Filed 12/10/14 P. v. Lemons CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

THE PEOPLE,
Plaintiff and Respondent,

v.
CHARLES RAY LEMONS,
Defendant and Appellant. B252215
(Los Angeles County Super. Ct. No. GA088419)

APPEAL from a judgment of the Superi or Court of Los Angeles County, Michael Carter, Judge. Affirmed.

Kaye, McLane, Bednarski & Litt, Carlt on F. Gunn and Marilyn Bednarski for Defendant and Appellant.

Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney General, Margaret E. Maxwell and Douglas L. Wilson, Deputy Attorneys General, for Plaintiff and Respondent.

* * * * * *2 Charles Ray Lemons appeals the judgment following his conv iction for one count
of criminal threats. He raises various cl aims of error, but we find no error warranting
reversal. We affirm.
PROCEDURAL HISTORY As charged in the information, appellant was convicted by a jury of a single count of making criminal threat s. (Pen. Code, § 422.) 1 He was sentenced to 16 months in state prison and assessed various fines, f ees, and credits not at issue here.
STATEMENT OF FACTS
The threats at issue occurred on the ev ening of November 21, 2012—the night before Thanksgiving—in a Whole Foods grocer y store in Pasadena, California. Julie Guerrero was working as a ca shier that evening and recogn ized appellant as a regular customer. Appellant approach ed Guerrero’s checkout coun ter and placed his groceries on the conveyer belt. Although Guerrero asked appellant how hi s day had been and whether he needed a bag, appellant did not re spond, although he usua lly did not speak to her. On the night at issue, he had his h ead down and appeared to be whispering to
himself. Although customers usually push their carts in front of them so their bags can be placed in the cart, appellant had his cart behi nd him in line. The victim, Dustin Johnson, was shopping with his mother and got in line behind appellant with both his and appellant’s shopping carts between them. He had never met or seen appellant previously. After Guerrero rang up appellant ’s groceries and put them in a bag, she told him the total amount of his purchase. He took out his wallet and rem oved some cash, but then appeared to be looking for an ATM (automated teller machine) or credit card to pay. He
seemed to become nerv ous and frustrated, fumbling in his pants pockets apparently for an alternative form of payment. Johnson said nothing to him at that time and simply
watched him.

1 All further statutory references are to the Penal Code unless otherwise noted.3 Appellant was standing in front of th e ATM/payment terminal, but it was a tight space due to the position of his cart, so he ma y have had problems tr ying to pay with an ATM or credit card. Appellant suddenly shout ed, “Back the fuck up” or “Back off” and pushed his cart into Johnson’s, causing Johns on’s cart to hit his leg. According to Guerrero, Johnson said nothing to appellant be fore this. Appellant’s conduct so startled Guerrero that she took a couple of steps back, picked up th e store intercom phone, and called for security, something she had never done before. Appellant moved within a few inches of Johnson and loudly said something like, “I am not scared of you. What are you go ing to do? You are not going to do nothing, you are not going to do shit.” Johnson stood with his hands at his side, trying to deescalate the situation. Appellant walked away, but then retu rned to Johnson and engaged in another “tirade,” saying to Johnso n, “I work with guns, I know what to do with guns, I will put you in the ground.” He gestured with his hand like he was shooting a gun. He also told Johnson he would meet him outside in the parking lot. Johnson continued to keep his arms at his side and to ld him in a low monotone voice to “Get out of my face, you can get out of my face.” 2 During this entire episode, Johnson never to uched appellant or raised his voice.
Guerrero later told officers that , at some point prior to finish ing his transaction, appellant “walked up to Mr. Johnson and said, ‘I will sh oot you, I will kill you, I will put a bullet in your head, I am not scared.’” Andres Carranza, a security guard at the st ore, responded to the register area. As he approached, he saw appellant was irate with an “aggressive posture” and yelling and calling Johnson the “n” word. He heard John son ask appellant why he was so irate and say, “I know you are bigger than me and all that and you could who op my ass and all of

