Opinion
D070901
05-05-2017
THE PEOPLE, Plaintiff and Respondent, v. RUBEN MURRIETA DURAZO, Defendant and Appellant.
Lindsey M. Ball, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Theodore M. Cropley and Stephanie H. Chow, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JCF36188) APPEAL from a judgment of the Superior Court of Imperial County, William D. Lehman, Judge. Reversed with directions. Lindsey M. Ball, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Theodore M. Cropley and Stephanie H. Chow, Deputy Attorneys General, for Plaintiff and Respondent.
Ruben Murrieta Durazo appeals his jury-tried conviction for making a criminal threat in violation of Penal Code section 422, subdivision (a). He contends (1) the court prejudicially erred by failing to instruct sua sponte on the lesser included offense of attempted criminal threat, (2) the court erred in admitting preliminary hearing testimony of an unavailable witness, and (3) he received ineffective assistance of counsel when his trial lawyer failed to object to the admission of what he describes as character evidence.
All statutory references are to the Penal Code unless otherwise specified.
We hold the court prejudicially erred in failing to instruct on the lesser included offense of attempted criminal threat, but reject Durazo's other contentions.
FACTUAL AND PROCEDURAL BACKGROUND
A. Ruben Threatens to Kill Sandra
Ruben and his wife, Sandra, have been married 23 years. Their two adult children, Edwin and Michelle, live with them, together with Michelle's two minor children.
Because the defendant and several of the witnesses in this case have the same surname, we refer to them by their first names for clarity and convenience.
One night in March 2016 Ruben came home drunk. An argument ensued between Ruben and Sandra. Initially there was no physical confrontation nor any threat of violence, just name-calling. But after Ruben tried to force his way into her bedroom, Sandra called the police.
El Centro Police Department Officer Richard Ramos responded. After restoring order by telling Ruben and Sandra to remain in separate bedrooms the remainder of the night, Officer Ramos departed.
Edwin arrived home and went to his room to study for an upcoming college examination. Hearing Ruben and Sandra arguing again, Edwin went to Sandra's bedroom, where Ruben was trying to force open the door. As Edwin pushed back against the door, Ruben hit him with his hand.
At about this time, Michelle returned home. While Michelle stayed with Sandra, Edwin called the police.
By this time, Ruben was "very angry" and said to Sandra, "Te voy a matar," which in English means, "I am going to kill you."
Officer Ramos returned to the Durazo home. Sandra told Officer Ramos that Ruben did not remain in his bedroom and tried to force his way into her bedroom.
Michelle recorded Ruben's threat to kill Sandra on her cell phone. Michelle played the recording for Officer Ramos, who testified he heard on the recording "the sound of a male saying, 'Te voy a matar.'"
Officer Ramos arrested Ruben. Ruben denied any wrongdoing; however, after Office Ramos told him Michelle recorded his threat, Ruben said he did not mean what he had said.
The district attorney charged Ruben with making a criminal threat. The case went to trial in July 2016, about four months after the incident.
A principal factual dispute at trial was whether Ruben's threat caused Sandra to fear for her safety. Officer Ramos testified that Sandra told him Ruben threatened to kill her, and she was afraid. However, Sandra testified she did not recall that conversation with Officer Ramos, and she was not afraid:
"Q: And what did [Ruben] say to you?
"A: Well, he was very angry and he said that he wanted to kill me.
"Q: Were you afraid?
"A: No.
"Q: Why not?
"A: I was angry. I wasn't afraid.
"Q: Why were you not afraid?
"A: Because I don't think that he's capable of doing that."
B. No Instruction on Lesser Included Offense of Attempted Criminal Threats
After the parties rested, the court and counsel discussed whether the court should instruct the jury on attempted criminal threat as a lesser included offense. Following an off-the-record conversation, the court went back on the record to summarize that discussion:
"We met earlier this morning and discussed jury instructions and we have agreement regarding instructions that the Court will give.
"One subject we should discuss for the record is the fact that in the view of counsel and the Court, there are no appropriate lesser-included offense instructions that should be given.
"The one lesser-included offense that might apply that we discussed was the offense of attempted criminal threats, but—and basically our discussion involved scenarios that are in no way akin to this case.
