1

Filed 4/29/14 P. v. Faulkner CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Shasta)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

MICHAEL JAMES FAULKNER,

Defendant and Appellant.

C073693

(Super. Ct. No. 12F5298)

Defendant Michael James Faulkner appeals his convictions for criminal threats 

and misdemeanor battery. He contends the trial court prejudicially erred in admitting,

over objection, an officer’s testimony that the victim was in “sustained fear.” He also 

contends that the cumulative effect of that error, combined with testimony that suggested 

defendant was in custody, was prejudicial. Finding no prejudicial error, we affirm the 

judgment.
2

FACTUAL BACKGROUND

On the night of August 4, 2012, defendant’s sister, Megan, called 911 and reported 

her brother had just punched her in her face and choked her. When Megan told defendant

she was going to call the police, he ran into the kitchen, then back to Megan’s room and 

tried to stab her. Defendant then “peeled out” of the house in their father’s truck. Megan

advised the 911 dispatcher her brother left the house with a small kitchen knife, might 

still be on parole, was on antipsychotic medication, and had been drinking. 

Shasta County Deputy Sheriff Jerry Fernandez responded to the scene and met 

Megan in the driveway. She appeared upset, in fear, and was almost in tears. She was 

very worried about where defendant was and whether the police could locate him. On 

her left cheek there was some swelling, bruising, and redness. 

Megan reported to Deputy Fernandez that defendant had punched her. When she 

told defendant she was calling the police, he choked her in a headlock, ripped the phone 

from her hand and threw it to the ground. She ran and locked herself in a bedroom. 

Defendant got something from a drawer in the kitchen; she believed he would use that 

utensil to harm her. Defendant threatened Megan through the door yelling, “Oh you

think you’re going to send me back to prison? I’ll stab that bitch.” “I’ll stab you if you 

call nine-one-one because I’m not going back to prison.” Defendant then tried to force 

his way into the room with a knife. Deputy Fernandez observed fresh damage to the 

bedroom door. The doorjamb was broken and there were nicks in the door which were 

consistent with someone trying to pry it open with a knife. 

Megan reported she called 911 because she was afraid of defendant’s threats to 

stab her. Deputy Fernandez was with Megan for at least 30 minutes. During that entire 

time, she appeared to remain frightened, upset, worried, and on the verge of tears. She 

asked what she could do to protect herself from defendant. She asked Deputy Fernandez 

to try to find defendant so “he wouldn’t be out and she would be safe.” 
3

Megan’s sister-in-law, Nicole Faulkner, was also at the scene. Deputy Fernandez 

interviewed her. Her story largely coincided with Megan’s. After the disturbance, 

Megan ran to the bedroom and defendant ran to the kitchen. He ran toward the bedroom 

with a large kitchen knife, pounded on the door and yelled, “ ‘I’ll stab that bitch. I’ll stab 

that bitch.’ ” He then used the knife to try to pry the door open, while Megan was 

screaming that defendant was trying to stab her. 

At trial, Megan was an uncooperative witness and recanted some of her earlier 

statements. She testified that she and Erica Leeper, her best friend’s younger sister, had 

been at her parent’s house on the porch with defendant. She believed defendant was on 

drugs at the time. He wanted to take Erica to a bar, but Megan told Erica not to go and 

Megan and defendant argued about that. Defendant and Megan started shoving each 

other around, and at some point he either pushed, punched, or slapped Megan on the 

cheek. Defendant blocked her from going into the house and Megan grabbed the phone 

and threatened to call the police and their parents. Defendant went to the kitchen and 

Megan thought he was getting something to harm her, so she ran to the bedroom and 

locked the door. She called the police. Defendant tried to unlock the bedroom door with 

a small kitchen knife, but did not damage the door. She also testified defendant never 

threatened to stab or kill her. She told the police he had threatened her so the police 

would arrest defendant, because he was high on drugs. Megan testified she was afraid 

defendant would harm her or himself because of his drug use, not because he had 

threatened her. 

