Filed 5/9/16 P. v. Jimenez CA2/4
               NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   SECOND APPELLATE DISTRICT

                                                DIVISION FOUR


THE PEOPLE,                                                           B262250

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. KA103273)
         v.

JOSHUA CAIN JIMENEZ,

         Defendant and Appellant.



         APPEAL from judgment of the Superior Court of Los Angeles County,
Bruce F. Marrs, Judge. Affirmed in part, reversed in part, and remanded with
directions.
         Janet Uson, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle
and Timothy M. Weiner, Deputy Attorneys General, for Plaintiff and Respondent.




                      ___________________________________________
                                INTRODUCTION
      Joshua Cain Jimenez appeals from a judgment and sentence, following his
conviction for making criminal threats against his estranged wife, Cynthia
Castaneda. He contends (1) that the trial court erred in admitting prior uncharged
crimes and other character evidence, (2) that the court erred in not instructing the
jury, sua sponte, that his out-of-court statements should be viewed with caution;
and (3) that there was insufficient evidence to support his conviction. He further
                                                                     1
contends that the court abused its discretion in denying his Romero motion to
strike prior “strikes,” and that it improperly imposed two five-year enhancements
                                                   2
under Penal Code section 667, subdivision (a)(1). For the reasons set forth below,
we will affirm the conviction, vacate one five-year enhancement, and remand for
resentencing.


                           PROCEDURAL HISTORY
      Appellant was charged in an information with first degree burglary of
Castaneda’s residence (§ 459; count 1), and making criminal threats against
Castaneda and their daughter, N. (§ 422, subd. (a); counts 2 & 3). It was further
alleged that appellant had suffered two strikes within the meaning of the “Three
Strikes” law, had two prior serious felonies within the meaning of section 667,
subdivision (a)(1), and had served five prior prison terms.
      A jury convicted appellant of count 2 (criminal threats against Castaneda)
and acquitted him of the remaining counts. In a bifurcated proceeding, the trial
court found true allegations that appellant had suffered two strikes and that he had

1
      People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
2
      All further statutory citations are to the Penal Code, unless otherwise stated.


                                          2
been convicted of two serious felonies under section 667, subdivision (a). The
court also found true four of the prior prison term allegations.
      Although the trial court denied appellant’s Romero motion to strike either of
his prior “strikes,” it struck the four prior prison term allegations. The court
sentenced appellant to 25 years to life, plus five years for each of the two section
667, subdivision (a)(1) enhancements, for a total of 35 years to life.
      Appellant timely appealed from the judgment.


                           FACTUAL BACKGROUND
      Castaneda testified that she married appellant in 2004, but that they
separated in 2009. Over defense objections, Castaneda explained that the
separation resulted from appellant’s physical and verbal abuse due to his drug
habit. Castaneda also stated that after they separated, appellant did not pay child
support.
      On April 16, 2012, appellant called Castaneda, and threatened her, saying he
would “blow your fuckin’ head off.” Castaneda believed appellant’s threat
because “[h]e always carrie[d] a gun, had guns on him.” Appellant subsequently
pled no contest to making criminal threats.
      On May 25, 2012, Castaneda called 911 after appellant came to her
residence and “pound[ed]” on her door. She also called 911 on March 27, 2012,
after appellant broke into her gated community and began chasing her then-
boyfriend.
      On September 12, 2013, Castaneda, N. and appellant were in a vehicle when
an altercation erupted between Castaneda and appellant. Castaneda caught
appellant looking through her purse, wallet and cell phone. She thought he might
have taken some money because he had stolen her credit card before. Appellant


                                           3
began yelling at Castaneda and called her a “whore.” In response, Castaneda
reminded appellant that he talked to other girls, including a girl who had called him
for drugs. Appellant denied supplying drugs. Eventually Castaneda drove to
appellant’s mother’s house. She tried to drop appellant off, but he refused to leave.
He grabbed her hand, and Castaneda swung her arms at appellant, scratching him
in the face with the ring on her hand. As a result of the incident, Castaneda
pleaded no contest to a misdemeanor count of inflicting corporal injury on a spouse
or ex-spouse. Castaneda also was served with a restraining order, keeping her
away from appellant.
      On September 18, 2013, Castaneda filed for a restraining order against
appellant after he called her family and friends and showed up at her house at
“weird hours of the night.” She kept a copy of the restraining order on the night
stand next to her bed. However, the restraining order was never served on
appellant.
      On September 23, 2013, Castaneda was sleeping with their daughter, N.,
when she felt some water on her face. When she opened her eyes, appellant was
standing next to the bed. Castaneda “freaked out.” She testified that appellant did
not have keys to her residence, that he was not allowed to live there, and that she
did not invite him over.
      Appellant told Castaneda to “shut the fuck up, don’t scream.” He also told
her to do whatever he said and threatened to “blow [her] head off.” Castaneda
retrieved the restraining order from her night stand. She told appellant: “[T]here’s
a restraining order on you. Why are you here[?]” Appellant responded that he did
not care about the restraining order. He told her to “shut up,” and said he had a
gun. Castaneda believed him.