"I think [the prosecutor] mentioned that he could recall an Email that was intercepted before it got to the intended recipient of the threat, and perhaps that's an example of attempted criminal threats. Or it could involve a situation where, you know, a threat is communicated to a third party but is not passed on to the intended recipient, but none of those scenarios apply here.
"And the threat, if it was made, according to the evidence, was made directly to the intended recipient, Sandra Durazo. I think both sides concede that there's no basis in the evidence for giving an instruction on attempted criminal threats."
Both the prosecutor and defense attorney acknowledged this accurately reflected their respective position.
C. Instructions, Verdict, Sentencing
The court instructed the jury with CALCRIM No. 1300 on the elements of a criminal threat, which includes that the threat caused the victim "to be in sustained fear for her own safety."
The jury returned a verdict finding Ruben guilty of making a criminal threat as charged.
The court suspended imposition of sentence and placed Ruben on formal probation for three years under various terms and conditions, including, among other things, that he serve eight days in county jail (with credit for eight days), participate in Alcoholics Anonymous, perform community work service, and participate in a 52-week certified anger management counseling educational program.
DISCUSSION
I. THE COURT PREJUDICIALLY ERRED IN NOT INSTRUCTING ON ATTEMPTED
CRIMINAL THREAT AS A LESSER INCLUDED OFFENSE
Ruben contends his conviction for making a criminal threat should be reversed because the court failed to sua sponte instruct on the lesser included offense of attempted criminal threats. This argument has merit.
A. The Standard of Review
"We independently review a trial court's failure to instruct on a lesser included offense." (People v. Cook (2006) 39 Cal.4th 566, 596.)
B. The Duty to Sua Sponte Instruct on Lesser Included Offenses
"'The trial court is obligated to instruct the jury on all general principles of law relevant to the issues raised by the evidence, whether or not the defendant makes a formal request.' [Citations.] 'That obligation encompasses instructions on lesser included offenses if there is evidence that, if accepted by the trier of fact, would absolve the defendant of guilt of the greater offense but not of the lesser.' [Citations.] 'To justify a lesser included offense instruction, the evidence supporting the instruction must be substantial—that is, it must be evidence from which a jury composed of reasonable persons could conclude that the facts underlying the particular instruction exist.'" (People v. Souza (2012) 54 Cal.4th 90, 115-116.)
C. Criminal Threats—Elements
A defendant commits the offense of criminal threat where (1) the defendant "willfully threatens to commit a crime which will result in death or great bodily injury to another person"; (2) the defendant makes the threat "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"; (3) "on its face and under the circumstances in which it is made," the threat "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"; (4) 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) the threatened person's fear was reasonable under the circumstances. (§ 422, subd. (a).)
D. Attempted Criminal Threats—Elements
In People v. Toledo (2001) 26 Cal.4th 221 (Toledo), the California Supreme Court considered whether there was a crime of attempted criminal threat. There, a husband argued with his wife. He threw a telephone, tossed a chair across the room, and punched a hole through a door. (Id. at p. 225.) The husband then told the wife that "'death [was] going to become [her] tonight,'" and he was going to kill her. (Ibid.) Later, the husband approached his wife with a pair of scissors and plunged the scissors toward her neck, stopping inches from her skin. (Ibid.) The wife told police she was afraid her husband was going to kill her. (Ibid.) But at trial, the wife denied being afraid. (Ibid.) The jury convicted the husband of attempted criminal threat and found him not guilty of making a criminal threat. (Id. at p. 226.) He appealed, asserting there was no such crime as attempted criminal threat. (Ibid.)
The Court in Toledo, supra, 26 Cal.4th 221 affirmed the defendant's conviction for attempted criminal threat. (Id. at p. 226.) The Court held a defendant may be found guilty of attempted criminal threat "whenever, acting with the specific intent to commit the offense of criminal threat, the defendant performs an act that goes beyond mere preparation and indicates that he or she is putting a plan into action." (Id. at p. 230.)
