Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. BA293994, Patricia Schnegg, Judge.
Shawn O’Laughlin, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and David F. Glassman, Deputy Attorneys General, for Plaintiff and Respondent.
ALDRICH, J.
Defendant and appellant Jose Blue appeals from the judgment entered following a jury trial that resulted in his conviction for making criminal threats. Blue was sentenced to a prison term of three years. Blue contends: (1) the evidence is insufficient to support the verdict; (2) the trial court erred by admitting evidence regarding his prior misconduct; and (3) the trial court committed instructional errors. We affirm.
In his opening brief, Blue also asserted he was entitled to additional days of presentence custody credit. Subsequently, on November 7, 2006, Blue notified this court that the trial court had modified the custody credit award as requested. Accordingly, Blue has withdrawn this contention.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
a. People’s case.
Viewed in accordance with the usual rules governing appellate review (People v. Rodriguez (1999) 20 Cal.4th 1, 11), the evidence relevant to the issues on appeal established the following. On July 6, 2005, at approximately 4:00 p.m., Virginia Hughes saw Blue and another man standing in front of her Los Angeles home. Hughes’s residence was located in an area claimed as the territory of, and frequented by, the 55 Neighborhood Crips criminal street gang. Hughes had known Blue, a member of the 55 Neighborhood Crips gang, for over five years. Hughes’s grandson was also a member of the gang. Hughes had seen Blue selling drugs on her street “too many times to count.” Blue would hide drugs in the bushes and retrieve them when purchasers pulled their cars up in front of the house.
Hughes requested that Blue and the other man leave. She did not want Blue to sell drugs in front of her home. As Hughes explained, she “didn’t want someone to shoot at them and miss and possibly hit me or one of my grandkids.” In a previous neighborhood shooting, Hughes’s neighbor’s house, as well as neighborhood cars, were shot and “the neighborhood was sprayed” with bullets.
The second man left, but Blue became hostile. He cursed at Hughes and called her names, including “fat bitch[ ].” He stated that he “wished [her] dead. He offered to keep walking back and forth in front of [Hughes’s] house on the . . . sidewalk so [Hughes] would have a heart attack and die. He also used his favorite expression towards [Hughes], ‘diabetes, diabetes, hurry up and die.’ ” Blue then stated that he was on a public sidewalk and that Hughes could not stop him from standing there. He told Hughes, “fuck you.” Hughes responded that Blue was not man enough. Blue replied by calling her a dirty old woman. Hughes and Blue continued to argue for a considerable time. Although Hughes felt “terribly intimidated” she “wasn’t about to let him win.”
However, Blue then threatened to “burn down [Hughes’s] motherfucking house” with her inside. Hughes had heard that Blue had previously set fire to a nearby home, and believed he was capable of following through on his threat. She was afraid. During part of the argument Blue was standing on the sidewalk, but then walked through Hughes’s gate, behind her van in her driveway. Hughes believed that Blue’s statements implied gang involvement. With police assistance, Hughes subsequently moved from the neighborhood to a location unknown to Blue and the gang. At the time of trial, Hughes still thought about the threats, which interfered with her health.
Hughes reluctantly testified that three elderly female neighbors had witnessed the argument between her and Blue. Hughes had not wished to disclose their identities because she did not “want them to experience what [she was] experiencing.” The three neighbors, who still lived in the neighborhood, testified that they did not hear Blue threaten to burn down Hughes’s house. Two of the women admitted they were afraid of Blue and his friends. One admitted she was afraid to testify because she was afraid of Blue.
At a prior proceeding, Hughes refused to disclose the names of the neighbors until ordered to do so by the court.
Los Angeles Police Department (L.A.P.D.) Sergeant Jaime Marin testified that in August 27, 1997, at approximately 9:30 p.m., he observed Blue and four companions walking in the area where Hughes lived, carrying Molotov cocktail bombs, i.e., incendiary devices containing gasoline, rags, and paper. One of the men was carrying a lighter. Blue and his companions were arrested for possession of an incendiary device.
b. Defense case.
