P. v. Vela

Filed 8/1/18 P. v. Vela CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
MANUEL VELA,
Defendants and Appellants.
B282676
(Los Angeles County
Super. Ct. No. BA448895)
APPEAL from a judgment of the Superior Court of Los
Angeles County. Frederick N. Wapner, Judge. Affirmed.
Michelle T. Livecchi-Raufi, under appointment by the
Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant
Attorney, Paul M. Roadarmel, Jr. and Allison H. Chung, Deputy
Attorneys General, for Plaintiff and Respondent.

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Defendant and appellant Manuel Vela appeals his
conviction of making a criminal threat. Defendant contends that
the trial court abused its discretion by admitting testimony
regarding uncharged misconduct, and that the trial court should
have given a limiting instruction sua sponte with regard to
evidence of one of the incidents of misconduct. Finding no merit
to defendant’s contentions, we affirm the judgment.
BACKGROUND
Defendant was charged with three counts of making a
criminal threat in violation of Penal Code section 422, subdivision
(a),1 each against a separate victim: Shaunte Taylor (Taylor) in
count 1; Andrea Tapia (Tapia) in count 2; and Marcia Covington
(Covington) in count 3. The information also alleged that
defendant had suffered one prior serious or violent felony
conviction, within the meaning of section 667, subdivision (a)(1),
and of sections 667, subdivision (d)(1), and 1170.12, subdivision
(b) (the Three Strikes law). The charge in count 2 (Tapia count)
was dismissed after the trial court granted the defense motion
pursuant to section 995. Defendant’s section 1118.1 motion for
judgment of acquittal of count 3 (Covington count) was granted.
The jury found defendant guilty of count 1 (Taylor count).
Defendant waived a jury trial on the prior conviction allegation,
and the trial court found it to be true. On May 16, 2017, the trial
court dismissed the prior strike allegation, and sentenced
defendant to a prison term of six years four months, comprised of
the low term of 16 months, plus a five-year enhancement under
section 667, subdivision (a)(1). Defendant was ordered to pay
mandatory fines and fees, and was given 564 days of combined
1 All further statutory references in this Background
summary are to the Penal Code, unless otherwise indicated.

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presentence custody credit. Defendant filed a timely notice of
appeal from the judgment.
Prosecution evidence
Covington testimony
Covington testified that she had lived on Cochran Avenue
for about 10 years and had seen defendant in the neighborhood
many times. Defendant’s grandmother also lived in the
neighborhood for many years, and the women often greeted each
other in passing. Once, sometime prior to April 15, 2016,
Covington recalled walking toward the store, when she passed
defendant loudly swearing into his phone, and saying he was
going to get his gun and kill the person to whom he was speaking.
Because there was a daycare center next to them, she said,
“Come on man. It’s kids right there.”2 As Covington continued to
walk toward the store, defendant called her “bitch” and other
names. When Covington returned from the store, she saw
defendant on his grandmother’s porch. He said, “I’m going to get
you.” After she replied, “I’m going to call the cops,” defendant
said, “Yeah, you scared. You scared.” Defendant followed her as
she walked past about three houses, and then turned back when
she mentioned calling the police. Covington testified that she was
scared. After that, defendant periodically came to her gate and
rammed his bicycle into it over and over again for a long time.
On April 15, 2016, Covington was again walking to the
store, when she saw defendant’s grandmother watering the lawn.
Covington said, “Hi,” and the grandmother returned the greeting.
Covington then encountered defendant approaching her, and as
they passed on the sidewalk defendant said, “Don’t say hi to my
2 The daycare center was the one operated by Covington’s
neighbor, Taylor. Covington’s daughter had been enrolled there
about six years earlier, but she did not know about any problems
between defendant and the daycare center at that time.