By way of example, the Court in Toledo, supra, 26 Cal.4th 221 noted that an attempted criminal threat would exist where "a defendant takes all steps necessary to perpetrate the completed crime of criminal threat by means of a written threat, but the crime is not completed only because the written threat is intercepted before delivery to the threatened person." (Id. at p. 231.) Similarly, a defendant could be guilty of attempted criminal threat where, with the requisite intent, he makes a sufficient threat orally, directly to the victim, but the victim does not understand the threat, or, where, "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." (Ibid.)
E. The Court Erred
Attempted criminal threat is a lesser included offense of criminal threats. (Toledo, supra, 26 Cal.4th at p. 226.) Although recognizing its obligation to instruct on lesser included offenses where supported by the evidence, the trial court declined to instruct on attempted criminal threat because in this case, Ruben directly threatened Sandra. The court believed an attempt criminal threat occurs only where an indirectly transmitted threat does not reach the intended victim.
The court erred in failing to instruct on attempted criminal threat as a lesser included offense. It is true, as the court stated, that an attempted criminal threat may occur where a threat is not made directly to the intended recipient, and is intercepted or for some other reason fails to reach the intended victim. (Toledo, supra, 26 Cal.4th at p. 231.) However, that is not the only way to commit an attempted criminal threat. As the California Supreme Court in Toledo noted, attempted criminal threat may also occur where a sufficient threat is made with the requisite intent directly to the intended victim, who for whatever reason is not afraid. (Ibid.)
The relevant facts in Toledo, supra, 26 Cal.4th 221 are indistinguishable from those here. In Toledo, the husband orally threatened to kill his wife, stating, "I am going to kill you." (Id. at p. 224.) The wife told police she "was afraid" the defendant "was going to kill her." (Id. at p. 225.) However, when she testified at trial, the wife "denied that she had entertained any fear of defendant on the evening in question." (Ibid.)
The operative facts here are the same. Ruben orally threatened to kill Sandra. Sandra told Officer Ramos she was afraid. However, at trial Sandra testified she was not afraid.
In Toledo, supra, 26 Cal.4th 221, the trial court instructed the jury on attempted criminal threat as a lesser included offense of making criminal threats. (Id. at p. 226.) The jury convicted the husband of attempted criminal threats, but acquitted him on the charge of making a criminal threat. (Ibid.) In affirming that conviction, the Supreme Court noted that because the wife testified she was not afraid of the threat, the jury may have entertained a reasonable doubt whether the threat actually caused her fear. (Id. at p. 235.) "Thus, the jury evidently found defendant guilty only of attempted criminal threat rather than the complete crime of criminal threat, not because defendant's conduct fell short of that required by the criminal threat provision, but simply because defendant's threat happened not to have as frightening an impact upon [wife] as defendant in fact had intended." (Ibid.)
Similarly here, the court was required to instruct on attempted criminal threat because even if Ruben acted with the requisite intent and made a sufficient threat, there was substantial evidence—Sandra's own trial testimony—supporting a finding that Sandra was not afraid. Of course, this is not the only reasonable inference that could be drawn from the evidence, but it is not an unreasonable inference. Accordingly, the trial court had a sua sponte obligation to instruct on the lesser included offense of attempted criminal threat.
F. No Invited Error
"[A] defendant may not invoke a trial court's failure to instruct on a lesser included offense as a basis on which to reverse a conviction when, for tactical reasons, the defendant persuades a trial court not to instruct on a lesser included offense supported by the evidence. [Citations.] In that situation, the doctrine of invited error bars the defendant from challenging on appeal the trial court's failure to give the instruction." (People v. Barton (1995) 12 Cal.4th 186, 198.)
The Attorney General asserts the invited error doctrine bars Ruben's claim of instructional error because at trial Ruben's attorney agreed there was no evidentiary basis for instructing on attempted criminal threat. However, for the invited error doctrine to apply "it must be clear from the record that counsel had a deliberate tactical purpose in suggesting or acceding to an instruction, and did not act simply out of ignorance or mistake." (People v. Maurer (1995) 32 Cal.App.4th 1121, 1127.) "This is because important rights of the accused are at stake, and it is the trial court's duty fully to instruct the jury." (Id. at p. 1128.) Invited error exists only where trial counsel both "'"'intentionally caused the trial court to err'"'" and "'clearly did so for tactical reasons.'" (People v. Cady (2016) 7 Cal.App.5th 134, 145.)