Nicole was in the house when one of her children came to her and told her Megan 

needed her. She opened the door to let Megan in the house. Megan appeared jumpy, 

frantic, and frustrated. Inside the house, defendant and Megan were yelling at each other. 

A few minutes later, Megan ran down the hall into the bedroom and defendant ran into 

the kitchen and came back with a small kitchen knife. Defendant tried to unlock the door 

with the knife. Megan was “screaming and going crazy” because she was afraid. 
4

Erica also testified that defendant got mad at Megan for interfering in their plan to 

go to the bar. She did not see defendant punch Megan, but saw her fall to the ground 

while defendant stood in front of her. Megan said she was going to call the police and 

defendant tried to grab the phone from her. Erica denied that defendant put Megan in a 

choke hold or “smacked” the phone out of Megan’s hand, although she told Deputy 

Fernandez he had done both. 

Erica testified that when Megan got inside the house, she was angry. Defendant 

ran to the kitchen and Megan ran into the bedroom. Defendant came out of the kitchen 

with a large white-handled knife. Erica went outside. Defendant came outside with the 

knife still in his hand, and said, “ ‘She’s trying to call the police and tell them I’m going 

to stab her.’ ” Defendant then left in a white truck. 

Defendant was arrested later that evening. Deputies did not find a knife in the 

vehicle. Defendant did not appear to be under the influence of alcohol or drugs. The 

truck was released to Megan and her husband. Upon picking up the truck, Megan 

appeared very worried, her voice was shaking and she was trembling and she expressed 

concern about whether defendant would be released from jail soon. 

PROCEDURAL HISTORY

Defendant was charged with criminal threats, battery, and damage of a wireless 

device. The information further alleged a prior strike conviction and a prior prison term. 

In addition, the information alleged defendant had committed the charged offenses after 

having been released from custody on bail or his own recognizance. Following trial, a 

jury found defendant guilty of criminal threats and battery, and not guilty of damage of a 

wireless device. In bifurcated proceedings, the trial court found the enhancement 

allegations true. 

After denying defendant’s motion to strike his prior conviction and reduce the 

criminal threats conviction to a misdemeanor, the trial court sentenced defendant to the 

upper term of three years on the criminal threats conviction, doubled to six years because 
5

of the prior strike conviction, plus five years for the serious felony enhancement, and one 

year for the prior prison term enhancement.1 The trial court also sentenced defendant to a 

concurrent six-month term on the misdemeanor battery conviction. 

DISCUSSION

I

Testimony As To “Sustained Fear”

Defendant contends the trial court erred in admitting into evidence Deputy 

Fernandez’s testimony that Megan was in “ ‘sustained fear.’ ” He contends this

testimony was improper opinion testimony. He argues that sustained fear is an element 

of the offense, the requisite mental state of the victim, and police officers may not testify 

as to another person’s state of mind. He also contends Deputy Fernandez’s testimony 

was an opinion on the ultimate fact of defendant’s guilt. 

On direct examination, Deputy Fernandez testified regarding Megan’s physical 

demeanor the night of the incident. 

“[PROSECUTOR]: Can you tell us -- tell the jury [Megan]’s physical demeanor 

when you first saw her that night?

“[FERNANDEZ]: Um, almost to the point of tears. She was definitely upset. 

Really worried about what the defendant was -- where he was, if we would locate him. I 

would suggest sustained fear.

“[DEFENSE COUNSEL]: I object to that last comment, your Honor. Lack of 

foundation and speculative. It is an opinion. I’ll move to strike it. Ask the Court to 

admonish the jury to disregard it.

“THE COURT: Overruled. That is within the ability of the percipient witness to 

evaluate, in my opinion. So I’ll allow it.” 