                                          4
      Castaneda picked up her daughter and walked toward her father’s room.
Appellant followed them, grabbing and pulling on Castaneda’s hair. Appellant
then stated he was “gonna blow that little bitch’s brains out,” referring to N.
Castaneda managed to reach her father’s room and went inside; her father was not
there. She tried to close the door, but appellant pushed it open. During the
struggle, Castaneda saw a gun in appellant’s pocket. She told him, “[S]top, you’re
scaring the baby.” Appellant told N. to “come here,” but she refused. He told N.
that if she did not come to him, he would hurt her. Appellant then told Castaneda
he would ruin her life, which Castaneda understood to mean that appellant would
put her in jail and make her lose her nursing license.
      Castaneda went to her brother’s room with N. The door was locked, and
Castaneda tried to pick the lock with her fingernail. When her brother opened the
door, appellant ran down the stairs and exited by the front door.
      Castaneda then called 911. A recording of the 911 call was played for the
jury. During the call, Castaneda told the 911 operator that appellant had broken
into her house and threatened to kill her “whole family” if she called the police.
She told the operator that appellant was on parole and that she had been trying to
serve him with a restraining order. When asked whether she saw a gun, Castaneda
stated she did not, but noted that he lied often.
      Castaneda was later interviewed by a police officer, and a recording of that
interview was played for the jury. Castaneda told the officer that appellant would
hang out with gang members. Her statements regarding the instant incident were
consistent with her trial testimony, except she did not mention seeing a gun. At
trial, she explained that she was scared to mention the gun to the 911 operator or
the officer due to appellant’s prior threats.




                                           5
      On cross-examination, defense counsel stated: “Now, you’ve mentioned
that Mr. Jimenez is a gang member, right?” Castaneda responded: “Well, when I
met him, I didn’t -- he was cleaned up. He told me he wasn’t involved in anything.
He was working.” Counsel also asked Castaneda why she told the 911 dispatcher
that she was unsure whether appellant was lying when he said he had a gun.
Castaneda explained that appellant had twice pulled a gun on her, and she ended up
in the hospital after being beaten by appellant. Asked whether she called the
police, Castaneda replied, “Yes.” Counsel then asked what happened to the case,
and Castaneda responded that, “It should be in his record.” Counsel inquired about
the dates of the incidents, and Castaneda responded that it was in 2005 or 2006.
Counsel also asked Castaneda to explain why appellant would say that a
restraining order would not stop him. Castaneda explained that appellant had
ignored a prior restraining order.
      On redirect, the prosecutor used appellant’s prior convictions to refresh
Castaneda’s recollection of the dates appellant physically abused her and violated a
restraining order. Castaneda confirmed that appellant was arrested for beating her
on March 15, 2005 and June 13, 2006, and that he was arrested for violation of a
protective order on March 24, 2009.
      N., who was six years old at the time of the incident, testified that she woke
up when Castaneda went to the restroom. N. saw appellant “pop[ ] out” and heard
him say something to Castaneda. Castaneda came back into the bedroom, and N.
heard her say, “[T]here’s a restraining order, you can’t go near us.” Appellant then
threw Castaneda’s cell phone at her. N. and her mother went to her grandfather’s
and uncle’s rooms. They could not get into the uncle’s room because it was
locked. N. observed appellant pulling Castaneda’s hair, and she heard appellant




                                         6
tell Castaneda that he would “try to get” N. Appellant also said he would “blow
our heads off.” N. was scared when she saw that appellant had a gun.
      The officer who interviewed Castaneda also interviewed N. The recording
of the interview was played for the jury. In the interview, N. stated that appellant
had broken into the house and told Castaneda that he would kill her (Castaneda).
N. said appellant told her he missed her. She did not say that appellant threatened
to kill her, or that he had a gun.
      Appellant did not testify.