2 On cross-examination, Gue rrero admitted she testified at the preliminary hearing that Johnson started to argue back with appe llant, walked toward appellant as appellant approached him, and “they” started saying, “L et’s take this outside.” She testified her trial testimony was accurate.4 that but I really don’t want to fight you, man.” 3 Although Carranza told Johnson to “[c]hill, man” and be quiet, Carranza did not believe Johnson was escalating the situation. In fact, according to both Carranza and Guerre ro, Johnson was trying to tell appellant to calm down. In response, appellant said, “Don’t tell me to calm down, shut the fuck up, I am trying to pay.” Carranza heard appellant continue to loudly tell Johnson in a threatening manner to “keep your mouth qui et” and “shut your fucking mouth, you nigger.” By this point, appellant had a ttracted the attention of other customers and Johnson’s mother ap peared fearful. Carranza stepped between the two men. Appellant told Carranza, “Man, I am talking to the motherfucker.” Carranza believed appellant was going to harm Johnson, and a manager told Carranza appellant needed to be escorted out of the store. As Carranza attempted to do so, he told appellant to calm down so he would not have to call the police. According to Carranza, appellant then said to Johnson, “If you don’t keep your fucking mouth shut, man, we are going to take this outside. Listen, let me tell you something, motherfucker . . . oh, I got something for you.” Carranza also heard him say he had a gun and was not afraid to use it. Johnson heard him say, “I will meet you out in the parking lot, we can handle this.” Appellant then said to Johnson, “Listen nigger,” and Johnson asked why he was usi ng that word. Appellant simu lated a gun gesture with his hand and said, “I will be waiting for you outsid e if you want to take it outside,” and, “If you don’t shut your fu cking mouth, nigger, I am going to fucking take you out. We will take it outside. Keep on running your mouth, nigger, you are going to find out what all of this is about, motherfucker. . . . You know what, I got something for you, I got something for you outside, you know, if you co me outside.” He threatened Johnson that he was going to “plug” him, which Carranz a understood to mean he was going to shoot
Johnson. Carranza never saw Johnson become aggressive toward appellant.

