Opinion
NOT TO BE PUBLISHED
Marin County Super. Ct. No. SC156828
Jones, P.J.
A jury convicted appellant Raekubian Alexander Barrow of one count of making criminal threats (Pen. Code, § 422) and the court sentenced him to state prison. Appellant raises two issues on appeal. He claims: (1) “inflammatory and improper statements” made by two prospective jurors during voir dire violated his constitutional right to a fair and impartial jury; and (2) the court committed prejudicial error by admitting prior uncharged misconduct evidence in violation of Evidence Code sections 1101 and 352. We affirm.
Penal Code section 422 provides in relevant part: “Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family’s safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.”
Unless otherwise noted, all further statutory references are to the Evidence Code.
FACTUAL AND PROCEDURAL BACKGROUND
Veronica Hicks-Gladney, a 63-year-old nurse, lived in Vallejo but work ed in Tiburon, California. She decided to move closer to her place of work and, in October 2007, she sublet a room in appellant’s two-bedroom apartment in Novato. Gladney agreed to pay half of the rent and utilities. She often slept on the couch in the living room — instead of in her bedroom — because appellant snored and “kept the TV up as loud as it would go[.]”
A few weeks after she moved in, Gladney suspected that appellant had been going through her possessions and eating her food when she was not home. When Gladney spoke to appellant about her suspicions, they “got into a violent argument[.]” During the argument, Gladney told appellant she was going to move out and “he got very upset[.]” He retrieved a butcher’s knife from the kitchen. He stood “very close” to Gladney, made “stabbing motions in the air,” and threatened to kill her and her family. Frightened, Gladney backed away from appellant and locked herself in her bedroom.
Gladney did not tell her family members what had happened because she did not want to upset her elderly mother, nor did she want her family members to get involved. The next day, appellant apologized. He told Gladney he “was wrong,” that “it would never happen again,” and that he would not harm her or her family. Gladney remained afraid of appellant, but she accepted his apology. Things with appellant “settled down” but Gladney avoided staying at appellant’s apartment unless she was working in Tiburon.
In mid-November 2007, Gladney again suspected appellant was eating her food and going through her possessions. She decided her living situation was “not going to work,” so she boxed up her possessions and left them by her bedroom door. When appellant saw the boxes, he and Gladney got into a “really heated” argument. Appellant cursed at Gladney, said “violent things” to her, and threatened her. As before, appellant picked up a knife and threatened to kill Gladney and her family. “Really afraid,” Gladney went into her bedroom and locked the door.
Appellant and Gladney got into another argument in December 2007 after Gladney noticed appellant had been going through her possessions. Gladney had also discovered she was paying a larger share of rent than appellant and had decided she did not like that appellant was “always drinking.” She told appellant she was not going to pay rent for December and that she was “definitely moving.” In response, appellant grabbed Gladney’s wrist. He told her he would kill her and her “whole f-ing family.” Appellant eventually released Gladney’s wrist, and she walked away. A few days later, Gladney returned from work and noticed her room was “really, really torn apart.” She spoke to a police officer, who visited the apartment and later arrested appellant. Gladney moved out of the apartment.
The jury convicted appellant of one count of making criminal threats (Pen. Code, § 422) based on the December 2007 incident. The court found true the prior conviction allegations and sentenced appellant to seven years and eight months in state prison.
Appellant was also charged with making criminal threats on November 3, 2007 (Count 1) and on November 15, 2007 (Count 2). The jury found appellant not guilty on Count 1 and was unable to reach a verdict on Count 2.
DISCUSSION
I. Appellant’s Complaints Regarding Two Prospective Jurors Fail
Appellant claims his conviction should be reversed because two prospective jurors, Sam F. and Ivan S., “displayed actual bias towards [him] with their improper comments, thereby... denying [him] a fair and impartial jury.”
During defense counsel’s voir dire, prospective juror Sam F. referred to appellant as a “rather tough customer.” Sam F., however, indicated he would be able to follow the court’s instructions and presume appellant was innocent. The prosecutor used a peremptory challenge to excuse Sam F. A second prospective juror, Ivan S., initially expressed concern about his ability to be fair and impartial because, as he explained, “I’m not sure I would want to meet the Defendant in a dark alley. [Defendant is] [s]cary looking to me.” Ivan S., however, agreed that it was “not right” to be prejudiced against a person based on that person’s physical appearance. Ivan S. also stated he would “try and be fair and open minded in spite of appearances” and that he would base his decision in the case on “all the evidence.” Finally, Ivan S. agreed he would not convict appellant if the People had not met their burden of proof. Ivan S. was removed for cause.
