Filed 4/5/18 P. v. Brown CA3
NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Placer)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

ARNOLD BROWN,

Defendant and Appellant.
C078930

(Super. Ct. No. 62122085)







Defendant Arnold Brown was convicted of stalking an ex-girlfriend (Pen. Code, § 646.9), first degree burglary (Pen. Code, § 459) of her home with intent to commit or continue to commit the crime of stalking, and two counts of felony vandalism (Pen. Code, § 594, subd. (b)(1)). On appeal, defendant contends the trial court erred in allowing a different ex-girlfriend to testify about prior acts of domestic violence under Evidence Code sections 1109 and 1101. (Statutory section references that follow are to the Evidence Code, unless otherwise stated.) Defendant also challenges the trial court’s failure to instruct sua sponte with CALCRIM No. 251 that the specific intent crimes of burglary and stalking required concurrence of act and specific intent. Finally, defendant complains the former victim testified defendant had “four[] strike[s]” and faced a potential life sentence, and the court’s admonition to the jury to disregard the testimony failed to cure the prejudice. We affirm the judgment.
FACTS AND PROCEEDINGS
Defendant and victim Lana met online and started dating in early 2013. He was nice at first but soon grew possessive. As they shared more, he revealed prior incarcerations -- for stabbing a friend and for “shoulder bump[ing]” a former girlfriend when he retrieved belongings after a break-up -- and his participation in an anger management program. One evening, Lana found defendant going through her cell phone messages and contacts. He yelled, “Who the fuck are all these guys?” She was shocked and scared. As she drove him home, he screamed at her, calling her “liar,” “fucking whore,” and “fucking bitch.” She told him she never wanted to see him again. He got out of the car but screamed and banged on the car window. She drove away.
After that, defendant phoned Lana constantly. She answered once or twice to tell him to stop calling her. Defendant then began sending her video messages.
On May 9, 2013, defendant went to Lana’s residence, smashed the windows on her car and threw a tire iron through her bedroom window. He left but continued phoning Lana and “bombard[ing]” her with video messages.
On May 12, 2013, defendant returned and pounded on the front door of the apartment Lana shared with her adult daughter. Lana did not open the door and told him to leave. He persisted and began kicking the door, which was locked with a deadbolt. She told her daughter to call the police. The third time defendant kicked the door, it came off the hinges and hung open. Defendant entered the apartment, stopped a few feet from Lana, looked at Lana, looked at her daughter who was on the phone, and looked at Lana again. Lana and her daughter screamed the police were coming. Lana testified defendant took a moment, appeared to be deciding what to do, and then turned and ran out. The daughter said defendant seemed to reconsider what he was doing when he saw her, and then left. Lana was terrified as defendant kicked the door and, when it came open, thought he might harm her. The daughter was shocked, very afraid, and upset.
Defendant continued sending dozens of video messages, which were played for the jury, and included the following:
“Fuckin tell the police, you punk-ass bitch. You can’t stay in that apartment tonight.”
“ . . . I need you to call me Lana. That’s the only way I might stop or I may stop. Otherwise, I won’t stop, because I don’t have, I won’t have nothing to lose pretty soon, so . . . I need you to call me. . . . Otherwise, I’ll let them kill me and then it’ll be on your conscienc[e]. Bye.”
“The best thing to do is to call me, because you’re not going to sleep. You’re going to be scared. The police are not going to catch me, so I’m not even worried about that. (Inaudible.) If I, if I go to jail, it’s because I turned myself in. But, I don’t see no reason to do that, because that’s not where I need to be. You can keep ignoring me if you want. Bye.”
“I hate you, Lana. I swear I do. I hate your fucking guts.”
“I hate you, Lana. I hate you. I swear I do. I hate you. I hate you. I hope your life is fucking miserable.”
“Are you ready to buy a new back window for your [car] again?”
“You screwed my life up; now I’m screwing yours up.”
“God knows, if I don’t go to jail before the end of the week who’s to say what’s going to happen.”
The messages scared Lana. She recognized that one video was recorded at a nearby park and believed defendant was lurking around her apartment and would try to reenter the apartment and hurt her or her daughter.
Defendant was ultimately arrested. In jail, he admitted to a visiting friend that he broke someone’s window and kicked their door open.
