P. v. Caballero

Filed 3/27/07 P. v. Caballero CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County. Rafael A. Ongkeko, Judge. Affirmed.

Phillip I. Bronson for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Shawn McGahey Webb, Deputy Attorneys General, for Plaintiff and Respondent.

* * * * * *

Alfred Caballero was convicted by jury of elder abuse (Pen. Code,  368, subd.(b)(1); count 1),^[1]assault with firearm ( 245, subd. (a)(2); count 2), and felon in possession of firearm ( 12021, subd. (a)(1); count 3). The jury also found that during the commission of the crimes in counts 1 and 2, appellant personally used a firearm ( 12022.5, subd. (a)(1)). He was sentenced to prison for a total term of seven years and eight months, consisting of the midterm of three years plus the four-year midterm on the use enhancement on count 1, and eight months, or one-third the midterm on count 3.

Appellant contends: (1) It was prejudicial error for the court to admit evidence that he fired a rifle five previous times to scare the victim; and (2) the evidence is insufficient to support his convictions for elder abuse (count 1) and assault with a firearm (count 2). We find the contentions to be without merit and affirm the judgment.^[2]

BACKGROUND

We recount the evidence in the light most favorable to the People and presume the existence of every fact the trier of fact could reasonably deduce from the evidence that supports the judgment. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)

On August 19, 2005, Esperanza Villanueva called 911 and reported that appellant was shooting at her with a rifle.^[3]Villanueva told the operator that she was eighty-seven years old, was alone, and the shooter had scared her and that at that moment hes shooting with a rifle out there. Villanueva gave her street address on Hellman Avenue and midway through her sentence, paused and said: [O]h, I am so nervous, I am shaking, I am so afraid. The operator directed her to calm down and asked for her name. After stating her name, Villanueva added, His name is Alfredo Caballero. He plays . . . . We are trying to kick him out of the house but he doesnt want to leave with his woman. Oh, she also insults me.

When asked for appellants age, Villanueva replied: Ma, Ma, Ma, March . . . thirteen, eleven. . . . More or less, over forty-seven. I dont remember because there are things that . . . oh, I am scared. Around forty something. The operator asked for his name. Villanueva responded that it was her son.

The operator again told Villanueva to calm down and asked if the shooter was outside. Villanueva said that he was. She said that appellant had a rifle and though she did not know what kind it was, it was big. When asked if it were a toy, Villanueva replied: No, no, no, no, its a real one. When asked by the operator what appellant was doing with the rifle Villanueva responded: Well he shot a . . . he shot it when he arrived. He came singing with the woman and I was bringing my laundry inside. And uh . . . he scared me when he shot it. When asked if he shot at her, Villanueva stated: Well he, he, shot at me when I was going outside. I was on my way out when he shot the rifle. He shot it. When asked whether he was drunk Villanueva replied that he was not.

In response to the operators inquiries, Villanueva stated the shooter lived at the same address but in a room in the back. When queried about his attire, Villanueva responded: Oh, what is he wearing right now? I didnt see him coming in, coming in, going in to the right is the room where he lives. I look out the front window. I cant go out at all . . . . Oh, my God in heaven. Oh, God in heaven.

At trial, Villanueva identified appellant as her son. She testified that he and her other son, Angel Caballero, took care of her and the three of them resided at the Hellman Avenue residence. Angel lived in the main house with her, and appellant lived in a converted garage. Villanueva told appellant that he should look for another place to live, because she did not like his girlfriend, Susanne Castle, living there with him.

Villanueva did not remember telling an officer that after she made these comments to appellant about Castle, appellant became enraged, ran into the garage, and retrieved a rifle. She testified: I hadnt even seen any rifle in that house for my life. She also denied that appellant fired a shot at her as she tried to return to the house. She denied telling the police anything like that, because she hadnt even seen any rifle.

Villanueva testified that she called the police because she heard a shot in the back of the house. But she did not remember the date of the call or what she had said.

She remembered that two officers arrived at the house a few days after the 911 call. When asked if she showed them the hole where a bullet had gone through, Villanueva replied, There was never a bullet there, never. She denied demonstrating how appellant held a rifle, and denied that she had ever seen him with a rifle. She said she would never have told an officer that she saw appellant with a rifle, because [t]hat never happened. Villanueva also denied telling an officer that appellant telephoned her after the shooting incident and told her it was all her fault that he might be in trouble.