Carmen Mendoza, another of Hughes’s neighbors, testified that she witnessed the incident between Blue and Hughes. According to her, Hughes cussed and screamed at Blue, and the pair argued back and forth for 15 to 20 minutes, with both saying “rude” and “awful” things to each other. Mendoza did not hear Blue threaten to burn down Hughes’s house.
c. Rebuttal.
Mendoza was an associate of the 55 Neighborhood Crips gang, and two of her brothers were gang members. She played a “major role” in the gang, repeatedly interfering with and delaying police investigations.
2. Procedure.
Trial was by jury. Blue was convicted of making criminal threats (Pen. Code, § 422). The jury rendered a not true finding on the allegation the crime was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)). Blue admitted serving a prior prison term within the meaning of section 667.5, subdivision (b). The trial court sentenced Blue to a term of three years in prison. It imposed a restitution fine, a suspended parole revocation fine, and a court security assessment. Blue appeals.
All further undesignated statutory references are to the Penal Code.
DISCUSSION
1. The evidence was sufficient to support the verdict.
When determining whether the evidence was sufficient to sustain a criminal conviction, we review the entire record in the light most favorable to the judgment to determine “ ‘whether it discloses substantial evidence -- that is, evidence which is reasonable, credible, and of solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citations.]” (People v. Hillhouse (2002) 27 Cal.4th 469, 496; People v. Carter (2005) 36 Cal.4th 1215, 1257-1258.) “We draw all reasonable inferences in support of the judgment. [Citation.]” (People v. Wader (1993) 5 Cal.4th 610, 640.) Reversal is not warranted unless it appears “ ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.)
Section 422 makes it a crime to willfully threaten to commit a crime which will result in death or great bodily injury to another person under specified circumstances. (People v. Toledo (2001) 26 Cal.4th 221, 224.) Not all threats are criminal, however. (In re George T. (2004) 33 Cal.4th 620, 630.) “In order to prove a violation of section 422, the prosecution must establish all of the following: (1) that the defendant ‘willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person, ’ (2) that the defendant made the threat ‘with the specific intent that the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it out, ’ (3) that the threat -- which may be ‘made verbally, . . . was ‘on its face and under the circumstances in which it [was] made, . . . 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, ’ (4) that the threat actually caused the person threatened ‘to be in sustained fear for his or her own safety or for his or her immediate family’s safety, ’ and (5) that the threatened person’s fear was ‘reasonabl[e]’ under the circumstances.” (People v. Toldeo, supra, 26 Cal.4th at pp. 227-228; see generally People v. Bolin, supra, 18 Cal.4th at pp. 337-340.)
Section 422 provides in pertinent 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, ” is guilty of a crime.
The evidence was plainly adequate to satisfy the first, second, fourth, and fifth elements. Hughes testified that Blue threatened to burn her house down with her inside. A threat is sufficiently specific where it threatens death or great bodily injury. (People v. Butler (2000) 85 Cal.App.4th 745, 752.) Burning a house with a victim inside would doubtless result in great bodily injury or death. The jury could readily infer Blue intended that his statement be taken as a threat. The jury could reasonably infer that Blue’s statements were designed and intended to frighten and silence Hughes, thereby enabling Blue to continue his drug sales unhampered by Hughes. (See generally People v. Teal (1998) 61 Cal.App.4th 277, 280-281.) Hughes testified she was frightened by the threats. That testimony was corroborated by the fact she moved from the neighborhood with the help of police. Given the content of Blue’s threats and Hughes’s knowledge of Blue’s gang membership and prior activities, Hughes’s fear was eminently reasonable.
Blue challenges the sufficiency of the evidence on the third element, i.e., that the threat was “ ‘on its face and under the circumstances in which it [was] made, . . . so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution . . . .’ ” (People v. Toldeo, supra, 26 Cal.4th at p. 228.) Blue contends the evidence showed no “true threat with immediate prospects of death or great bodily injury, ” but instead amounted to nothing more than “a heated argument between neighbors, with angry words exchanged.” He argues that Hughes started the argument by telling Blue to leave the sidewalk area; that defense witness Mendoza heard Hughes “cussing at” Blue, but did not hear Blue threaten Hughes; that no evidence suggested Blue and Hughes had a history of disagreements; that no evidence demonstrated a physical confrontation between Blue and Hughes occurred or was imminent; and that although Blue was purportedly not arrested until three weeks after Hughes reported the threat, Blue did not actually attempt to set fire to Hughes’s residence.