Over defense objection, the court allowed the prosecution to adduce evidence of prior domestic violence not charged in this case, pursuant to sections 1109 and 1101. Defendant’s ex-girlfriend Carol testified she and defendant became acquainted online and then met in person in 2010. He was nice at first but then became controlling -- checking her phone, accusing her of cheating, yelling and screaming and calling her names. On one occasion, he spit in her face, slapped her, and dragged her out of a chair. She did not call the police.
On another occasion, defendant grabbed Carol by the neck, threw her to the ground, and kicked her in the head. Her mother called the police. He fled in Carol’s truck. She got a temporary restraining order against defendant. He constantly left her phone and text messages that he was sorry. She tried to be just friends. He would get angry, leave, come back, and follow her around. One day when he was angry, she was afraid and went to the apartment manager’s office. Defendant entered, threw Carol on the floor, hit her, and kicked her. The apartment manager called the police. Defendant left in Carol’s truck. She returned to her apartment to find furniture broken and everything thrown around.
On another occasion, defendant accused Carol of cheating on him and punched her in the face. He fled in her truck while she and her daughter ran into a Jack in the Box. The police came. In the week it took for the police to arrest defendant, he sent Carol threatening texts, accusing her of cheating on him, threatening her life and the lives of her children. He called her names and said he was going to do terrible things to her, and that she “wasn’t going to be recognizable.” Once he was in jail, she felt safe and spoke with him on the phone to tell him she never cheated on him.
When asked whether she followed through with the criminal prosecution against defendant, Carol testified:
“I did. I changed my number and -- and adhered to the restraining order, and they told me that it was either 35 years in prison or a year [sic] because of his history, that this was his fourth Strike.
“Q [by prosecutor] Okay. Stop you there.
“MS. SMITH [prosecutor]: We can strike that, your Honor.
“THE COURT: One moment, please. All right. [¶] The testimony that she just offered about possible prior convictions and punishment is to be disregarded by the jury. That is stricken from the record and the jury is ordered to disregard that, not consider that for any reason in your deliberations.”
Carol testified she was nervous when defendant got out of jail, but she knew he had three years’ probation and just tried to get on with her life.
Regarding the 2010 incidents involving Carol, the jury learned that defendant pleaded guilty to stalking Carol and vehicle theft and served 12 months in county jail for those charges.
The jury also learned that defendant had two prior convictions -- a 2012 (misdemeanor) conviction for domestic battery (§ 243, subd. (e)(1)), and a 2004 felony conviction for domestic corporal injury (§ 273.5). The trial court excluded evidence of other prior convictions.
Defendant testified in his own defense. He admitted prior incarceration and participation in a violence intervention program called Manalive. After the incident in which he checked Lana’s cell phone and found several phone calls, they talked and later had consensual sex. Lana then seemed uneasy. He asked for a ride home. He was confused and recalled yelling during the trip in an “out of body” experience. She dropped him off. A few minutes later, she called and said she was lost. He found her car but as he approached it, his eyeglasses fell off, and he accidentally stepped on them and broke them. Frustrated, he began swearing. Lana drove off.
Defendant admitted he later went and broke Lana’s car windows and threw an object through her bedroom window. He did it because he was upset and frustrated with himself. He kept calling her because he wanted to “get clarity” and make amends. He began to drink and use drugs.
On May 12, 2013, he spoke to Lana on the phone and then went to her apartment. When she did not open the door, he got frustrated and kicked the door, which opened. He immediately left without entering the apartment. He was not trying to get into the apartment, did not enter the apartment, and was at the door no longer than four seconds before he turned and left. He was scared. He later sent her video messages because he wanted to talk. “[A]t no time was I wanting to scare her. I was just wanting her to respond to my messages.”
Defendant testified he feels angry with himself and ashamed about how he handled things with Lana. He felt sad for Carol as she testified and felt “empathetic towards her because we all share emotions, whether it’s afraid or angry or sad, and I know what those emotions feel like.”
The jury found defendant guilty on each charge: First degree burglary, stalking, and two counts of vandalism. Defendant waived a jury trial and admitted he had two prior strike convictions (Pen. Code, § 667, subd. (a)) and two prior prison terms (Pen. Code, § 667.5, subd. (a)).
On March 25, 2015, the trial court sentenced defendant to prison for a total term of 34 years to life: 25 years to life for the burglary; four years (double the midterm) for one of the vandalism convictions; and five years for one of the prior serious felony convictions. The court stayed sentence on other counts pursuant to Penal Code section 654 and struck the prison term enhancements.