When asked if appellant shot in her direction with a rifle on August 19, Villanueva responded, No. Well, when is he going to shoot at me? Never. When asked if she told anyone that appellant shot at her with a rifle, she replied, Who could I have told that? She volunteered that she took medication, because I lose my mind on and off. You can talk to the doctor.

Villanueva explained when she said losing her mind she meant that she forgot things. She said that Dr. Lew was treating her for dementia, loss of memory, anxiety, and hallucinations, but she did not remember how many medications she was taking at the time of the shooting. She did recall that she had medication for anxiety and forgetfulness and to help her to sleep and for her heart.

Defense counsel asked if she was hallucinating about seeing the rifle when she called 911. Villanueva agreed and denied seeing appellant when she heard the shot. Villanueva admitted she loved her son and that she did not want anything bad to happen to him, because he was her son.

Detective Jose Zarate, of the Los Angeles County Sheriffs Department, testified that he responded about three to five minutes after the 911 call. As Villanueva came out of her house, she was crying, obviously rattled and shaking a lot. She appeared afraid and continued to cry and be upset while relating what happened. But she appeared to understand what Zarate said and what was going on around her. She made no references to hallucinating and did not mention any problems about her memory. Rather, she appeared lucid, very coherent and was adamant about what had transpired.

Villanueva told Zarate that she was standing in the door jamb of her front door about to go out when appellant approached with his girlfriend. Villanueva said something like here you are again with that woman. Appellant became enraged and went to the converted garage. Villanueva demonstrated how appellant reached inside, grabbed the rifle, and held it with both hands. As he ran towards her, Villanueva became scared and locked the security screen door. She demonstrated how appellant then reached with his left hand to grab the door handle and shot with his right. Once inside, she called 911.

When Zarate pointed out a piercing hole at an upward angle in the wall just left of the door, Villanueva was visibly upset. Covering her mouth, she said that the hole had not been there before. She never mentioned that a cable man had made the hole while installing a cable.

Villanueva stated that on the day of the incident appellant pointed and fired a gun at her. Another deputy showed her the rifle recovered from the storage shed. When asked if it were the one she saw, she appeared disturbed, cried, and replied, Yeah, thats it . . . thats the one. Thats the one.

Villanueva told Zarate that appellant had fired the rifle about five times before to scare her. When asked why the police were not called about the prior shootings, Villanueva explained she did not want to be a bad mother and she did not want to get her son into trouble. She called the day of this incident, because she was scared and because appellant had fired at her.

Sergeant Diana Gealta testified that at a subsequent interview, Villanueva denied making a prior statement about appellant firing a rifle at her and said the statement was not true. She appeared to be ready to cry as she added that the deputies must have misunderstood her.

During this interview, Villanueva stated that she called 911 when she heard a gunshot, but she was inside and did not see who fired the shot or where it came from. She said that she had never seen a gun until the day of the incident when the deputies confiscated the gun, and they were walking towards their vehicle. The wall hole was created . . . by the cable company to put [the] cable through. She denied appellant shot at her.

Villanueva, who was coherent and lucid, also told Gealta that appellant had called her from jail and told her he was sleeping on the floor and that he had been beaten up. He said that it was her fault because she had called the police. Sergeant Gealta believed that Villanueva was concerned for her sons well-being because she kept saying he needs help and he shouldnt be in jail.

Deputy Andrew Leos testified that at the scene, appellant spontaneously said that he was trying to clean the gun and that it accidentally went off. He then stated that the gun discharged as he was checking to see if it was loaded. His third story was that the rifle fell out of his arms and discharged upon hitting the ground as he was removing it from his room at the request of his girlfriend who was staying with him. He also stated the gun was in the shed. Prior to these statements, the deputies had not asked him any questions.

The deputies found a rifle in the back of the shed. Three bullets were in the magazine, and a fired bullet in the chamber. Leos described the size of the hole in the wall as consistent with a bullet hole.

Detective David Butler testified that during a jail interview, appellant stated his girlfriend Castle was afraid of the rifle and while taking it to the shed, he dropped it, and as the butt hit the ground, it went off and the bullet went in the air. He denied shooting at Villanueva.

