Opinion
H045245
10-08-2019
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER COPELAND, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1644685)
Defendant Christopher Copeland appeals from a judgment of conviction entered after a jury found him guilty of making a criminal threat (Pen. Code, § 422) to an attorney who represented his former wife. The trial court suspended imposition of sentence and placed defendant on probation for three years. On appeal, defendant contends that the trial court made several evidentiary errors that were cumulatively prejudicial. We affirm the judgment.
I. Statement of Facts
A. Prosecution Case
In July 2013, Susan Taylor and defendant had been married for 24 years. At that time, she retained Larry Hughes, a family law attorney, to represent her in a dissolution of marriage case. Defendant retained Sharon Stein as his attorney. The judgment of dissolution of marriage became final on December 31, 2014.
The judgment provided, among other things, that pension benefits that defendant had acquired through his employment with Chubb be divided by means of a Qualified Domestic Relations Order (QDRO). The parties were ordered to retain an attorney, named in the judgment, to prepare the QDRO. Though Taylor paid her half of the fee for the preparation of the QDRO, defendant did not. Thus, the attorney did not perform the work necessary for the distribution of the Chubb pension plan. The parties' other retirement plans were divided in the months following the judgment. Stein withdrew as defendant's counsel in September 2015. Hughes continued to represent Taylor for another three years.
In mid-2015, Hughes received a voicemail from defendant in which he said that he did not intend to divide the Chubb pension plan with Taylor and he wanted Taylor to waive her interest in the plan.
Sometime in September 2015, Stein spoke to Hughes on the phone and told him of her plans to withdraw from the case. She also said, "Larry, be careful." Hughes did not ask her to explain why.
On September 21, 2015, Stein e-mailed Hughes and informed him again that defendant wanted Taylor "to walk away from the judgment orders." She noted that she was withdrawing from the case, but she would relay Hughes's response to defendant. Hughes responded that Taylor had instructed him to enforce all the orders in the judgment.
While Hughes was representing Taylor, she told him that she was "very afraid" of defendant and "her main focus was trying to get the case over with without her having to be involved with [defendant] at all." She frequently told Hughes about defendant's threats to commit suicide involving guns, his depression, and why she was afraid of him. She initially expressed concern that he might try to harm her and her daughter. She was later concerned that she had not done as much about her fears as she should have done. Defendant told her that he had taken a loaded gun to a meeting "[b]oth at least once with his psychologist and his psychiatrist, because if they tried to have him . . . committed, he would kill himself." On another occasion, while he was in treatment for depression, he came home, took one of his loaded guns, and hid in the bushes, because he was "afraid that they might come to get him." She was concerned about his threat to others, but defendant never threatened to harm anyone else. Taylor moved to northern California and attempted to keep her address a secret from defendant. Hughes opined that Taylor was truthful and reasonable, and that she did not exaggerate the facts.
The trial court instructed the jury that Taylor's out-of-court statements to Hughes were admitted not for the truth of what Taylor believed about defendant, but for "the understanding that . . . Hughes might have had or gained as a result of having heard these things from" Taylor.
At one point, Taylor agreed to a meeting with both attorneys and defendant, but she did not agree to be in the same room with defendant. Defendant seemed upset and angry during the meeting, though Hughes did not know if this was his normal demeanor because he had never met him before. Defendant also made some negative comments to Hughes to the effect of " '[y]ou're making my wife do something that she doesn't want to do.' " According to Hughes, the parties' divorce was unusually difficult, because defendant was uncooperative and very bitter towards Taylor. Defendant blamed her for the divorce and thought that she was "really a bad person."