The Attorney General contends "the record clearly shows that defense counsel 'made a conscious tactical choice'" to forgo instructions on attempted criminal threat as a lesser included offense. We disagree. Ruben's lawyer did not affirmatively request the court refrain from giving the lesser included offense instruction. Nor did defense counsel indicate, either expressly or implicitly, that Ruben desired to forgo the instruction as a tactical move to force an all-or-nothing choice between conviction of the greater offense or acquittal. Rather, the record shows Ruben's lawyer, the prosecutor, and the court were all laboring under a misunderstanding, believing attempted criminal threat necessarily required evidence of an indirectly communicated threat that failed to reach the intended victim. The record does not show the defense caused the court to fail to instruct on attempted criminal threat or had a tactical purpose for doing so. Therefore, there is no invited error.
G. The Error Was Prejudicial
"'"[T]he failure to instruct sua sponte on a lesser included offense in a noncapital case is, at most, an error of California law alone, and is thus subject only to state standards of reversibility." [Citation.] Under the state standard, "such misdirection of the jury is not subject to reversal unless an examination of the entire record establishes a reasonable probability that the error affected the outcome." [Citations.] "The Supreme Court has emphasized 'that a "probability" in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.'"'" (People v. Brown (2016) 245 Cal.App.4th 140, 155 (Brown).)
Citing Toledo, supra, 26 Cal.4th at pages 225-226, Ruben contends it is reasonably probable that a properly instructed jury would have acquitted him of making a criminal threat because there was conflicting evidence on whether Sandra was in sustained fear. We agree. As noted ante, the core facts in Toledo are strikingly similar to those here: (1) a domestic dispute; (2) husband orally threatens to kill wife; (3) wife tells police she is afraid husband is going to kill her; (4) at trial, wife testifies she was not afraid. (Toledo, supra, 26 Cal.4th at pp. 224-225.) In Toledo, the jury acquitted the defendant of making criminal threats but found him guilty of the crime of attempted criminal threat. (Id. at p. 226.) The jury in Ruben's case should have been given the same opportunity, but the instructional error precluded it from acquitting Ruben of making a criminal threat and finding him guilty of the attempt crime. A "'jury without an option to convict a defendant of a lesser included offense might be tempted to convict the defendant of an offense greater than that established by the evidence instead of rendering an acquittal.'" (Brown, supra, 245 Cal.App.4th at p. 155.)
The Attorney General asserts the error is not prejudicial because substantial evidence supports Ruben's conviction, and we cannot reweigh the jury's determinations on witness credibility. However, the relevant inquiry is not whether Ruben's conviction is supported by substantial evidence, but instead whether there is substantial evidence that would have supported a conviction for the lesser included offense. (People v. Avila (2009) 46 Cal.4th 680, 705.)
The Attorney General also contends the error is not prejudicial because "[t]he jury clearly rejected [Ruben's] argument . . . that Sandra was not afraid" because it found him guilty of making a criminal threat. In a related argument, the Attorney General asserts, "The jury found that [Ruben] was guilty of the greater offense, and therefore rejected the lesser included offense."
These arguments are untenable because in assessing the prejudicial effect of failing to instruct on a lesser included offense "'it does not matter that the jury chose to convict the defendant of the greater offense over acquittal or that the defendant was convicted of the greater offense on sufficient evidence.'" (Brown, supra, 245 Cal.App.4th at p. 156.) To hold otherwise "would undermine the very purpose of the sua sponte rule." (Ibid.)
In sum, we do not find the instructional error harmless. Without the lesser attempted criminal threat instruction, the jury faced an unwarranted all-or-nothing choice of conviction or acquittal on facts showing Ruben was guilty of some offense against Sandra. It is reasonably probable that the availability of a third option—an instruction allowing the jury to convict Ruben of attempted criminal threat—would have resulted in a different verdict, just as it did in Toledo, supra, 26 Cal.4th at page 226.
H. Remedy
The Attorney General contends that if a greater offense must be reversed, but a lesser included offense could be affirmed, the prosecution is given the option to retry the greater offense or to accept a reduction to the lesser offense. (Brown, supra, 245 Cal.App.4th at pp. 155-156.) Ruben agrees this is the correct remedy in this case. He also concedes that "the evidence upon which the jury relied when it convicted him of criminal threats is sufficient to prove the crime of attempted criminal threats."