 

1 The trial court found the on-bail enhancement true, but noted defendant could not 

be punished for the enhancement unless he were convicted in that underlying charge. 
6

The testimony continued, 

“[PROSECUTOR]: From the time you first arrived at the location . . . and met 

with [Megan] -- when you first arrived, did she have that physical manifestation that you 

described? Almost in tears-type of fear when you first got there?

“[FERNANDEZ]: Yes.

“[PROSECUTOR]: How long did you remain at that location when you first 

began investigating this case? 

“[¶] . . . [¶]

“[FERNANDEZ]: No less than 30 minutes.

“[PROSECUTOR]: And in the time you were at that location, did [Megan] 

remain, as well?

“[FERNANDEZ]: Yes, she did.

“[PROSECUTOR]: Did you have continued interaction with her during that 

portion of your investigation?

“[FERNANDEZ]: Yes.

“[PROSECUTOR]: During that time, did it appear that her physical fear -- the 

manifestation of her fear lessened at all while you were there?

“[FERNANDEZ]: No.

“[PROSECUTOR]: She remained scared the whole time?

“[FERNANDEZ]: Yes.

“[PROSECUTOR]: While you are there, did she ask you in any way if there is 

anything that you could do to protect her and her family from the defendant?

“[FERNANDEZ]: Yes, she did.

“[PROSECUTOR]: What did she say?

“[FERNANDEZ]: She asked lots of questions. Due to there being family there --

sister-in-law, sister’s friend, the manner in which the incident occurred, um, she was 

pretty fearful. She did not want to leave her sister-in-law there, her friend there. [¶] [S]o 
7

I informed her of all her courses of action that she could do, such as -- well you know, 

maybe you can go home. That wasn’t an option because her sister-in-law was still there. 

She didn’t want [defendant] to come back and her be there by herself.

“[¶] . . . [¶]

“[PROSECUTOR]: And after her husband arrived, did [Megan]’s -- the physical 

manifestations of her fear change or lessen at all?

“[FERNANDEZ]: No.

“[PROSECUTOR]: She remained afraid even when her husband showed up?

“[FERNANDEZ]: Yes.

“[PROSECUTOR]: And did she ask you to try to find the defendant so he 

wouldn’t be out and she would be safe?

“[FERNANDEZ]: Yes.” 

During a discussion outside the presence of the jury, the court stated “the Defense 

objected to the People inquiring of the current witness of his opinion concerning whether 

the victim was in fear when he interviewed her. That objection was overruled because 

the current witness testified about indicia that led him to that opinion. Physical indicia 

. . . of the victim and the surrounding circumstances. And it is well within the ability of a 

percipient witness to render such an opinion. [¶] I do note, however, the opinion 

testimony instruction 333 is not included in the People’s instructions and that should be 

included. And that very adequately explains how the jury can deal with such opinion 

testimony.” 

The trial court instructed the jury, “Witnesses who were not testifying as experts 

gave their opinions during the trial. You may but are not required to accept those 

opinions as true or correct. You may give the opinions whatever weight you think 

appropriate. Consider the extent of the witness’s opportunity to perceive the matters on 

which his or her opinion is based, the reasons the witness gave for any opinion and the 

facts or information on which the witness relied in forming that opinion. You must 
8

decide whether anything on which the witness relied was true and accurate. You may 

disregard all or any part of an opinion that you find unbelievable, unreasonable, or 

unsupported by the evidence.” 

“One of the fundamental theories of the law of evidence is that witnesses must 

ordinarily testify to facts, not opinions. [Citation.] An exception exists for expert 

witnesses. (Evid. Code, § 801.) In addition, nonexperts are allowed to state opinions in 

limited situations. (Evid. Code, § 800.)” (People v. Williams (1992) 3 Cal.App.4th 1326, 

1332.) Under Evidence Code section 800, “If a witness is not testifying as an expert, his 

testimony in the form of an opinion is limited to such an opinion as is permitted by law, 

including but not limited to an opinion that is: [¶] (a) Rationally based on the perception 

of the witness; and [¶] (b) Helpful to a clear understanding of his testimony.” 