On August 3, 2016, Hughes received an e-mail from defendant in which he explained why he thought Taylor should waive her interest in the pension plan. Defendant indicated that the delay had caused him to lose more than $18,000 in pension benefits. He wrote: "I have come to a conclusion that I would like to pass along to your client. This conclusion would be incomprehensible without some supporting information." Defendant explained that he had "been diagnosed with major clinical depression" that "put him in danger of suicide on several occasions." He stated: "The most serious of these was the night that your client [Taylor] kicked me out of the house . . . using the specious excuse that she was afraid that I might physically hurt her. As I left the house I said to her 'You are sending me away to my death, you know that don't you?' Her answer was to look me in the eye and coolly say, 'I am aware of that possibility.' " Defendant concluded that Taylor "acted as she did as part of a plan to cause [his] death," because she would receive all of the property including his pension if he died. Defendant continued: "I have realized that I have been able to live with my depression as long as I have not had to worry about money. Even considering the very large sums that your client has already taken from me my financial resources have been sufficient to allow me to live in such a way as to keep the depression at bay. [¶] I now believe that I can't [l]ive with the depression if your client takes any part of my pension. [¶] I ask you to pass this conclusion on to your client. I am going to allow her ten days to review this, and to provide me with a document stating irrevocably that she gives up any rights that she has to my pension. [¶] I seriously doubt that your client will even consider acting as I have requested. When your client fails to act, my daughter will understand the sequence of events."
On August 8, 2016, at approximately 11:30 a.m., Hughes was in his office when he received a phone call. The person said, " 'This is Chris Copeland.' " Defendant said "something like 'I have been thinking about it and I think I understand why you are not more helpful in having my wife waive her interest in my pension plan. I think the problem is that you have no skin in the game, and I've decided that if I don't survive, you're not going to survive.' " Hughes responded, " 'Are you threatening me?' " Defendant said, " 'I'm going to shoot you and then I'm going to shoot myself and then you will have some skin in the game.' . . . [¶] . . . 'You have until the end of the week.' " Defendant was "very calm and measured, didn't seem excited to [Hughes]. Very matter of fact." During the phone conversation, Hughes took notes of "what [he] was hearing from [defendant] while he was talking" to him. Hughes wrote the date and time of the call and defendant's name. He also wrote: " 'If I don't survive, you don't survive. Then you have skin in the game. Walk up to me, shoot me, shoot himself . . . by end of week.' "
Hughes was "concerned" and "worried" and wondered what he should do about the threat. He walked into an adjoining office and told another attorney, Cheryl Weiss, "I just got a death threat." He related the contents of the phone call and they discussed what he should do. He contacted the police about 10 or 15 minutes after the phone call.
Though a recording of the 911 call was played for the jury and introduced into evidence, the transcript was not. During the 911 call, Hughes stated that defendant said: "I understand the problem is that you . . . don't have any skin in the game on this dispute. So . . . I figured out how to . . . make you have some skin in the game. . . . I don't think I'm gonna survive this case if I have to give her part of my retirement, so if I don't survive, you're not gonna survive." Hughes asked defendant, "Are you threatening me?" Defendant replied: "[Y]es I am. What I'm gonna do is walk up to you and shoot you, and then I'm gonna shoot myself . . . so now you've got some skin in the game. I'll give you 'til the end of the week to think about it."
Hughes later called Taylor to let her know what had happened, and that he had given her name and phone number to the police. Hughes asked Taylor if she could provide him with a photograph to give to the receptionist. He also asked her to describe the cars that defendant might be driving. Hughes wanted to be able to check the parking lot next to his building to see if there were any cars that could have been defendant's car.
Hughes took other security measures, such as locking all the office doors and installing a home security system. After defendant threatened him, Hughes was looking over his shoulder a lot. He had previously been threatened "maybe two or three times" from an opposing party, but he had never called the police. On those occasions, the individuals were "just a little angry or under stress."
The assets of the marriage included a number of firearms, a gun safe, and thousands of rounds of ammunition. The parties had agreed that the firearms would be distributed to defendant. Though Hughes knew that defendant had "a lot of guns" and ammunition, he did not learn about defendant's proficiency with firearms until after the threat. Hughes took the threat seriously because he knew defendant had "the means to do that and reason to do that at the time" and he had "no way of reading his mind to know whether he really truly intends to do that." Hughes did not get a restraining order, because he did not "feel that would do any good at all."
Weiss heard Hughes say, "Are you threatening me?" Immediately after the phone call ended, Hughes exited his office and explained to her that he had a case in which the opposing party was self-represented and had issues regarding the division of the pension benefits. Hughes told her that "the man had said to him, " 'I think the problem here is that you don't have skin in the game. So I'm going to give you skin in the game. I'm going to come down there and I'm going to shoot you in the face and I'm going to shoot myself.' " Hughes also identified defendant as the person who had made the call. Weiss went home, because she felt "extraordinarily uncomfortable after hearing the threat." They locked their doors and were vigilant about checking the parking lot for several weeks after the incident.
