P. v. Jurado

Filed 4/4/06 P. v. Jurado CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Merced County. Ronald W. Hansen, Judge.

Waldemar D. Halka, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Carlos A. Martinez and Kelly E. Lebel, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

STATEMENT OF THE CASE

On June 4, 2004, the Merced County District Attorney filed an information in superior court charging appellant Jose Jurado, IV as follows: counts I and II--threatening great bodily injury (Pen. Code, § 422) with two prior prison terms (Pen. Code, § 667.5, subd. (b)); counts III and IV--misdemeanor brandishing of a knife (Pen. Code, § 417, subd. (a)(1)); and counts V and VI--misdemeanor resisting a police officer (Pen. Code, § 148).

On June 7, 2004, appellant was arraigned, pleaded not guilty to the substantive counts, and denied the special allegations.

On July 27, 2004, jury trial commenced.

On July 30, 2004, the jury returned verdicts finding appellant guilty of attempting to threaten great bodily injury (Pen. Code, §§ 664, 422), a lesser included offense of that charged in counts I and II, and guilty as charged in the remaining counts.

On the same date, appellant waived his right to a jury trial on the special allegations and the court conducted a bifurcated hearing on those allegations. Appellant admitted the enhancement allegations associated with counts I and II in exchange for a total term of three years four months in state prison with any parole violations to run concurrent to that sentence. Appellant agreed to the middle term plus a one-year enhancement on count I and one-third of the middle term on count II.

On November 3, 2004, the court denied appellant probation and sentenced him to the stipulated aggravated term of three years four months in state prison. The court advised appellant the two felony convictions were "strikes" within the meaning of the three strikes law and ordered the sentences on the misdemeanor counts (counts III-VI) to run concurrent to the terms imposed on the felony counts (counts I-II). The court awarded 309 days of custody credits, imposed a $800 restitution fine (Pen. Code, § 1202.4, subd. (b)), and imposed and suspended a second such fine pending successful completion of parole (Pen. Code, § 1202.45).

On the same date, appellant filed a timely notice of appeal.

STATEMENT OF FACTS

Counts I and III

On Easter Sunday, April 11, 2004, Jose Martinez (Martinez) (the alleged victim of counts I and III) was working at the Lowe's store in Merced. At about 3:00 p.m., Martinez was in the process of collecting shopping carts outside the store. Appellant and a juvenile male, attired in football jerseys, walked by Martinez. Appellant approached Martinez and asked him why he was "talking shit" about him. Martinez responded, "[W]hat are you talking about?" Appellant replied, "[W]hy do I hear you talking shit about me." Martinez responded, "I don't even know who you are."

Appellant stood two feet from Martinez, pulled out a knife, and asked Martinez if he wanted to get stabbed. The blade of the knife was extended. Martinez became scared for 20 to 30 seconds and then smelled alcohol on appellant's breath. The juvenile attempted to calm appellant down. Appellant told Martinez a Lowe's coworker told him that Martinez was saying things about appellant. Appellant demanded that Martinez talk to the coworker and resolve the issue. Martinez walked away in the direction of the lumber department. He estimated the conversation lasted five or six minutes.

Counts II and IV

Another Lowe's employee, Jeffrey Doca (Doca) (the alleged victim of counts II and IV) approached the area where appellant and Martinez were arguing. Appellant went face-to-face with Doca, swore, and said, "'You got problem with me?'" or words to that effect. According to Doca, appellant appeared to be drunk and his speech was slurred. Doca told appellant he should leave the area because he was drunk. Appellant aggressively pointed a knife at Doca and asked, "Do you want to get stabbed?"^[1] Doca said he got scared for about a minute and was afraid appellant was going to stab him in the side.

A security officer approached the men and asked if whether there was a problem. Appellant "went off" on the female security officer and then walked away. As he was walking, appellant said, "[Y]ou're all prejudice[ed], you all hate Mexicans." Doca replied that he was one-half Mexican himself but appellant "kept going on about it." Appellant's juvenile companion tried to calm appellant down and get him to leave the area. The police were subsequently called to the location.

Counts V and VI

Merced Police Officer Perry Flowers (the alleged victim of count V) arrived at the scene on a police motorcycle and contacted appellant and his companion, a Hispanic juvenile, by a nearby Dollar Tree store. Officer Flowers approached appellant and his companion and told them to get onto the ground. Appellant's companion sat on the ground as directed but appellant did not comply. He advanced toward Flowers and said, "fuck you." When Flowers ordered appellant to stop, the latter said, "Fuck you, I'm not going to stop." The officer drew his weapon, pointed it at appellant, and ordered him to get onto the ground. Appellant opened his hands, put them to the side, and said, "F-U, you're going to have to shoot me. Go ahead and shoot me." The officer once again told appellant to get down, but appellant continued advancing toward the officer. Appellant said, "If you're going to shoot me, shoot me."

Merced Police Officer Mark Jenkins (the alleged victim of count VI) arrived at the scene to assist Officer Flowers. Both officers "triangulated" appellant by approaching him from opposite sides. When appellant got within five feet of Flowers, the latter kicked him in the abdomen. Appellant bent over and Flowers grabbed the back of his shirt to try to take him to the ground. Appellant stepped back, extricated himself from Flowers's grasp, and got away. Appellant then put his hands behind his back and said to the effect of, "come on and just shoot me." Jenkins responded by spraying appellant with pepper spray. Appellant went down and was handcuffed. The officers could smell appellant's breath and concluded he had been drinking alcohol. According to Officer Flowers, appellant was intoxicated but not to the point where he could not safely care for his own safety or that of others. Officer Jenkins searched appellant's companion and found a switchblade knife.