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grandmother,” as he lifted his shirt, revealing a “big knife” in a
case. Covington kept walking, and heard defendant angrily tell
his grandmother not to talk to her. Covington interpreted
defendant’s words and gesture to mean that he was going to hurt
or kill her someday. After that, Covington has always walked on
the other side of the street and carried pepper spray. Defendant
never touched her or pulled out the knife.
Covington was interviewed by police on June 28, 2016, and
met with a detective at Taylor’s residence on July 7.
Taylor testimony
Taylor testified that she had run a licensed daycare center
in her home on Cochran Avenue for about 20 years. The center
enrolls up to 14 infants, toddlers, and school age children. Taylor
resides there with her husband and nine-year-old son.
Defendant’s grandmother lived next door to the daycare center.
They had a good relationship years ago, and did favors for each
other. Taylor knew defendant and observed him go into to his
grandmother’s home about once per month.
One early morning in April 2016, Taylor and her husband
took the school-age children to school, and when she returned,
defendant was standing in Taylor’s driveway wearing a machete,
hanging from his belt. Defendant said, “That some punk-bitch-
ass shit that you guys did. You called in on my grandparents.”
Taylor’s husband told defendant he was crazy and asked him if
he was off his medication. More words were exchanged as Taylor
walked toward the house. Defendant then said, “Watch your
family,” which she interpreted to be a threat to her, her family,
and the daycare children. Given defendant’s tone and the
presence of the machete, and considering his past behavior over
the years, Taylor felt frightened. Defendant had not been using
the machete to garden when they arrived, and Taylor had never
seen him doing yard work with it. Fearing for her life and her

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family’s lives, Taylor had security cameras installed on her
property, filed a police report, and obtained a restraining order.
Prior to that incident, defendant had frequently complained
about the daycare noise and parking issues. He called police
frequently. Taylor had made two prior calls to the police about
defendant. Defendant had threatened parents as they brought
their children to the daycare center with his unleashed dog; and
he had taken photographs while telling families that they could
not park in front of his grandmother’s house. One time, the
children were in the backyard having lunch when Taylor heard
what sounded like a hammer banging on the gate. She looked
through a hole in the gate, saw defendant, and called 911.
Uncharged incidents
Vivian Moreno (Moreno) testified that before her mother
died, she had lived on Cochran Avenue, and that between
January and April 2016, Moreno spent time there, fixing up the
house to sell. Once when she parked in front of a house on
Cochran Avenue, defendant surprised her by suddenly appearing
behind her, yelling. He told her she had better watch her back,
and that she should not call the police on her neighbors. He
lifted up his jacket or sweatshirt and displayed a sheathed
machete hanging on his belt. Moreno was frightened, but did not
want to show it, so she tried to walk away. Defendant kept
approaching her with his hands on the machete.
Lisa Weaver (Weaver), another resident of the area,
testified that she knew defendant’s grandmother, and had seen
defendant in the neighborhood when he came to visit her.
Defendant asked Weaver to go out with him, first about two years
ago, and then many times again. She declined each time. In
June 2015, Weaver was walking with her two children and two
dogs. As she passed defendant’s grandmother’s house, defendant
shocked her by suddenly appearing from behind some trees.

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From about 10 to 15 feet away, defendant aggressively told her to
keep her dogs off his property, and when she replied, “You don’t
even own a property on this block so leave me alone,” defendant
told her that she had better watch herself and to watch her back.
He said that she did not know who she was dealing with and he
would (or could) wipe her out. She interpreted this to mean that
he would do something physical to her, or hurt her. She felt very
nervous, unsafe, and shaken. Defendant’s tone of voice was
aggressive and agitated.
Later that day Weaver returned from the grocery store, and
was parked outside her house, which was across the street and
about five houses away from defendant’s grandmother’s house.
As she unloaded groceries, Weaver saw defendant at the edge of
her property about 10 feet away, with his chest puffed and his
elbows held straight out with his hands facing down. Looking
straight at her, he watched her every movement. Feeling
unsettled, Weaver hurriedly grabbed the rest of the groceries,
locked the car, and went into the house. She did not call the
police, but was contacted by a detective about a year later.
Defense Evidence
The defense called Los Angeles Police Officer Rigo Medina
and Detective Ramon Melendez to testify regarding inconsistent
statements made by Covington. In addition, Detective Melendez
testified that it is legal to wear a sheathed knife attached to the
belt.
DISCUSSION
I. Evidence of uncharged incidents
Defendant contends that the trial court abused its
discretion by admitting testimony regarding defendant’s
uncharged confrontations with Moreno and Weaver. He argues
that the evidence was character evidence made inadmissible by
Evidence Code section 1101, subdivision (a), which provides that