After the jury was selected, the court asked counsel whether the voir dire proceedings were “acceptable.” In response, defense counsel stated, “Yes. The only thing that I may, um, think about is that one comment about Mr. Barrow being scary. I’m not saying anything about it right now but I would like to think about it and talk about that with some of my colleagues.” The court and defense counsel engaged in the following colloquy:
“THE COURT: About [Sam F.’]s statement that he wouldn’t want to run into [appellant] in a dark alley and that he’s scary looking.
“[DEFENSE COUNSEL]: Yeah.
“THE COURT: That he therefore may not be able to be fair.
“[DEFENSE COUNSEL]: Yes, I think that is a possibility that he tainted the pool but I’d like to think about that a little bit and talk about that with some colleagues
“THE COURT: Okay.
“[DEFENSE COUNSEL]: — before I let that go. I’d like to reserve this.
“THE COURT: Okay. Let me know if you want to bring that up. I tend to think that... Mr. Barrow’s appearance is what it is and that... the comment by the juror didn’t have any negative effect on any of the jurors or would not have, but I’m happy to explore that further with you and I’m happy to admonish the jury if you think such is necessary to cure any concerns that you have.”
Appellant has forfeited his complaints regarding Sam F. and Ivan S. because he did not object during jury selection, request an admonishment, or move for a mistrial. In fact, he declined to take advantage of the court’s offer to admonish the jury. (People v. Seaton (2001) 26 Cal.4th 598, 635; People v. Visciotti (1992) 2 Cal.4th 1, 38.) “[C]riminal convictions [are] not [to] be overturned on the basis of irregularities in jury selection to which the defendant did not object or in which he has acquiesced. [Citations.]” (Visciotti, supra, at p. 38; see also People v. Holloway (2004) 33 Cal.4th 96, 124 [defendant forfeited his claim regarding his right to an impartial jury by failing to excuse the juror or “object to the court’s course of action”].)
Appellant concedes he did not object to the comments made by Sam F. and Ivan S. during voir dire. Hoping to avoid the forfeiture rule, appellant relies on People v. Abbaszadeh (2003) 106 Cal.App.4th 642, 648. In Abbaszadeh, the trial court invited prospective jurors to lie about whether they harbored racist predispositions and a possibly prejudiced juror was seated at trial. (Id. at p. 647.) Defense counsel did not object during voir dire. The appellate court noted that “most errors in voir dire must be brought to the attention of the trial court or they will be deemed waived on appeal.” (Id. at p. 648.) The court, however, concluded the defendant’s failure to object did not constitute waiver because: “(1) an objection would have been futile; (2) the People are at least equally at fault in allowing the error; and (3) we retain discretion to excuse the lack of an objection and elect to exercise that discretion in defendant’s favor because of the shocking nature of the error which rendered the trial unfair.” (Ibid.)
Appellant’s reliance on Abbaszadeh is misplaced. Here — and in stark contrast to Abbaszadeh — the trial court did not advise prospective jurors to conceal their predispositions. Moreover, the court gave the parties an opportunity to object before impaneling the jury and defense counsel remained silent. This is not a situation where an objection would have been futile or where the People were complicit an error. Nor is this a situation where the trial court committed a structural error of a “shocking nature.” (Abbaszadeh, supra, 106 Cal.App.4th at p. 648.) As a result, Abbaszadeh has no application here and we conclude appellant forfeited his claim of error by failing to raise it below. (See People v. Benavides (2005) 35 Cal.4th 69, 88 [defendant was barred from raising claim of “defects in the jury selection procedure” because he failed to object during jury selection].)
To obviate an ineffective assistance of counsel claim, we assume for the sake of argument that appellant preserved his complaints regarding the two prospective jurors for appellate review and consider the merits of his claim of constitutional error. A trial court has “broad discretion to determine whether... possible bias or prejudice against the defendant has contaminated the entire venire to such an extreme that its discharge is required.” (People v. Medina (1990) 51 Cal.3d 870, 889.) Medina is instructive. There, prospective jurors made statements about the defendant “such as ‘even his own lawyers think he’s guilty,’ and ‘they ought to have [sic] him and get it over with.’” (Id. at p. 888.) Other prospective jurors said, “the authorities should ‘bring the guilty S.O.B. in, we’ll give him a trial, and then hang him.’” (Ibid.) None of the prospective jurors who made these comments sat on the jury. (Id. at p. 889.)