3 Appellant was approximately six feet thr ee inches tall and Johnson was five feet 10 inches tall.5 Appellant headed toward the store exit wh ile still yelling. Carranza followed him. Johnson stepped up to pay for his items and said to Guerrero, “Wow, what a night it has been for you.” At that moment, appellant again walked back to Johnson and Guerrero heard him say, “I am not scared of you. I will kill you. I am not scared of you.” Carranza attempted to escort appellant out agai n, but appellant was not listening. Instead, he stared at Johnson for two minutes, which Carranza viewed as a “pretty scary moment” and a “pretty serious threat.” Appellant eventually exited the store, still irate.
Guerrero became so shaken up she did not finish Johnson’s transaction. She believed appellant would carry out his threats. Outside, appellant approached his vehicl e, opened the hatchb ack door, and sat on the bumper. Carranza told him to leave, but he refused. Carranza implored him to leave
because he did not want to ha ve to call the police, and a ppellant responded, “You know what, I am going to stick aro und here and I am going to kill that motherfucker.”
Carranza warned him to be careful what he said because he could wind up in prison. Another security guard took down appella nt’s license plate number, which further angered appellant, and Carranza flagged down a police unit that had arrived at the scene. Upon his arrival, Pasadena Police Office r Jack Rappuchi saw appellant drive his car toward the patrol car and a parking lot ex it. Officer Rappuchi initiated a traffic stop and asked appellant what happened in the st ore. Appellant seemed puzzled, denied knowing what Officer Rappuchi was talking ab out, and asked why he was bothering him. He seemed agitated and continued to deny any knowledge of the incident. Pasadena Police Officer Rai Wotherspoon arrived and retrieved a gun case from the front passenger seat of appellant’s car. It was locked but the key was in the lock;
there was a .357 Taurus revolver inside. O fficer Wotherspoon also recovered a black bag containing “numerous rounds” of ammunition th at fit the gun. At Officer Rappuchi’s request, appellant exited his car and submitted to a pat-down search to confirm he had no weapons on him. Before the police arrived, Johnson finished paying for his groceries and he and his mother intended to leave the store, but a secu rity guard stopped them and said, “Sir, you6 probably don’t want to go ou tside, it seems as if he has a weapon in his car.” They waited inside the store and saw the police surro und appellant’s vehicle in the parking lot.
Johnson testified he feared for his life a nd believed appellant might actually have a gun with him and shoot him outside the store. He remained afraid at the time of trial and was concerned about testifying because he had learned appellant was a gun owner and assumed defense counsel told appellant where he lived. Appellant testified in his defense. He explained he went to the store to buy groceries and as he was checking out, he positi oned his cart behind him in the line. He did not have enough cash to pa y for his purchases, so he needed to use his ATM card. He claimed Johnson said, “What is your problem? You don’t have any money? You don’t have enough money?” Because appellant’s ca rt was blocking the ATM reader, appellant
moved his cart back to the left to use it. He denied slamming his cart back at that moment and claimed Johnson pus hed his cart at appellant. In response, appellant pushed
his cart back at Johnson and told him to back off. Johns on then said, “It is not my problem you don’t have any money to pay fo r your food.” Appellant warned Johnson, “If you don’t back off I don’t th ink you are going to like the way this is going to go.” According to appellant, Johnson clenched his fi sts with his hands out and said, “I don’t see you swinging.” Appellant believed he was “g etting ready to be [i n] a fist fight.” Appellant responded, “Everybo dy in this nation is not go ing to run from you.” He claimed Johnson grabbed his arm, to which he responded, “[ Y]ou don’t touch me.” He
was loud because he wanted to make sure Johnson understood he was not going to back away. He told Johnson he was not afraid of him and was not going to run from him. He denied calling Johnson the “n” word or that he threatened to shoot or kill him. However, he admitted that, when he saw Johnson’s ba lled fists and had already told him multiple times to back away, he told Johnson, “If you don’t back off me, I will put a bullet in you.” When asked if he thought Johnson was being aggressive toward him, he testified Johnson was being a “jackass.” He also foun d Johnson’s conduct “ver y, very offensive.” According to appellant, as he finished hi s transaction, Johnson again said, “It is not my problem you don’t have no money. It is not my problem you can’t pay for your7 groceries.” As he pulled away in his car, th e police stopped him. Appellant testified he owned the unloaded gun locked in the case in his car and it was registered to him.
DISCUSSION 1. Sua Sponte Self-defense Instruction Appellant argues the trial court erred in fa iling to give a sua sponte instruction on
self-defense. “It is well settle d that a defendant has a right to have the trial court, on its own initiative, give a jury instruction on a ny affirmative defense for which the record contains substantial evidence [citation]—evidenc e sufficient for a reasonable jury to find in favor of the defendant [citation]—unle ss the defense is inconsistent with the defendant’s theory of th e case [citation].” ( People v. Salas (2006) 37 Cal.4th 967, 982 ( Salas ).) Appellant contends that, although se lf-defense is traditionally a defense to crimes of assault or other physical attack s by a defendant, the defe nse should equally be
available to a defendant who is accused of maki ng criminal threats in violation of section 422. Neither party has cited any case that has allowed the use of threats —rather than physical force—as the basis for self-defense.
Even if self-defense is a viable defense in a prosecu tion for violating section 422 (a point we do not address), we conclude there was no substantial evidence that would support the instruction here. “For self-d efense, the defendant must actually and reasonably believe in the need to defend, th e belief must be objectively reasonable, and the fear must be of imminent danger to life or great bodily injury.” ( People v. Lee (2005) 131 Cal.App.4th 1413, 1426 ( Lee ).) Here there was no evidence that appellant was in actual or reasonable fear of danger, given appe llant indicated more than once he was not afraid of Johnson and was “not going to ru n from” him. When asked if he thought Johnson was being aggressive toward him, he said only that Johnson was being a “jackass.” While appellant believed the situati on was “getting ready to be a fist fight or whatever,” Johnson’s balled fists and his co mment, “I don’t see you swinging,” at most suggested Johnson was ready to defend himself and did not suggest he was about to attack or strike appellant. Even when John son grabbed appellant’s arm, appellant did not claim he did so in a threatening manner.8 The trial court’s not giving of the instruction was also harmless beyond a
reasonable doubt under Chapman v. California (1967) 386 U.S. 18, 24, because appellant’s version of events was overwhel mingly refuted by every other percipient witness, including two disinterested witnesse s, as well as the circumstantial evidence against him. Reversal is not warranted. 2. Sua Sponte Clarif ication of Criminal Threat Instruction Appellant contends the trial court failed to sua sponte clarify the instruction on the
elements of criminal threats in CALC RIM No. 1300 to define the meaning of
“unconditional.” Consistent with CALCRIM No. 1300, the ju ry was instructed a threat
under section 422 must be “so clear, immediate, unconditional and specific that it
communicated to Dustin Johnson a serious inte ntion and the immediate prospect that the