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with some exceptions, “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.”
In a pretrial motion, the prosecution sought to admit
evidence of defendant’s uncharged wrongdoing involving Moreno,
as well as defendant’s conduct toward Tapia, which had been
dismissed pursuant to section 995 after the preliminary hearing.
At the hearing on the motion, the prosecution added Weaver’s
testimony to the request to admit evidence. The trial court
excluded Tapia’s testimony and admitted the testimony of
Moreno and Weaver.
The charge of making a criminal threat, involves a
statement, willfully made with the specific intent that it be taken
as a threat to commit a crime which will result in death or great
bodily injury to another person “even if there is no intent of
actually carrying it out, which, on its face and under the
circumstances in which it is made, is so unequivocal,
unconditional, immediate, and specific as to convey to the person
threatened, a gravity of purpose and an immediate prospect of
execution of the threat, and thereby causes that person
reasonably to be in sustained fear for his or her own safety.”
(§ 422.) The specific intent required by section 422 is not an
intent to actually carry out the threatened crime, but an intent
that the victim receive and understand the threat. (People v.
Wilson (2010) 186 Cal.App.4th 789, 806.) When the words of a
threat are ambiguous, the intent that the words be taken as a
threat must be determined from all the surrounding
circumstances. (In re George T. (2004) 33 Cal.4th 620, 635.)
The trial court found that the testimony of both Moreno
and Weaver was admissible under the exception provided in

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Evidence Code section 1101, subdivision (b), to prove defendant’s
intent that his words be understood as a threat; and the trial
court found that the probative value of the evidence would not be
outweighed by the potential for under prejudice. “‘Evidence that
a defendant committed crimes other than those for which he is on
trial is admissible when it is logically, naturally, and by
reasonable inference relevant to prove some fact at issue, such as
motive, intent, preparation or identity. [Citations.] The trial
court judge has the discretion to admit such evidence after
weighing the probative value against the prejudicial effect.
[Citation.] . . .’ [Citation.]” (People v. Fuiava (2012) 53 Cal.4th
622, 667; § 1101, subd. (b).)
“Evidence of uncharged crimes is admissible to prove
identity, common design or plan, or intent only if the charged and
uncharged crimes are sufficiently similar to support a rational
inference of identity, common design or plan, or intent.
[Citation.]” (People v. Kipp (1998) 18 Cal.4th 349, 369, citing
People v. Ewoldt (1994) 7 Cal.4th 380, 402-403 (Ewoldt).) The
greatest degree of similarity is required when the purpose of the
evidence is to prove identity, whereas a lesser degree of similarity
is required when the issue is common design or plan, and the
least degree of similarity is required when the issue is intent.
(Kipp, at pp. 370-371.) “On appeal, the trial court’s
determination of this issue, being essentially a determination of
relevance, is reviewed for abuse of discretion. [Citations.]” (Id.
at p. 369.) “A court abuses its discretion when its ruling ‘falls
outside the bounds of reason.’ [Citation.]” (Id. at p. 371.)
Defendant contends that the uncharged incidents were too
dissimilar to be probative of his intent in the Taylor incident
because each was motivated by a different “personal issue” and
precipitated by different provocation. He argues that the only

