know what it was. I dont know what his intentions are with us. Castro told Detective Walter she believed the shooting was an accident because she loved defendant and couldnt believe he would do that while her children were in the home. She told Detective Walter that defendant was motionless and did not respond after the shotgun went off; he looked at her and was not startled.

5. Follow-Up Investigation.

Ryan Oakley, an investigator with the Riverside County District Attorneys Office, testified that he conducted some follow-up investigation. He went to the Beaumont home to take pictures of the bullet hole in the floor of the back bedroom. He observed a burnt bullet hole in the carpet. The bullet hole was a little over one inch in diameter; the projectile penetrated the subfloor and damaged the floor joist and post underneath. Investigator Oakley was unable to locate any ammunition or shotgun fragments.

6. Material Witness Bond.

On the morning of July 30, 2007, the prosecution filed a motion to continue the trial alleging good cause because Castro failed to appear in court after having been subpoenaed. The trial court found good cause and granted the prosecutions motion to continue the trial. The court also issued a bench warrant for Castro in the amount of $5,000.

Later that afternoon, Investigator Oakley located Castro and remanded her to court. The prosecutor had filed a request for the court to set a $50,000 surety bond for a material witness pursuant to section 1332. Counsel was appointed for Castro. After Castro conferred with appointed counsel, the court conducted a hearing on the prosecutions surety bond request.

After the hearing, the court found that Castro was aware she had been subpoenaed and was supposed to come to court that morning. The court determined that numerous efforts were made to work with Castro, but all those efforts had been thwarted. As Castro made no effort to follow the prosecutions directions and ignored past subpoenas, the court was not assured that Castro would follow any order it made. Thus, the court found there was good cause to believe Castro was a material witness for the prosecution and that unless security were required for her appearance, she would not appear to testify. It ordered that a $25,000 bond be posted in order to secure her release. Castro indicated to the court that she would not be able to post bail. The court then ordered that Castro be remanded to the sheriffs department and set a hearing for the matter to be reviewed by another court in two days.

At the review hearing, Castro appeared in custody with her counsel. A second judge reviewed the first trial judges order for a material witness security bond and found that it was proper.

7. Castros Trial Testimony.

Castro was called as a witness in the prosecutions case-in-chief. She testified that she did not want to be in court for several reasons: She did not want to talk about the events that occurred on March 24, she did not want to be away from her children, and she felt that defendant, their father, should be with his children.

She testified that on the evening of March 23 (see fn. 2, ante), she and her children were sleeping together in the same bed. Around 3:00 a.m., Castro woke up when she heard a noise inside her bedroom. By the light from the television, Castro saw defendant standing over the bed.

Castro testified that defendant entered the room and stood along the side of the bed. After having her memory refreshed with the statement she made to Detective Rutkoff, Castro testified that she thought [defendant] had something . . . in his hand. When the prosecutor asked, What did you think he had in his hand, Castro said she thought defendant held something long and dark in his hand but now did not know what defendant held in his hand.

Castro stated that defendant asked her why she had not answered her cell phone. Castro told defendant she did not answer the phone because she had been asleep. She testified they began to argue. She told defendant to go home because it was too late to argue and she didnt want the children to wake up.

Castro testified she heard a loud noise that sounded like a big boom in the middle of their argument. When she looked at defendants face, he appeared calm and had no reaction. She noticed defendant holding the long object in his hand both before and after she heard the loud noise. She told defendant he had to leave. He replied, okay, and he [knew] it was time for him to go.

Castro admitted that she had told Detective Rutkoff defendant held a Mossberg shotgun in his hand. However, she stated she had mistaked [sic] it for something else that it wasnt and that her testimony now was that she did not know what was in defendants hand. Castro testified that she never saw defendant with a shotgun in his hand and denied seeing defendant point a shotgun downward toward the floor. After she heard the loud boom, she said she looked down at the floor and saw a dark spot in the carpet, but did not see a hole.

Castro testified that after defendant left, she paced for 10 to 20 minutes and then called police. She testified that after she heard the loud noise, she thought defendant may have done something but wasnt sure what [the loud noise] was.

Castros 911 call was played for the jury. After the 911 call was played, Castro testified she felt afraid that evening because she was afraid that [her] children would hear [them] arguing, she did not know what the loud noise was, and she [did not] want [their] tempers to get out of control.

The prosecutor asked Castro several questions regarding statements she made to Detective Rutkoff, the officer who responded to her 911 call that evening. Castro testified she recalled telling Detective Rutkoff, she said to defendant, What the fuck is the matter with you? after she heard the noise. Castro did not recall telling Detective Rutkoff that defendant was angry or that he said, Shut the fuck up or Im going to shoot you, bitch. She denied telling Detective Rutkoff she believed defendant would shoot her because he was crazy. Castro did remember that she told Detective Rutkoff defendant had a Mossberg shotgun because she had seen him with it on a prior occasion.