threat would be carried out” and “in decidi ng whether a threat was sufficiently clear, immediate, unconditional or specific,” the jury should “c onsider the words themselves as well as the surrounding circumst ances.” (Italics added.) The instruction tracked section 422, subdivision (a), which st ates, “Any person who willf ully threatens to commit a crime which will result in death or great bodily injury to another pe rson, 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 thre at, even if there is no intent of actually carrying it out, which, on its fa ce 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 immediat e prospect of execution of the threat, and thereby causes that person reasona bly to be in sustained fear for his or her own safety or for his or her immediate family’s safety, shal l be punished by impr isonment in the county jail not to exceed one year, or by imprisonm ent in the state prison.” (Italics added.) Appellant cites People v. Bolin (1998) 18 Cal.4th 297, in which our Supreme Court held section 422 “does not require an un conditional threat of death or great bodily injury.” ( Bolin , at p. 338.) Instead, “[t]his provi sion ‘implies that there are different degrees of unconditionality. A threat which may appear conditional on its face can be
unconditional under the circumst ances. . . . [¶] Language creating an apparent condition9 cannot save the threatener from conviction when the condition is illusory, given the reality of the circumstances surrounding th e threat. A seemingly conditional threat contingent on an act highly likely to occur ma y convey to the victim a gravity of purpose and immediate prospect of execution.’” ( Id. at p. 340.) Appellant contends the trial court should have sua sponte given a clarifying instruction based on Bolin along the lines of,
“A conditional threat is su fficient only if the defendan t has no right to impose the condition, the condition is illusory, or th e condition is highly likely to occur.” Appellant forfeited this argument by not re questing a clarifying instruction in the trial court. “The long-standing general rule is that the failure to request clarification of an
instruction that is otherwise a correct statement of law forfeits an appellant claim of error based upon the instructions given.” ( People v. Rundle (2008) 43 Cal.4th 76, 151, overruled on other grounds by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) The instruction given to the jury accu rately set forth the elements of section 422, so appellant was required to request clarification of the te rm “unconditional” in the trial court if he wanted it to be given to the jury. ( Rundle , at p. 151 [finding de fendant’s failure to request the trial court to further define statutory element of crime forfeited claim on appeal].) Because he did not do so, his claim is forfeited. 3. Sua Sponte Unan imity Instruction Appellant argues the trial court erred in failing to sua sponte give a unanimity
instruction like CALCRIM No. 35 00, which states in relevant part: “The People have presented evidence of more th an one act to prove that the defendant committed this offense. You must not find the defendant gu ilty unless you all agree that the People have proved that the defendant committed at leas t one of these acts a nd you all agree on which act (he/she) committed.” We disagree. Appellant contends the evidence demonstrat ed three distinct threats, each of which the jury could have found violat ed section 422. According to appellant, the first threat occurred while appellant and Johnson were st anding at the register before appellant walked away the first time and before Carra nza arrived because Guerrero testified she told Officer Rappuchi that, prior to appellant finishing his transaction at the register, he10 walked up to Johnson and said, “I will shoot y ou, I will kill you, I will put a bullet in your head, I am not scared.” Appellant claims he made his single admitte d threat during this
time as well. The second threat occurred when , according to Johnson, appellant walked away from the register the firs t time and returned to Johnson, telling him, “I work with guns, I know what to do with guns, I will put you in the gr ound” and gesturing with his hand like he was shooting a gun. The third threat occurred as Carranza was ushering appellant to the exit, at whic h point appellant walked back toward Johnson and Guerrero heard him say, “I am not scared of you. I will kill you. I am not scared of you.”
“‘“It is fundamental that a criminal c onviction requires a unanimous jury verdict [citations].” [Citation.] What is required is that the jurors unanimously agree defendant is criminally responsible for “ one discrete criminal event. ” [Citation.] “[W]hen the accusatory pleading charges a single criminal act and the evidence shows more than one such unlawful act, either the prosecution must select the specific act relied upon to prove the charge or the jury must be instru cted in the words of [C ALCRIM No. 3500] or their equivalent that it must unanimously agree be yond a reasonable doubt that the defendant committed the same specific criminal act.”’ [Citation.] Trial courts have a sua sponte duty to provide a unanim ity instruction when a ppropriate. [Citation.] “. . .‘The key to deciding whether to give the unanimity instruction lies in considering its purpose. The ju ry must agree on a “particular crime” [citation]; it would be unacceptable if some jurors believed the de fendant guilty of one crime and other jurors believed her guilty of another. But unanimity as to exactly how the crime was committed is not required. . . . In deciding whether to give the [unanimity] inst ruction, the trial court must ask whether (1) there is a risk the jury may divide on two discrete crimes and not agree on any particular crime, or (2) the evid ence merely presents the possibility the jury may divide, or be uncertain, as to the exact way the defendant is guilty of a single discrete crime. In the first situation, but not the second, it shoul d give the unanimity instruction.’ [Citation.] Wh en the evidence ‘shows only a single discrete crime but leaves room for disagreement as to exactly how that crim e was committed or what the defendant’s precise role was, the jury need not unanimously agree on the basis or, as the11 cases often put it, the “theory” wh ereby the defendant is guilty.’” ( People v. Butler (2012) 212 Cal.App.4th 404, 425-426 ( Butler ).) Here, no unanimity instruction was re quired because there was no reasonable possibility the jury woul d have divided to convict appellant of more than one discrete crime. Whether the jury cred ited the prosecution’s evidence that appellant made a series of statements or appellant’s testimony he made only one th reat, there is no question all the threats were “so closely conn ected as to form part of one transaction. [Citations.]
The ‘continuous conduct’ rule applies when the defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for the jury to distinguish between them.” ( People v. Stankewitz (1990) 51 Cal.3d 72, 100 .) Appellant directed
either one or several similar statements towa rd the same victim during a single heated confrontation that took place over the course of five minutes. (See People v. Dieguez (2001) 89 Cal.App.4th 266 , 275-276 [multiple “su ccessive, compounding, and
interrelated” false statements to worker’s compensation doc tor during single visit aimed at getting worker’s compensation benefits cons tituted continuous course of conduct]; see
also People v. Percelle (2005) 126 Cal.App.4th 164, 182 [two attempts to use same counterfeit access card to purchase 60 cartons of cigarettes constituted continuous course of conduct, even though defendant left stor e after first attempt and returned a little over an hour later for second attempt].) 4 Notwithstanding appellant’s argument to the contrary, he offered a two-tiere d defense at trial that app lied equally to all of those