After the officers placed appellant under arrest, Doca and Martinez went to the scene of the detention and both positively identified appellant as the person who had threatened them with an exposed knife blade. Martinez and Doca also identified the switchblade as the weapon appellant exhibited to them.

Other Prosecution Evidence

Over defense objection, the trial court allowed the prosecution to introduce evidence of another incident involving appellant to show his "state of mind." Jacob Alexander testified he was in the area of Mountain Mike's Pizza on the afternoon of April 11, 2004. Alexander observed appellant pinning an elderly man against a fence near the pizza parlor. Appellant stood about one foot away from the man, held a knife at chest level, and threatened to stab the cowering elder. Appellant said two or three times, "'You want me to stick you right now, I will.'" Appellant had a companion who was dressed in a black Raiders jersey. Alexander left the scene and called the police from a nearby Save Mart grocery store. Alexander said he watched appellant confront the elderly man for five minutes before Alexander left to summon the police.

Defense

Appellant testified in his own defense. He said he drank alcohol the night before the incident until he passed out. He continued drinking alcohol the following morning and went to a Subway restaurant with his cousin to get some food. They encountered Martinez by the Lowe's store. Appellant knew Martinez from school. Several years earlier, they had a confrontation at school concerning Martinez's girlfriend and appellant "got the best of it." Appellant admitted he had "messed around" with Martinez's girlfriend. At that time, Martinez threatened to get even with appellant in the future.

Between their high school years and April 11, 2004, appellant and Martinez had seen each other 25-30 times without incident. When appellant saw Martinez on April 11, 2004, he approached the latter and said, "How you doing, fool?" Martinez responded, "I'm doing good. How about yourself?" Appellant replied, "I'm cool," and asked for a cigarette. When Martinez said he did not have any cigarettes, appellant left.

Appellant said he encountered Martinez again a few minutes later. This time, Martinez was accompanied by two other men and appellant treated the situation as a challenge. He gestured to Martinez, "What's up," by throwing his hands in the air. Martinez responded aggressively, put a "mean mug look" on his face, threw his hands up to signify "what's up," and walked toward appellant. Appellant said he responded by acting like, "'What's up fool? What do you want to do?'" Martinez said, in turn, "[L]et's do this then," and started walking toward appellant's young cousin. Appellant stepped in front of his 14-year-old cousin and said, "What's up fool? Why you picking a fight with little 14 year old kid, that's some coward shit." Martinez replied, "I ain't picking shit. What's up, you want to do?" Appellant then asked Martinez if he was still angry about his girlfriend. Martinez said, "No," but appellant responded, "It seems that way."

Appellant took a switchblade knife out of his pocket without opening the blade and quickly put it back inside his pocket. Appellant said his intent was to warn Martinez "you better back up." Martinez walked away. Appellant denied threatening Martinez and said he showed the knife to protect his cousin.

Doca was standing in the area and observed the incident between appellant and Martinez. Appellant asked Doca, "What the fuck you looking at?" Doca responded, "'I'm looking at you, beaner.'" Appellant asked, "You got a problem with Mexicans or what?" According to appellant, Doca started laughing and said, '"Man, get the hell out of here, get the hell out of here.'" Appellant said, "[W]hat, you going to make me?" They approached each other and appellant asked, "What's up? Why are you making disrespectful comments towards my race?" Appellant again took the knife out of his pocket but he did not open the blade. He denied asking Doca if he wanted to get stabbed. Doca laughed and walked away. As appellant left the area, Martinez walked up to appellant and said he did not want any problems between them. According to appellant, they apologized to one another.

Appellant and his cousin then walked by Mountain Mike's Pizza. Appellant ran into an older man on a bicycle. According to appellant, the man was in his mid-30's. The man accidentally ran over appellant's foot. They both laughed about the incident but appellant became mad that the man was laughing. The man said that was the reason why the Raiders lost the Super Bowl. Appellant said, "[W]ho the fuck are you talking to?" The man spat near appellant and appellant thought he was spitting on him. He took out his knife, showed it to the man, but did not open the blade or threaten the man. Appellant then walked away.

The police arrived a few minutes later. One of the officers pointed a gun at appellant and told him several times to get down. Appellant responded, "I didn't do shit. I have no reason to get down. It wasn't me." Appellant admitted disobeying the officer's commands but denied walking toward the officer. Appellant also admitted he was emotional and easily upset that day because of all of the alcohol he had consumed. He said he had consumed seven shots of Tangeray and half of a 40-ounce King Cobra that morning. When he awakened that morning, he felt the effects of the alcohol he consumed the previous evening. Nevertheless, appellant said he was not drunk to the point of falling down or being unable to remember anything.

The defense also called private investigator Colleen Tucker to testify about her interview with Jacob Alexander. According to Tucker, Alexander said the only conversation he could hear between appellant and the elderly man was the latter saying "the Raiders lost." Tucker also interviewed Martinez, who told her he was scared for only two seconds as a result of appellant's actions.

The parties stipulated that Martinez had told the prosecutor during an interview he was scared for only 20 to 30 seconds. Appellant admitted two prior felony convictions for theft offenses.

DISCUSSION

I.

REQUEST TO REOPEN JURY VOIR DIRE

Appellant contends the trial court abused its discretion by denying his request to reopen jury voir dire to permit him to exercise peremptory challenges.