We are not persuaded. “Immediate, ” as used in the statute, means “that degree of seriousness and imminence which is understood by the victim to be attached to the future prospect of the threat being carried out . . . .” (People v. Melhado (1998) 60 Cal.App.4th 1529, 1538.) “A threat is not insufficient simply because it does ‘not communicate a time or precise manner of execution, section 422 does not require those details to be expressed.’ [Citation.]” (People v. Butler, supra, 85 Cal.App.4th at p. 752; People v. Gaut (2002) 95 Cal.App.4th 1425, 1432.) “ ‘[T]he determination whether a defendant intended his words to be taken as a threat, and whether the words were sufficiently unequivocal, unconditional, immediate and specific they conveyed to the victim an immediacy of purpose and immediate prospect of execution of the threat can be based on all the surrounding circumstances and not just on the words alone. The parties’ history can also be considered as one of the relevant circumstances. [Citations.]’ ” (People v. Butler, supra, 85 Cal.App.4th at pp. 754.) “[U]nequivocality, unconditionality, immediacy and specificity are not absolutely mandated, but must be sufficiently present in the threat and surrounding circumstances to convey gravity of purpose and immediate prospect of execution to the victim. The four qualities are simply the factors to be considered in determining whether a threat, considered together with its surrounding circumstances, conveys those impressions to the victim.” (People v. Stanfield (1995) 32 Cal.App.4th 1152, 1157-1158.)
Viewing the totality of the circumstances, the evidence was sufficient. As noted, the evidence showed Blue made an explicit and unconditional threat. There was evidence Blue regularly sold drugs in front of Hughes’s home. Blue made the threat in response to Hughes’s attempt to stand up to Blue and end his drug sale activities. Blue responded by calling Hughes names, taunting her, and making clear his wish that she was dead. When these tactics failed to silence Hughes, Blue made the express threat to burn down her house with her inside. During the confrontation Blue did not remain on the sidewalk but walked uninvited through the victim’s driveway gate. Blue was a known gang member and drug dealer who, along with his gang associates, had in the past intimidated neighborhood residents. Blue had been caught in Hughes’s neighborhood with a group of youths carrying Molotov cocktail bombs of the sort which could be used to commit arson. This evidence supported the jury finding that the threats were serious and conveyed a gravity of purpose and immediate prospect of execution. (See generally People v. Gaut, supra, 95 Cal.App.4th at pp. 1431-1432 [defendant’s history of threatening and assaulting the victim supported finding threats were specific, unequivocal, and immediate]; People v. Melhado, supra, 60 Cal.App.4th at p. 1538 [evidence sufficient where threat involved an angry man threatening to go home and get a hand grenade].) The jury was not required to accept the characterization of the incident as nothing more than an angry exchange of harsh words. To the contrary, the evidence showed an explicit and unequivocal threat made by a known gang member and drug dealer, who had been caught with an incendiary device in the past, made in response to the victim’s attempted interference with his illegal activities.
In support of his argument, Blue references cases in which additional or different evidence was found sufficient to support a conviction for making criminal threats, and contends the absence of those factors establishes the evidence was insufficient in the instant case. But “[d]efendant’s approach is analytically incorrect. The particular evidence offered to prove the charge must, by necessity, vary from case to case. Accordingly, there can be no checklist of evidence required to prove the crime. Instead, all that is constitutionally required is that the People prove each and every element of the crime beyond a reasonable doubt and that the jury’s verdict be supported by substantial evidence.” (People v. Solis (2001) 90 Cal.App.4th 1002, 1010.)
2. Admission of evidence of uncharged misconduct.
a. Applicable legal principles.