4 Appellant relies on People v. Salvato (1991) 234 Cal.App.3d 872, but there the court recognized the “‘conti nuous conduct’” exception arises in two contexts: “‘[t]he first is when the acts are so closely connected that they form part of one and the same transaction . . . . [Citation.] The second is when . . . the statute contemplates a continuous course of conduct of a seri es of acts over a period of time.’” ( Id. at p. 882.) The court addressed only the second context and found the language of section 422 did not contemplate a continuing course of conduct. ( Salvato , at pp. 882-883.) The court did not analyze the first context, which undoubtedl y would not have applie d to the series of threats in that case that occurred over several months. ( Id. at p. 884.) Here, the first context was satisfied because ap pellant’s threats were so clos e in time and so similar they formed the same transaction.12 statements: he urged the jury to reject the prosecution’s version of events and to find his single admitted threat was cond itioned on Johnson backing off. The parties’ differing versi ons of the confrontation mere ly raised “‘the possibility the jury may divide, or be uncertain, as to th e exact way the defendan t is guilty of a single discrete crime.’” ( Butler, supra , 212 Cal.App.4th at p. 426.) There was no question appellant threatened Johnson; th e only question was whether he did so through a series of statements according to the prosecution’s witnesses or th rough the single threat he admitted making. In either s ituation, only one discrete cr ime was committed. Thus, no unanimity instruction was required. 4. Evidentiary Claims Appellant claims the trial court prejudi cially erred in admitting evidence that officers found a gun in his car and in allowing Johnson to testify he was a “behaviorist” who worked with special needs children. We review the ad mission of evidence for abuse of discretion ( People v. Waidla (2000) 22 Cal.4th 690, 717) and find no such abuse here.
A. Gun Evidence Appellant moved in limine to exclude th e gun and ammunition officers found in his car on the grounds the eviden ce was irrelevant and unduly prejudicial. At a pretrial hearing, the court’s primary concern was th e absence of undue prejudice because the prosecution was already going to introduce ev idence appellant said, “I am a gun owner, I work with guns.” The court denied the motion, reasoning the gun was probative that appellant willfully threatened that he was go ing to shoot Johnson. Its admission was not unduly prejudicial because “[w]e are just not going to be able to get around the fact that the jury is going to find out that [appellant] is a gun owner, and so if there is a juror on the jury, or in the voir dire, we find out that a juror believe s that if you own a gun you are automatically a violent person, then that person won’t be qualified to sit on this particular case because we need jurors who can look at it and say ev en though you are a gun owner it doesn’t necessarily mean that you are a vi olent person and it is more likely that you
committed this crime.” While the situation might have been different if the threat involved a knife, “[h]ere in this case the threat has to do with the facts that the defendant13 had represented that he had a gun, and I belie ve that the probative value of that is not substantially outweighed by any undue prejudicial effect and I think it corroborates the
defendant’s statement.” The court exclude d evidence that a hundred rounds of ammunition were also found in appellant’s car but allowed the pr osecution to mention
some ammunition was found. 5 Evidence is relevant if it has any tendenc y in reason to prove a disputed material fact. (Evid. Code, § 210.) The trial court ha s wide discretion in de termining relevance. ( People v. Clark (2011) 52 Cal.4th 856, 922.) “Unde r Evidence Code section 352, the trial court enjoys broad discretion in assessi ng whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. [Citation.] Where, as here, a discretiona ry power is statutorily vested in the trial court, its exercise of that discretio n ‘must not be disturbed on appeal except on a showing
that the court exercised its di scretion in any arbitrary, capr icious or patently absurd
manner that resulted in a manifest miscarriage of justice.’” ( People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.) The trial court properly exercised its discretion in admitting the gun and some
ammunition. This evidence wa s probative to rebut appellant’s denials that he made the threats described by the prosecution’s witn esses that he was going to shoot and kill Johnson and to demonstrate appellant’s intent that his statements be understood as true threats. While the trial court incorrectly pr edicted there would be evidence that defendant
said he owned or had a gun in his threats to Johnson, John son testified that appellant said,
“I work with guns, I know what to do with guns, I will put you in the ground.” (Italics