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similarity in the circumstances was that all three women lived on
the same street and two of the threats were worded similarly.
Defendant has cited no authority, and we have found none,
suggesting that to be admissible, prior crimes or misconduct must
all stem from similar provocation or motivation. Furthermore we
do not agree that defendant’s motivation was different in each
incident; he was apparently motivated in each instance by his
own anger toward a neighbor of his grandmother, whether
provoked or unprovoked. We reject any suggestion in defendant’s
argument that the prior misconduct and the current crime must
be identical. On the contrary, there need only be sufficient
similarity to support the inference that the defendant “‘“‘probably
harbor[ed] the same intent in each instance.’ [Citations.]”
[Citation.]’ [Citation.]” (People v. Harris (2013) 57 Cal.4th 804,
841-842, italics added, quoting Ewoldt, supra, 7 Cal.4th at p.
402.)
Defendant’s emphasis on a few dissimilarities does not
render the prior similar misconduct inadmissible or irrelevant to
the issue of intent, as a single “crucial point of similarity” may be
sufficient to establish the relevance of the prior misconduct.
(People v. Jones (2011) 51 Cal.4th 346, 371.) Here the crucial
point of similarity was defendant’s anger and use of threats in
reaction to his apparent perception of that one of his
grandmother’s neighbors had trespassed, insulted him,
attempted to involve the police, or interfered in some way with
his grandmother; and in all but one of the two Covington
incidents, he did so with a machete attached to his belt.
Despite the several points of dissimilarity noted by
defendant, the incidents were otherwise quite similar. After
much conflict with Taylor regarding her daycare center, including
calls to the police, and after an argument with Taylor’s husband,
defendant said to her, “Watch your family,” while wearing a

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sheathed machete on his belt. Similarly, apparently angry with
Moreno because of his belief that she had called the police,
defendant yelled at her, told her she had better watch her back
and not call the police on her neighbors. Defendant lifted up his
jacket, displayed the machete, and approached her with his
hands on it as she walked away. When Weaver walked her dogs
past the grandmother’s house, defendant aggressively told her to
keep her dogs off his property, told her that she had better watch
herself and to watch her back, and that he would (or could) wipe
her out. Defendant later approached her and made an
intimidating gesture with his chest and arms while staring at
her. When Covington rebuked defendant for swearing near the
child care center he called her “bitch” and said, “I’m going to get
you,” and “Yeah, you scared. You scared.” Another time,
defendant commanded Covington not to greet his grandmother,
and lifted his shirt to reveal his sheathed machete. We find no
abuse of discretion in the trial court’s finding that the incidents
were sufficiently similar to be admitted as evidence that
defendant harbored the specific intent that his words be taken as
a threat.
Defendant contends that the uncharged incidents had no
tendency to prove intent without evidence that the witnesses had
knowledge of the prior confrontations with other neighbors. It
appears defendant is conflating the intent element of section 422
with the requirement that his threat caused the victim to be in
sustained fear for her own safety. Defendant’s argument finds no
support in the authorities on which he relies. Those cases held
that evidence of a victim’s knowledge of the defendant’s crimes
committed against others would be admissible to show that the
victim’s fear was reasonable, and may also show intent. (See
People v. Fruits (2016) 247 Cal.App.4th 188, 203-204, and cases
cited therein.) However, the cited authorities did not enunciate a

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rule that knowledge of other victims was a prerequisite to the
admission of other crimes evidence to show intent.
Defendant also contends that neither Moreno nor Weaver
experienced fear, and he argues that their testimony could thus
not prove that defendant intended to instill fear in Taylor. He
cites no authority for his argument that uncharged incidents
cannot be probative of intent unless the persons threatened in
the uncharged incidents experienced fear, and we have found no
such authority. As respondent points out, similar uncharged
threats may be highly probative, not only of intent, but also of
common design or plan, when it shows what happens when the
defendant “‘becomes upset with people who are not behaving or
conforming with his expectations . . . .’” (People v. Orloff (2016) 2
Cal.App.5th 947, 956.) It is thus the defendant’s uncharged
conduct which renders the evidence admissible and probative, not
the victim’s reaction to the uncharged conduct.
In any event, we do not agree that Moreno and Weaver
failed to experience fear. Moreno testified that she was “really
afraid,” although she did not want it to show. Although Weaver
did not expressly say she was afraid, her fear is reasonably
inferred from the circumstances. (See People v. Ortiz (2002) 101
Cal.App.4th 410, 417.) She testified that she felt nervous, unsafe,
shaken, and unsettled. Again, the prior misconduct and the
current crime need not be identical for the evidence to be
probative of intent. (See People v. Harris, supra, 57 Cal.4th at
pp. 841-842.) It follows that similar uncharged conduct need not
meet all the elements of the charged conduct, including fear, to be
probative of intent and thus admissible.
Defendant contends that Moreno’s testimony should have
been excluded for the additional reason that it was more
prejudicial than probative, observing “[t]he fact that Ms. Moreno
testified in front of a jury that appellant threatened her while