8. Expert Testimony.

Detective Rutkoff testified regarding his past experiences handling a Mossberg pump-action shotgun. He stated he was familiar with that type of shotgun because it was the kind he used when was in the Navy, and currently uses in his work as a police officer.

He testified the Mossberg pump-action shotgun is the standard issue firearm that is kept in police vehicles. Every three months, Detective Rutkoff must qualify in the use of the shotgun. Detective Rutkoff served in the Navy for four years; three and a half of those years working as a gunners mate in the armory.

Detective Rutkoff described the Mossberg pump-action shotgun as black in color, three feet in length, with a slide located underneath a single barrel. In order to shoot the weapon, a person would have to pull back on the slide towards the body to seat a round into the chamber. The shotgun is then racked by pulling the slide forward towards the end of the barrel, in order to place a round into the chamber. To fire the weapon, the safety must be off and the trigger must be pulled.

Detective Rutkoff explained that muzzle flash is the fire or explosion that comes out of the end of the barrel. If a Mossberg pump-action shotgun were fired at close range into the ground, there would be a destructive impact. Detective Rutkoff testified that the close-up photo of the shotgun blast (Peoples Exh. No. 2), depicted charring that was consistent with a muzzle flash. The hole in the bedroom floor was consistent with a Mossberg shotgun being fired at close range because it would take a weapon that dealt a great force to blow out the wood from underneath the floor.

9. Uncharged Misconduct.

Defendants aunt, Helen Castillo, testified that on the morning of March 23, 2007, she, defendant, and defendants girlfriend, Brieana Varela, were at Brieanas parents home on a mountain. She loaned her car to defendant so he could go down the mountain to get some food. Castillo also gave defendant the money for the apartment she was going to live in. Defendant never returned, leaving Castillo stranded for the whole day.

Castillo testified that later that evening, Brieanas parents offered Castillo a ride down the mountain. They drove to the Morongo Indian reservation in Cabazon and found defendant. An upset Castillo asked defendant why he hadnt returned. She asked defendant to return her car keys and her money so she could go and pick up her daughter. She told defendant she was going to call the police. Defendant said, since youre going to call the police, . . . Im not going to give you your keys and Im not going to let you go. Castillo said all she wanted was her keys and her money, and she would not call the police.

Castillo sat in the drivers seat of her car and leaned over inside the car to remove defendants personal belongings. Defendant was standing to her left, by the open drivers side door.

When she first got into the car, Castillo saw the gun in back of the drivers seat. At some point, Castillo saw the gun in defendants hand. She described it as a big gun that was as long as her arm. Castillo was sitting in the car, looking up at defendant and crying. Castillo felt the gun being held to her back. She felt it go click, click, click. She heard defendant laugh. She described the clicking as scary.

Castillo asked defendant for money to buy food. In response, defendants girlfriend, Brieana, threw $5 at her. Castillo left to pick up her child at defendants mothers house.

After picking up her child, Castillo went to Castros home to tell her she was sorry for not believing Castro when she said defendant was violent. She told Castro, He pulled a gun on me. Castro replied, I told you hes violent. While she was at Castros house, Castillo called 911 and reported the incident. Castillo had not called the police immediately after the incident because she was afraid.

B. The Defenses Case.

Defendants friend Lena Balderas testified that she was with defendant on March 23, during the whole day, throughout the evening, and into the next morning. After defendant received a call from Castro, Balderas drove defendant to Castros residence. In order to avert any conflict between her and Castro, Balderas parked two houses away so Castro could not see the car.

Balderas testified that defendant went inside the home and came out approximately 10 minutes later. Defendant did not have a gun with him. When defendant exited the home, he passed through the gate normally. She observed defendant holding his jacket and his clothes; she did not see him holding a shotgun in his hand.

Defendants friend, Elizabeth Blunnie, testified that her daughter Brieana, defendant, and Castillo arrived at her mountain home one evening to visit, and due to the lateness of the hour, stayed overnight. Between 9:00 and 10:00 the next morning, defendant and Brieana borrowed Castillos car to go to the store. That evening, Castillo asked Blunnie to drive her to the place where defendant and Brieana were located.

When they arrived, Blunnie saw defendant working on a car. Castillo went to speak with defendant; she appeared to be upset in that she was motioning with her hands. During the time Blunnie was there, she did not see defendant with a shotgun. Blunnie never had the opportunity to look inside Castillos car.

Brieana Varela testified that she was defendants girlfriend at the time of the Castillo incident. She lived with her mother and stepfather in Twin Pines. One day, she, defendant, and Castillo drove up to Twin Pines in Castillos car. After spending the night, she and defendant borrowed Castillos car and went to a reservation, to her friends house, where defendant worked on a car. At some point in time, her mother and Castillo arrived. Brieana was by the front door of the house when she saw Castillo and defendant arguing. Brieana never saw a gun in Castillos car, did not see a gun anywhere around in the house, and had never observed defendant possess a gun throughout that whole day. Brieana threw five dollars at Castillo because Castillo started complaining about gasoline. Brieana wanted Castillo to leave.