Accordingly, on remand, the People may elect to retry the case against Ruben for making a criminal threat, or instead elect to accept a reduction of the conviction to attempted criminal threat. Because the prosecution has the option to retry the entire case, we address Ruben's additional appellate contentions for guidance on remand.
II. THE COURT DID NOT ERR IN ADMITTING MICHELLE'S PRELIMINARY
HEARING TESTIMONY
A. Additional Factual Background
Michelle testified at Ruben's preliminary hearing. However, apparently unwilling to testify against her father at trial, Michelle successfully evaded service of a trial subpoena.
Before trial, the People brought a motion to admit excerpts of Michelle's preliminary hearing testimony into evidence at trial. To demonstrate Michelle was an unavailable witness, the prosecutor filed a declaration from Kim Hall, an investigative assistant for the Imperial County District Attorney's Office.
In her declaration, Hall stated she used several databases to obtain Michelle's photograph, address, and telephone number. On June 27, 2016, Hall received a subpoena to serve on Michelle for a court appearance on July 1, 2016. Between June 27 and June 29, 2016, Hall attempted to serve Michelle approximately five times by going to Michelle's residence, which is secured by a locked gated fence. Hall approached the gate and telephoned Michelle, but received no response. On June 29, 2016, Hall personally served Sandra with a trial subpoena when Sandra exited the same residence and approached the front gate. Sandra told Hall that Michelle was inside and refused to come out.
At the hearing, the prosecutor asserted Michelle should be deemed unavailable, stating, "Well, we can't set the house on fire. As much as we'd like to break down the door and give her a subpoena, we can't do that either."
The court suggested additional efforts could have been made, "such as talking to people, trying to figure out whether she drives a car, the license plate, whether she goes to work, what her routine is . . . ." The prosecutor replied, "There was no evidence to indicate that she was leaving the house, that she had any other job . . . ." The prosecutor stated Hall made five attempts to serve Michelle, and, based on information in the database consulted, there was no evidence Michelle was employed or lived elsewhere.
The court asked defense counsel whether it was reasonable to require the People to "station somebody undercover outside the house in hopes that she'll leave." Ruben's lawyer conceded that "[n]o case says that."
After taking the matter under submission, the court stated, "I think the facts are pretty clear based on the [investigator's] declaration, that this is a witness . . . who's making a calculated effort to avoid service of process." The court ruled the People made reasonable efforts to serve Michelle "by leaving cards, by making phone calls, by going by there on several occasions." Accordingly, the court found the People used "due diligence" and allowed the prosecutor to use a transcript of Michelle's preliminary hearing testimony at trial.
At trial, the prosecutor read portions of Michelle's preliminary hearing testimony, where Michelle stated she did not see Ruben get in a physical altercation with Edwin and she recorded Ruben's threat to kill Sandra because she "always record[s] stuff like that."
B. Confrontation Clause Argument
Ruben contends the court erroneously determined Michelle was an unavailable witness and, therefore, violated his constitutional right to confront prosecution witnesses by allowing the prosecutor to read Michelle's preliminary hearing testimony at trial.
A criminal defendant has a constitutional right to confront prosecution witnesses, but the right is not absolute. (People v. Cromer (2001) 24 Cal.4th 889, 892 (Cromer).) "An exception exists when a witness is unavailable and, at a previous court proceeding against the same defendant, has given testimony that was subject to cross-examination." (Ibid.) We "independently review a trial court's determination that the prosecution's failed efforts to locate an absent witness are sufficient to justify an exception to the defendant's constitutionally guaranteed right of confrontation at trial." (Id. at p. 901.)
Under this due diligence exception, prior testimony of an unavailable witness may be admitted at trial without violating a defendant's rights of confrontation. (People v. Herrera (2010) 49 Cal.4th 613, 621; Evid. Code, § 1291, subd. (a)(2).) "A witness who is absent from a trial is not 'unavailable' in the constitutional sense unless the prosecution has made a 'good faith effort' to obtain the witness's presence at the trial." (Herrera, at p. 622.) Evidence Code section 240, subdivision (a)(5) describes an "unavailable" witness as one who is "[a]bsent from the hearing and the proponent of his or her statement has exercised reasonable diligence but has been unable to procure his or her attendance by the court's process."