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brandishing a machete is a discrepancy that in itself makes the
uncharged act with Ms. Moreno far more prejudicial than
probative.” (Italics added.) Such testimony was, defendant
argues, much more inflammatory than simply wearing the
machete as his usual “attire” as he did when he threatened
Taylor. Defendant exaggerates. Moreno testified that defendant
lifted his shirt to reveal the machete, but kept it in its sheath.
Thus, defendant did not brandish3 the machete. Defendant does
not explain how clothing or attire can be a weapon, and the
evidence did not show that it was “usual” for the machete to be
worn on defendant’s belt. Taylor testified that she had seen him
wearing it before, not that he usually or always wore it. The
Moreno incident was thus not unduly inflammatory as compared
to the Taylor incident. The trial court’s ruling did not fall outside
the bounds of reason.
II. Covington’s testimony
Defendant contends that after granting the motion of
acquittal (§ 1118.1) as to the Covington count, Covington’s
testimony became inadmissible character evidence under
Evidence Code section 1101, subdivision (a). Defendant also
contends that the trial court should have given the jury a limiting
instruction.
A. Admissibility of the Covington testimony
Respondent argues that defendant has forfeited the issue
by failing to object at trial to Covington’s testimony on the ground
stated here. A judgment may not be reversed by reason of the
erroneous admission of evidence “unless [t]here appears of record
an objection to or a motion to exclude or to strike the evidence
3 To “brandish” a weapon is “to shake or wave [it]
menacingly.” (Merriam-Webster Online Dictionary,
<https://www.merriam-webster.com/dictionary/brandish>.)

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that was timely made and so stated as to make clear the specific
ground of the objection or motion.” (Evid. Code, § 353, subd. (a).)
We have found no objection in the record to Covington’s
testimony on the ground urged here or on any ground at all. In
reply, defendant argues that the issue was preserved as reflected
in a colloquy between defense counsel and the trial court at the
hearing on defendant’s motion for new trial, when defense
counsel stated: “I’m not sure whether the discussions subsequent
to the court’s granting of the 1118.1 motion happened on the
record, and so I want to make sure that it does. That after the
court granted the 1118.1 motion, there was an issue as to what
would be done with Marcia Covington’s testimony. And so over
defense objection, the court allowed that to remain in as an
additional 1101(b) . . . evidence.”
The trial court did not confirm that such an objection had
been made, but replied: “Okay. And the ruling would have been
the same. First of all, the jurors heard it. It wasn’t going away.
So -- and there’s ample other evidence for the other two witnesses
who testified about [sic].” Defense counsel explained that she
wanted to make certain the court’s perspective was contained in
the record. The court replied, “I understand. And . . . if it wasn’t,
then it is. And the jurors heard the evidence. . . . So even if it
hadn’t been a count and even if it had only been offered as
1101(b), I would have allowed it.”
Defense counsel did not describe any objection, motion to
strike or facts which made clear the specific ground for the
objection; nor did she describe any facts indicating whether the
objection was timely made. Now, on appeal defendant contends
that the testimony should have been excluded because it was so
inflammatory that its probative value was substantially
outweighed by the potential for undue prejudice. As defendant
has not demonstrated that he objected on this ground in the trial

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court, we agree with respondent that the issue has not been
preserved for appeal. An appellate court has no basis to review
alleged error by the trial court “in failing to conduct an analysis it
was not asked to conduct.” (People v. Partida (2005) 37 Cal.4th
428, 435.)
B. Limiting instruction
Defendant contends that the trial court should have
instructed the jury sua sponte to consider Covington’s testimony
solely for the purpose of finding intent in the remaining count.
The trial court instructed the jury with CALCRIM No. 375
in relevant part as follows:
“The People presented evidence of other
behavior by the defendant that was not charged
in this case. You must consider this evidence
only if the People have proved by a
preponderance of the evidence that the
defendant, in fact, committed the acts. . . . If
you decide that the defendant committed the
acts, you may, but are not required to, consider
that evidence for the limited purpose of
deciding whether the defendant acted with the
intent that his statement be understood as a
threat. In evaluating this evidence, consider
the similarity, or lack of similarity, between the
uncharged acts and the charged offenses. Do
not consider this evidence for any other
purpose. Do not conclude from this evidence
that the defendant has a bad character or is
disposed to commit a crime. If you conclude the
defendant committed the acts, that conclusion
is only one factor to consider along with all the
other evidence. It is not sufficient by itself to
prove the defendant is guilty of criminal
threats. The People must still prove the charge
beyond a reasonable doubt.”