5 To be precise, at the hearing the trial c ourt allowed the prosecution to mention the gun was “loaded.” But Officer Wotherspoon testified “numerous rounds” were found, not that the gun was loaded. And a photog raph was introduced showing 10 rounds of ammunition.14 added.) 6 Because the jury was going to hear ev idence that appellant worked with guns anyway, the prejudicial effect from introduc ing the gun and ammunition was minimal. As a result, this case does not fall within the line of authority cited by appellant in which “[e]vidence of possession of a weapon not used in the crime charged against a defendant leads logically only to an inferenc e that defendant is the kind of person who
surrounds himself w ith deadly weapon s -- a fact of no relevant consequence to determination of the guilt or in nocence of the defendant.” ( People v. Henderson (1976) 58 Cal.App.3d 349, 360 [second handgun found in defendant’s apartment that he did not use in committing assault on pol ice officers with a firearm was not relevant for any purpose]; see People v. Stratton (1988) 205 Cal.App.3d 87, 91-93 [counsel ineffective for failing to object to introduction of knife an d hand grenade not used in charged robbery and found on defendant two weeks later]; People v. Archer (2000) 82 Cal.App.4th 1380, 1392-1393 [knives found in defendant’s back yard, bedroom, and other locations almost two years after charged murder were not rele vant to show planni ng or availability of weapons because they had no connection to murder].) B. Johnson’s Background
Johnson testified he was a “behaviorist” who worked with “special needs kids, help them acclimate to their classroom environments.” On direct examination, he testified as appellant was yelling at him, “I am just standing there with my hands at my side. I am trying to de-escalate his behavior. I mean, I work with a lot of kids that have mental issues, a lot of the time they . . . .” Defense counsel interrupted with an unspecified objection and moved to strike his testimony. The court overruled the objection, reasoning, “[It] [g]oes to his state of mind.” Johnson continued, “I work with people that often get erratic and I didn’t wa nt to get erratic when he got in my face