The defendant moved to discharge the venire, claiming “it had become tainted.” (Medina, supra, 51 Cal.3d at p. 888.) The trial court denied the motion and the California Supreme Court affirmed. It explained that “discharging the entire venire is a remedy that should be reserved for the most serious occasions of demonstrated bias or prejudice, where interrogation and removal of the offending venirepersons would be insufficient protection for the defendant. The present case falls short of that mark. We conclude the trial court did not err in declining to discharge the entire venire.” (Ibid.)
The same is true here. This case falls short of a “serious occasion[ ] of demonstrated bias or prejudice” that would have required the court to discharge the entire venire, especially when compared to Medina. (Medina, supra, 51 Cal.3d at p. 889.) Prospective jurors Sam F. and Ivan S. — neither of whom was seated on the jury — did not demonstrate bias or prejudice. They merely expressed their personal opinions about appellant’s appearance. They also indicated they could be fair and impartial jurors. When questioned by the court, Sam F. stated he could presume that appellant was innocent. Similarly, Ivan S. indicated he would base his decision in the case on “all the evidence” and that he would not convict appellant if the People had not met their burden of proof.
Appellant’s reliance on Mach v. Stewart (9th Cir. 1997) 137 F.3d 630, 633 (Mach) is misplaced. In Mach, the defendant was charged with sexual conduct with a minor. During voir dire, Ms. Bodkin — a social worker who had worked with children — repeatedly indicated she would have a difficult time being impartial because she had never been involved in a case where the child’s statements were untrue. (Id. at pp. 632-633.) The court denied the defendant’s mistrial motion, but struck Ms. Bodkin for cause. (Id. at p. 632.) A jury convicted the defendant and he appealed. (Ibid.) The Ninth Circuit “presume[d] that at least one juror was tainted” by Ms. Bodkin’s comments during voir dire “and entered into jury deliberations with the conviction that children simply never lie about being sexually abused.” (Id. at p. 633.)
Mach has no application here for two reasons. First, we are not bound by rulings of intermediate federal courts. (People v. Crittenden (1994) 9 Cal.4th 83, 120, fn. 3.) Second, Mach is factually distinguishable. Unlike Ms. Bodkin — who made four separate statements about her inability to be impartial — both prospective jurors here made brief comments about appellant’s appearance. Moreover, Sam F. and Ivan S. stated they could be impartial. Finally, their comments did not relate to the merits of the case. As a result, Mach has no application here. We decline to “presume” the statements made by Sam F. and Ivan S. tainted the jury pool or prevented appellant from receiving a fair trial. (Cf. Mach, supra, 137 F.3d at p. 633.)
II. The Court Did Not Abuse Its Discretion by Admitting Uncharged Misconduct Evidence
In 2007, appellant got into an altercation with his then roommate, Ashley Corativo (Corativo altercation or altercation). The police responded to Corativo’s 911 call but did not arrest appellant or charge him with a crime. Before trial, appellant moved to exclude evidence of the Corativo altercation, contending the uncharged misconduct was inadmissible pursuant to sections 1101 and 352. In response, the People argued the altercation was admissible because it supported the inference that appellant harbored the same intent of physical contact in the present case and that his “actions were not subject to accident or misinterpretation[.]”
The court denied appellant’s motion to exclude. It explained appellant resided with “two separate people on two separate occasions.... And he reacts in an angry, unstable, violent way on each occasion when these ‘roommate’ problems arise.” The court concluded the Corativo and Gladney incidents “really do seem quite similar, whether or not on one occasion he was intending to hit and on the other occasion he was intending to scare,... he was at least intending to scare on both occasions... the fact that he was reacting violently in the way he did and using threatening language and threatening behavior... that is all indicative of a... common intent. That can be gleaned at least in some degree from the prior incident. And the prior incident is fairly recent in time.” The court also concluded the probative value of the evidence outweighed any prejudicial value.
Before Corativo testified, the court informed the jury in a limiting instruction that Corativo would testify regarding a “prior incident.” The court admonished the jury “not to use... [the] testimony to evaluate the [d]efendant’s character. The limited purpose for which it’s offered is for you to evaluate the defendant’s intent... in the present incident [ ].”