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Defendant argues that because CALCRIM No. 375 refers to
uncharged conduct, and the incidents involving Covington were
originally charged, the jury should also have been specifically told
to consider the Covington incident only as evidence of intent. He
asserts that it is absurd to assume that without an instruction
specific to Covington, the jury would understand that CALCRIM
No. 375, as given, would apply to previously charged conduct.
In general, trial courts have no duty to give limiting
instructions sua sponte. (People v. Valdez (2012) 55 Cal.4th 82,
139.) This includes limiting instructions regarding uncharged
criminal conduct. (People v. Collie (1981) 30 Cal.3d 43, 64.)
“‘When evidence is admissible . . . for one purpose and is
inadmissible . . . for another purpose, the court upon request shall
restrict the evidence to its proper scope and instruct the jury
accordingly.’” (People v. Valdez, supra, at p. 139; Evid. Code,
§ 355.) In addition, where “[t]he standard instruction correctly
and adequately explain[s] the applicable law to the jury, . . . the
court [is] not required to rewrite it sua sponte. ‘The trial court
cannot reasonably be expected to attempt to revise or improve
accepted and correct jury instructions absent some request from
counsel.’ [Citation.]” (People v. Kelly (1992) 1 Cal.4th 495, 535.)
As respondent notes, an argument similar to defendant’s
was made and rejected in People v. Orloff, supra, 2 Cal.App.5th
947. There, the defendant claimed that the limiting instruction
was misleading because it specifically referred only to the threats
against two persons in uncharged incidents and did not mention
the threats against a third. The appellate court held that the
defendant had forfeited the claim that the instruction was
inadequate and misleading, as he “‘did not object to or request
amplification of the instructions provided.’” (Id. at p. 958,
quoting People v. Souza (2012) 54 Cal.4th 90, 120.) The court
also noted that the instruction made it reasonably clear that it

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applied generally to evidence of “‘other offenses of criminal
threats that were not charged in this case,’” which included the
third person. (Ibid.)
Here too it was made reasonably clear to the jury that the
instruction applied to testimony regarding both the no-longer
charged incident and the two never-charged incidents. First,
immediately before reading the jury instructions, the trial court
informed the jury that although there had been two counts at the
start of trial, there was now just one. The court then instructed
the jury that defendant was charged in count 1 with making a
criminal threat to Taylor, and after explaining the elements of
that crime, the trial court read CALCRIM No. 375. The jury thus
knew that the incidents involving Covington no longer
constituted charged evidence.
“It is fundamental that jurors are presumed to be
intelligent and capable of understanding and applying the court’s
instructions. [Citation.]” (People v. Gonzales (2011) 51 Cal.4th
894, 940.) As the record reflects no confusion on the part of the
jury or requests for further guidance on the point at issue, we do
not presume that the jury failed to understand and correctly
apply the instruction. (Id. at pp. 939-940.) There appears no
reasonable likelihood that the jury construed the reference in
CALCRIM No. 375 to “evidence of other behavior by the
defendant that was not charged in this case” as not including
Covington’s testimony.
Regardless, any error was harmless. As there appears no
reasonable likelihood that the jury misunderstood or misapplied
the instructions given, defendant suffered no prejudice or federal
due process violation as a result of the omission of language
limiting Covington’s testimony to the issue of intent. (See People
v. Peoples (2016) 62 Cal.4th 718, 768.)

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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____________________________, J.
CHAVEZ
We concur:
__________________________, Acting P. J.
ASHMANN-GERST
__________________________, J.
HOFFSTADT

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