The following exchange occurred during jury selection on July 27, 2004:

"THE COURT: Okay. Juror number 3, you're excused. Juror number 14, you're excused. Juror 18, you're excused. Okay. [¶] Now what's going to happen is, juror 13, if you will move up and fill the vacant chair and we'll start with peremptory challenges and peremptory challenges either side can excuse a juror for any reason.

"And please do not be offended. In fact, those that are excused are probably grateful. I'm more concerned with those that remain. You're not to speculate as to why a particular juror was excused. It has nothing to do with your task and responsibilities in this case. [¶] And so we'll start with – it is the People's challenge.

"MR. CARROLL [deputy district attorney]: Thank you, Your Honor. People would thank and excuse juror in seat number 3.

"THE COURT: Okay. And what's going to happen is that the juror 15 – number 3, you're excused. Juror 15, you'll move up and fill the vacant seat. [¶] It's the defense challenge.

"MR. HOWARD [deputy public defender]: I'm just trying to catch up. We're going to pass.

"THE COURT: Okay. Defense passes. People's challenge.

"MR. CARROLL: People pass. People accept the jury, thank you.

"THE COURT: We have a jury of 12. We're going to select two alternates. And gentlemen, will you please move down, okay. And we'll call four additional ... jurors.

"MR. HOWARD: Could we go up there for a minute? I have a little issue I've got to raise here.

"(Off-the-record side-bar conference.)

"THE COURT: Okay. Please seat four additional jurors.

"[Court and counsel proceed to query the prospective jurors on voir dire.] [¶]…[¶]

"THE COURT: Okay. Challenge for cause of the four, Mr. Howard?

"MR. HOWARD: We pass.

"THE COURT: Okay, Mr. Carroll?

"MR. CARROLL: I pass.

"THE COURT: Okay. Peremptory challenges, each have two. It is the People's challenge and jurors 13 and 14 are current alternates.

"MR. CARROLL: People accept.

"THE COURT: Okay. Mr. Howard?

"MR. HOWARD: We would like to thank and excuse juror number 13.

"THE COURT: Okay. People's challenge.

"MR. CARROLL: People accept.

"THE COURT: Okay. Defense challenge?

"MR. HOWARD: We would like to thank and excuse juror number 14.

"THE COURT: Okay. You're excused, juror 14. Thank you, sir, you're excused.

"PROSPECTIVE JUROR: Oh, me, I guess I'm asleep.

"THE COURT: Okay. If you jurors would please move there. Ladies and Gentlemen, we have our panel and our two alternates. [¶] Now my questions are directed to the panel and the alternates, I just want to make sure.

"MR. CARROLL: Just for the record, Judge, we accept the panel, the last challenge –

"THE COURT: I'm sorry, Mr. Carroll, you still have a challenge. Any challenges?

"MR. CARROLL: No. Just for the record I accept the panel.

"THE COURT: Thank you."

After the foregoing exchange, the court excused the remainder of the venire and the clerk administered the oath to the panel of jurors.

The following exchange occurred outside the presence of the jury on the afternoon of July 27, 2004:

"THE COURT: Let's go on the record. Mr. Howard, you want to put something on the record?

"MR. HOWARD: Your Honor, immediately after – well, I passed, Mr. Carroll passed and immediately after that the Court stated that the jury was set and my client turned to me and he said that no he had challenges he wanted to exercise, that there was people that he did not feel comfortable on the jury, and I asked to approach and we all went in chambers and it was decided that the panel would stand. And I just want to put on the record that before the jury was sworn and before alternates were picked Mr. Jurado indicated to me that he wanted to use some of the peremptory challenges that we had and challenge some of the people on the jury and there was a ruling that was made in chambers that was not going to happen.

"THE COURT: Okay. And the ruling was based in part on the fact that I asked if based upon your experience as a criminal defense lawyer, and you are an experienced, knowledgeable and skilled defense lawyer ... you've selected many juries, whether you were satisfied when you passed the jury. You were satisfied with the 12 jurors based upon your skills and knowledge and you indicated that you were. But that your concern was your client but you as a trial lawyer were satisfied with the 12 jurors when you passed the challenge; is that correct?

"MR. HOWARD: That is correct, but I also raised the issue that … maybe I didn't give my client adequate enough time to discuss the concerns. And I also brought up that we had discussed two jurors that he wanted to remove but because they weren't seated in the 12 couldn't remove them yet. And that after I told them we couldn't remove those guys that's when I passed.

"THE COURT: But the two jurors were the alternates who have now been excused – were the two prospective alternates who now have been excused. And now, this is the Court's view of the matter, I believe it's governed by Code of Civil Procedure Section 231, particularly subsection D, which provides that when each side passes consecutively the jury, which is what occurred, the jury shall then be sworn unless the court for good cause shall otherwise order.

"Now the issue was whether or not Mr. Jurado is being denied effective assistance of counsel that would be the only argument for good cause because he wanted to exercise some challenges and the trial attorney, who is skilled in these matters, was happy with the 12 who were impaneled. That is a trial tactical decision. I believe that decision is controlled or should be controlled by the trial attorney. There was no indication of bias or cause with respect of the 12 jurors who were impaneled, and therefore, the Court did not feel there was good cause to reopen the challenges. Okay. [¶] See you tomorrow at 10:00 o'clock.

"MR. HOWARD: I just want to state one thing, what the Court said it almost makes it seem the jurors that Mr. Jurado wanted to remove were eventually removed. There is jurors on the 12 that he wanted to remove and there were two in particular that he wanted to remove.

"THE COURT: I understand that.