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; People v. Scheer (1998) 68 Cal.App.4th 1009, 1017.) However, such evidence is admissible if it is relevant to prove some fact other than his or her disposition to commit such an act. (Evid. Code, § 1101, subd. (b); People v. Catlin (2001) 26 Cal.4th 81, 145-146; People v. Ewoldt (1994) 7 Cal.4th 380, 400; People v. Kipp, supra, 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.’ [Citation.]” (People v. Steele (2002) 27 Cal.4th 1230, 1243.)
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, of confusing the issues, or of misleading the jury. (People v. Kipp, supra, 18 Cal.4th at p. 371; People v. Ewoldt, supra, 7 Cal.4th at p. 404; People v. Scheer, supra, 68 Cal.App.4th at p. 1018.) Because evidence relating to uncharged misconduct may be highly prejudicial, its admission requires careful analysis. (People v. Ewoldt, supra, at p. 404.)
The admission of evidence of a prior 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. (People v. Jennings (2000) 81 Cal.App.4th 1301, 1314; People v. Waidla (2000) 22 Cal.4th 690, 724; People v. Kipp, supra, 18 Cal.4th at p. 369.) Evidence is substantially more prejudicial than probative if it poses an intolerable risk to the fairness of the proceedings or the reliability of the outcome (People v. Waidla, supra, at p. 724), and uniquely tends to evoke an emotional bias against the defendant without regard to relevance. (People v. Killebrew (2002) 103 Cal.App.4th 644, 650.)
b. Admission of evidence Blue possessed an incendiary device.
Prior to trial, the defense sought to exclude the evidence that Blue had been caught in 1997 with a Molotov cocktail in Hughes’s neighborhood. Blue objected, inter alia, that the evidence was inadmissible character evidence (Evid. Code, § 1101) and was highly prejudicial. The trial court ruled that the evidence was probative on the question of whether Hughes suffered sustained fear as a result of Blue’s threats, and whether that fear was reasonable. Blue contends the trial court erred, in that the evidence was irrelevant and unduly prejudicial. We disagree.
As noted, to prove the charged crime the People were required to prove the defendant’s threat actually caused the victim to be in sustained fear for her own, or her immediate family’s, safety, and that the fear was reasonable under the circumstances. (People v. Toldeo, supra, 26 Cal.4th at pp. 227-228; People v. Garrett (1994) 30 Cal.App.4th 962, 966 [section 422 incorporates a mental element on the part of not only the defendant but also the victim]; see generally People v. Bolin, supra, 18 Cal.4th at pp. 337-340.) The parties’ past history is relevant to establish the victim’s fear was genuine and reasonable. (See People v. Gaut, supra, 95 Cal.App.4th at p. 1432; In re Ricky T., (2001) 87 Cal.App.4th 1132, 1138; People v. McCray (1997) 58 Cal.App.4th 159, 172; People v. Mendoza (1997) 59 Cal.App.4th 1333, 1341-1342; People v. Garrett, supra, at p. 967.) Likewise, the defendant’s prior conduct can be relevant to prove the defendant’s specific intent, and that the threat was sufficiently serious, unequivocal, and immediate to convey a gravity of purpose and prospect of immediate execution, within the meaning of the statute. (See, e.g., People v. Martinez (1997) 53 Cal.App.4th 1212, 1218-1220; People v. Mendoza, supra, 59 Cal.App.4th at pp. 1341-1342; People v. Gaut, supra, 95 Cal.App.4th at p. 1432; People v. Garrett, supra, at p. 967.)
For example, in People v. Garrett, supra, 30 Cal.App.4th 962, the defendant and his wife argued during a telephone conversation. The defendant “unleashed a barrage of obscenities” and threatened to beat and shoot the wife. (Id. at p. 965.) The trial court admitted evidence that the wife knew the defendant had a prior conviction for manslaughter. On appeal, admission of the evidence was held to be proper. “[T]he fact that Wife knew that appellant had killed a man with a gun in the past and that appellant was aware that she knew . . . is extremely relevant and probative in terms of establishing” that she would take defendant’s comments as a threat; that she was in a state of sustained fear; that the nature of the statement conveyed an immediate prospect of execution of the threat; and that the wife’s fear was reasonable. (Id. at pp. 966-967.)