DISCUSSION
I
Admissibility of Prior Conduct (§§ 1109, 1101)
The prosecution moved in limine to adduce the evidence that led to defendant’s 2011 conviction for stalking Carol and theft of her vehicle (Pen. Code, § 646.9; Veh. Code, § 10851) as prior domestic violence evidence under section 1109 and as evidence of common scheme and intent under section 1101. Over defense objection, the trial court ruled the evidence admissible under both statutes, after weighing probative value against prejudicial effect under section 352. The court noted intent requires the least degree of similarity under section 1101, while common scheme requires a higher degree of similarity, and the prosecution’s offer of proof regarding defendant’s 2011 conduct was that he desired to continue a romantic relationship against the wishes of the alleged victim, and that he assaulted her, stole her vehicle, and broke her windows.
On appeal, defendant argues the trial court erred under both section 1109 and section 1101, but defendant’s opening brief argues section 1101 only with respect to the evidence of vehicle theft.
We conclude the evidence was properly admitted under section 1109, and defendant fails to show any possible prejudice from the evidence of vehicle theft.
A. Section 1109
Under section 1109, subdivision (a)(1), “in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant’s commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352.”
1. Stalking of Girlfriend As Domestic Violence
We first dispose of defendant’s claim, raised for the first time on appeal, that he was accused of stalking Lana, not domestic violence, and stalking is not domestic violence, and therefore section 1109 does not apply.
Defendant has forfeited this challenge by failing to raise it in the trial court, where he argued only that the evidence was more prejudicial than probative under section 352. (§ 353 [judgment shall not be reversed by reason of erroneous admission of evidence unless there appears of record a timely objection making clear the specific ground of the objection]; People v. Valdez (2012) 55 Cal.4th 82, 130 [party forfeits challenge by failing to raise it in the trial court].)
We need not address defendant’s fall-back position of ineffective assistance of counsel, because even if we consider the merits despite the forfeiture, the contention lacks merit.
Defendant argues domestic violence requires apprehension of “imminent” harm (Pen. Code, § 13700), whereas the criminal offense of stalking (Pen. Code, § 646.9) does not require imminence of harm. (Pen. Code, § 646.9, subd. (a) [“any person who willfully, maliciously, and repeatedly follows or willfully and maliciously harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family;” id. at subd. (g) [“It is not necessary to prove that the defendant had the intent to actually carry out the threat. The present incarceration of a person making the threat shall not be a bar to prosecution under this section”].)
Section 1109 says domestic violence “has the meaning set forth in Section 13700 of the Penal Code. Subject to a hearing conducted pursuant to Section 352, . . . ‘domestic violence’ has the further meaning as set forth in Section 6211 of the Family Code, if the act occurred no more than five years before the charged offense.” (§ 1109, subd. (d)(3).) (Here, the acts against Carol occurred no more than five years before the charged offense.)
Penal Code section 13700 is part of Title 5 (Pen. Code, §§ 13700-1372), which requires law enforcement agencies to adopt policies for responding to domestic violence. Penal Code section 13700, subdivision (b), states “domestic violence” means “abuse” committed against specified persons including a girlfriend or ex-girlfriend. “Abuse” means “intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another.” (Pen. Code, § 13700, subd. (a); italics added.) We observe that the act of stalking Lana, under the circumstances presented to us here, was sufficient to show that she had a reasonable apprehension of imminent bodily injury.
Moreover, the Family Code, which is also referenced in section 1109, defines domestic violence more broadly.
Family Code section 6211, which is part of the Domestic Violence Prevention Act (DVPA; Fam. Code, § 6200), defines “domestic violence” as “abuse” perpetrated against various persons including a girlfriend or ex-girlfriend. The DVPA in Family Code section 6203 defines “abuse” as “any of the following” -- (1) intentionally or recklessly causing or attempting to cause bodily injury, (2) sexual assault, (3) placing a person in reasonable apprehension of “imminent” serious bodily injury, and (4) engaging in any behavior that could be enjoined under Family Code section 6320. Family Code section 6320 states a court may issue an ex parte order enjoining a party from various behavior including “stalking.”
Thus, the charged offense of stalking Lana properly subjected defendant to admissibility of prior domestic violence involving Carol under section 1109.
Defendant argues the DVPA’s broader definition of abuse cannot apply because section 1109 makes no specific reference to Family Code section 6203 or 6320. The argument is not persuasive.