"MR. HOWARD: And we just – I didn't get a chance. I only gave him a couple of seconds to make up his mind and he didn't and I passed.

"THE COURT: I'm not going to agree with the characterization of the couple of seconds. There was a long conference between you and Mr. Jurado and the Court did not pressure either side in the exercise of their peremptory. There was no rushing here, there was discussion and it was more than just a couple of seconds, so the record is what it is."

Appellant now contends:

"The record here demonstrates the trial court believed good ca[u]se for reopening jury selection required that defense counsel provide deficient performance. Contrary to the trial court's belief, there is no such requirement....

"However, even if the trial court is deemed to have been aware of the scope of its authority, its denial of counsel's request to reopen jury selection amounted to an abuse of discretion under the circumstances of this case. The defense did not exercise a single peremptory challenge. When defense counsel passed on his first and only opportunity to exercise a peremptory challenge, he stated, 'I'm just trying to catch up', which suggests counsel was not prepared to intelligently exercise appellant's peremptory challenge. This is supported by defense counsel's subsequent statements on the record that he did not give appellant adequate time to voice his concerns about the prospective jurors. When the prosecutor then passed as well, and the trial court stated the jury was set, defense counsel immediately requested a side-bar and asked for jury selection to be reopened. This occurred before the jury was sworn and before the selection of alternate jurors. Under these circumstances, and in light of the fact the defense had not exercised a single peremptory challenge in spite of appellant's dissatisfaction with some prospective jurors and his desire to challenge them, the trial court abused its discretion in finding there was no good cause to reopen. The trial court was obviously more concerned with quickly finishing up the selection process, inasmuch as it was very late in the day, than giving appellant an opportunity to exercise even a single peremptory challenge." (Fn. omitted.)

Code of Civil Procedure section 231 states in relevant part:

"(d) Peremptory challenges shall be taken or passed by the sides alternately, commencing with the plaintiff or people; and each party shall be entitled to have the panel full before exercising any peremptory challenge. When each side passes consecutively, the jury shall then be sworn, unless the court, for good cause, shall otherwise order. The number of peremptory challenges remaining with a side shall not be diminished by any passing of a peremptory challenge.

"(e) If all the parties on both sides pass consecutively, the jury shall then be sworn, unless the court, for good cause, shall otherwise order. The number of peremptory challenges remaining with a side shall not be diminished by any passing of a peremptory challenge."

Trial by jury is an inviolate right and shall be secured to all. (Cal. Const., art. I, § 16.) However, the right to make peremptory challenges is a statutory or rule-based right and not a constitutional one. (Georgia v. McCollum (1992) 505 U.S. 42, 57.) Nothing in the Constitution of the United States requires the Congress or the states to grant peremptory challenges. (Stilson v. United States (1919) 250 U.S. 583, 586.) Nevertheless, the right has very old credentials. (Swain v. Alabama (1965) 380 U.S. 202 212, disapproved on another point in Batson v. Kentucky (1986) 476 U.S. 79, 89-96.) The United States Supreme Court has said the right to exercise peremptory challenges is one of the most important of the rights secured to the accused (Pointer v. United States (1894) 151 U.S. 396, 408), and is essential to the fairness of trial by jury. (Lewis v. United States (1892) 146 U.S. 370, 376.) The California Supreme Court has held the right to exercise peremptory challenges to be essential to the fairness of trial by jury. The peremptory challenge is a critical safeguard of the right to a fair trial before an impartial jury. (People v. Armendariz (1984) 37 Cal.3d 573, 583-584 (Armendariz); In re Hitchings (1993) 6 Cal.4th 97, 110-112.) Deprivation of the right has generally been analyzed in terms of the Sixth Amendment guarantee of an impartial jury. (See Holland v. Illinois (1990) 493 U.S. 474, 482 [the requirement of an impartial jury "impliedly compels peremptory challenges"]; In re Hitchings, supra, 6 Cal.4th at p. 112 ["'The denial of the right to reasonably exercise a peremptory challenge ... is not a mere matter of procedure, but the deprivation of an absolute and substantial right historically designed as one of the chief safeguards of a defendant against an unlawful conviction.'"].)

The "good cause" contemplated by Code of Civil Procedure section 231, subdivision (e) does not require the party to show good cause for the peremptory challenge of a prospective juror. The requirement applies only to the request to reopen. In other words, the party need not explain the basis for the peremptory challenge, but must make a sufficient showing to persuade the court to allow the belated exercise of that challenge. (People v. Niles (1991) 233 Cal.App.3d 315, 320, fn. 4.) On appeal here, appellant initially accuses the superior court of erroneously conditioning "good cause" on the existence of ineffective assistance of defense counsel in the jury selection process. In our view, appellant misreads the record in arriving at that proposition. During the exchange with counsel outside the presence of the jury, the court recounted his conference with defense counsel in chambers during jury voir dire earlier that day. The trial judge said he asked defense counsel whether counsel was satisfied with the panel when he "passed the jury." The court said he based his query on counsel's experience, knowledge, and skill as a criminal defense lawyer who had selected many juries. According to the court, defense counsel was satisfied with the 12 jurors based upon his skills and knowledge. Defense counsel agreed with the court's recollection but said at the in-chambers conference he also raised the issue that "maybe I didn't give my client adequate enough time to discuss the concerns."