                                     DISCUSSION
      A.     The Trial Court Committed No Reversible Error in Admitting
Evidence of Prior Criminal Convictions and Other Character Evidence.
      Appellant contends the trial court abused its discretion in admitting (1) his
conviction for making criminal threats against Castaneda on April 16, 2012,
(2) other prior uncharged acts, and (3) other character evidence under Evidence
Code section 1101. Evidence Code section 1101provides in relevant part:
“(a) Except as provided in this section and in Section[] . . . 1109, 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. [¶] (b) Nothing in this section prohibits the admission of evidence that a
person committed a crime, civil wrong, or other act when relevant to prove some
fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake or accident, . . .) other than his or her disposition to commit
such an act.” Evidence Code section 1109 provides that subject to exceptions not
at issue in this case, “in a criminal action in which the defendant is accused of an


                                          7
offense involving domestic violence, evidence of the defendant’s commission of
other domestic violence is not made inadmissible by Section 1101 if the evidence
is not inadmissible pursuant to Section 352.”3 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.” The trial court’s rulings under
Evidence Code sections 352, 1101, and 1109 are reviewed for abuse of discretion.
(See People v. Foster (2010) 50 Cal.4th 1301, 1328; People v. Kipp (1998)
18 Cal.4th 349, 369.)
      Here, over defense counsel’s Evidence Code section 352 objection, the trial
court ruled that evidence of prior acts of domestic violence and threats was
admissible to establish a “foundation” for the “reasonableness of [Castaneda’s]
fear on the particular date in question.” Whether a criminal threat caused a victim
to sustain reasonable fear is an element of a section 422 offense. (See People v.
Toledo (2001) 26 Cal.4th 221, 227-228 [enumerating elements of section 422
offense].) Thus, evidence that appellant had made prior threats or was capable of
carrying out his charged threats was admissible, subject to Evidence Code section
352. (See People v. Malone (1988) 47 Cal.3d 1, 18 [“to be admissible, evidence of
other crimes must be relevant to some material fact in issue, must have a tendency

3
       “Domestic violence” is defined as “abuse” committed against “a spouse,
former spouse, cohabitant, former cohabitant, or a person with whom the suspect
has had a child or is having or has had a dating or engagement relationship.”
“Abuse” is “intentionally or recklessly causing or attempting to cause bodily
injury, or placing another person in reasonable apprehension of imminent serious
bodily injury to himself or herself, or another.” (§ 13700.) Family Code section
6211 extends domestic abuse to include abuse against a child of a party or any
“other person related by consanguinity or affinity within the second degree.”

                                          8
to prove that fact, and must not contravene other policies limiting admission, such
as Evidence Code section 352”]; People v. McCray (1997) 58 Cal.App.4th 159,
172 [evidence of defendant’s past domestic abuse victim was admissible under
Evidence Code section 1101, as it was relevant to prove defendant’s threats
reasonably caused victim to fear for her safety]; see also People v. Chacon (1968)
69 Cal.2d 765, 777 [“When a prior conviction is an essential element of an offense,
it is admitted to prove something other than the defendant's bad character, and is
admissible for that purpose”], overruled in part on other grounds by People v.
Doolin (2009) 45 Cal.4th 390.) Thus, evidence that appellant was a parolee,
associated with gang members, always carried guns, ignored valid restraining
orders, and had prior convictions for criminal threats and domestic abuse was
admissible under Evidence Code section 1101. Moreover, evidence of prior
domestic abuse was independently admissible under Evidence Code section 1109.
Finally, such evidence was not inadmissible under Evidence Code section 352, as
it was probative of the reasonableness of Castaneda’s fear, did not necessitate
undue consumption of time, and was not unduly prejudicial. (See People v.
McCray, supra, 58 Cal.App.4th at p. 173 [“Given the relevance and probative
value of the evidence of past domestic violence, it is clear the court did not abuse
its discretion in finding the probative value was not ‘substantially outweighed by
the probability that its admission [would] . . . create substantial danger of undue
prejudice.’ (Evid. Code, § 352.)”]; see also People v. Padilla (1995) 11 Cal.4th
891, 924 [“although the record must affirmatively show that the trial court weighed
prejudice against probative value in admitting evidence of prior bad acts
[citations], the trial judge ‘need not expressly weigh prejudice against probative




                                          9
value -- or even expressly state that he has done so [citation.].’”], overruled on
                                                                      4
another point in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)
      As to evidence that appellant abused drugs, never paid child support, had
stolen Castaneda’s credit card and was a possible drug supplier, any error in
admitting such evidence was harmless. (See People v. Malone, supra, 47 Cal.3d at
p. 22 [erroneous admission of other crimes-evidence reviewed under People v .
Watson (1956) 46 Cal.2d 818 (Watson)].) The references were fleeting and the
evidence not more prejudicial than other admissible character evidence. More
important, as discussed below, Castaneda and N. consistently testified that
appellant threatened to kill Castaneda. Thus, it is not reasonably probable that the
result would have been more favorable to appellant had this character evidence
been excluded.