Manuel Munoz, a firearms expert, testified that in order to fire the recovered rifle, the trigger had to be pulled, which required pressure exerted similar to that in picking up a two and a half pound bag of rice with a finger. He opined the rifle was in good working order and if dropped with a bullet in the chamber, it would not fire. Munoz also testified that the rifle could not be cleaned with ammunition in it.

Appellant did not testify. Angel Caballero testified that since the age of 80, his mother forgot things and hallucinated. He related that she would turn on the bathroom light, forget to turn it off, and in the morning, deny leaving the light on. When asked about hallucinations, Caballero gave the following as an example: if he were at home nailing something, Villanueva would tell him its not done properly and then say something like she knew how and would show him. Villanueva took pills for forgetfulness and anxiety, calcium, and medication for insomnia and for her heart.

Angel Caballero did not know whether Villanueva ever hallucinated about appellant shooting a rifle at her. He saw a rifle in the storage shed within the past year and asked appellant to remove it from the shed because he thought it was dangerous to have weapons around the house.

DISCUSSION

I.Evidence ofPrior Shootings

Appellant contends that the trial court erred in allowing evidence of Villanuevas statement to Zarate that appellant had previously fired the rifle five times to scare her. He argues that this statement was too unreliable and untrustworthy to meet the preponderance of evidence standard because, viewed as a whole, her statement and testimony [are] so filled by inconsistencies and contradictions as to render [Villanueva] unworthy of belief. We disagree.

A.Rulings on Admissibility of Prior Shootings Statement

At sidebar during direct examination, defense counsel requested Zarate be precluded from testifying that Villanueva stated that appellant fired the rifle about five times before to scare her. The prosecutor argued that the statement was admissible under Evidence Code section 1109 as relevant to Villanuevas state of mind in that it demonstrated that her fear, an element in count 1, did not arise in a vacuum. She argued it was also admissible for impeachment, because Villanueva had recanted her statements.

Defense counsel objected to the prior shootings evidence as improper 1109, because no foundation had been laid. He also objected that the statement was not admissible as a prior inconsistent statement, because Villanueva was never asked about any prior occasions. (See People v. Green (1971) 3 Cal.3d 981, 985.)

After ruling the prior shootings statement lacked sufficient specificity for admission under section 1109, the trial court found the statement was admissible for impeachment, because Villanueva testified she had never seen the rifle before the officer brought it out of the garage.

Before the conclusion of cross-examination, the People filed a motion to admit evidence of prior acts of domestic violence, including the prior shootings, to prove appellants propensity to commit similar acts (Evid. Code, 1109) and to show a common design, plan, and absence of mistake or accident (Evid. Code, 1101, subd. (b)). The court deferred consideration of the motion but reaffirmed its earlier ruling that Zarate could testify about the prior shootings.

On redirect examination, Zarate testified: What [Villanueva] told me was that shed seen the rifle on several occasions before. She told me that he had fired the rifle approximately five times prior to that on several occasions. . . . [S]he said it was done in order to scare her by the son. The court overruled a hearsay objection.

At a subsequent hearing on the Peoples motion, defense counsel objected to admission of any evidence under sections 1101 and 1109 of the Evidence Code. With respect to the prior shootings statement, he argued it was still vague as to when the shootings transpired. The trial court ruled the prior shootings statement was not 1109 evidence at this point, given the fact that its not specific really as to time frame and all that. The court further ruled that, in addition to its admissibility for impeachment, the statement could also be 1101(b) evidence, [in that it] shows really an intent, absence of accident or mistake in firing off the rifle to counter appellants contrary claim.

B. Instruction on Prior Shootings Evidence

The trial court instructed without objection pursuant to a modified version of the Judicial Council of California Criminal Jury Instructions (2006) CALCRIM No. 375 (Evidence of Uncharged Offense to Prove Identity, Intent, Common Plan, etc.), that the jury could not consider evidence of appellants uncharged behavior as demonstrating propensity to commit a crime but that if the People proved by the preponderance of the evidence that appellant committed the alleged behavior, the jury could consider such evidence for the limited purpose of deciding whether appellant had a motive to commit the alleged acts or if his alleged actions were the result of mistake or accident or if he had a plan to commit the alleged acts.^[4]