Detective Jason Favreau was assigned to the case. On August 19, 2016, he contacted defendant at the Sunnyvale Rod and Gun Club. He also wrote a search warrant for defendant's phone. There was a call to Hughes' office on August 8, 2016, at 11:29 a.m. for about two minutes.
B. Defense Case
Defendant testified on his own behalf. In 1982, he began working for Chubb, an insurance company, and retired from the company 29 years later. Defendant's hobbies included competitive shooting and photography. He thought that he and Taylor had a very successful marriage. During the marriage, he suffered from nerve damage in his arms from too much typing as well as depression. Taylor had expressed concern that his illness was affecting her own health, but she had never said anything about ending the marriage. His depression became worse over time. One evening, Taylor told him that she was afraid of him and wanted him to leave. Her decision was a "complete shock" to him. At that point, his "depression was really, really bad."
After Taylor initiated dissolution of marriage proceedings, it was explained to defendant that he and Taylor would be dividing all of the assets that they had accumulated during the marriage, including the retirement accounts and the pension benefits from Chubb. Defendant thought that "the California law is guaranteed to be unfair . . . . [¶] And the way it's set up, the person that put in the most money gets -- suffers a large financial loss and the person that put in the least amount of money suffers a financial gain as a result of marriage."
A meeting was held at Stein's office to discuss an agreement between defendant and Taylor. Defendant did not feel like shaking Hughes's hand so he said, " 'Let's get this underway.' " According to defendant, he and Taylor had agreed 20 years earlier that in the event of a divorce "whatever you put into the marriage would be what you got out." Taylor did not remember any such agreement. Defendant cooperated by doing everything necessary to divide their assets with the exception of the Chubb pension benefits. He continued to accrue pension benefits until May 9, 2016.
When defendant sent the e-mail to Hughes on August 3, 2016, he wrote about how he could not live without the Chubb pension benefits. He "meant . . . that if [he] suffered this defeat . . . [his] sense of self would be broken." He referred to the final sentence, which stated: "When your client fails to act, my daughter will understand the sequence of events." Defendant explained that this sentence "meant that [his] daughter would understand that her mother was insisting that she had part of [his] pension."
On August 8, 2016, defendant called Hughes, because he could not accept that he was going to lose 40 percent of his pension that he had spent 29 years earning. Defendant explained, "In retrospect it sounds foolish, but I was soliciting his assistance man to man" "[t]o somehow do something so that I could keep my pension." He admitted that "[his] emotions led [him] to do something that did not make a lot of sense."
After defendant introduced himself, he told Hughes that he was calling to ask for his help. Defendant explained, " 'I just cannot adjust to the idea of losing a big chunk of my pension.' " Hughes responded, " 'It is what it is,' " which increased defendant's frustration level. Defendant said, " 'I'm the only person that has skin in the game.' " He explained that Hughes was not affected by the agreement and Taylor "really didn't care one way or the other, other than she wanted to hurt [him] and that just left [him] as the only person being injured." Defendant was angry and resentful. Defendant initially testified that he then said "something along the lines of 'you know, do I have to shoot myself to get people to understand how serious this is?' " Defendant did not recall threatening to shoot Hughes. The following day, defendant testified that he said to Hughes, " 'Do I have to shoot you and then shoot myself? Is that what it's going to take here?' " He also testified that he told Hughes that he would shoot Hughes and himself. Defendant explained that after he had a night to think about the phone call and after listening to all the witnesses, he had a better recollection of his statements to Hughes. When Hughes asked whether he was threatening him, defendant replied, "I think you're a cowardly scoundrel," and hung up the phone. In response to Hughes's question, defendant did not say, "No."
Defendant testified he never intended to threaten Hughes during the call. He was trying to "simply communicate [his] frustration of what [he] perceived . . . as something very, very unfair." After the phone call ended, defendant decided to sign the paperwork and send it to his daughter to give to Taylor. Defendant did nothing to intimidate Hughes after the phone call.
C. Stipulations
The parties stipulated: defendant called Hughes on August 8, 2016, at 11:29 a.m. and the call lasted 126 seconds; the threat actually caused Hughes to be in sustained fear for his own safety; and Hughes's fear was reasonable under the circumstances.