C. Richard Martin, a defense investigator for the Riverside County Public Defenders Office, interviewed Castro. Castro told him that on the night of the incident, defendant came to the residence. They sat together in the kitchen and talked. Castro said she was angry at defendant for leaving his family for Brieana, but defendant was not angry.

Castro next went into her childrens bedroom, followed by defendant, who was going to kiss the children goodbye. Castro told Martin that was the first time she saw the shotgun. Castro believed defendant must have brought the shotgun because she did not have any weapons in her home. Castro said the gun accidentally discharged while she was standing at the foot of the bed and defendant was standing toward the middle of the bed. Castro told Martin that defendant never threatened her, never cursed at her, and never called her a bitch.

Defendant took the stand in his own defense. He admitted that he accidentally shot a hole in the bedroom floor of Castros residence, but that the shooting occurred three days before the incident when Castro called the police.

Defendant testified that Tracy and Mike Quinn were staying at the residence. Defendant picked up Mikes shotgun and began to look at it. Defendant said the gun went off by accident. Unaware that the weapon was loaded, defendant pulled the trigger and the gun flew out of his hand. Defendant said the incident scared him because he did not know the gun was loaded. Defendant testified the accidental shooting occurred before he went to Twin Pines with Brieana and Castillo.

One night defendant, Castillo, and Brieana took Castillos car and spent the night at Blunnies Twin Pines home. He borrowed Castillos car to go to the reservation to fix Brieanas friends car in order to earn money for him and his aunt. When Castillo and Blunnie arrived at the reservation, Castillo was crying and Blunnie was mad. Defendant was by the car he was working on and Brieana was by the front door of a house. Castillo was crying and asked for her car. Defendant allowed her to take her vehicle. Defendant had some personal property inside Castillos vehicle but there was no shotgun. Defendant denied holding a shotgun to his aunts back or hiding a gun under some bushes by the house.

Defendant testified that Castro called him on the following night. Defendant was with Balderas at the time of the phone call. Balderas drove defendant to Castros residence. Defendant denied that he had a gun or that he was angry at Castro because she did not answer her cell phone.

Defendant walked into the house around 11:00 or 12:00. Everyone was awake except for one of his children. Castro was upset because he was with Brieana; she began to yell and swear at him. Defendant told Castro to keep it down because the yelling was going to wake his daughter. He said he did not need to be there for an argument so he was going to leave. Defendant kissed his daughter, called Balderas, and Balderas picked him up.

DISCUSSION

A. The Court Properly Admitted a Prior Uncharged Act.

The prosecution submitted two in limine requests to present a prior act of misconduct committed by defendant. One was the prior shotgun brandishing incident involving Castillo. The second was a request to cross-examine defendant, should he testify, regarding a prior knife brandishing. The trial court denied the prosecutions request to discuss the knife brandishing.^[3]

With respect to the prior gun brandishing, defense counsel objected that the evidence was inadmissible under Evidence Code section 1109; domestic violence does not include an aunt, as aunts are not included in the list of abuse victims enumerated in section 13700. Defense counsel conceded that the evidence may be admissible under Evidence Code section 1101, subdivision (b), to negate accident, but that the evidence was more prejudicial than probative, thus should be excluded under Evidence Code section 352.

The court ruled that the gun brandishing incident was admissible under Evidence Code section 1101, subdivision (b), to prove modus operandi, a common scheme or plan, and not admissible to prove absence of accident, motive, or identity. The court reasoned that the prior gun brandishing was circumstantial evidence that defendant had a firearm available for use. The current action and the prior incident both involved a similarly described weapon, both involved disagreements with relatives, both involved displaying a weapon to use force or fear to accomplish defendants goal, and the events occurred within one day of each other. Evaluating the evidence under Evidence Code section 352, the court found the Evidence Code section 1101 subdivision (b), evidence very probative and thus admissible.

Defendant asserts that the prior shotgun brandishing involving Castillo was irrelevant to prove a common scheme or plan. He claims the prior incident was not significantly similar to the charged crime as to be naturally explained by a general plan. Conceding that the incidents occurred on successive days, he objects on the grounds that the two events did not share a connecting link, were independent of each other, the incidents were factually dissimilar, and the Castillo event did not involve planning. In addition, he maintained that evidence of the Castillo incident was more prejudicial than probative.

We review for abuse of discretion a trial courts rulings on relevance and admission or exclusion of evidence under Evidence Code sections 1101 and 352. (People v. Harrison (2005) 35 Cal.4th 208, 230.)