When asked for any objection to CALCRIM No. 853 (Evidence of Uncharged Abuse of Elder), defense counsel responded, No. In pertinent part, the court instructed the jury pursuant to this modified version: If the People proved by a preponderance of the evidence that appellant in fact on five previous occasions scared the victim . . . with a rifle, which was uncharged elder abuse, the jury may, but [is] not required to, conclude from that evidence that [appellant] was disposed or inclined to commit abuse of an elder, and based on that decision, also conclude that [appellant] was likely to commit and did commit elder abuse, as charged here. If [the jury] conclude[s] that [appellant] committed the uncharged behavior . . . , that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that [appellant] is guilty of the charge[] presented here. The People must still prove each element of every charge beyond a reasonable doubt.^[5]

C. Prior Shootings Statement Not Unworthy of Belief

Appellant claims the trial court erred in admitting Zarates testimony regarding Villanuevas out-of-court statement that he fired the rifle to scare her five prior times, because she was unworthy of belief. He contends his convictions for elder abuse (count 1) and assault with a firearm (count 2) should be reversed, because admission of this other crimes evidence, i.e., assault with a firearm, was highly prejudicial. We disagree.

The People argued that the prior shootings statement was admissible under section 1101, subdivision (b) of the Evidence Code. The defense objected. The trial court allowed the statement under section 1101, subdivision (b).

The record does not disclose whether the trial court ever ruled the prior shootings statement was admissible as propensity evidence under section 1109 of the Evidence Code. The court in fact twice ruled it was not admissible under that section. Appellant therefore is foreclosed from claiming the prior shootings statement was inadmissible as propensity evidence under section 1109. (See, e.g., People v. McPeters (1992) 2 Cal.4th 1148, 1179 [The absence of an adverse ruling precludes any appellate challenge]; accord, People v. Rowland (1992) 4 Cal.4th 238, 259.)

The record reflects that appellant did not object to CALCRIM No. 375, which instructed the jury on how to consider the prior shootings statement pursuant to section 1101, subdivision (b) of the Evidence Code if the People proved by the preponderance of the evidence that it were true. Appellant thus waived any claim of error arising from this instruction as given. (See, e.g., People v.Holloway (2004) 33 Cal.4th 96, 132 [waiver by defendant where court, without objection from either party, instructed the jury to consider . . . evidence only for limited purposes].)

Furthermore, appellant expressly acknowledged he had no objection to CALCRIM No. 853 in response to the trial courts inquiry. He therefore waived any objection he might have to the charge the jury could consider the prior shootings statement as propensity evidence if the People proved its truth by the preponderance of the evidence.

Nonetheless, [t]he appellate court may . . . review any instruction given . . . even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby. ( 1259; see People v. Redmond (1981) 29 Cal.3d 904, 916, fn 1.) It is an elementary principle of law that before a jury can be instructed that it may draw a particular inference, evidence must appear in the record which, if believed by the jury, will support the suggested inference. [Citation.] (People v. Hannon (1977) 19 Cal.3d 588, 597; accord, People v. Benavides (2005) 35 Cal.4th 69, 100.)

It is in this context that we review whether there was adequate evidence from which the jury could find the prior shootings statement was true by the preponderance of the evidence. Before the jury could be instructed to consider the prior shootings statement pursuant to CALCRIM Nos. 375 and 853, there had to be competent evidence from which the jury could determine these preliminary facts: (1) Villanueva uttered the statement; (2) she was competent to do so; and (3) the statement was not incredible.

A preliminary fact means a fact upon the existence or nonexistence of which depends the admissibility or inadmissibility of evidence, which includes the qualification or disqualification of a person to be a witness. (Evid. Code, 400.) A trial court must determine whether the evidence is sufficient for a trier of fact to reasonably find the existence of the preliminary fact by a preponderance of the evidence. [Citations.] (People v. Guerra (2006) 37 Cal.4th 1067, 1120.) The proffered evidence should be excluded only if the showing of preliminary facts is too weak to support a favorable determination by the jury. [Citation.] (Ibid.)

Appellant acknowledges that properly admitted uncharged crimes may be considered if the jury is persuaded by a preponderance of the evidence that defendant committed the other crimes. (People v. Carpenter (1997) 15 Cal.4th 312, 382.) He argues that no creditable factual basis exists from which the jury could have found the prior shootings statement was true by the preponderance of the evidence, because Villanuevas statement and testimony were filled by inconsistencies and contradictions. He also argues that Villanueva repudiated the statement at trial, the statement was both vague as to circumstances and time and unreliable in light of Villanuevas dementia, hallucinations, and memory loss, and was uncorroborated.