Moreover, we agree with cases such as People v. Brown (2011) 192 Cal.App.4th 1222, 1235-1237, which held that the circumstances of a crime may establish it is an offense involving domestic violence for section 1109 purposes, even if domestic violence is not an element of the crime. The defendant in Brown was charged with first degree murder based on strangling his ex-girlfriend after a period in which he tried to intimidate her because she broke up with him. (Id. at p. 1237.) The appellate court held he was clearly accused of an offense involving domestic violence such that evidence of prior acts was admissible under section 1109. (Ibid.)
And People v. Ogle (2010) 185 Cal.App.4th 1138 (Ogle), held that the defendant’s prior stalking of his ex-wife was an act of domestic violence such that evidence of that stalking conviction was admissible to prove his propensity to commit the charged offense of making criminal threats against his ex-wife.
Defendant claims a “split” of authority is created by People v. Zavala (2005) 130 Cal.App.4th 758, which held stalking was not a crime of domestic violence under section 1109. However, as noted by Ogle in declining to follow the earlier case, the Zavala court accepted without discussion the defendant’s reliance on Penal Code section 13700’s definition and overlooked the Family Code, which defines domestic violence more broadly and includes stalking. (Ogle, supra, 185 Cal.App.4th at p. 1144.)
We conclude defendant was accused of domestic violence, and section 1109 applies.
2. Evidence Properly Admitted Under Section 1109
Section 1109 allows evidence of prior acts of domestic violence to prove a propensity to commit domestic violence. (People v. Rucker (2005) 126 Cal.App.4th 1107, 1114 (Rucker).) The statute reflects the legislative judgment that in domestic violence cases, similar prior offenses are uniquely probative of guilt in a later accusation. (People v. Johnson (2010) 185 Cal.App.4th 520, 532 (Johnson).) Before admitting prior acts of domestic violence under section 1109, the trial court must balance the probative value against any prejudice pursuant to section 352. (§ 1109, subd. (a)(1); Rucker, at p. 1114.) Trial courts have broad discretion under section 352. (People v. Holford (2012) 203 Cal.App.4th 155, 167-168.) On appeal, we review the trial court’s determination under an abuse-of-discretion standard. (Ibid.)
The principal factor affecting probative value is similarity of the uncharged act to the charged offense. (Johnson, supra, 185 Cal.App.4th at pp. 531-532.) Other factors in weighing probative value against prejudice are whether the prior acts were more inflammatory than the charged conduct, the possibility that the jury might confuse the prior acts with the charged acts, how recent or remote the prior acts were, whether allowing the testimony would be unduly time-consuming, and whether the defendant had already been convicted and punished for the prior offense. (Id. at p. 533; Rucker, supra, 126 Cal.App.4th at p. 1119.) “Prejudice” in a section 352 analysis is not synonymous with “damag[ing],” since evidence the defendant committed a prior offense is inherently prejudicial. (People v. Tran (2011) 51 Cal.4th 1040, 1048.) Rather, “prejudice” refers 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. (Ibid.) Only evidence that poses an intolerable risk to a trial’s reliability should be excluded. (Ibid.)
Here, defendant’s conduct against Lana and Carol shared several similarities. In both cases, he started out fine but became obsessed with thinking the woman was cheating on him, at which point he barraged each woman with phone calls and messages and threats to them and their family. In fits of anger, he damaged personal property of both women. He scared both women.
Carol’s evidence was not too remote, having occurred in 2010, only a few years before the crimes against Lana. (People v. Morton (2008) 159 Cal.App.4th 239, 248 [nine years not too remote].) And there was little risk of confusing the jury. Carol’s testimony was not unduly time-consuming; it covers only 25 pages of the trial transcript.
Additionally, the court instructed the jury on appropriate use of the evidence pursuant to CALCRIM No. 852: “The People presented evidence that the defendant committed domestic violence that was not charged in this case. Domestic violence means abuse committed against a spouse, cohabitant, or former cohabitant, someone that the defendant has or previously had a dating relationship, or a child’s parent. Abuse means intentionally or recklessly causing or attempting to cause bodily injury or placing another person in reasonable fear of imminent and serious bodily injury to himself or herself or to someone else. [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant, in fact, committed the uncharged domestic violence. . . . [¶] If you decide that the defendant committed the uncharged domestic violence, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit domestic violence and based on that decision also conclude that the defendant was likely to commit and did commit the crimes charged in this case. If you conclude that the defendant committed the uncharged domestic violence, that conclusion is only one factor to consider along with all other evidence. It is not sufficient by itself to prove that the defendant is guilty of the crimes charged in this case. The People must still prove each charge and allegation of every charge beyond a reasonable doubt.”