1. Evidence Code Section 1101, subdivision (b).

While Evidence Code section 1101 excludes evidence of prior bad acts when offered to show propensity, it permits such evidence when relevant to prove modus operandi. (People v. Matson (1974) 13 Cal.3d 35, 40.) Evidence of uncharged offenses is ordinarily admissible if it discloses a distinctive modus operandi common both to the charged and uncharged offenses. (Id.)

Evidence Code section 1101, subdivision (a), generally prohibits the admission of evidence of a persons character or a trait of his or her character when offered to prove his or her conduct on a specified occasion. Evidence Code section 1101, subdivision (b), however, provides that evidence of a persons prior criminal act is admissible when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge . . .) other than his or her disposition to commit such an act. To establish the existence of a common plan or scheme, the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual. [Citation.] Moreover, to be admissible, such evidence must not contravene other policies limiting admission, such as those contained in Evidence Code section 352. [Citation.] Under Evidence Code section 352, the probative value of the proffered evidence must not be substantially outweighed by the probability that its admission would create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. [Citations.] (People v. Avila (2006) 38 Cal.4th 491, 586-587.)

The trial court did not abuse its discretion in admitting the Castillo incident to prove a modus operandi or a common plan.

Castillo testified that she wanted to leave; she asked defendant for the keys to her car and threatened to call the police. When Castillo climbed into her car, defendant asked for his things. Castillo stated, And I kept telling him I want my money because I dont have nowhere to go with my kid. I need a place to stay for me and her. And thats all I wanted was my keys, and the money, and I would go, and I wouldnt call the police or anything. As Castillo was giving defendant his property, she leaned over and felt a gun at her ribs and felt him click [the gun] three times. Castillo told defendant to go ahead and shoot her. Defendant laughed at her and said, [S]ince youre going to call the police, then Im not going to give you your keys and Im not going to let you go.

Evidence establishing a design or plan must show a concurrence of common features which may indicate the various acts are naturally caused by a general plan. (People v. Ewoldt (1994) 7 Cal.4th 380, 393-394, superseded by statute on other grounds as stated in People v. Britt (2002) 104 Cal.App.4th 500, 505.) [A] common scheme or plan focuses on the manner in which the prior misconduct and the current crimes were committed, i.e., whether the defendant committed similar distinctive acts of misconduct against similar victims under similar circumstances. [Citation.] (People v. Walker (2006) 139 Cal.App.4th 782, 803.) [T]he plan need not be unusual or distinctive; it need only exist to support the inference that the defendant employed that plan in committing the charged offense. (People v. Ewoldt, at p. 403.)

The Castillo and Castro events shared similar features indicating that defendant engaged in a common plan. In the Castillo incident, defendant placed a gun at Castillos back, pulled the trigger three times, and laughingly told Castillo that since she was going to call the police, he wasnt going to let her go. In the Castro incident, defendant pointed a shotgun at the floor, the gun discharged, and he said to Castro Shut the fuck up or Im going to shoot you, bitch.

The characteristics of the victims were similar in that both were female and had a familial relationship with him. In both cases, defendant used a firearm to intimidate and harass his female victim. Each woman had argued verbally with defendant. Castillo argued with him about getting her property back or she was going to call the police. Castro argued with him about why she had not answered her cell phone when he called. Defendant verbally threatened both victims; he told Castro to shut up and told Castillo he wasnt going to let her go. In order to coerce compliance from his victims, he either pointed a gun at his victims back or pointed a gun at the floor near her feet.

Defendants use of a gun in this manner would cause the women to be in fear. Each one believed that defendant could immediately carry out his threat to shoot them and cause great bodily injury. Castillo testified that she was frightened when she felt the gun at her back and heard the clicking of the gun. Castro told the 911 operator that she was afraid if the police did not get defendant, hes really gonna hurt me.

Thus, the evidence supports the trial courts determination that the two incidents were sufficiently similar, and that the evidence of the prior incident would be probative of defendants common plan or scheme. We conclude the trial court did not abuse its discretion in admitting the prior act of misconduct involving Castillo.

2. Evidence Code Section 352.

Our conclusion does not end the inquiry. We now turn to the issue of whether admission of evidence of the prior incident contravened other policies limiting admission, such as those contained in Evidence Code section 352. (People v. Balcolm (1994) 7 Cal.4th 414, 426.)

Defendant alleges that admitting the prior act was so prejudicial that a reversal is compelled because a more favorable result would have been reached if the uncharged misconduct had been excluded. He alleges that several factors rendered the prior act unduly prejudicial. Castillos testimony was emotionally charged and she became so emotionally overwrought that the trial judge told her to give it a moment. Inflammatory background was admitted in order to place the incident in context. Castillo related a litany of wrongs allegedly committed by defendant, including misappropriating her rent money, leaving her stranded with strangers and separated from her daughter, lying about his intentions when he borrowed her car, failing to return her vehicle, failing to inform her of his status after he took her car, resisting her requests that her money and vehicle be returned, and laughing at her obvious grief. He also asserts that the not guilty verdicts on two of the three counts demonstrate the closeness of the case and the Castillo incident was irrelevant to the charged offense.