II. Discussion
Defendant contends that the trial court erroneously admitted the following evidence: Stein's statement to Hughes to "be careful"; the police contacted defendant at a firearm shooting range; and Hughes's notes, Weiss's testimony, and the 911 call.
A. Stein's Statement to Hughes
Defendant contends that the trial court erred when it admitted evidence that Stein told Hughes, "Larry, be careful," because it was irrelevant and prejudicial character evidence.
1. Background
Defense counsel brought an in limine motion to exclude Hughes's testimony that Stein had told him, "Larry, be careful," when she informed Hughes that she was withdrawing from the case. He argued that the statement was ambiguous as to what Stein was referring to, more prejudicial than probative under Evidence Code section 352, and a violation of the attorney-client privilege. The defense theory was that Hughes, "because of his state of mind -- quite frankly, years of receiving negative and hostile information from [defendant's] ex-wife about the state of mind and the nature of [defendant] -- prejudged any type of conversation that he had . . . with [defendant] and misunderstood the intent of the words communicated by [defendant] to Mr. Hughes in this telephone conversation. So the nature and extent of some of the things that were said are not going to be at issue. It is my client's intent in making those statements that's going to be the crux of this case."
All further statutory references are to the Evidence Code unless otherwise stated.
The prosecutor argued that the statement was relevant on the issue of the reasonableness of Hughes's fear and that Stein's statement corroborated what Taylor had been telling Hughes. Defense counsel reiterated that the existence and reasonableness of Hughes's fear were not issues. The trial court took the motion under submission.
When the parties and the trial court reconvened two days later, the prosecutor stated that "the People would be willing to stipulate" to the elements that the threat caused Hughes to be in sustained fear and that his fear was reasonable under the circumstances. The trial court ruled that the statement was admissible because it was "relevant to the perception of the threat, if not to the reaction by Mr. Hughes [such] that the 352 issue [wasn't] significant enough . . . to exclude it under those grounds." The trial court also ruled that the statement did not violate the attorney-client privilege or constitute attorney work product.
Defendant does not pursue the attorney-client privilege in his appeal.
Defense counsel restated his objections to the evidence. In response, the prosecutor argued: "I think listening to voir dire and kind of what [defense counsel's] indicated seems to be that ultimately the issue's going to be there was a misinterpretation of what was said on that day. The defendant, in fact, didn't have that intent, and the fact that there is another person who wasn't the victim and, in fact, was his attorney said something about being careful, I think it's relevant with respect to that. There was no misunderstanding, and that, in fact, the defendant did intend for those words, whatever they may be, ultimately to be a threat especially when that warning came before the actual threat itself." Defense counsel responded that the statement was inadmissible character evidence under section 1101, because it "paint[s] his character as someone who would engage in this type of behavior."
The trial court reasoned: "I will have to admit that most of my mental wrestling with the 1101 issues dealt specifically with the portion of the charge in Penal Code section 422 with regard to intent. How much of the prior dealings and understandings and motivations are also admissible not for proof that the act was committed or that an act similar to this was in the history of the defendant, but in the motivation and intent, totally different purpose rather than the 1101, and I finally fell on the side of deciding that it wouldn't be proof that the defendant acted in a way consistent with prior reputation or character, but that he formed an intent to make a threat, and for that reason, it would be admissible for a totally different purpose."
2. Analysis
"In order to prove a violation of [Penal Code] 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, in writing, or by means of an electronic communication device'—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. Toledo (2001) 26 Cal.4th 221, 227-228 (Toledo).)
" '[T]he determination whether a defendant intended his words to be taken as a 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.' " (People v. Butler (2000) 85 Cal.App.4th 745, 754.)
"No evidence is admissible except relevant evidence." (§ 350.) Evidence is relevant if it has "any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (§ 210.) " ' "The test of relevance is whether the evidence tends, 'logically, naturally, and by reasonable inference' to establish material facts such as identity, intent, or motive." ' " (People v. Wilson (2006) 38 Cal.4th 1237, 1245, quoting People v. Harris (2005) 37 Cal.4th 310, 337 (Harris).)
This court reviews the trial court's ruling on the admissibility of evidence under section 210 for abuse of discretion. (Harris, supra, 37 Cal.4th at p. 337.) We will not disturb a trial court's exercise of discretion in admitting or excluding evidence "except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice [citation]." (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
Defendant argues that the trial court abused its discretion in admitting Stein's statement, because it was irrelevant to any material fact in dispute.