And when the jury asked a question during deliberations -- “We are unclear what to do with ‘uncharged domestic violence’ topic” -- the court, after conferring with counsel, told the jury: “That has to do with the evidence regarding uncharged incidents of domestic violence that were presented during the trial. And the question is how do you consider that? [¶] Well, [jury instruction] 852 is pretty specific on how to consider that. As it states in the instruction, it’s a factor for you to consider in determining whether the charges in this case were committed. It’s just a factor, along with all the other evidence, for you to consider. You can’t base the conviction on the crimes charged in this case based on that by itself, but it is a factor for you to consider, along with all other evidence.” The judge asked if that helped, and the jury foreperson said yes.
Another factor supporting admissibility of the evidence is that defendant was formally convicted of the crimes against Carol. The formal conviction not only reduces the risk that the jury would want to punish defendant in this case for previous actions; it also removes any implication of unfairness in asking a person to defend himself against a past incident. (People v. Falsetta (1999) 21 Cal.4th 903, 915-917; Johnson, supra, 185 Cal.App.4th at p. 533.)
Defendant argues this case is different because he physically injured Carol, but not Lana. However, an uncharged crime need not be identical to the charged offense in order to be admissible. While defendant’s violence against Carol was more physical, defendant displayed great rage and violence towards both women, and the physical injury to Carol was not likely to inflame the jury’s passions significantly more than the charged crimes and other evidence of defendant’s rage against Lana as reflected in his video messages that were played for the jury.
We conclude the evidence of uncharged acts against Carol was properly admitted under section 1109.
B. Section 1101
Since the evidence was admissible under section 1109, admissibility under section 1101 is moot. (§ 1101 [“Except as provided in this section and in Sections . . . 1109,” evidence of specific instances of conduct is inadmissible to prove conduct on a specified occasion, but may be admissible to prove some fact (including intent and common plan) other than disposition to commit such an act].) Defendant says he wishes to preserve for review by the Supreme Court the question whether a not-guilty plea places “in issue” all facts the prosecution must prove for purposes of determining that proffered evidence is material to an issue for section 1101 purposes.
Despite mootness, we briefly address defendant’s sole specific argument in his opening brief regarding section 1101 -- i.e., that the evidence of vehicle theft of Carol’s truck should have been excluded under section 1101, because vehicle theft was not relevant or material to any intent or common scheme with respect to Lana, whose car defendant did not take.
We need not address defendant’s arguments that the prejudicial effect of vehicle theft outweighed any probative value because, even assuming for the sake of argument that the evidence of vehicle theft should have been excluded, defendant fails to show any possible prejudice warranting reversal of the judgment. (Cal. Const., art. VI, § 13 [no reversal of judgment for evidentiary error unless miscarriage of justice]; People v. Richardson (2008) 43 Cal.4th 959, 1001; People v. Fudge (1994) 7 Cal.4th 1075, 1103-1104 [evidentiary error harmless unless reasonably probable that defendant would have obtained a more favorable result absent the error].)
Here, defendant merely argues that allowing evidence of the vehicle theft “permitted the jury to conclude that appellant was a bad person” and may have influenced the jury’s assessment of his credibility. Considering all of the evidence properly adduced, it is inconceivable that excluding evidence of vehicle theft might have yielded a more favorable result for defendant.
Defendant fails to show reversible evidentiary error.
II
Jury Instruction on Specific Intent
Defendant claims the trial court erred by failing to instruct the jury sua sponte with CALCRIM No. 251, that the prosecution must prove a concurrence of act and specific intent for the specific intent crimes of burglary and stalking. We conclude any error was harmless, even under the harmless-beyond-a-reasonable-doubt standard urged by defendant.
CALCRIM No. 251 instructs that “crimes . . . charged in this case require proof of the union, or joint operation, of act and wrongful intent. [¶] For you to find a person guilty . . . , that person must not only intentionally commit the prohibited act, . . . but must do so with a specific (intent/ [and/or] mental state). The act and the specific (intent/ [and/or] mental state) required are explained in the instruction for that crime . . . .”