Evidence Code section 352 provides for the exclusion of 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. The admission of evidence under Evidence Code section 352 is reviewed under an abuse of discretion standard of review. (People v. Mungia (2008) 44 Cal.4th 1101, 1130.)

Castillos testimony lasted approximately 90 minutes, therefore was not unduly time consuming.

As for balancing the prior acts prejudice versus its probative value, the multiple facets of similarity between the two incidents made Castillos experience highly probative. As the People observe, defendant was charged with negligent discharge and burglary, and the Castillo incident was relevant to those offenses as well. The Castillo evidence was relevant and probative as to the issues of whether defendant made a threat and whether there was an immediate prospect the threat would be carried out. Castillos testimony tended to corroborate Castros statements to Detective Rutkoff and the 911 dispatcher that defendant had threatened her. The value of the evidence was especially high, given the fact that Castro was so disinclined to testify against defendant. In fact, two judges deemed it necessary that Castro be held in custody as a material witness who had failed to appear as ordered in a subpoena. Castros protestations at trial that defendant never threatened her could be assessed by comparing her testimony to Castillos testimony about her similar experience.

On the other hand, the Castillo incident was not unduly prejudicial. 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. [Citation.] (People v. Miller (2000) 81 Cal.App.4th 1427, 1449.) When the Castillo incident is compared with the Castro incident, the uncharged offense evidence was not so inflammatory that it might have caused the jurors to be distracted from their main task of evaluating guilt in the current case or to be tempted to convict or punish defendant for his prior misconduct.

The Castillo incident was not more inflammatory than the Castro incident. The gun that defendant held against Castillos back did not discharge as it did in the Castro incident. Nor was Castillos testimony any more emotional than Castros testimony. After the 911 tape was played for the jury and the jurors were excused for the day, Castro remained on the witness stand. The court said to Castro, I know it gets emotional, Ms. Castro, and I can see you getting emotional. There are tissues and water there available for you, so please help yourself when youre testifying tomorrow.

Nor were the attendant circumstances surrounding the Castillo incident more inflammatory than the Castro incident. Castillos argument with defendant about the return of her property was not more inflammatory than defendants entry into Castros home in the middle of the night to argue with Castro about her failure to answer her cell phone. The subjects of the victims arguments were about mundane matters. Other than the absence of a shotgun, the circumstances surrounding the Castillo incident were undisputed. Castillo did not testify that defendant lied about his intentions when he borrowed her car; rather, she testified that defendant borrowed her car to go down the hill, make a phone call to Castillos daughter, get them something to eat, and then be right back up the hill. Defense witness Elizabeth Blunnie corroborated this aspect of Castillos testimony when she stated that defendant and Brieana borrowed Castillos car to go to the store.

In balancing the probative versus the prejudicial value of the uncharged misconduct in the Castillo incident, we find that the trial court did not abuse its discretion. The trial court properly concluded that the potential for prejudice was outweighed by the probative value of the evidence.

B. The Courts Failure to Give an Expert Witness Instruction Did Not Prejudice Defendant.

Defendant asserts that the prosecution elicited expert testimony from Detective Rutkoff regarding the operation of a Mossberg pump-action shotgun. Pointing out that Detective Rutkoffs specialized training qualified him as an expert, defendant asserts the trial court should have instructed the jury on how to weigh Detective Rutkoffs testimony. He argues that Detective Rutkoffs statements that (1) the shotgun could not be fired unless it was loaded and the slide pulled back, (2) a shotgun was fired into the floor, and (3) the hole was consistent with a shot fired from the Mossberg shotgun, went to the disputed issue of whether defendant intended Castro to take his words, Shut the fuck up or Im going to shoot you, bitch, as a threat.

The People counter that defendant cannot prove prejudice because when the jury acquitted defendant of the negligent discharge and burglary charges, the issue of accidental shooting became irrelevant on the remaining issue of criminal threats. Defendant responds that the jurys acquittal of the count on negligently discharging a firearm does not necessarily lead to the conclusion that the defendant did not intentionally fire the shotgun. He asserts the jury may have well concluded that the shooting was not done with gross negligence or that the shooting could not under the circumstances have resulted in the death of a person.

1. Detective Rutkoff Testified as An Expert Witness.

A trial court has a sua sponte duty to instruct the jury regarding expert testimony, irrespective of whether defendant requested the instruction. (People v. Bowens (1964) 229 Cal.App.2d 590, 600, overruled on other grounds in People v. Mayberry (1975) 15 Cal.3d 143, 158; 1127b) This instruction must be given sua sponte where expert testimony has been received. (People v. Reeder (1976) 65 Cal.App.3d 235, 241.) We agree with defendant that the trial court did not fulfill its sua sponte duty. The People impliedly concede as much.