Here, the defense theory presented at the hearing on the motions in limine was that defendant did not intend to threaten Hughes. According to defense counsel, Hughes "misunderstood the intent of the words communicated by" defendant based on "years of receiving negative and hostile information from" Taylor. But the warning by an adversary, rather than by his own client, served to bolster Hughes's perception that defendant intended to threaten him. Thus, this evidence was relevant to rebut the defense theory.
Defendant argues the evidence was speculative, because Stein did not tell Hughes why he should be careful. He asserts that "Ms. Stein may have sought to warn Mr. Hughes to exercise caution simply because [defendant] or some other mutual acquaintance had become difficult or litigious, which might require Hughes to exercise extra care in performing his job. She could have meant that Mr. Hughes should take care in preparing paperwork." However, the relevance of this evidence was not based on the reasons for Stein's warning. The evidence was relevant to show Hughes's perceptions were based not only on his own client's statements, but also on statements by an individual whose interests were adverse to his.
Defendant argues that there was no evidence produced at trial that Stein's statement had any influence on Hughes. However, "[i]n assessing the trial court's evidentiary ruling, we must consider the facts known to the court at the time the ruling was made." (People v. Hendrix (2013) 214 Cal.App.4th 216, 243 (Hendrix).)
Defendant also relies on People v. Felix (2001) 92 Cal.App.4th 905 (Felix) to support his position that the evidence was irrelevant. In Felix, the defendant was charged with making criminal threats after he had made threatening statements about his ex-girlfriend to his psychologist. (Id. at p. 908.) Defendant's ex-girlfriend testified that the psychologist called her, but the trial court sustained a hearsay objection after the prosecutor asked her whether the psychologist communicated any threats to her. (Id. at p. 909.) The ex-girlfriend then testified that she said, " 'Oh, my God, he's going to try to kill me' " after the phone call. (Ibid.) The defendant argued that the statements he made during therapy were not threats. (Id. at p. 911.) The Felix court held that there was insufficient evidence that the psychologist had communicated the defendant's statements to the ex-girlfriend. The court reasoned: "[I]nexplicably, the trial court sustained [the defendant's] objections to the content of the telephone call between [the psychologist] and [the ex-girlfriend] on hearsay and relevance grounds. The conversation between [the psychologist] and [the ex-girlfriend], not offered for the truth of the matter asserted, was not hearsay, and might have been highly relevant. It could have shown whether in fact [the psychologist] related a threat to [the ex-girlfriend]. The trial judge could have determined the relevance of this disputed preliminary fact by way of a[] . . . section 402 hearing where [the psychologist] could have testified out of the presence of the jury, about what he said to [the ex-girlfriend]. [Citation.] If [the psychologist] had merely told [the ex-girlfriend] that [the defendant] was dangerous and that she should be careful, the objection should have been sustained. [The psychologist] testified he called [the ex-girlfriend], she testified she talked to him, but neither of them testified about what [the psychologist] said. Therefore there was no evidence that [the psychologist] told [the ex-girlfriend] the content of [the defendant's] statements." (Id. at p. 912.)
The Felix court rejected the Attorney General's argument that one could infer the psychologist conveyed a threat to the ex-girlfriend when she said, " 'Oh, my God, he's going to try to kill me.' " (Felix, supra, 92 Cal.App.4th at p. 912.) The court explained: "[T]here must be evidence to support an inference and the prosecution may not fill an evidentiary gap with speculation. [Citations.] A therapist is not required to disclose the patient's statements when giving a Tarasoff warning. [Citation.] [The psychologist] could have achieved the same reaction from [the ex-girlfriend], without mentioning [the defendant's] statements, by simply warning her that [the defendant] was dangerous. [Citation.] [The ex-girlfriend's] statements might have been prompted by the threats made on [a prior occasion]." (Ibid.)
Felix does not assist defendant. In Felix, there was no evidence that the psychologist communicated the defendant's statements to the ex-girlfriend and the content of the statements could not be inferred from the ex-girlfriend's statements after the call. In contrast to Felix, here, there was evidence of defendant's statements to Hughes. More importantly, the basis for Stein's statement to Hughes was not relevant. Rather, the evidence was admitted to provide the context in which Hughes viewed defendant's statements, that is, to rebut the defense theory that Hughes misunderstood the words used by defendant based on "negative and hostile information" provided by his former wife.