“The function of CALCRIM No. 251 is to alert the jury that, where a crime requires a specific intent or mental state, the defendant must have that specific intent or mental state at the same time he performs the acts necessary for the crime. In other words, there must be a temporal concurrence between the required mental state and the outward actions of the defendant. Whether those outward actions involve a discrete act or a course of conduct is immaterial.” (People v. Anderson (2007) 152 Cal.App.4th 919, 937 [where former standard instruction referred to “act or conduct,” current standard instruction was not deficient by shortening it to “act”].)
The trial court has a sua sponte duty to instruct on the union of act and specific intent or mental state if the crime requires a specific mental state. (People v. Alvarez (1996) 14 Cal.4th 155, 220 (Alvarez).)
Alvarez, supra, 14 Cal.4th at pages 219-220, held there was no prejudice in the trial court’s failure to include murder in the jury instruction on the concurrence of act and intent, where another instruction expressly required intent to kill for murder of the first degree under the theory of willful, deliberate, and premeditated killing. (Ibid.) Alvarez applied the general rule for error under California law that reversal requires prejudice and prejudice in turn requires a reasonable probability of an effect on the outcome. (Id. at p. 220.)
Defendant here urges the harmless-beyond-a-reasonable-doubt standard of prejudice of Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705]. Even applying this stricter standard, we conclude the failure to instruct with CALCRIM No. 251 was harmless in this case.
We recently held in People v. Jo (2017) 15 Cal.App.5th 1128, 1160-1162, that a trial court erred in failing to instruct a jury with CALCRIM No. 251, but the error was harmless even under the harmless-beyond-a-reasonable-doubt standard of prejudice of Chapman. In Jo, a defendant, who left the country with her child without the consent of the child’s father who was awarded physical custody, was charged with child custody deprivation (Pen. Code, § 278.5) which makes it a crime to “maliciously” deprive custody to a lawful custodian. (Id., 15 Cal.App.5th at p. 1160.) The trial court instructed the jury on union of act and intent for general intent (CALCRIM No. 250) rather than specific intent (CALCRIM No. 251). (Id. at p. 1159.) We concluded the error was harmless “even under Chapman.” (Id. at p. 1161.) We said that, even assuming, without deciding, that Penal Code section 278.5 requires a specific intent to deprive a lawful custodian, there was overwhelming evidence that the defendant acted with the specific intent to deprive the father of custody or visitation, including numerous e-mails from the father wanting a relationship with his daughter, notices about family court proceedings, notices from the District Attorney’s Office child abduction unit telling the defendant she had an obligation to participate in the family court proceedings, and the defendant’s e-mail responses and testimony reflecting her knowledge about their contents. (Id. at pp. 1161-1162.)
Here, the instructions as a whole required the jury to find concurrence of act and intent. The trial court instructed the jury with CALCRIM No. 225 (Circumstantial Evidence: Intent or Mental State), stating in part: “The People must prove not only that the defendant did the acts charged, but also that he acted with a particular intent or mental state. The instruction for each crime explains the intent and/or mental state required.”
The burglary instruction said the People must prove that “1. The defendant entered a building; [¶] AND [¶] 2. When he entered a building he intended to commit or to continue to commit the crime of stalking . . . .”
The stalking instruction said the People must prove that “1. The defendant willfully and maliciously harassed or willfully, maliciously, and repeatedly followed another person; [¶] AND [¶] 2. The defendant made a credible threat with the intent to place the other person in reasonable fear for her safety. [¶] . . . [¶] Harassing means engaging in a knowing and willful course of conduct directed at a specific person that seriously annoys, alarms, torments, or terrorizes the person and that serves no legitimate purpose. [¶] A course of conduct means two or more acts occurring over a period of time, however short, demonstrating a continuous purpose. . . .” (Orig. italics.)
These instructions required the jury to find concurrence of act and intent. And counsels’ arguments to the jury also required a finding of concurrence of act and intent -- that for stalking, defendant must have made a credible threat with intent to place the victim in fear, and that for burglary, the defendant must have intended to commit or continue to commit the crime of stalking when he entered the apartment.
The evidence of concurrence between act and intent was overwhelming -- notwithstanding defendant’s professed pure heart and his claim that he did not enter the apartment after he kicked the door in. This evidence included the barrage of vile video messages and repeated acts of violence, defendant’s clear intent to force his attentions on the victim, his continuation of verbal abuse as he kicked the door in, and his entry into the apartment after kicking the door in. Defendant did not claim his entry was an inadvertent product of momentum but insisted he did not enter at all. And he did not retreat immediately but took a moment to reflect and fled only after seeing the daughter phoning the police. All evidence credited by the jury points to concurrence of act and intent to persist in terrorizing the victim inside her home.