Here, the fact Blue had been caught with an incendiary device was directly relevant to, and highly probative on, the questions of Blue’s intent, whether the threat was sufficiently serious and immediate, and the nature of Hughes’s fear. That the evidence was damaging to the defense does not make it prejudicial within the meaning of Evidence Code section 352. “Seldom will evidence of a defendant’s prior criminal conduct be ruled inadmissible when it is the primary basis for establishing a crucial element of the charged offense.” (People v. Garrett, supra, 30 Cal.App.4th at p. 967.) “ ‘The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.’ [Citations.]” (People v. Zapien (1993) 4 Cal.4th 929, 958.) The record discloses that the trial court carefully weighed the appropriate factors when determining the evidence was not unduly prejudicial under Evidence Code section 352.
Blue complains that neither his intent nor the reasonableness of Hughes’s fear was seriously contested at trial. From this he appears to reason that the evidence proving these elements was improperly admitted. Not so. Blue overlooks the fact that it was the People’s burden to establish every element of the charged crime, disputed or not. Further, this contention is belied by Blue’s appellate challenge to the sufficiency of the evidence to establish the threat was immediate and serious.
c. Admission of evidence regarding placement of a snake in witness Green’s cabinet.
(i) Additional facts.
Prior to trial, Blue moved to exclude evidence that he and his friends had harassed the three elderly female neighbors who appeared as witnesses. The prosecutor argued that it was imperative for the jury to understand why the women testified as they did. The trial court ruled that the three neighbors should not “volunteer acts of bad conduct . . . or negative character traits attributed to the defendant.”
Witness Green, one of Hughes’s elderly neighbors, testified that she did not hear the argument between Blue and Hughes. In an attempt to show Green’s testimony was colored by her fear of Blue, the prosecutor elicited that Green believed Blue had “come into [her] home unwelcome.” The defense objected on relevance grounds. At a sidebar discussion, the prosecutor represented that she intended to show Green’s testimony was affected by her fear of Blue. The prosecutor sought to introduce evidence that Blue broke into Green’s home, vandalized it, and placed her cat in the freezer. The trial court opined that the evidence regarding the cat was “very, very prejudicial.” It ruled the prosecutor could elicit that Green believed Blue had vandalized her home, but could not “get into specifics” regarding the cat.
The prosecutor then asked whether Green was afraid of Blue. Green denied it. The prosecutor further queried, “Isn’t it true that you were actually outside on that day and that you’re just afraid of this defendant and afraid to tell us so?” Green again responded negatively. The prosecutor then asked whether Green believed Blue had vandalized her home. The defense objected on relevance grounds, and another sidebar discussion transpired. The trial court opined that evidence the defendant placed Green’s cat in the freezer was “really awful.” The prosecutor argued that the evidence went “directly to her belief about this defendant and why she would be scared, ” and would explain her testimony. The trial court again ruled that the prosecutor could elicit that Green believed Blue had vandalized her house, but could not elicit that the cat had been placed in the freezer.
The prosecutor then asked, “Ms. Green, let’s go to the break-in that you had at your house. Without telling us exactly what happened during that incident, was that a scary experience for you?” Green replied, “Don’t much scare me. Even when the snake was up there in the cabinet. Someone put a snake in my cabinet. And I reached up out without knowing it was a snake. It was balled up and I pulled it down on the floor. That’s when I knew it was a snake.” The prosecutor queried, “And you told me that you thought the defendant was the one who was involved in that; isn’t that correct?” Green replied, “I think it was him and his friends.”
(ii) Discussion.
Blue asserts admission of the evidence regarding the snake was prejudicial error. We disagree. First, Blue’s contention is waived. Green volunteered the information about the snake despite the prosecutor’s admonition not to disclose “exactly what happened.” However, Blue did not object to the testimony or move to strike. He has therefore waived his right to complain about the testimony on appeal. (Evid. Code, § 353, subd. (a); People v. Monterroso (2004) 34 Cal.4th 743, 773; People v. Earp (1999) 20 Cal.4th 826, 878; People v. Hart (1999) 20 Cal.4th 546, 615; Jurcoane v. Superior Court (2001) 93 Cal.App.4th 886, 890-891, fn. 3.)