At trial, Corativo testified she rented a bedroom in appellant’s apartment in February 2007. In approximately May 2007, Corativo told appellant she was moving out. He became upset and seemed “personally offended” Corativo was planning to move. He “started yelling” and suggested Corativo was “doing something wrong by moving out.” A few weeks later, Corativo and appellant got into another argument about whether appellant would clean the toilet in their shared bathroom. When Corativo asked appellant to clean the toilet, he “exploded” and “started arguing” with her. Then he hit her in the face with a closed fist. Corativo ran into her room and called 911. Corativo moved out in June 2007 because she “did not feel safe” at the apartment. The police came to the apartment but they did not arrest appellant, nor did they file criminal charges against him.
After both sides rested, the court instructed the jury on the Corativo altercation. The court advised the jury: “In evaluating this evidence, consider the similarity or lack of similarity between the uncharged act and the charged offenses. [¶] Do not consider this evidence for any other purpose except for the limited purpose of the Defendant’s intent. [¶] Do not conclude from this evidence... that the Defendant has a bad character or is disposed to commit crime. [¶] If you conclude that the Defendant committed the uncharged offense, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the Defendant is guilty....”
On appeal, appellant argues the court erred by admitting evidence of the Corativo altercation because it was “pure propensity evidence and was not probative of [his] intent....” Evidence that a defendant committed crimes other than those currently charged may not be admitted to prove his or her bad character or criminal disposition. (§ 1101, subd. (a); People v. Avila (2006) 38 Cal.4th 491, 586-587.) Section 1101, however, does not “prohibit[ ] 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...) other than his or her disposition to commit such an act.” (§ 1101, subd. (b).) We review a trial court’s ruling under section 1101 for abuse of discretion. (People v. Gray (2005) 37 Cal.4th 168, 202.)
Appellant also contends the Corativo altercation was inadmissible because it was not “part of any kind of common plan or scheme.” We need not evaluate this claim because the court admitted evidence of the altercation for the limited purpose of evaluating “the defendant’s intent... in the present incident [ ].”
“[T]o 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.’ [Citations.]” (People v. Ewoldt (1994) 7 Cal.4th 380, 402, superseded by statute on other grounds in People v. Britt (2002) 104 Cal.App.4th 500, 505-506, quoting People v. Robbins (1988) 45 Cal.3d 867, 879, superseded by statute on another ground as stated in People v. Jennings (1991) 53 Cal.3d 334, 357, fn. 13.) “[T]he least degree of similarly between the uncharged and charged acts is sufficient to prove intent because the recurrence of a similar result tends to negat[e] accident, inadvertence, good faith, or other innocent mental state.” (People v. Garelick (2008) 161 Cal.App.4th 1107, 1115; see also Simons, Cal. Evidence Manual (2008) Evidence Affected or Excluded by Extrinsic Policies, § 6:12, p. 447.)
Appellant does not contend the Corativo altercation was not “sufficiently similar” to the incident involving Gladney. Instead, he claims the court erred by admitting the evidence because the Corativo altercation involved a battery, a general intent crime, whereas the current charge involved a specific intent that the statement he made to Gladney “‘[was] to be taken as a threat....’” (People v. Toledo (2001) 26 Cal.4th 221, 227-228, quoting People v. Bolin (1998) 18 Cal.4th 297, 337-340, & fn. 13.) Appellant’s theory is the intent required for the Corativo altercation and the current charge must be identical for the altercation to admissible.
We disagree and find People v. Steele (2002) 27 Cal.4th 1230, 1243 instructive. In that case, the defendant was charged with first degree murder of Lee Ann Thurman. (Id. at p. 1238.) The prosecution moved to admit evidence that the defendant had previously committed second degree murder: the prosecution argued the previous killing was relevant to the defendant’s mental state when he killed Thurman. (Id. at pp. 1243-1244.) The trial court admitted the evidence and the California Supreme Court affirmed. It rejected the defendant’s argument that the second degree murder was inadmissible because “no premeditation was found” in the second degree murder (id. at p. 1244) and explained, “[t]he fact that defendant killed twice under similar circumstances is logically probative of whether the second killing [of Thurman] was premeditated even if no independent evidence existed that the first killing was itself premeditated.” (Id. at p. 1245.)