Defendant next points out that the parties stipulated that "the threat actually caused Larry Hughes to be in sustained fear for his own safety" and "Larry Hughes' fear was reasonable under the circumstances." Relying on People v. Bonin (1989) 47 Cal.3d 808 (Bonin), defendant argues that the admission of Stein's statement to Hughes was therefore inadmissible. The Bonin court held when a proposed stipulation removed certain facts from dispute, the evidence to prove such facts was irrelevant and inadmissible. (Id. at pp. 848-849.)
The Bonin court relied on principles set forth in People v. Hall (1980) 28 Cal.3d 143 (Hall). (Bonin, supra, 47 Cal.3d at pp. 848-849.) In Hall, the California Supreme Court noted that there is an "exception to this rule of exclusion. If the facts to which the defendant has offered to stipulate retain some probative value, then evidence of such facts may be introduced. For example, if evidence remains relevant to an issue not covered by the stipulation or admission, the evidence is admissible on the remaining issue. [Citations.]" (Hall, at pp. 152-153.) As previously stated, Stein's statement retained probative value to rebut the defense theory that Hughes misunderstood defendant's intent based on information provided by Taylor.
Hall, supra, 28 Cal.3d 143 was abrogated by constitutional provision on other grounds as stated in People v. Valentine (1986) 42 Cal.3d 170, 177-181.
Defendant also claims that the trial court abused its discretion under section 1101 when it found Stein's statement was admissible to demonstrate defendant intended to threaten Hughes.
Section 1101, subdivision (a) generally prohibits the admission of evidence "of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) . . . when offered to prove his or her conduct on a specified occasion." However, subdivision (b) of section 1101 allows the admission of a defendant's prior bad act to prove intent. "Evidence of uncharged crimes is admissible to prove . . . intent only if the charged and uncharged crimes are sufficiently similar to support a rational inference of . . . intent. [Citation.]" (People v. Kipp (1998) 18 Cal.4th 349, 369.) "The least degree of similarity is required to establish relevance on the issue of intent. [Citation.] For this purpose, the uncharged crimes need only be 'sufficiently similar [to the charged offenses] to support the inference that the defendant " 'probably harbor[ed] the same intent in each instance.' [Citations.]" ' " (Id. at p. 371.)
Defendant argues that since no evidence existed that he had previously threatened Stein or Hughes or that such threats prompted Stein's warning, the evidence was inadmissible under section 1101. However, since the trial court did not admit evidence of a prior bad act by defendant and Stein's statement was not admitted to prove the existence of any prior bad act, section 1101, subdivisions (a) and (b) were not implicated in the present case. As previously stated, here, the evidence was admitted to rebut the defense theory that Hughes had misunderstood defendant's intent based solely on information provided by Taylor.
Defendant contends that the evidence was substantially more prejudicial than probative under section 352.
Section 352 permits the exclusion of admissible evidence if its probative value is "substantially outweighed by the probability that its admission would create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (People v. Harrison (2005) 35 Cal.4th 208, 229 (Harrison).) " ' "The 'prejudice' referred to in . . . section 352 applies 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. In applying section 352, 'prejudicial' is not synonymous with 'damaging.' " [Citation.]' [Citation.] . . . ' "Rather, the statute uses the word in its etymological sense of 'prejudging' a person or cause on the basis of extraneous factors. [Citation.]" [Citation.]' [Citation.]" (People v. Scott (2011) 52 Cal.4th 452, 491 (Scott).) We review the trial court's ruling on the admissibility of evidence under section 352 for abuse of discretion. (People v. Fuiava (2012) 53 Cal.4th 622, 667-668.)
Here, Stein's statement to Hughes did not uniquely tend to evoke an emotional bias against defendant or cause the jury to prejudge defendant based on extraneous factors. As previously stated, it was presented to rebut the defense theory. Moreover, it was no more inflammatory than other evidence in the case.
Defendant also argues that the prosecutor referred to this evidence and argued that "each woman contributed to the perception of [defendant] as a dangerous, unstable person." But "[i]n assessing the trial court's evidentiary ruling, we must consider the facts known to the court at the time the ruling was made." (Hendrix, supra, 214 Cal.App.4th at p. 243.) Accordingly, we reject this argument.