Defendant is correct that Detective Rutkoff testified as an expert. A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. (Evid. Code, 720, subd. (a).) When a witness expresses an opinion on matters he has perceived or personally knows on a topic sufficiently beyond common experience in order to assist the trier of fact, the witness is testifying as an expert. (Evid. Code,  801.)

Although not designated as such, Detective Rutkoff did in fact testify as an expert. He had specialized training in the Navy, he worked as a gunners mate in the armory, he received quarterly firearm qualification, and he used a shotgun in his police work. Detective Rutkoff was, therefore, qualified to give an opinion on matters which were beyond the common knowledge of a layman. Detective Rutkoffs specialized knowledge of the types of ammunition and the Mossberg shotguns pump-action mechanism, his personal knowledge of the physics of a projectiles impact, his personal knowledge of the hole in the bedroom floor, and Castros physical description of the weapon allowed him to opine that a Mossberg pump-action shotgun was used to fire a slug at close range into the bedroom floor. We therefore conclude that Detective Rutkoffs opinion falls within the definition of expert testimony, and as a result, the trial court had a sua sponte duty to instruct pursuant to section 1127b.^[4]

2. A different verdict would not have been rendered had CALCRIM No. 332 been given.

CALCRIM No. 332 instructs the jury how to evaluate expert witness testimony. It provides in pertinent part: (A witness was/Witnesses were) allowed to testify as [an] expert[s] and to give [an] opinion[s]. You must consider the opinion[s], but you are not required to accept (it/them) as true or correct. The meaning and importance of any opinion are for you to decide. In evaluating the believability of an expert witness, follow the instructions about the believability of witnesses generally. In addition, consider the experts knowledge, skill, experience, training, and education, the reasons the expert gave for any opinion, and the facts or information on which the expert relied in reaching that opinion. You must decide whether information on which the expert relied was true and accurate. You may disregard any opinion that you find unbelievable, unreasonable, or unsupported by the evidence.

The erroneous failure to instruct the jury regarding the weight of expert testimony is not prejudicial unless the reviewing court, upon an examination of the entire cause, determines that the jury might have rendered a different verdict had the omitted instruction been given. (People v. Williams (1988) 45 Cal.3d 1268, 1320, abrogated on other grounds in People v. Guiuan (1997) 18 Cal.4th 558, 560-561.) Based upon the totality of the evidence presented and the instructions given, we believe the jury would not have rendered a different result had CALCRIM No. 332 been given.

The People assert that there was no prejudice to defendant because the expert testimony regarding the firing of the Mossberg shotgun was pertinent only to count 2, the discharge of a firearm in a grossly negligent manner, and defendant was acquitted of that count. The People argue that the experts testimony was pertinent to the issue of whether the firing of the shotgun was accidental, which the People argue had no bearing on count 1, criminal threat. The People state that because the jurors found defendant not guilty of count 2, they necessarily found that defendant did not intentionally fire the shotgun or the gun was not fired that night and, therefore, the jurors gave little weight to Detective Rutkoffs testimony.

Defendant correctly argues that the jury did not necessarily conclude that defendant did not intentionally fire the weapon when it found defendant not guilty of count 2. The jury may instead have determined that defendant did not fire the gun in a grossly negligent manner or that the act could not have resulted in death or injury. (CALCRIM No. 970.) As defendant properly asserts, Detective Rutkoffs testimony was relevant to count 1, criminal threat, because it tended to show that the firing of the shotgun was not accidental and, when combined with defendants words, demonstrated defendants intent that the statement be understood by Castro as a threat. ( 422; CALCRIM No. 1300.) It also showed that the threat was so clear, immediate, unconditional, and specific that it communicated a serious intention and immediate prospect that the threat would be carried out. (People v. Toledo (2001) 26 Cal.4th 221, 227-228; CALCRIM No. 1300.)

However, our review of the entire case leads to the conclusion that defendant was not prejudiced because the jury would not have reached a different result if it had been instructed with CALCRIM No. 332.

First, the jury was instructed with CALCRIM No. 226, the general instruction on evaluating witnesses. In pertinent part, the jury was instructed, You alone must judge the credibility or believability of the witnesses. In deciding whether testimony is true and accurate, use your common sense and experience. The testimony of each witness must be judged by the same standard. . . . You may believe all, part, or none of any witnesss testimony. Consider the testimony of each witness and decide how much of it you believe. [] In evaluating a witnesss testimony, you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony. Among the factors that you may consider are: . . . [] . . . [] How reasonable is the testimony when you consider all the other evidence in the case? [] Did other evidence prove or disprove any fact about which the witness testified? Like CALCRIM No. 332, CALCRIM No. 226 instructed the jurors they must decide the credibility of the witness and informed the jurors that they had to decide if the witnesss testimony was true and accurate. It also stated they were free to believe all, part, or none of the witnesss testimony. The instruction explained that in evaluating the witnesss testimony, they could consider anything that reasonably tended to prove or disprove the truth or accuracy of his testimony, including how reasonable the testimony was when all the other evidence was considered and did other evidence prove or disprove any fact about which the witness testified. We look to the entire instructions given to the jury to determine prejudice. (People v. Williams, supra, 45 Cal.3d at p. 1313.)