Second, even if the trial court had ruled the evidence was admissible, we would discern no error. The fact a witness is afraid to testify or fears retaliation for testifying is relevant to the witness’s credibility and therefore admissible, whether or not the fear is directly linked to the defendant. (People v. Burgener (2003) 29 Cal.4th 833, 869-870.) Here, evidence Green believed Blue or his friends had placed a snake in her cabinet was relevant to prove her testimony was affected by her fear of testifying.
Blue urges that if the incident regarding the cat was highly prejudicial, the incident regarding the snake was likewise prejudicial, and should have been excluded. The answer to this contention is twofold. First, unlike the testimony regarding the cat, the court was not asked to rule on the snake incident; instead the witness volunteered the information. Second, and more significantly, the snake incident was far less prejudicial than the cat incident. The incident involving the cat was highly prejudicial because it demonstrated extreme cruelty to an animal and presumably resulted in the cat’s death. In the snake incident, however, the snake was not harmed or treated cruelly, nor was Green harmed by the snake. The prejudicial nature of the two incidents was not comparable.
Further, the erroneous admission of evidence requires reversal only if it is reasonably probable that appellant would have obtained a more favorable result had the evidence been excluded. (Evid. Code, § 353, subd. (b); People v. Earp, supra, 20 Cal.4th at p. 878; People v. Avitia (2005) 127 Cal.App.4th 185, 194.) There is no reasonable probability the outcome would have been more favorable for Blue had the evidence of the snake incident been omitted. Green testified she was not frightened by the snake. She was not harmed in the incident. Given the properly admitted evidence that Blue was a gang member, a drug seller, and a neighborhood bully, the evidence that he and his friends may have placed a snake in Green’s cupboard would not have affected the outcome.
3. Purported instructional errors.
a. Failure to instruct, sua sponte, on attempted criminal threats.
Blue next complains that the trial court erred by failing to sua sponte instruct the jury on the lesser included offense of attempted criminal threats. We discern no prejudicial error.
A defendant has a constitutional right to have the jury determine every material issue presented by the evidence. (People v. Benavides (2005) 35 Cal.4th 69, 102.) A trial court must therefore “instruct fully on all lesser necessarily included offenses supported by the evidence.” (People v. Breverman (1998) 19 Cal.4th 142, 148-149; People v. Heard (2003) 31 Cal.4th 946, 980.) “On the other hand, the court is not obliged to instruct on theories that have no such evidentiary support.” (People v. Breverman, supra, at p. 162.) “ ‘ “ ‘Substantial evidence is evidence sufficient to “deserve consideration by the jury, ” that is, evidence that a reasonable jury could find persuasive.’ ” ’ [Citation.]” (People v. Benavides, supra, at p. 102; People v. Heard, supra, at p. 981.) The erroneous failure to instruct sua sponte on a lesser included offense is, at most, an error of California law alone, and reversal is required only if it appears reasonably probable the defendant would have obtained a more favorable outcome had the error not occurred. (People v. Breverman, supra, 19 Cal.4th at p. 165.)
Attempted criminal threat is a lesser included offense of the crime of making criminal threats. (People v. Toledo, supra, 26 Cal.4th at pp. 230-231; In re Sylvester C. (2006) 137 Cal.App.4th 601, 607.) An attempted criminal threat is committed, inter alia, where the defendant, “acting with the requisite intent, makes a sufficient threat that is received and understood by the threatened person, but, for whatever reason, the threat does not actually cause the threatened person to be in sustained fear for his or her safety even though, under the circumstances, that person reasonably could have been placed in such fear.” (People v. Toledo, supra, at p. 231.) A sustained fear “extends beyond what is momentary, fleeting, or transitory.” (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.)