6 Later, Johnson testified he was still in “sus tained fear” at trial, “primarily because [appellant] is a licensed gun ow ner so I didn’t know if he still had access to his weapons, if he was going to come and try to assassina te me at me home.” It is arguable whether this testimony would have been adm itted if the gun had been excluded.15 because I knew that would escalate an alrea dy terrible situation in which he was being aggressive and volatile.” On cross-examination, de fense counsel asked Johnson if appellant “just shoved his
cart back for no reason at all?” Johnson responded, “I think he felt anxiety. He may have some form of anxiety at which he feels more crowded, because I work with a lot of kids and you will be six feet away from them a nd they will feel crowde d, so he may have some type of disorder like that, I don’t kno w.” Defense counsel moved to strike his testimony, but the court denied the request, st ating, “You asked the question of what the witness thought the defenda nt was thinking, and so I am going to allow it.” Appellant contends the trial court im properly admitted this testimony because it was improper character evid ence. The Attorney Genera l argues this argument was forfeited because appellant did not object on this ground in the trial court and if not forfeited, there was no error. We agree on both counts. Appellant’s unspecified objections and motio ns to strike did not adequately inform the court of any objection base d on improper character evid ence, so he forfeited this claim on appeal. (Evid. Code , § 353 [“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: [¶] (a) Ther e appears of record an objection to or a
motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion . . . .”]; People v. Partida (2005) 37 Cal.4th 428, 433-434.) Although appellant is correct no particular form of objection is required, an objection must at least “‘be made in such a way as to al ert the trial court to the nature of the anticipated evidence and the basis on which exclusion is sought, and to afford the People an opportunity to establish its admissibility.’” ( Partida, supra , at p. 435.) Appellant’s objec tions did not do so here. Even if the argument was not forfeited, it is meritless. Evidence of a defendant’s character is inadmissible only “when offered to prove his or her conduct on a specified occasion.” (Evid. Code, § 1101, subd. (a).) Johnson’s testimony did not fall within this rule because he said nothing about appellant’s character. He simply testified to his16 response to appellant’s threats, which was info rmed by his background as a behaviorist. His experience prompted him to take certain ac tions, such as putting his hands at his side, in order to deescalate appellant’s aggressi on toward him. Johnson’s testimony also rebutted appellant’s testimony that Johns on was aggressive toward him and the
confrontation was mutual. And with regard to Johnson’s testimony on crossexamination, it was responsive to defense counsel’s question whether appellant “just
shoved his cart back for no reas on at all?” We find no error. 7
5. CALCRIM No. 361 Appellant argues the trial court erred in instructing the jury with CALCRIM No. 361, which stated, “If the defendant failed in his testimony to explain or deny any evidence against him and if he could reasonably have expected to have done so based on what he knew, you may consider his failure to explain or deny in evaluating that evidence. Any such fa ilure is not enough by itself to prove guilt. The People must still prove the defendant is guilty beyond a reasonab le doubt. [¶] If th e defendant failed to explain or deny, it is up to you to decide the meaning and impor tance of that failure.” We agree the giving of this instruction was error, but the error was harmless. “The trial court has the duty to instruct on general principles of law relevant to the issues raised by the evid ence [citations] and has the co rrelative duty ‘to refrain from instructing on principles of la w which not only are irrelevant to the issues raised by the
evidence but also have the effect of confusing the jury or relieving it from making findings on relevant issues.’ [Citation.] ‘It is an elementary principle of law that before a jury can be instructed that it may draw a particular infere nce, evidence must appear in the record which, if believed by the jury, will support the sugge sted inference [citation].’” ( People v. Saddler (1979) 24 Cal. 3d 671, 681 ( Saddler ).) In determining whether the CALCRIM No. 361 instruction was warranted, we must “ascertain if defendant . . . failed