As a general rule, counsel has authority to control the procedural aspects of the litigation and, indeed, to bind the client in these matters. By choosing professional representation, the accused surrenders all but a handful of fundamental personal rights to counsel's complete control of defense strategies and tactics. The right to elect to continue with a particular jury is not one of the constitutional rights deemed to be so personal and fundamental that it may only be personally waived by the defendant.^[2] (People v. Overby (2004) 124 Cal.App.4th 1237, 1243-1244; People v. Freeman (1994) 8 Cal.4th 450, 485.) The superior court's comments at the July 27 hearing outside the presence of the jury clearly reflected an understanding that (a) counsel was in control of defense strategies and tactics in appellant's criminal action; (b) the selection of the jury and the exercise of peremptory challenges constituted a trial tactical decision; (c) defense counsel was a knowledgeable, experienced, and skilled practitioner; and (d) ineffective assistance of counsel might be the only basis for finding "good cause" to reopen voir dire under the unique factual scenario in the instant case. A careful reading of the record does not reveal any misapprehension by the court as to the meaning of "good cause" or its responsibilities under Code of Civil Procedure section 231.

Assuming arguendo the court recognized the scope of its authority, appellant nevertheless contends the denial of his request to reopen voir dire constituted an abuse of discretion under the circumstances. Appellant essentially contends the court was more concerned with quickly finishing up the selection process than with giving appellant an opportunity to exercise even a single peremptory challenge. Appellant's assertion is belied by the record. Defense counsel asserted he did not get a chance to exercise peremptories and that he passed the challenge after only giving appellant "a couple of seconds to make up his mind."^[3] The court expressly disagreed with counsel's characterization of the voir dire, cited "a long conference between you and Mr. Jurado," and noted the court "did not pressure either side" in the exercise of peremptory challenges. The court further observed "[t]here was no rushing here, there was discussion and it was more than just a couple of seconds."

Appellant failed to make a sufficient showing to persuade the superior court to allow the belated exercise of peremptory challenges and reversal is not required.^[4]

II.

EVIDENCE OF AN UNCHARGED CRIME

Appellant contends the judgments of conviction counts I through IV should be reversed because the trial court erroneously allowed the prosecutor to introduce evidence of appellant's uncharged crimes.

He specifically argues:

"During the trial, when the prosecutor called Jacob Alexander as the People's next witness during the case-in-chief, defense counsel moved to exclude Alexander's testimony. Defense counsel informed the trial court Alexander had not witnessed the incidents involving Martinez, Doca, or the officers, but was going to testify about his observations of appellant's [other] confrontation in the area which involved an elderly man. Defense counsel argued Alexander's testimony was irrelevant and more prejudicial than probative. The prosecutor responded that Alexander's testimony was relevant to appellant's 'state of mind.' The trial court overruled defense counsel's objection, and Alexander took the witness stand.…

"Reversal of appellant's convictions in Counts 1 through 4 is required because the trial court erred in allowing the extremely prejudicial evidence of the uncharged crime to come before the jury when the evidence was more prejudicial than probative."

On July 28, 2004, the following exchange occurred outside the presence of the jury:

"MR. HOWARD [deputy public defender]: Before we bring the juror[s] in, I'm going to move to exclude the witness Jacob Alexander.

"MR. CARROLL [deputy district attorney]: I'm calling him right now.

"MR. HOWARD: I'm moving to exclude his testimony as it's not relevant to anything. He's not a victim, he didn't see what happened to the other two people who are victims. He allegedly, according to Mr. Carroll in his opening statement, witnessed something happen to a man who has never been found.

"THE COURT: Oh, this is the witness to the 65-year-old bicycle rider?

"MR. CARROLL: Right, 65-year-old man.

"MR. HOWARD: How they know he's 65 we don't have the slightest clue unless he's related to that gentleman.

"THE COURT: Mr. Alexander cannot testify to the age but he can certainly – I think it's relevant. Okay, let me understand your objection. What is the objection?

"MR. HOWARD: Under 352 it's not probative of the crimes that are charged and it would tend to confuse the jurors as to who the victims are and what their task is in the case. I mean, they're essentially bringing in an uncharged offense.

"THE COURT: Okay. It's my understanding that these events occurred immediately after –

"MR. CARROLL: Correct.

"THE COURT: -- the two victims who have testified and –

"MR. CARROLL: Actually identical.

"THE COURT: Well – and it would continue to be relevant to his state of mind –

"MR. CARROLL: Correct.

"THE COURT: -- to Mr. Jurado's state of mind. And I think it – because of the proximity in time I think it has significant probative value and it is not weighed by the prejudicial effect. And so, on 352 grounds the objection is overruled."

Evidence Code section 352 states:

"The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."

Evidence Code section 353 states:

"A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless:

"(a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion; and

"(b) The court which passes upon the effect of the error or errors is of the opinion that the admitted evidence should have been excluded on the ground stated and that the error or errors complained of resulted in a miscarriage of justice."

Evidence Code section 1101 states:

"(a) Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.

"(b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act.

"(c) Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness."

The rules governing the admissibility of evidence of other crimes are well settled. (People v. Roldan (2005) 35 Cal.4th 646, 705 (Roldan).) Evidence that a defendant committed misconduct other than that currently charged is inadmissible to prove he or she has a bad character or a disposition to commit the charged crime. (Evid. Code, § 1101, subd. (a); People v. Kipp (1998) 18 Cal.4th 349, 369 (Kipp); People v. Scheer (1998) 68 Cal.App.4th 1009, 1017 (Scheer).) However, such evidence is admissible if it is relevant to prove, among other things, intent, knowledge, identity, or the existence of a common design or plan. (Evid. Code, § 1101, subd. (b); People v. Catlin (2001) 26 Cal.4th 81, 145-146; People v. Ewoldt (1994) 7 Cal.4th 380, 399-400, 402 & fn. 6 (Ewoldt); Kipp, supra, 18 Cal.4th at p. 369.) The admissibility of other crimes evidence depends on (1) the materiality of the facts sought to be proved, (2) the tendency of the uncharged crimes to prove those facts, and (3) the existence of any rule or policy requiring exclusion of the evidence. (People v. Steele (2002) 27 Cal.4th 1230, 1243.)