We find a sufficient factual basis for giving CALCRIM Nos. 375 and 853. (See, e.g., People v. Benavides, supra, 35 Cal.4th at p. 100.) The lay testimony about Villanueva suffering from dementia, hallucinations, and memory loss did not render her prior shootings statement so unreliable and untrustworthy that no jury determination could be made that the statement was true. Zarates testimony that Villanueva was lucid, coherent, and exhibited no memory problems and that she described the incident in a relevant and adamant manner supplies abundant evidentiary support for a jury finding that she was competent to make the statement and in fact made the statement. (Cf. People v. Duckett (1984) 162 Cal.App.3d 1115, 1118, 1120 [evidence of defendants insanity, including auditory command hallucinations of such weight and character that the jury could not reasonably reject it]; People v. Reyes (1974) 12 Cal.3d 486, 499 [inherently insubstantial testimony insufficient to incriminate [codefendant] where contradictory testimony of three disinterested witnesses, as well as Reyes voluntary and convincing trial confession which exculpated [codefendant]]; In re Eugene M. (1976) 55 Cal.App.3d 650, 659 [prior unsworn out-of-court statement given by apparent accomplice threatened with prosecution and later repudiated under oath too untrustworthy and uncertain].)

Evidence that Villanueva sought to protect appellant, her son, supports an inference the jury could draw that her repudiation of the statement at trial was not truthful but rather to shield appellant. Additionally, there was sufficient corroboration of the prior shootings statement to enable the jury to find it was true. The rifle referred to in the statement was found in the shed near the garage where appellant resided. Angel Caballeros testimony about seeing the rifle in the shed within the past year and asking appellant to remove it from the property served to corroborate the prior shootings statement and give it temporal context. Also, appellant admitted possessing that rifle, and consciousness of guilt could be inferred from his inconsistent versions of how the rifle discharged during the current incident.

II. Challenged Convictions Supported by Substantial Evidence

Appellant contends his constitutional guarantee of due process (U.S. Const., 14th Amend.; Cal. Const., art. I, 15) was violated, because the evidence is insufficient to support his convictions for elder abuse (count 1) and assault with a firearm (count 2) in that Villanuevas out-of-court statements in her 911 call and as related to Zarate were unreliable and repudiated by her at trial. We conclude there was substantial credible evidence of solid value from which a reasonable jury could conclude beyond a reasonable doubt that defendant was guilty of the charged crimes. (People v. Catlin (2001) 26 Cal.4th 81, 143.)

A. Ample Support for Assault With Firearm Conviction

The elements of assault with a firearm are an assault that is accomplished by means of a firearm. ( 245, subd.(a)(2).) Assault is defined as an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another. ( 240; see also, People v. Schwartz (1992) 2 Cal.App.4th 1319, 13251326; People v. Valdez (1985) 175 Cal.App.3d 103, 108.) A rifle qualifies as a firearm.

The rule was stated in People v. Ozene (1972) 27 Cal.App.3d 905, 910: It is blackletter law that any conflict or contradiction in the evidence, or any inconsistency in the testimony of witnesses must be resolved by the trier of fact who is the sole judge of the credibility of the witnesses. It is well settled in California that one witness, if believed by the jury, is sufficient to sustain a verdict. To warrant the rejection by a reviewing court of statements given by a witness who has been believed by the trial court or the jury, there must exist either a physical impossibility that they are true, or it must be such as to shock the moral sense of the court; it must be inherently improbable and such inherent improbability must plainly appear. [Citations.] It also is true that uncertainties or discrepancies in witnesses testimony raise only evidentiary issues that are for the jury to resolve. [Citation.] (People v. Watts (1999) 76 Cal.App.4th 1250, 12581259; see also, People v. Breault (1990) 223 Cal.App.3d 125, 140141.)

Appellant fails to point out any physical impossibility or inherent improbability in Zarates testimony regarding his interview with Villanueva and her account of how the shooting transpired. Villanuevas statement to Zarate established appellant retrieved the rifle, pointed, and fired it at her. This statement was sufficiently corroborated.