“Lay opinion testimony is admissible where no particular scientific knowledge is 

required, or as ‘a matter of practical necessity when the matters . . . observed are too 

complex or too subtle to enable [the witness] accurately to convey them to court or jury 

in any other manner.’ [Citations.]” (People v. Williams (1988) 44 Cal.3d 883, 915.) 

 “Generally, a lay witness may not give an opinion about another’s state of mind. 

However, a witness may testify about objective behavior and describe behavior as being 

consistent with a state of mind.” (People v. Chatman (2006) 38 Cal.4th 344, 397.) This 

is so even if the testimony thereby touches on the ultimate issue in a case, “but only 

where ‘helpful to a clear understanding of his testimony’ [citation], i.e., where the 

concrete observations on which the opinion is based cannot otherwise be conveyed. 

[Citations.]” (People v. Melton (1988) 44 Cal.3d 713, 744.) Admission of lay opinion 

testimony is within the trial court’s discretion. (People v. Mixon (1982) 129 Cal.App.3d 

118, 127.)

Here, it is a close question, but we need not resolve it because even if there was 

error, the error was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836; People v.

McNeal (2009) 46 Cal.4th 1183, 1188, 1203.) There was ample evidence of Megan’s 
9

fear and its extent. Nicole testified Megan was screaming and “going crazy” because she 

was so afraid of defendant. The jury heard Megan’s 911 call and the tone of her voice 

five minutes after defendant left the property. Deputy Fernandez testified as to Megan’s 

appearance, demeanor, and behavior; the physical manifestations of her fear. When he 

arrived at the scene 15 to 20 minutes after the 911 call, Megan appeared to be in fear, she 

was “definitely upset” “almost to the point of tears.” Deputy Fernandez was with her for 

at least 30 minutes and during that entire time, those physical manifestations of fear did 

not lessen. Megan told Deputy Fernandez she was afraid her brother was going to stab 

her. She also asked Deputy Fernandez to find defendant so she would be safe. The 

evidence reflects Megan was in fear from defendant’s threat for at least one hour after 

defendant left the property. Although not defined in Penal Code section 422, the term 

“sustained fear” has been defined by case law as “a period of time that extends beyond 

what is momentary, fleeting, or transitory.” (People v. Allen (1995) 33 Cal.App.4th 

1149, 1156; In re Ricky T. (2001) 87 Cal.App.4th 1132, 1140; People v. Fierro (2010) 

180 Cal.App.4th 1342, 1349; CALCRIM No. 1300.) The evidence strongly supports the 

conclusion Megan was in sustained fear. Based on this record, it is not reasonably 

probable that the result would have been different in the absence of any error in admitting 

Deputy Fernandez’s opinion testimony. (Watson, at p. 836.)

II

Cumulative Error

Defendant next contends the cumulative effect of the errors of denying 

defendant’s motion for a mistrial after Nicole’s testimony about visiting defendant and in 

admitting Deputy Fernandez’s testimony was prejudicial.2 Defendant claims Nicole’s 

 

2 Defendant complains about the admission of Nicole’s testimony, but it is not 

entirely clear on what legal basis he is claiming error, as defendant does not make a 

separate argument as to the error itself. Defendant did not object to the testimony or 
10

testimony made clear that defendant was in custody during the trial, the jurors would then 

reasonably believe defendant was too dangerous to be released, and more readily believe 

he committed the acts with which he was charged. 

During Nicole’s testimony, the following exchange occurred: 

“[PROSECUTOR]: In fact, after the defendant was arrested for what he did on

August 4, you visited him twice, right?

“[NICOLE]: Yes, I did.

“[PROSECUTOR]: You visited him even most recently on the 14th of this month 

for 45 minutes; isn’t that right?