As Evidence Code section 1101, subdivision (b) recognizes, the fact that a defendant previously committed a similar crime can be circumstantial evidence tending to prove his identity, intent, and motive in the present crime. Like other circumstantial evidence, admissibility depends on the materiality of the fact sought to be proved, the tendency of the prior crime to prove the material fact, and the existence or not of some other rule requiring exclusion. (Roldan, supra, 35 Cal.4th at p. 705.)

Evidence of intent is admissible to prove that, if the defendant committed the act alleged, he or she did so with the intent that comprises an element of the charged offense. In proving intent, the act is conceded or assumed; what is sought is the state of mind that accompanied it. For example, in a prosecution for shoplifting in which it was conceded or assumed that the defendant left the store without paying for certain merchandise, the defendant's uncharged similar acts of theft might be admitted to demonstrate that he or she did not inadvertently neglect to pay for the merchandise, but rather harbored the intent to steal it. (Ewoldt, supra, 7 Cal.4th at p. 394, fn. 2.) We have long recognized that if a person acts similarly in similar situations, he probably harbors the same intent in each instance and that such prior conduct may be relevant circumstantial evidence of the actor's most recent intent. The inference to be drawn is not that the actor is disposed to commit such acts; instead, the inference to be drawn is that, in light of the first event, the actor, at the time of the second event, must have had the intent attributed to him by the prosecution. (People v. Robbins (1988) 45 Cal.3d 867, 879, limited on other grounds in People v. Jennings (1991) 53 Cal.3d 334, 387, fn. 13; People v. Gallego (1990) 52 Cal.3d 115, 171-172.)

The relevance of uncharged misconduct to show identity, intent, or the existence of a common design or plan is determined by the nature and degree of the similarity between such misconduct and the charged crime. (Scheer, supra, 68 Cal.App.4th at p. 1018.) For example, the greatest degree of similarity is required to be relevant on the issue of identity. (Ewoldt, supra, 7 Cal.4th at p. 403.) In contrast, the least degree of similarity between the uncharged act and the charged offense is required in order to prove intent. (Id. at p. 402.) Although a lesser degree of similarity is required to prove intent than to prove identity or common plan or scheme, similarity between the charged and uncharged offenses is nonetheless required. (People v. Steele, supra, 27 Cal.4th at p. 1244; People v. Carpenter (1997) 15 Cal.4th 312, 379; Ewoldt, supra, 7 Cal.4th at pp. 402-403.) In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant probably harbored the same intent in each instance. (Ewoldt, supra, 7 Cal.4th at p. 402; see also Kipp, supra, 18 Cal.4th at p. 371; People v. Carter (2005) 36 Cal.4th 1114, 1149 (Carter); Roldan, supra, 35 Cal.4th at p. 705.)

Even if the evidence of other crimes is relevant to prove matters other than the defendant's character or disposition, it is inadmissible unless its probative value is substantial and is not outweighed by the probability that its admission would create a serious danger of undue prejudice, confusing the issues, or misleading the jury. (Evid. Code, § 352; Kipp, supra, 18 Cal.4th at p. 371; Ewoldt, supra, 7 Cal.4th at p. 404; Scheer, supra, 68 Cal.App.4th at p. 1018.) Such evidence may be highly prejudicial, and its admission requires careful analysis. (Ewoldt, supra, 7 Cal.4th at p. 404.)

The admission of evidence of an uncharged offense, and the evaluation of prejudice under Evidence Code section 352, is entrusted to the sound discretion of the trial court and its ruling will not be overturned except upon a finding of manifest abuse. (Kipp, supra, 18 Cal.4th at p. 369; Carter, supra, 36 Cal.4th at p. 1149; People v. Jennings (2000) 81 Cal.App.4th 1301, 1314.) A court abuses its discretion when its ruling falls outside the bounds of reason. (Carter, supra, 36 Cal.4th at p. 1149.) Moreover, the erroneous admission of uncharged misconduct evidence does not compel reversal unless a result more favorable to the defendant would have been reasonably probable if such evidence were excluded. (Scheer, supra, 68 Cal.App.4th at pp. 1018-1019.)

Appellant argues here:

"[T]he probative value of the evidence that appellant alleged[ly] confronted and threatened an elderly man was clearly outweighed by its risk of undue prejudice. The principal factor affecting the probative value of the evidence is its alleged tendency to demonstrate the existence of appellant's 'state of mind.' That tendency is weak because there is no evidence the uncharged misconduct was committed in a manner similar to that in the currently charged offenses. Alexander merely observed appellant pinning a man against a fence and threatening him with a knife. There was no evidence that appellant's actions were unprovoked by the man, as in the case of Martinez and Doca. Moreover, unlike the uncharged crimes, appellant did not pin either Martinez or Doca to the point they would be cowering. Both Martinez and Doca testified that they got scared of appellant's 'threatening' statements and actions, but their fear was momentary inasmuch as appellant appeared to be drunk. The charged and uncharged acts together simply do not establish the same motive, intent, or common[] design or scheme. On the other hand, the evidence posed a very high risk of undue prejudice inasmuch as it involved an elderly man, who was cowering when appellant confronted him, pinned him against a fence and threatened to stab with a knife. The uncharged crimes were much more aggressive, belligerent and violent tha[n] the incidents with Mendoza and Doca. In light of the minimal, if any, probative value of the evidence, the danger that the jury would prejudge the issue of guilt on its basis required that the trial court exclude it." (Fn. omitted.)