Blue argues that because the victim did not report the threats to police until two days after the incident, the jury could have found she did not actually experience sustained fear. Assuming arguendo that this evidence was sufficient to warrant instructing on the lesser offense, any error was not prejudicial. The evidence Hughes was in sustained fear was overwhelming. She directly testified that she was afraid. She refused to provide the names of her elderly neighbors until ordered to do so by the court, because she did not want the other women to “experience what I’m experiencing, ” i.e., “being afraid of retaliation, being afraid of somebody getting hurt. I don’t want anybody hurt. We’re too old to have to live like this.” After the threats were made, Hughes had moved, with police assistance, from her residence of seven years to another location unknown to Blue and his gang associates. Furthermore, the purported delay in reporting the crime was insignificant. The threats were made at approximately 4:00 p.m. on July 6. Hughes telephoned police on July 7 or 8 to “ask what kind of a case it was.” On July 8, a police officer came to her place of employment to take a report from her, because she did not want the officer to come to her house. In light of the strong evidence demonstrating her sustained fear, including her relocation, and the insignificant evidence to the contrary, there is no reasonable probability the jury would have convicted Blue only of attempting criminal threats had it been instructed on the lesser included offense.
b. CALCRIM No. 301.
Without objection, the trial court instructed the jury with CALCRIM No. 301, which provided: “The testimony of only one witness can prove any fact. Before you conclude that the testimony of one witness proves a fact, you should carefully review all the evidence.”
Blue complains that the instruction misstated the law. Blue appears to argue that whenever a witness’s uncorroborated testimony is offered, the jury must be instructed to “review such testimony carefully.” Because the instruction given did not expressly reference “uncorroborated” testimony, he contends, it was inadequate and impermissibly reduced the prosecution’s burden of proof.
We disagree. CALCRIM No. 301 properly stated the law. It is well settled that, unless a statutory corroboration requirement applies, the testimony of a single witness is sufficient to prove a fact. (See Evid. Code, § 411 [“Except where additional evidence is required by statute, the direct evidence of one witness who is entitled to full credit is sufficient for proof of any fact.”]; People v. Young (2005) 34 Cal.4th 1149, 1181 [testimony of a single witness, unless physically impossible or inherently improbable, is sufficient to support a conviction]; People v. Hampton (1999) 73 Cal.App.4th 710, 722; In re Corey (1964) 230 Cal.App.2d 813, 826, [robbery victim’s uncorroborated testimony is sufficient to support a conviction].) It is likewise settled that CALJIC No. 2.27, the precursor to CALCRIM 301, correctly stated the law. (People v. Adames (1997) 54 Cal.App.4th 198, 210; People v. Gammage (1992) 2 Cal.4th 693, 700.)
There is no merit to Blue’s assertion that CALCRIM 301 failed to comply with California Supreme Court precedent. People v. Rincon-Pineda (1975) 14 Cal.3d 864, 882-883, overruled the earlier rule that juries in rape cases must be instructed to view the victim’s testimony with caution. (Id. at p. 882.) Rincon-Pineda reaffirmed and reinforced that other instructions regarding witness credibility should be given. The court explained that a new instruction “should be given in every criminal case in which no corroborating evidence is required and should read substantially as follows: ‘Testimony which you believe given by one witness is sufficient for the proof of any fact. However, before finding any fact to be proved solely by the testimony of such a single witness, you should carefully review all of the testimony upon which proof of such fact depends.’ ” (Id. at p. 885.) It is readily apparent that CALCRIM 301 complied with this mandate. In People v. Turner (1990) 50 Cal.3d 668, 697, fn. 14, the court suggested, “solely by way of illustration, ” a refinement to the Rincon-Pineda instruction, i.e., “you are free to give the uncorroborated testimony of a single witness whatever weight you think it deserves. However, before crediting the uncorroborated testimony of a single witness, you should review such testimony carefully.” However, Turner found use of the Rincon-Pineda instruction adequate. (Id. at p. 697.)
In the instant case, corroboration of Hughes’s testimony was not statutorily required. Therefore, a reference to corroboration in the instruction would have been confusing and inapplicable. The instruction properly advised the jury to “carefully review all the evidence” before concluding the testimony of a single witness proved a fact. There was no error.
DISPOSITION
The judgment is affirmed.
We concur: KLEIN, P. J., CROSKEY, J.