In sum, the trial court did not abuse its discretion when it admitted Stein's statement to Hughes.
B. Defendant's Presence at a Shooting Range
Defendant contends that the trial court erred when it admitted evidence that the police contacted him at a shooting range.
Prior to trial, the prosecutor sought to admit testimony that the police contacted defendant at a shooting range after he made the threat. Defense counsel argued that defendant's presence at a shooting range almost a week after the event and where "he ha[d] been literally thousands of times in his life" was not relevant to his intent when he made the phone call. Noting that the People were not required to prove that defendant had the ability to carry out his threat, the prosecutor argued that defendant's ability to do so presented strong evidence that he intended for his words to be taken as a threat by Hughes. The trial court admitted the evidence.
Defendant points out that there was no evidence that Hughes ever became aware of defendant's visit to the shooting range and Hughes did not know defendant had any proficiency with firearms until he was later so informed by Taylor. Thus, he argues that the evidence that police contacted him at the shooting range did not tend to show that defendant intended Hughes to take his words as a threat.
Defendant also notes that the prosecutor did not present any evidence that he went to the shooting range to practice his marksmanship.
The intent element of Penal Code section 422 requires 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 . . . .' " (Toledo, supra, 26 Cal.4th at pp. 227-228.) We are not persuaded by defendant's argument that this element requires that the victim be aware of the defendant's conduct before or after the threat for evidence of this conduct to be relevant in establishing defendant's intent. As the Attorney General points out, the intent element of Penal Code section 422 focuses on the defendant's mental state, not the victim's mental state. (Toledo, at pp. 227-228.)
People v. Martinez (1997) 53 Cal.App.4th 1212 (Martinez) provides some guidance. In Martinez, the defendant said to the victim, " 'I'll get back to you, I'll get you.' " (Id. at p. 1215.) The following morning, there were two fires at the victim's workplace. (Id. at pp. 1215-1216.) The Martinez court noted that "defendant's activities after making the threat support a finding that he was threatening death or great bodily injury to" to the victim. (Id. at p. 1220.) The court also explained that though Penal Code "section 422 does not require an intent to actually carry out the threatened crime, if the defendant does carry out his threat, his actions might demonstrate what he meant when he made the threat, thereby giving meaning to the words spoken. By analogy, the California Supreme Court has found it permissible for the jury to look to defendant's post-murder activities to aid in its determination of premeditation and deliberation." (Martinez, at pp. 1220-1221.) Thus, Martinez stands for the proposition that a defendant's conduct after making the threat may support a finding that he was threatening death or great bodily injury to the victim. (Id. at p. 1220.)
Here, unlike in Martinez, defendant's words were not ambiguous. By analogy, however, we consider the surrounding circumstances. Defendant's presence at the shooting range after the threat was some evidence that he had acted with the specific intent that his statement to shoot Hughes be taken as a threat. That defendant's conduct did not occur during or shortly after the threat weakened its probative value as to the requisite intent under Penal Code section 422. However, as defense counsel pointed out, defendant had been to the shooting range "thousands of times." But since the probative value of the evidence was not "substantially outweighed by the probability that its admission would create substantial danger of undue prejudice" (Harrison, supra, 35 Cal.4th at p. 229), the trial court did not abuse its discretion when it admitted this evidence.
C. Hughes's Notes, Weiss's Testimony, and the 911 Call
Defendant next contends that the trial court erred when it admitted into evidence Hughes's notes, Weiss's testimony, and the 911 call. He argues this evidence was irrelevant and cumulative.
1. Background
During pretrial proceedings, defense counsel objected to the admission of Hughes's call to 911 on the ground that it was cumulative, unduly time-consuming, and more prejudicial than probative under section 352. The prosecutor argued that the evidence was admissible to show Hughes's fear and the reasonableness of his fear. He also argued that this evidence "corroborate[s] the victim's statement . . . and it shows the credible nature of his statement as well." Defense counsel stated that Hughes's fear and the reasonableness of his fear was not going to be an issue at trial and he was willing to stipulate to that effect. The trial court admitted the portion of the 911 call in which Hughes described the threat, identified defendant as the perpetrator, and briefly explained the role of the pension in the threat.