Defendant complains CALCRIM No. 225 is an instruction about evaluating circumstantial evidence; it is not like CALCRIM No. 251, which focuses the jury’s attention on the need to prove a union or joint operation of act and intent. However, we evaluate the correctness of jury instructions by looking at the entire charge, not by considering a particular instruction or part of an instruction. (People v. Carrington (2009) 47 Cal.4th 145, 192.) The entire charge required the jury to find concurrence of act and intent.
Defendant thinks prejudice is shown because during deliberations the jury asked: “Can we have a definition of burglary, as to how it relates to stalking (vs. breaking and entering) . . . .” After conferring with counsel, the judge told the jury: “The burglary statute states that burglary is committed by somebody who enters a building with the intent to commit theft or with intent -- or with intent to commit a felony. Stalking is a felony. Okay? That’s what the law is. [¶] Now, I’ve given you instructions on what stalking is. You know what the elements of stalking are. . . . [¶] . . . [¶] I understand that stalking is a little bit different crime than a lot of other crimes, right, because it’s not just based on one act, it can be something that sometimes occurs over a series of acts or a series of times. I don’t know if that’s what you’re struggling with, but -- [¶] So the burglary . . . instruction . . . Number 1700, burglary has two elements, and the second element is that when he entered the building he intended to commit the crime of stalking. Stalking is a felony. The burglary statute, you enter a building with the intent to steal or commit a felony. Stalking is a felony.” The court asked if that helped, and the jury foreperson said yes.
On appeal, defendant argues the trial court’s answer to the jury’s question about burglary never clarified that, in order to convict, the jury must find beyond a reasonable doubt the concurrence of the act and the requisite specific intent. However, the jury’s question did not indicate confusion about concurrence.
We conclude omission of CALCRIM No. 251 does not compel reversal.
III
Testimony About Prior Strikes & Potential Sentence
Defendant complains prosecution witness Carol improperly told the jury that defendant had prior strike convictions and was facing a potential life sentence in prison. The witness actually said 35 years, which defendant perhaps views as a life sentence, given that he was born in 1964.
When asked whether she followed through with the criminal prosecution against defendant, Carol testified:
“I did. I changed my number and -- and adhered to the restraining order, and they told me that it was either 35 years in prison or a year because of his history, that this was his fourth Strike.
“Q [by prosecutor] Okay. Stop you there.
“MS. SMITH [prosecutor]: We can strike that, your Honor.
“THE COURT: One moment, please. All right. [¶] The testimony that she just offered about possible prior convictions and punishment is to be disregarded by the jury. That is stricken from the record and the jury is ordered to disregard that, not consider that for any reason in your deliberations.”
Although the trial court struck the testimony and admonished the jury to disregard it, defendant argues this did not suffice to cure the prejudice. We disagree.
“ ‘Juries often hear unsolicited and inadmissible comments and in order for trials to proceed without constant mistrial, it is axiomatic the prejudicial effect of these comments may be corrected by judicial admonishment; absent evidence to the contrary the error is deemed cured.’ ” (People v. McNally (2015) 236 Cal.App.4th 1419, 1428-1429.) We presume the jury followed the admonition to disregard improper evidence, and it is only in the exceptional case that the improper subject matter is of such a character that its effect cannot be removed by the court’s admonitions. (People v. Olivencia (1988) 204 Cal.App.3d 1391, 1404.)
Defendant relies on cases questioning jurors’ ability to disregard their knowledge that a defendant had a prior criminal record. (E.g., People v. Allen (1978) 77 Cal.App.3d 924, 934-935.)
Here, however, the jurors already knew defendant had a prior criminal record from other properly-adduced evidence. Although Carol’s brief comment went further and said someone told her defendant had four strikes and might be subject to a 35-year sentence for what he did to Carol, the jury learned defendant spent only one year in jail for what he did to Carol, which would deflate any impression about defendant being a more hard-core criminal than already shown by the evidence.
We conclude defendant fails to show grounds for reversal.
DISPOSITION
The judgment is affirmed.



HULL , J.



We concur:



RAYE , P. J.



BUTZ , J.