Also, Detective Rutkoffs expert testimony regarding the operation of the Mossberg shotgun was not contradicted by other expert testimony. Instead, there was evidence that Castro said defendant accidentally pulled the trigger and that she did not believe defendant intended to pull the trigger. However, Castros credibility was questionable. She admitted she was reluctant to testify. Furthermore, the evidence regarding whether Castro said the shotgun blast was accidental was equivocal and contradictory. Defendant also testified that the shotgun was Mike Quinns and defendant accidentally shot a hole in the floor three days before Castro called the police. This testimony was contradicted by statements defendant made to police and evidence that defendant regularly carried the Mossberg shotgun, and his credibility was questionable given his lies to the police several days after the Castro incident.

Thus, we conclude the jury would have reached the same conclusion on the criminal threat charge even if the trial court had instructed in accordance with section 1127b. There is no likelihood the jury would have rendered a verdict more favorable to defendant had CALJIC No. 332 been given.

C. The Trial Court Did Not Have an Obligation to Instruct on the Lesser Included Offense of Attempted Criminal Threat.

Defendant contends that the trial court should have instructed the jury on the lesser included offense of attempted criminal threat as there was no evidence that Castro actually experienced sustained fear. The People counter that the error was invited by defense counsel.

We find that defendant is barred from raising on appeal the issue of instructing on the lesser included offense of attempted criminal threat because defense counsel had made a tactical decision not to request the instruction. Even if the matter were not barred on appeal, we conclude that the court properly instructed the jury only on the greater, and not the lesser offense, as there was not substantial evidence that defendant was guilty only of the lesser offense.

1. Invited Error.

In discussing the appropriate jury instructions with counsel, the trial judge evaluated the testimony and determined that there were no lesser included offense instructions that should be given in the case. The colloquy between the judge and counsel was as follows:

The Court: [] . . . [] The lessers, the Court has evaluated the testimony and the evidence. I am not aware of any lessers that should be given in this instance. [] I have looked at the crime of attempt as it relates to each crime and do not believe that theres any substantial evidence or really any evidence that would support such a lesser in this instance; that either the jury believes or disbelieves the presentation of evidence presented by the People, and it either is a burglary or its not, or it either is a criminal threat or its not, or it is a grossly negligent discharge or its not, but Ill certainly hear from both defense and the People.

[Defense Counsel]: Thats submitted to the court. Im not asking for any lessers.

[Prosecutor]: Submit.

The Court: Based upon the fact that the defense is not asking for anyand I believe thats a tactical decision as well, but I also believe, as Ive said, that there is not sufficient evidence to provide for an attemptthe Court then will just have the verdict sheets as to the three charged crimes presented to the jury, all right?

[Prosecutor]: Yes, Your Honor. (Italics added.)

Even absent a request or an objection, California courts have often held that a trial court must instruct on lesser offenses necessarily included in the charged offense if there is substantial evidence that the defendant is guilty only of the lesser. (People v. Prince (2007) 40 Cal.4th 1179, 1265.) [A] defendant has a constitutional right to have the jury determine every material issue presented by the evidence [and] . . . an erroneous failure to instruct on a lesser included offense constitutes a denial of that right . . . . [Citation.] [Citation.] (Id. at p. 1264.)

Although it is the court that is vested with authority to determine whether to instruct on a lesser included offense (People v. Prince, supra, 40 Cal.4th at p. 1265), the doctrine of invited error still applies if the court accedes to a defense attorneys tactical decision that lesser included offense instructions not be given. Such a tactical request presents a bar to consideration of the issue on appeal. (Ibid.)

When the trial court broached the subject of giving an instruction on the lesser included offense of attempted criminal threat, defense counsel unambiguously informed the court, Im not asking for any lessers. The trial judge interpreted counsels comment to mean a tactical defense decision had been made to allow the jury to determine whether the offense of criminal threat had occurred or that no crime had been committed. Defense counsel did not correct the trial courts statement that it believe[d] a tactical decision had been made by counsel. Thus, the issue of whether the jury should have been instructed on attempted criminal threat is barred on appeal.

2. Attempted Criminal Threat.

Even if the claim had not been barred, the court did not err in failing to instruct on the lesser offense.

A trial court has a sua sponte duty to instruct on a lesser offense necessarily included in the charged offense if there is substantial evidence the defendant is guilty only of the lesser. (People v. Breverman (1998) 19 Cal.4th 142, 148-149, 162.) Substantial evidence in this context is evidence from which a jury composed of reasonable [persons] could . . . conclude[] that the lesser offense, but not the greater, was committed. [Citations].) (Id. at p. 162.)