Evidence Code section 1291, subdivision (a)(2) provides: Evidence of former testimony is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and: [¶]. . . . [¶] (2) The party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing."
Reasonable or due diligence is "'incapable of a mechanical definition,' but it 'connotes the persevering application [of] untiring efforts in good earnest, efforts of a substantial character.'" (Cromer, supra, 24 Cal.4th at p. 904.) Factors to be considered include the timeliness of the search, the importance of the witness's testimony, and whether leads to the witness's possible location were reasonably explored. (Ibid.) "'Where the record reveals, . . . that sustained and substantial good faith efforts were undertaken, the defendant's ability to suggest additional steps . . . does not automatically render the prosecution's efforts "unreasonable."'" (People v. Diaz (2002) 95 Cal.App.4th 695, 706.)
Ruben contends the court's determination that Michelle was intentionally avoiding service is not supported by substantial evidence. We disagree. The investigator made five attempts to contact Michelle. The investigator attempted service of the subpoena at the correct location—Michelle's mother confirmed Michelle was inside the house—but stated Michelle refused to come out. Moreover, the investigator consulted certain databases available to the district attorney's office. At the hearing, the prosecutor explained these databases indicated Michelle was not employed outside the home. Accordingly, the prosecution reasonably determined there was no other place to find Michelle other than at her residence. Based on the conversation between the investigator and Sandra, a reasonable and indeed compelling inference is Michelle was intentionally refusing to step outside to avoid being compelled to testify against her father at trial.
Moreover, even if there was any error here, we would find such error harmless. Confrontation clause violations are subject to the test for prejudice found in Chapman v. California (1967) 386 U.S. 18. "We ask whether it is clear beyond a reasonable doubt that a rational jury would have reached the same verdict absent the error. (People v. Loy (2011) 52 Cal.4th 46, 69-70.) Ruben contends any error was prejudicial because "the prosecution's case heavily relied on [Michelle's] testimony about recording [Ruben's] statements to Officer Ramos." We disagree. Michelle's testimony was merely cumulative of other evidence, the admissibility of which Ruben does not challenge on appeal. For example, Sandra testified Ruben threatened to kill her. Officer Ramos testified that Michelle recorded Ruben's threat and played the recording for him. Officer Ramos testified he heard a male voice on the recording say, "Te voy a matar." Thus, even if the court had excluded Michelle's preliminary hearing testimony, there would be ample substantial evidence that Ruben threatened to kill Sandra.
Explaining why she recorded Ruben's threat, Michelle testified she "always record[s] stuff like that." Ruben assets any error in allowing the jury to hear Michelle's preliminary hearing testimony is prejudicial because the prosecution "capitalized" on this testimony to argue Ruben's threat was serious and justified Sandra feeling afraid. However, Sandra testified Ruben was "very angry" when he said he "wanted to kill [her]." Edwin testified Ruben was trying to force the door open to get at Sandra. Officer Ramos testified Sandra told him Ruben was "trying to force himself into the bedroom." He also testified Sandra told him she was afraid. Given this evidence—the admissibility of which Ruben does not challenge—there was ample evidence establishing Ruben's threat was serious and Sandra reasonably was afraid, entirely apart from Michelle's testimony.
Ruben also asserts Michelle's preliminary hearing testimony was prejudicial because inconsistencies between Michelle's and Sandra's testimony "worked in the prosecution's favor and swayed the jury to disbelieve Sandra's testimony and convict [Ruben]" of making a criminal threat. Ruben's argument is unpersuasive. The inconsistencies Ruben identifies were on minor peripheral points, such as whether Sandra wanted to go to sleep or instead wanted Ruben to leave the house. These are insignificant details having nothing to do with whether Sandra was afraid for her life. There is no reasonable doubt that a rational jury would have reached the same outcome under the circumstances, even without Michelle's preliminary hearing testimony.