As revealed by the recorded 911 call, Villanueva told the operator that appellant, whom she identified as her son and by name, had just shot at her with a rifle. When deputies arrived, appellant admitted the rifle discharged while in his possession and related the rifle was in the shed. Villanueva identified the rifle recovered from the shed as the one appellant used to shoot at her. It had a spent bullet, and the wall hole was consistent with one that could be made by a bullet still in the rifle.

Ample evidence thus exists to sustain appellants conviction for assaulting Villanueva with a firearm. A contrary conclusion, as urged by appellant, is not compelled because Villanueva repudiated her statement at trial and denied recalling what she told the operator. (See People v. Montiel (1993) 5 Cal.4th 877, 929 & fn. 25 [out-of court statement repudiated at trial generally cannot form the sole basis for a conviction but modicum of evidence [that] will validly support an unconfirmed extrajudicial statement is slight].)

These facts, along with evidence of Villanueva suffering from dementia, hallucinations, and memory loss, and inconsistencies or apparent contradictions regarding details in her statements, were simply matters for the jury as the trier of fact to consider and weigh in conjunction with other evidence that Villanueva desired to protect her son; she was lucid, coherent, and did not display any indicia of memory loss when she made her statements; and she exhibited a sustained excited state of mind during the 911 call, and afterwards while speaking with Zarate.

B. Abundant Evidence of Elder Abuse

[E]lder is defined as any person who is 65 years of age or older. ( 368, subd. (g).) The crime of elder abuse, a felony, is committed where [a]ny person who knows or reasonably should know that a person is an elder . . . and who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any elder . . . to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any elder . . . , willfully causes or permits the person or health of the elder . . . to be injured, or willfully causes or permits the elder . . . to be placed in a situation in which his or her person or health is endangered. ( 368, subd. (b)(1); see People v. Heitzman (1994) 9 Cal.4th 189, 193 [ 368 legislative response to . . . problem of elder abuse].)

There was abundant evidence from which the jury could find that appellant under circumstances or conditions likely to produce great bodily harm or death, willfully cause[d] . . . . Villanueva, an elder, with knowledge that she is an elder . . . to suffer, [and] inflict[ed] thereon unjustifiable . . . mental suffering. It is undisputed that Villanueva was over 65 years old at the time of the charged shooting incident. It is also uncontroverted that appellant, her son, resided in the converted garage at the same address as Villanueva. An inference thus arises that appellant knew Villanueva was an elder at the moment of the shooting. The jury was entitled to credit the evidence that appellant deliberately retrieved a rifle and shot at Villanueva with the intent to scare her, which in fact caused her extreme fright. Nothing more was necessary.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____________________, J.

DOI TODD

We concur:

____________________________, P. J.

BOREN

____________________________, J.

ASHMANN-GERST

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^[1] All further section references are to the Penal Code unless otherwise indicated.

^[2] Concurrently with the appeal, appellant filed a petition for writ of habeas corpus. We shall address the petition with a separate order.

^[3] A Spanish to English transcription of the recorded 911 call was received in evidence.

^[4] The court instructed with CALCRIM No. 375 as follows:

The People presented evidence of other behavior by [appellant] that was not charged in this case, that [appellant] acted aggressively toward the victim and fired a firearm five times before this incident to scare the victim. [] Except as indicated later, you may consider this evidence only if the People have proved by a preponderance of the evidence that [appellant] in fact committed the acts. Proof by a preponderance of the evidence is a different burden of proof than proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. [] If the People have not met this burden, you must disregard this evidence entirely, except for the evidence regarding the firing of the firearm on previous occasions, which you may consider for the purpose of determining a witnesss credibility. [] If you decide that [appellant] committed these other previous acts, you may, but are not required to, consider that evidence for the limited purpose of deciding whether or not: [] [Appellant] had a motive to commit the acts alleged in this case; or [] [appellants] alleged actions were the result of mistake or accident; or [] [appellant] had a plan to commit the acts alleged in this case. [] Do not consider this evidence for any other purpose. [] Do not conclude from this evidence that [appellant] has a bad character or is disposed to commit crime. [] If you conclude that [appellant] committed these other previous acts, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that [appellant] is guilty of the Counts alleged in Counts 1, 2, or 3. The People must still prove each element of each and every charge beyond a reasonable doubt.

^[5] During closing argument, the prosecutor argued Villanueva was scared and defendant had done similar things in the past. You heard the statement to . . . Zarate that on at least five other occasions, [appellant] scared her with this weapon.