Even in the absence of a request or an objection, a trial court must instruct on a lesser included offense when the evidence raises a question as to whether all of the elements of the charged offense were present. (People v. Breverman, supra, 19 Cal.4th at p. 154.) This obligation includes giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present . . . but not when there is no evidence that the offense was less than that charged. [Citations.] (Ibid.) [I]f there is no proof, other than an unexplainable rejection of the prosecutions evidence, that the offense was less than that charged, such instructions [on lesser included offenses] shall not be given. (People v. Abilez (2007) 41 Cal.4th 472, 514.)

The crime of attempting to make a criminal threat is a lesser included offense of making a criminal threat. (People v. Toledo, supra, 26 Cal.4th at pp. 229-231.) One element that the prosecution must prove is that defendants threat caused the victim to be in sustained fear for his or her own safety . . . and . . . the threatened persons fear was reasonabl[e] under the circumstances. [Citation.] (Id., at pp. 227-228; 422; CALCRIM No. 1300.)^[5]

The phrase to cause[] that person reasonably to be in sustained fear for his or her own safety in section 422, means a period of time that extends beyond what is momentary, fleeting, or transitory. (People v. Allen (1995) 33 Cal.App.4th 1149, 1156 (Allen).) The court in Allen found that the 15 minutes of fear the victim felt between the time defendant threatened her and his arrest was more than sufficient to establish that the victim experienced sustained fear. (Ibid.)

A threat is sufficiently specific where it threatens death or great bodily injury (People v. Gaut (2002) 95 Cal.App.4th 1425, 1432.) The victim must believe that some force or violence might be used against her. (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1139.) Although an intent to carry out a threat is not required, defendants actions both before and after making the statement give meaning to the threat. (People v. Martinez (1997) 53 Cal.App.4th 1212, 1220-1221.) Thus, the prior relationship between the victim and the defendant, the victims knowledge of defendants prior conduct, the circumstances surrounding the threat and the manner in which the threat is made are all relevant factors in determining whether the victim was in a state of sustained fear. (Allen, supra,33 Cal.App.4th at p.1156; In re Ricky T., at p. 1137; In re Ryan D. (2002) 100 Cal.App.4th 854, 860.)

In this instance, the evidence for the criminal threat was not such that a jury of reasonable people could conclude that the lesser offense, but not the greater offense, was committed. (People v. Prince, supra,40 Cal.4th at p. 1265.) The jury could reasonably find Castro experienced sustained fear.

In her call to 911, Castro explained that defendant had shot a hole in her floor and asked the operator to send an officer to her home. Although this call occurred 20 minutes after the incident, she was apparently still feeling fearful since she asked the 911 operator not to broadcast the call because defendant would hear the dispatch on a scanner. Castro told the dispatcher point-blank that defendant had threatened her: [I]f [she] didnt shut up already, he was gonna shoot [her]. Contrary to defendants assertion, Castro said she was afraid: Im afraid if they dont get him, hes really gonna hurt me. Hes told me plenty, plenty. Detective Rutkoff, the responding officer testified that upon his arrival at Castros home at approximately 4:00 a.m., he observed Castro was still fearful 30 to 50 minutes after defendant had left the premises. He noted that Castros demeanor was fearful; her voice trembled and she had been crying. When Detective Rutkoff asked Castro whether she believed defendant would shoot her, Castro said she believed defendant would, because he was crazy.

We conclude there was sufficient evidence to support the jurys implied finding of sustained fear and no substantial evidence of the lesser crime.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ MILLER

J.

We concur:

/s/ RAMIREZ

P. J.

/s/ GAUT

J.

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^[1] All further statutory references will be to the Penal Code unless otherwise indicated.

^[2] Castro did not testify as to the date of the incident. During the prosecutors examination, she variously referred to March 23, March 2, and March 3. The Information alleged that the incident occurred on March 24, 2007. The 911 transcript indicates Castro called on March 24, 2007.

^[3] However, the court stated it would reconsider the matter should defendant open the door on the issue.

^[4] Section 1127b states: When, in any criminal trial or proceeding, the opinion of any expert witness is received in evidence, the court shall instruct the jury substantially as follows: [] Duly qualified experts may give their opinions on questions in controversy at a trial. To assist the jury in deciding such questions, the jury may consider the opinion with the reasons stated therefor, if any, by the expert who gives the opinion. The jury is not bound to accept the opinion of any expert as conclusive, but should give to it the weight to which they shall find it to be entitled. The jury may, however, disregard any such opinion, if it shall be found by them to be unreasonable. [] No further instruction on the subject of opinion evidence need be given.

^[5] Section 422 was enacted to punish those who try to instill fear in others, not to penalize emotional outbursts. (