When Evidence Code section 1101 is not asserted as a basis for exclusion of evidence in the trial court, any argument based on that statute must be deemed waived on appeal. (See Kipp, supra, 26 Cal.4th at p. 1122; People v. Earp (1999) 20 Cal.4th 826, 878; Evid. Code, § 353, subd. (a).) In the instant case, defense counsel told the court, "Under 352 it's not probative of the crimes that are charged and it would tend to confuse the jurors as to who the victims are and what their task is in the case. I mean, they're essentially bringing in an uncharged offense." Although counsel did not specifically refer to section 1101, his reference to "an uncharged offense" appears adequate to preserve the error for appellate review.

Preservation of the error notwithstanding, appellant's claim of prejudice must be rejected. In counts I and II, the district attorney charged appellant with the crime of criminal threat (Pen. Code, § 422) against Jose Martinez and Jeffrey Doca, respectively.^[5] To prove a violation of Penal Code section 422, the prosecution must establish, among other things, that the defendant (a) willfully threatened to commit a crime that will result in death or great bodily injury to another person and (b) made the threat with the specific intent that the statement is to be taken as a threat. (People v. Toledo (2001) 26 Cal.4th 221, 227-228.) As respondent properly points out, Jacob Alexander's testimony about the incident at Mountain Mike's Pizza was admissible under Evidence Code section 1101 to show appellant's "combative and confrontational state of mind and his intent." On the same afternoon appellant threatened Martinez and Doca, he confronted an older man against a fence near the pizzeria, held a knife chest-high, and said to the man, "'You want me to stick you right now, I will.'"

Appellant maintains the evidence created pressure on the jurors "to believe that if appellant confronted and threatened an elderly man, he probably confronted and threatened Martinez and Doca with a knife, as charged." A verdict or finding shall not be set aside due to the erroneous admission of evidence unless the court that passes upon the effect of the error or errors is of the opinion the admitted evidence should have been excluded on the ground stated and the error or errors resulted in a miscarriage of justice. (Evid. Code, § 353.) A miscarriage of justice should be declared only when the court, after an examination of the entire cause, including the evidence, is of the opinion that it is reasonably probable a result more favorable to the appealing party would have been reached absent the error. (People v. Rains (1999) 75 Cal.App.4th 1165, 1170.)

Here no such reasonable probability exists. A careful review of the record reveals appellant approached Martinez and Doca separately, verbally threatened each one, and then physically threatened each one with a knife. Both victims testified in detail about appellant's conduct and demeanor on Sunday, April 11, 2004. Moreover, during the defense case, appellant himself acknowledged pulling the knife out of his pocket in front of Martinez and Doca but claimed he never opened the blade or made any threats.

Assuming arguendo the relevance of Alexander's testimony under Evidence Code section 1101, subdivision (b), appellant submits the potential for prejudice substantially outweighed the probative value of Alexander's testimony under Evidence Code section 352. The term "undue prejudice" as used in section 352 is not synonymous with "damaging," but refers to evidence that uniquely tends to evoke an emotional bias against defendant without regard to its relevance on material issues. (Kipp, supra, 26 Cal.4th at p. 1121.) The term refers to prejudging a person or cause on the basis of extraneous factors. (People v. Zapien (1993) 4 Cal.4th 929, 958.) A trial court has broad discretion in determining whether to admit or exclude evidence objected to on the basis of section 352 and rulings under that section will not be overturned absent an abuse of that discretion. (People v. Mullens (2004) 119 Cal.App.4th 648, 658.) In the instant case, we cannot say the superior court abused its discretion by admitting Alexander's testimony, particularly in light of appellant's alleged conduct outside Mountain Mike's on the very same afternoon as the conduct underlying the charged offenses.

In view of the testimony of Martinez and Doca--as well as appellant's frank acknowledgment about exhibiting the knife--it is not reasonably probable a result more favorable to appellant would have been reached had the court excluded Jacob Alexander's testimony about the incident outside Mountain Mike's Pizza. Reversal for evidentiary error is not required.

III.

INSTRUCTION ON SELF-DEFENSE

Appellant contends the instruction on brandishing a deadly weapon violated due process because it did not include "the essential element ... that the drawing or exhibiting of a weapon must not be done in self-defense ...." Thus he argues both convictions for brandishing a deadly weapon must be reversed.

CALJIC No. 16.290 (exhibiting firearm/deadly weapon), as read to the jury, states:

"Defendant is accused in Counts 3 and 4 of having violated Section 417, subdivision (a)(1) of the Penal Code, a misdemeanor.

"Every person who in the presence of another person draws or exhibits any deadly weapon whatsoever, other than a firearm, in a rude, angry or threatening manner or who in any manner unlawfully uses the same in any fight or quarrel is guilty of violation 417 subdivision (a)(1), a misdemeanor.

"It is also alleged that the violation occurred in a public place and that the firearm was – strike that. Strike that paragraph. Ignore that paragraph.

"In order to prove this crime each of the following elements must be proved: One, a person, in the presence of another person, drew or exhibited a deadly weapon other than a firearm; and two, that person did so in a rude, angry or threatening manner."