4
       Appellant contends the prior criminal conviction for making criminal threats
was not admissible under Evidence Code section 1101 to show a common plan or
absence of mistake, as the prior incident was substantially dissimilar from the
instant incident. We need not address this contention, as we conclude the evidence
was admissible to prove Castaneda’s fear was reasonable.
       Appellant further contends that the two prior incidents of abuse resulting in
Castaneda’s hospitalization were inadmissible under Evidence Code section 1109,
as those incidents occurred 2005 and 2006, more than seven years before the
current incident. Evidence Code section 1109 has a five-year limitations period for
“domestic violence” within the meaning of Family Code section 6211, but a 10-
year limitations period for “domestic abuse” within the meaning of Penal Code
section 13700. As “domestic violence” under Penal Code section 13700 includes
abuse of a spouse or former spouse, the prior incidents in 2005 and 2006 fell
within the 10-year limitations period in Evidence Code section 1109, and were
presumptively admissible.

                                          10
      B.     The Evidence was Sufficient to Sustain Appellant’s Conviction for
Criminal Threats.
      Appellant contends the evidence was insufficient to support his conviction
for making criminal threats against Castaneda. “In determining whether the
evidence is sufficient to support a conviction . . . , ‘the relevant question is
whether, after viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.’ [Citations.] Under this standard, ‘an appellate court
in a criminal case . . . does not ask itself whether it believes that the evidence at the
trial established guilt beyond a reasonable doubt.’ [Citation.] Rather, the
reviewing court ‘must review the whole record in the light most favorable to the
judgment below 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.’
[Citation.]” (People v. Vy (2004) 122 Cal.App.4th 1209, 1224, italics omitted.)
“In deciding the sufficiency of the evidence, a reviewing court resolves neither
credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and
inconsistencies in the testimony is the exclusive province of the trier of fact.
[Citation.] Moreover, unless the testimony is physically impossible or inherently
improbable, testimony of a single witness is sufficient to support a conviction.
[Citation.]” (People v. Young (2005) 34 Cal.4th 1149, 1181.)
      “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


                                            11
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, supra, 26 Cal.4th at pp. 227-228, quoting
§ 422.)
      Here, Castaneda testified that she was scared because appellant threatened to
kill her (“blow your head off”), and N. testified that appellant said he would “blow
our heads off.” Pointing to inconsistencies between their trial testimony and prior
statements, appellant argues that Castaneda’s and N.’s testimony was “inherently
insubstantial and unreliable.” As noted, however, we do not resolve factual
conflicts or reweigh evidence. Moreover, the inconsistencies between the trial
testimony and prior statements to law enforcement or the 911 operator involved (1)
whether Castaneda and N. saw a gun, and (2) whether appellant threatened to kill
N. Both Castaneda and N. consistently stated that appellant threatened to kill
Castaneda, and the recorded 911 call and the taped police interviews confirmed
these accounts. Their testimony was not physically impossible or inherently
improbable. Accordingly, substantial evidence supported appellant’s conviction.


      C.     Any Error in Failing to Instruct the Jury that Appellant’s Out-of-
Court Statements Should be Viewed With Caution was Harmless.
      Appellant contends he was denied due process and a fair trial as a result of
the trial court’s failure to instruct the jury, sua sponte, that his statements that he


                                            12
would kill Castaneda should be considered with caution. Appellant notes that at
the time of his trial, California courts had a sua sponte duty to give such a
cautionary instruction. (See, e.g., People v. McKinnon (2011) 52 Cal.4th 610, 679
[“It is well established that the trial court must instruct the jury on its own motion
that evidence of a defendant’s unrecorded, out-of-court oral admissions should be
viewed with caution.”].) However, in a case decided after appellant’s trial, the
California Supreme Court held the trial court has no sua sponte duty to give the
cautionary instruction “when the statements at issue form the basis of a prosecution
for making criminal threats.” (People v. Diaz (2015) 60 Cal.4th 1176, 1181
(Diaz).) In Diaz, the Supreme Court noted that “[t]he cautionary instruction is
concerned with the reliability and credibility of the witness who testifies about the
defendant’s statements.” (Id. at p. 1187.) However, as “courts are now required to
instruct the jury, in all criminal cases, concerning the general principles that apply
to their consideration of witness testimony” (Id. at p. 1190; see also People v.
Rincon-Pineda (1975) 14 Cal.3d 864, 883-884), “the cautionary instruction on
defendant’s statements is no longer so necessary to the jury’s understanding of the
case as to require the court to give it sua sponte.” (See Diaz, supra, 60 Cal.4th at
p. 1191.) Thus, trial courts have no sua sponte duty to give the cautionary
instruction. (Id. at p. 1190.)
      We need not address appellant’s contention that Diaz should not be applied
retroactively, as any instructional error was harmless. (See Diaz, supra, 60 Cal.4th
at p. 1195 [failure to give cautionary instruction reviewed for harmless error under
Watson].) The jury was instructed on assessing witness credibility and the
prosecution’s burden of proof beyond a reasonable doubt. “‘[W]hen the trial court
otherwise has thoroughly instructed the jury on assessing the credibility of
witnesses, we have concluded the jury was adequately warned to view their