III. THE COURT DID NOT ERR IN ADMITTING WHAT RUBEN DESCRIBES AS
"CHARACTER EVIDENCE"
A. Additional Factual Background
During Edwin's direct examination, the prosecutor asked whether Ruben had threatened to get him in trouble with police by planting drugs in his car:
"Q: At any point in time while you were at home, did your father ever threaten you or anyone else in your presence?
"A: Not me.
"Q: He never threatened to set you guys up, to plant drugs on you or anything like that?
"A: Not me. I didn't hear that."
Later, the prosecutor asked Officer Ramos the same line of questions:
"Q: [W]ere there any other statements that Edwin made to you in regards to the Defendant making threats that evening?
"A: Yes.
"Q: And what were those?
"A: He mentioned to me that he was afraid that his father would plant some drugs in their vehicle to get them in trouble."
Ruben contends evidence that he threatened to plant drugs in Edwin's car is character evidence, which is inadmissible under "both Evidence Code sections 1101, subdivision (a), and 352." He asserts this evidence improperly suggested he was "involved with narcotics" and was "improperly offered to show he had the criminal disposition or propensity to commit the charges . . . ." Ruben contends the evidence was not only inadmissible, but the prosecutor also committed misconduct and violated Ruben's due process rights in eliciting this testimony because before trial, the prosecutor represented to the court he would not elicit evidence of uncharged past misconduct. Ruben acknowledges his trial counsel failed to object to the evidence he challenges here and that ordinarily a defendant must object at trial to preserve an evidentiary or misconduct issue on appeal. However, Ruben contends the issue is properly considered on appeal because (1) any objection would have been futile; (2) claims of prosecutorial misconduct are reviewable, even absent objection, where the case is "'closely balanced and there is grave doubt of defendant's guilt'"; and (3) the appellate court may consider the issue in its discretion. In the event we deem the issue forfeited by the failure to object, Ruben contends that failure constitutes ineffective assistance of counsel.
Evidence Code section 1101, subdivision (a) provides in part: "Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person's character or a trait of his or her character . . . is inadmissible when offered to prove his or her conduct on a specified occasion."
Evidence Code section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
B. No Error, No Misconduct
Character evidence is evidence of a person's propensity or tendency to act in a certain way under certain circumstances. (See People v. Long (2005) 126 Cal.App.4th 865, 871.) Evidence Code section 1101, subdivision (a) states the general rule that "evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion."
Ruben's argument fails because the evidence he challenges is not character evidence contemplated by Evidence Code section 1101. The evidence was relevant—not because it showed Ruben had a propensity to threaten to kill his wife—but because it showed Ruben was trying to dissuade Edwin from talking with police. An accused's effort to suppress evidence against himself is admissible to show a consciousness of guilt. (People v. Vines (2011) 51 Cal.4th 830, 867, superseded by statute on another point as recognized in People v. Robertson (2012) 208 Cal.App.4th 965, 981.)
Defense counsel's failure to object does not reflect ineffective assistance of counsel, but rather that any objection to this evidence under Evidence Code section 1101 or Evidence Code section 352 would have been meritless.
In any event, even assuming for the sake of argument there was error, it was not prejudicial under any standard. It was undisputed that Ruben threatened to kill his wife. The outcome of the trial turned on whether that threat (1) communicated a serious intention and the immediate prospect of being carried out, (2) actually caused Sandra to be in sustained fear for her safety, and, if so, (3) whether that fear was reasonable. In addressing these points in closing argument, neither the prosecutor nor the defense attorney said one word about evidence that Ruben threatened to plant drugs in Edwin's car. This shows the challenged evidence was inconsequential. It was inconsequential to the lawyers in their closing arguments, and beyond any reasonable doubt, it was also inconsequential to the jury.
DISPOSITION
The judgment is reversed with the following directions: If, after the filing of the remittitur in the trial court, the People do not retry defendant on the charged offense within the time limit of Penal Code section 1382, subdivision (a)(2) (i.e., 60 days unless waived by defendant), the trial court shall proceed as if the remittitur constituted a modification of the judgment to reflect a conviction of the lesser included offense of attempted criminal threat (§§ 664, 422) and shall resentence defendant accordingly. (See People v. Brown, supra, 245 Cal.App.4th at p. 173.)
NARES, J. WE CONCUR: McCONNELL, P. J. BENKE, J.