Penal Code section 417, subdivision (a)(1) states:

"Every person who, except in self-defense, in the presence of any other person, draws or exhibits any deadly weapon whatsoever, other than a firearm, in a rude, angry, or threatening manner, or who in any manner, unlawfully uses a deadly weapon other than a firearm in any fight or quarrel is guilty of a misdemeanor, punishable by imprisonment in a county jail for not less than 30 days."

A violation of Penal Code section 417, subdivision (a)(1) requires that a defendant draw or exhibit a deadly weapon in a rude, angry, or threatening manner. (People v. Sanders (1995) 11 Cal.4th 475, 542; People v. Pruett (1997) 57 Cal.App.4th 77, 87.) The statute employs the parenthetical phrase "except in self-defense" and the standard CALJIC No. 16.290 includes as a third "element" to be given when there is evidence proffered of self-defense: "The person was not acting in lawful self-defense." Respondent notes the existence of this element in the "pattern instruction for CALJIC No. 16.290." Respondent further notes section 417 does not designate which party has the burden of proof on the issue of self-defense. Generally speaking, when the issue of self-defense is properly presented in a homicide case, the prosecution must prove the absence of the justification beyond a reasonable doubt. (People v. Pineiro (1982) 129 Cal.App.3d 915, 920; People v. Banks (1976) 67 Cal.App.3d 379, 384.) Self-defense negates culpability for assaultive crimes, whether or not the assault results in death. In either event, self-defense goes directly to guilt or innocence. On matters directly going to guilt or innocence, the burden of persuasion is on the state. (Pen. Code, § 1096; People v. Adrian (1982) 135 Cal.App.3d 335, 340-341.)

Article VI, section 13 of the California Constitution states:

"No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice."

The word "misdirection" logically includes every kind of instructional error. Incorrect, ambiguous, conflicting, or wrongly omitted instructions may equally misdirect the jury's deliberations. Instructional errors that have the effect of removing an element of a crime from the jury's consideration encompass a broad spectrum of circumstances and may be assessed in the context of the evidence presented and other circumstances of the trial to determine whether the error was prejudicial. The prejudicial effect of such error is to be determined, for purposes of California law, under the generally applicable prejudicial error test embodied in article VI, section 13 of the California Constitution. (People v. Flood (1998) 18 Cal.4th 470, 487-490.) A reviewing court will not set aside a judgment on the basis of instructional error unless, after an examination of the entire record, the court concludes the error has resulted in a miscarriage of justice. A miscarriage of justice occurs only when it is reasonably probable the jury would have reached a result more favorable to the appellant absent the error. (People v. Dieguez (2001) 89 Cal.App.4th 266, 277-278.)

Assuming an erroneous omission of the self-defense language from CALJIC No. 16.290, respondent contends the error was harmless in light of other instructions given to the jury. Respondent specifically points to CALJIC No. 5.30 (self-defense against assault) and CALJIC No. 5.32 (use of force in defense of another). CALJIC No. 5.30, as read to the jury, states:

"It is lawful for a person who is being assaulted to defend himself from the attack if, as a reasonable person, he has grounds for believing and does believe that bodily injury is about to be inflicted upon him. In doing, so that person may use all force and means which he believes to be reasonably necessary and which would appear to a reasonable person in the same or similar circumstances .…"

CALJIC No. 5.32, as read to the jury, states:

"It is lawful for a person who, as a reasonable person, has grounds for believing and does believe that bodily injury is about to be inflicted upon another person to protect that individual from attack. In doing so, he may use all force and means that person believes to be reasonably necessary and which would appear ... to a reasonable person in the same or similar circumstances, to be necessary to prevent the injury which appears to be imminent."

The court further instructed the jury in CALJIC No. 2.90 that the presumption of innocence placed upon the People the burden of proving appellant guilty beyond a reasonable doubt. In addition, the court instructed on the sufficiency of circumstantial evidence (CALJIC No. 2.01) to the effect that "each fact which is essential to complete a set of circumstances necessary to establish the defendant's guilt must be proved beyond a reasonable doubt." The court's instructions are determinative in their statement of law and, on appeal, we presume the jury treated the court's instructions as statements of law. (People v. Sanchez (1995) 12 Cal.4th 1, 70.) The crucial assumption underlying our constitutional system of trial by jury is that jurors generally understand and faithfully follow instructions. (People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17.) Jurors are required to determine the facts and render a verdict in accordance with the court's instructions on the law. (People v. Cruz (2001) 93 Cal.App.4th 69, 72-73.)

Appellant argues:

"The fact the jury was instructed on self-defense in other instructions does not render the error harmless. The instructions on self-defense merely told the jury that it was not unlawful for a person who was assaulted to defend himself and gave basic principles of self-defense. None of the instructions, however, informed the jury that it was the prosecution's burden to disprove self-defense beyond a reasonable doubt. In fact, the self-defense instructions did not address the burden of proof or its standard at all.

"The fact defense counsel requested the instructions on self-defense and the trial court agreed to give them demonstrates the omitted self-defense element was contested and susceptible to dispute for the purpose of N[e]der. (Neder v. United States [(1999)] 527 U.S. 1, 19 [the error cannot be deemed harmless if the omitted element was contested or susceptible to dispute.])

"In a close case, as here, any doubt as to the prejudicial character of the error should be resolved in appellant's favor. (People v. Wagner (1975) 13 Cal.3d 612, 621 ...."

The instant case is by no means factually close. Jose Martinez testified appellant stood