Defense counsel also objected to the admission of Weiss's testimony. He argued that her testimony constituted hearsay and would be "unduly time consuming for a very little purpose." Defense counsel stated that the nature of Hughes's statements would not be challenged at trial, so Weiss's testimony would be unduly time consuming under section 352 and irrelevant. The prosecutor responded that the 911 call and Weiss's testimony were "highly relevant to show what the victim said was consistent, . . . what was said ultimately was a threat and it wasn't a misunderstanding . . . ." The trial court admitted Weiss's testimony for the truth of the matter asserted.
The prosecutor sought the admission of the notes that Hughes made during the August 8 call. He argued that the notes would "corroborate what was said to Mr. Hughes as he was taking down those notes and especially while the threats were ongoing." Defense counsel responded that Hughes's testimony was not going to be challenged by the defense and thus the evidence of the 911 call, Weiss's testimony, and Hughes's notes was "unduly cumulative." Defense counsel represented that the defense theory was that Hughes prejudged any conversation with defendant, because he had received years of negative and hostile information from Taylor about defendant, and thus he misunderstood defendant's intent. The trial court admitted the notes.
Defendant contends that the challenged evidence provided "the prosecution with the opportunity to present Mr. Hughes' core testimony regarding the contents of the August 8, 2016, phone call at least three times. After hearing Mr. Hughes version of the call that many times, the jury could view any variation in the contents of the call from [defendant] with suspicion. This bolstering was prejudicial, and the trial court should have dealt with it by making the prosecution elect fewer sources for the same narrative."
" ' "[Q]uestions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal. [Citation.]" ' [Citations.]" (People v. Williams (2008) 43 Cal.4th 584, 620.) Since defendant did not object to Weiss's testimony and Hughes's notes on the ground that they were more prejudicial than probative, he has forfeited this argument.
Even assuming that the argument has not been forfeited, defendant's argument acknowledges that the evidence of Hughes's notes, Weiss's testimony, and the 911 call allowed the jury to "view any variation in the contents of the call from [defendant] with suspicion." Thus, the evidence was relevant to the jury's determination as to which witness was more credible. Nor was the evidence unduly prejudicial, since it did not uniquely tend to evoke an emotional bias against defendant or cause the jury to prejudge defendant based on extraneous factors. (Scott, supra, 52 Cal.4th at p. 491.)
Defendant relies on People v. Williams (2009) 170 Cal.App.4th 587 (Williams) for the proposition that "the trial court should have . . . [made] the prosecution elect fewer sources for the same narrative." In Williams, the defendant "challenged the cumulative impact of admitting evidence of dozens of prior crimes." (Id. at p. 610.) The reviewing court found that "neither the prosecution nor the defendant has a right to present cumulative evidence that creates a substantial danger of undue prejudice [citation] or that unduly consumes the court's time [citation]." (Id. at p. 611.) The court concluded: "Although no bright-line rules exist for determining when evidence is cumulative, we emphasize that the term 'cumulative' indeed has a substantive meaning, and the application of the term must be reasonable and practical. Here, . . . we conclude it was an abuse of discretion to admit cumulative evidence concerning issues not reasonably subject to dispute. The sheer volume of evidence extended the trial—and the burden on the judicial system and the jurors—beyond reasonable limits, and the endless discussions among the trial court and counsel concerning the admissibility of such evidence amounted to a virtual street brawl." (Ibid.)
The present case is readily distinguishable from Williams. Here, the volume of challenged evidence was substantially less than that in Williams. The 911 call was brief, the notes were short, and Weiss's testimony consisted of five pages in the reporter's transcript. The discussions as to the admissibility of the evidence were not "endless." (Williams, supra, 170 Cal.App.4th at p. 611.) Consequently, the burden placed on the judicial system and eventually the jury was minimal. Further, the challenged evidence was relevant to and probative of Hughes's credibility. Defendant's reliance on Williams is misplaced.
D. Cumulative Error
Defendant contends that the cumulative impact of the trial court's errors requires reversal of the judgment. Since we have found no error, there is no prejudice to cumulate. (People v. Lee (2011) 51 Cal.4th 620, 657.)
III. Disposition
The judgment is affirmed.
/s/_________
Mihara, J. WE CONCUR: /s/_________
Elia, Acting P. J. /s/_________
Grover, J.