7 Because we find no eviden tiary error, we reject appellant’s contention cumulative evidentiary error warrants reversal.17 to explain or deny any fact of evidence th at was within the scope of relevant crossexamination.” ( Saddler , at p. 682.) The Attorney General identifies numerous categories of evidence she claims appellant left unexplained, so the instructi on was “not necessarily improper.” We need
not set these matters out here. It is sufficien t to say we agree with appellant either he explained or denied this evidence, it was not within his knowledge, or it related to such
minor details that it would not have warra nted giving CALCRIM No. 361. (See People
v. Lamer (2003) 110 Cal.App.4th 1463, 1469 ( Lamar ) [defendant did not fail to explain why victim would attempt to lie because defe ndant did not know vi ctim’s motivations]; People v. Roehler (1985) 167 Cal.App.3d 353, 393 [failure to recall “specific details” insufficient to support giving in struction].) We also disagree with the Attorney General that appellant’s explanation of the evidence was so “bizarre and implausible” to warrant the instruction. ( People v. Sanchez (1994) 24 Cal.App.4th 10 12, 1029-1030 [“When a defendant testifies but fails to deny or explain inculpatory evidence or gives a ‘bizarre or implausible’ explanation, the instruction is proper.”].)
But the error was harmless under People v. Watson (1956) 46 Cal.2d 818, 836, because there was no reasonable probability appellant would have achieved a more favorable result had the instruction not been given. ( Saddler, supra , 24 Cal.3d at p. 683; Lamar, supra , 110 Cal.App.4th at pp. 1471-1472.) CALCRIM No. 361 gives the jury discretion that it “may” consider appellant’s failure to explain or deny evidence, it expressly warns the jury that any failure to deny or explai n “is not enough by itself to prove guilt,” and it reiterates the burden of proof beyond a reasonable doubt remains with the prosecution. (See Lamer, supra , at p. 1472 [finding simila r language in CALJIC No. 2.62 rendered error harmless]; People v. Ballard (1991) 1 Cal.App.4th 752, 756-757 [same].) The jury was also instructed consistent with CALCRIM No. 200, “Some of these instructions may not apply depending on your findings about the facts of the case. Do not assume that just because I give a particular instruction that I am assuming anything about the facts. After you have decided what the facts are, follow the instructions that do apply to the facts as you find them.” (See Lamer, supra , at p. 147218 [“[T]he fact that juries are in structed, pursuant to CALJIC No. 17.31, to ‘disregard any instruction which applies to a state of facts which you de termine does not exist,’ also mitigates any prejudicial effect related to the improper giving of CALJIC No. 2.62.”]; see
also Saddler, supra , at p. 684.) 8 Further, as noted ante , the evidence against appellant was overwhelming, so there was no reasonable possibility appellant would have achieved
a more favorable result if the trial court had not given CALCRIM No. 361.
6. Cumulative Error We reject appellant’s claim that cumula tive errors warrant reversal because we have only found one erro r, which was harmless.
DISPOSITION The judgment is affirmed.

FLIER, J.
WE CONCUR:

BIGELOW, P. J.

RUBIN, J.

8 Appellant contends the cases finding harmless erro r from erroneously giving CALJIC No. 2.62 and CALJIC No. 17.31 should not apply in this case because CALCRIM No. 361 and CALCRIM No. 200 materially differ from those instructions. We disagree. Similar cautionary language is contained in both CALCRIM No. 361 and CALJIC No. 2.62 (see People v. Rodriguez (2009) 170 Cal.App.4t h 1062, 1066), and CALCRIM No. 200 and CALJIC No. 17.31 make the same basic po int to the jury.