                                          13
testimony with caution.’” (Diaz, supra, 60 Cal.4th at p. 1196, quoting People v.
McKinnon, supra, 52 Cal.4th at p. 680.) Moreover, as discussed above, Castaneda
and N. consistently and independently stated that appellant threatened to kill
Castaneda. Even if viewed with caution, their testimony was compelling. (See
Diaz, supra, 60 Cal.4th at pp. 1195-1196 [error in failing to give cautionary
instruction harmless where witnesses’ testimony regarding substance and meaning
of defendant’s threatening statements largely consistent]; People v. Dickey (2005)
35 Cal.4th 884, 906 [where there was no conflict in the evidence, “but simply a
denial by the defendant that he made the statements attributed to him, we have
found failure to give the cautionary instruction harmless”].) Thus, it is not
reasonably probable the jury would have reached a result more favorable to
appellant had the cautionary instruction been given.


      D.     The Trial Court did not Abuse its Discretion in Denying Appellant’s
Romero Motion to Strike Prior “Strikes.”
      Appellant next contends that the court abused its discretion in denying his
motion to strike one or both of his prior “strikes.” “[I]n ruling whether to strike or
vacate a prior serious and/or violent felony conviction allegation or finding under
the Three Strikes law, . . . the court in question must consider whether, in light of
the nature and circumstances of [the defendant’s] present felonies and prior serious
and/or violent felony convictions, and the particulars of his background, character,
and prospects, the defendant may be deemed outside the scheme’s spirit, in whole
or in part, and hence should be treated as though he had not previously been
convicted of one or more serious and/or violent felonies.” (People v. Williams
(1998) 17 Cal.4th 148, 161.) “[A] trial court will only abuse its discretion in
failing to strike a prior felony conviction allegation in limited circumstances,” such


                                          14
as where the resulting sentence is “‘“arbitrary, capricious or patently absurd”’”
under the specific facts of a particular case. (People v. Carmony (2004) 33 Cal.4th
367, 378.)
      In denying appellant’s Romero motion, the trial court stated: “I’m looking at
a[n] individual who has prior convictions for the exact same offenses for which he
was charged here. The record goes all the way back to 1997 with a two-year state
prison tour; another one out of Orange County, inflicting corporal injury on [a]
spouse in ’06, misdemeanor; miscellaneous other odds and ends; manufacturing
and possession of a dangerous weapon in ’06; a [Vehicle Code section] 10851 in
’09; a burglary in ’11; a 422 in ’12; a burglary in ’13; and this matter in ’13. I
don’t see any improvement. I don’t see any likelihood of improvement. Romero
requires that I make a positive finding this gentleman’s outside the spirit of Three
Strikes and I certainly cannot do that on the record that I have before me.”
      On this record, there was no abuse of discretion. The trial court considered
the relevant facts and properly exercised its discretion in denying appellant’s
Romero motion.


      E.       Appellant was Subject to Only One Five-Year Enhancement Under
Section 667.
      Finally, appellant contends that only one five-year enhancement for his two
serious felony convictions may be imposed because the underlying charges were
not brought and tried separately. The People concede the point. (See In re Harris
(1989) 49 Cal.3d 131, 135 [under section 667, to impose two five-year
enhancements for serious felony convictions, underlying convictions must be
brought and tried in separate proceedings].) Accordingly, we will vacate one five-
year enhancement and remand for resentencing. (Id. at p. 137.)


                                          15
                                 DISPOSITION
      The conviction is affirmed, one of the five-year enhancements under Penal
Code section 667, subdivision (a)(1) is vacated, and the matter is remanded for
resentencing.
      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.




                                                   MANELLA, J.


We concur:




WILLHITE, Acting P. J.




COLLINS, J.




                                        16