“[NICOLE]: Yes, I did.

“[PROSECUTOR]: Discussed his case with him?

“[NICOLE]: No, not really. No, not in particular.

“[PROSECUTOR]: And in September, you visited him. That would be on the 

2nd of September. You went in and visited him for 20 minutes; isn’t that right?

“[NICOLE]: Yes, I did.” 

At that point in the examination, the trial court interrupted and held proceedings 

outside the presence of the jury. The trial court advised Nicole the jury was unaware 

defendant was in custody and to be sure she did not inadvertently provide testimony that 

would inform the jury of that fact.

Defense counsel made a motion for mistrial based on prosecutorial misconduct. 

He argued the obvious inference of the prosecutor’s questioning, with specific dates and 

times of visits, “is that [defendant] was in custody on [those dates] and that he’s in 

custody now, which is something that shouldn’t be before this jury.” The trial court 

replied, “I disagree that it is an obvious inference that the defendant is in custody. He 

 

questioning. Defendant did make a motion for mistrial which the trial court denied. 

Accordingly, that is the ruling we review on appeal. 
11

was -- [the prosecutor] asked questions about these visits. Like yourself, I became 

concerned that we were going to start talking about jail time. That’s why I called a recess 

and brought you both up to the bench . . . . [¶] Obviously, the defendant is in civilian 

clothing, there’s no indication he’s in custody. And reference has not been made to him 

having been in custody.” 

“We review a trial court’s ruling on a motion for mistrial for abuse of discretion. 

[Citation.] Such a motion should only be granted when a defendant’s ‘chances of 

receiving a fair trial have been irreparably damaged.’ ” (People v. Valdez (2004) 

32 Cal.4th 73, 128.) We see no abuse of discretion here.

Some references to a defendant’s custodial status can impair the presumption of 

innocence, violating his or her rights to due process and a fair trial. (Estelle v. Williams

(1976) 425 U.S. 501 [48 L.Ed.2d 126]; People v. Bradford (1997) 15 Cal.4th 1229.) In 

Bradford, the prosecutor questioned a witness during direct examination about her 

continued friendship with defendant in an attempt to reveal bias. (Bradford, at p. 1335.) 

He asked whether she had given the defendant anything in the last month, to which she 

replied, “ ‘Like what can I give him, writing paper?’ ” (Ibid.) The California Supreme 

Court rejected the claim of misconduct, as “[t]he prosecutor did not refer expressly to the 

circumstance that defendant was in custody in questioning [the witness] concerning her 

continuing ties to defendant, and, as the trial court found, the single, spontaneous 

comment made by [the witness] did not necessarily raise the inference that defendant was 

in fact in custody. Even if it had, however, an isolated comment that a defendant is in 

custody simply does not create the potential for the impairment of the presumption of 

innocence that might arise were such information repeatedly conveyed to the jury.” 

(Bradford, at p. 1336.)

Here, as noted by the trial court, there was no express reference to defendant’s 

custodial status, defendant remained in civilian clothing and there were no other 

indications he was in custody. We are not persuaded that the jury would have necessarily 
12

construed the prosecutor’s questions to mean that defendant was in custody. 

Nonetheless, to the extent the questions did raise that inference, it was just an inference, 

and a comparatively minor one when taken in the context of the strong evidence of 

defendant’s guilt. As with the isolated comment in Bradford, this inference did not 

irreparably damage defendant’s chance of receiving a fair trial.

Based on our conclusion that there was no error in the denial of the motion for a 

mistrial, we also reject defendant’s claim of cumulative error. “We have considered each 

claim on the merits, and neither singly nor cumulatively do they establish prejudice 

requiring the reversal of the convictions.” (People v. Lucas (1995) 12 Cal.4th 415, 476.)

DISPOSITION

The judgment is affirmed.

 ROBIE , J.

We concur:

 NICHOLSON , Acting P. J.

 MAURO , J.