Although Steele concerned the admissibility of a prior murder, its rationale applies here. Here, the trial court properly admitted evidence of the Corativo altercation even though the intent at issue in that altercation was different than the intent at issue in the current prosecution. As defense counsel argued during closing argument, the prosecution was required to prove that if appellant made the threat, that it “wasn’t just bluster,” but rather that he “intended that [Gladney] take the statement as a threat.” Evidence of uncharged crimes is admissible “‘where the proof of defendant’s intent is ambiguous, as when he admits the acts and denies the necessary intent because of mistake or accident.’” (Robbins, supra, 45 Cal.3d at p. 879, quoting People v. Kelley (1967) 66 Cal.2d 232, 242-243.) Here, appellant’s intent was a contested issue because he pleaded not guilty and placed all elements of the crime at issue. (Steele, supra, 27 Cal.4th at pp. 1243-1244.) Evidence that appellant argued with, and battered, a prior roommate under similar circumstances was relevant to prove that his actions toward Gladney were not accidental or inadvertent. The likelihood that appellant acted with an innocent intent in December 2007 — that he did not intend for Gladney to interpret his statement about killing Gladney and her family as a threat — was sharply reduced by evidence that he got into a physical altercation with another female roommate when she tried to move out a few months earlier.
The California Supreme Court has recognized “‘that if a person acts similarly in similar situations, he probably harbors the same intent in each instance’ [citations], 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.” (Robbins, supra, 45 Cal.3d at p. 879, original italics.) We conclude the trial court did not abuse its discretion by admitting evidence of the Corativo altercation pursuant to section 1101, subdivision (b).
Appellant also contends the admission of the Corativo altercation violated section 352 because the incident “had extremely low probative value, yet presented substantial danger of undue prejudice.” Pursuant to “section 352, the probative value of the proffered evidence must not be substantially outweighed by the probability that its admission would create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. [Citations.]” (Avila, supra, 38 Cal.4th at p. 587.) We will not reverse a lower court’s “exercise of discretion under [ ] section 352... unless it ‘exceeds the bounds of reason, all of the circumstances being considered.’” (People v. Tran (1996) 47 Cal.App.4th 759, 771; People v. Frazier (2001) 89 Cal.App.4th 30, 42.)
We have already concluded the probative value of the battery was strong because it tended to establish appellant intended for Gladney to interpret his December 2007 statement as a threat. Prejudicial “‘“is not synonymous with “damaging.”’” (People v. Karis (1988) 46 Cal.3d 612, 638, quoting People v. Yu (1983) 143 Cal.App.3d 358, 377.) “Evidence is not prejudicial, as that term is used in a section 352 context, merely because it undermines the opponent’s position or shores up that of the proponent.” (Vorse v. Sarasy (1997) 53 Cal.App.4th 998, 1008.) Here, evidence that appellant battered a female roommate when she tried to move out may have been damaging, but it did not tend to “evoke an emotional bias against [appellant],” nor did it have “very little effect on the issues.” (Karis, supra, 46 Cal.3d at p. 638.) The testimony describing the Corativo altercation “was no stronger and no more inflammatory than the testimony concerning the charged offenses.” (Ewoldt, supra, 7 Cal.4th at p. 405.)
Relying on People v. Scheid (1997) 16 Cal.4th 1, appellant contends the evidence was prejudicial because it tended to “evoke an emotional bias against” him. In Scheid, the defendant claimed the trial court should have excluded photographs of a murder victim pursuant to section 352. (Id. at p. 18.) The California Supreme Court rejected this argument and held that photographs of the victim, while unpleasant, were not “unduly gory or inflammatory” (id. at p. 19) and concluded the trial court properly exercised its discretion by admitting the photographs. (Id. at p. 20.) Appellant’s reliance on Scheid is puzzling because that case concerned photographs of a murder victim (not testimony about a roommate dispute) and because our Supreme Court concluded the evidence was not unduly prejudicial. As in Scheid, we conclude the lower court did not abuse its discretion by admitting evidence of the Corativo altercation pursuant to section 1101, subdivision (b).
Finally, appellant contends the court’s error in admitting evidence of the Corativo altercation constituted a federal due process violation. Appellant concedes “the admission of evidence, even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair.” (People v. Partida (2005) 37 Cal.4th 428, 439, original italics.) We have already concluded the court did not err by admitting the Corativo altercation. Moreover, appellant has not demonstrated how the trial was fundamentally unfair. As a result, appellant’s federal due process claim has no merit.
DISPOSITION
The judgment is affirmed.
We concur: Simons, J., Needham, J.