Filed 6/13/13 P. v. Gutierrez CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN

THE PEOPLE, Plaintiff and Respondent,

v. MARIO GUTIERREZ, Defendant and Appellant. B241024 (Los Angeles County Super. Ct. No. VA121790)

APPEAL from a judgment of the Superior Court of Los Angeles County, Lori Ann Fournier, Judge. Affirmed. Lisa Holder, under appointment by th e Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, and Paul M. Roadarmel, Jr., Deputy Attorney General, for Plaintiff and Respondent.

_____________ __________2 Appellant Mario Gutierrez appeals from the judgment entered following his conviction on two counts of attemp ted criminal threats (Pen. Code, 1 §§ 664, 422). Gutierrez argues the trial court erred in admitti ng evidence of his membership in a gang and his alleged attempts to in timidate the complaining witne sses. Gutierrez also asserts the evidence was insuffi cient to support each of his co nvictions because the prosecution failed to prove he had a specific intent to co mmunicate a criminal th reat. We affirm.

FACTUAL BACKGROUND A ND PROCEDURAL HISTORY I. The Charges The Los Angeles County Dist rict Attorney filed a two- count information charging Gutierrez in count one with making criminal threats against Emmanuel Gutierrez, and in count two with making criminal threats against Angelica Brito (§ 422). As to each count, it was alleged that Gutierrez had suffered one prior serious or violent felony conviction within the meaning of section 667, subdiv ision (a)(1) and the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (a )-(d)). Gutierrez pleaded not guilty to each count and denied the enha ncement allegations.

II. The Evidence At Trial On September 24, 2011, at about 6:15 p.m., Gutierrez and his brother, Emmanuel, 2 were arguing in the living room of their re sidence in Huntington Park. Earlier that evening, Gutierrez and Emmanuel had consum ed a few beers. Emmanuel’s girlfriend, Angelica Brito, and their three-year-old daughter also resided in the home. The daughter was not at home at the time; Brito was in he r bedroom and went down stairs to see what was happening. Emmanuel was upset becaus e he had seen one of Gutierrez’s friends leaving the house. Emmanuel told Gutierrez that he did not want Gutierrez bringing his friends to the house because they were drug users.

1 Unless otherwise stated, all further stat utory references are to the Penal Code.

2 For clarity and convenience, and not out of disrespect, we refer to Emmanuel Gutierrez by his first name.3 Gutierrez and Emmanuel went outside followed by Brito. As the two men continued to argue, Gutierrez became in creasingly angry and aggressive toward Emmanuel. Gutierrez told Emmanuel, “I’m goi ng to kill you. I’m going to chop your legs off.” Gutierrez then began walking aro und in circles. He also started punching Emmanuel’s car window and kicking his car doo r. As Emmanuel and Brito stood on the front porch, Gutierrez walked in front of Br ito, looked directly at her, and said, “I’m going to kill your daughter.” Upon hearing Gutierrez’s st atement about her daughter, Brito became concerned because he had “never said anything like that” before and she “wasn’t sure what he’s capable of doing.” Brito felt that she had to call the police at that time because Gutierrez’s statement caused her to fear for he r family’s safety. She also was concerned the argument between Gutierrez and Emmanuel might escalate into a physical altercation. Brito was nervously dialing 911 when Emma nuel took the phone from her and reported Gutierrez’s threat to the 911 operator. E mmanuel decided to involve the police because he was fed up with Gutierrez and was also concerned there might be a physical confrontation. Gutierrez had been arrest ed for hitting Emmanuel in the past. Huntington Park Police Department Sergea nt Eric Ault was the first officer to arrive on the scene. When Sergeant Ault approached Gutierrez in the driveway and asked “what was going on,” Gutierrez immediat ely answered, “If my brother tells you that I threatened to k ill him, I didn’t do that.” Huntingt on Park Police Officer Saul Duran arrived as Gutierrez was being detained in th e driveway. While at the scene, Officer Duran spoke with Emmanuel and Brito, both of whom appeared to be angry and upset. They reported to Officer Du ran that Gutierrez had threaten ed to kill Emmanuel and their daughter. They also told Officer Duran that they were in fear for their own safety and the safety of their daughter due to Gutierrez’s violent history. Neither Sergeant Ault nor O fficer Duran observed an y objective signs that Gutierrez was under the influence of alcohol or drugs. His breath did not smell of alcohol, his eyes were not wate ry or bloodshot, and he did not have an unusual gait. Gutierrez was fairly talkative, but appeared to be coherent and responded logically to4 the officers’ questions. Sergean t Ault spent 10 to 12 minutes w ith Gutierrez at the scene. Officer Duran observed Gutierr ez at the police station for approximately 15 minutes onehalf hour to an hour after his arrest. At that time, Gutierrez was calm, quiet, and did not appear to be intoxicated. After being advised of his Miranda rights, Gutierrez told Officer Duran that he did not want to ta lk and simply wanted a court date. While Gutierrez was in custody, he called th e family’s home and spoke with Brito. During the call, he told Brito that “he woul d see [her] soon.” When Brito asked Gutierrez what he meant by that statem ent and whether he would be released soon, he did not answer her. Instead, he kept repeating, “ I’ll see you soon.” Brito was concerned about Gutierrez’s intent in making the statement and discussed the call with Emmanuel. On November 9, 2011, a few week s after Gutierrez’s arrest, Probation Officer Gilbert Garay spoke w ith Emmanuel on the telephone in the course of preparing a pre-plea report. Emmanuel told Officer Gara y that Gutierrez had be en involved with gangs all of his life and had been in and out of jail. He said that his family had tried to help Gutierrez, but Gutierrez continued to bri ng drug users to their home and was causing a serious problem. In addition, Emmanuel stat ed that, since Gutierr ez’s arrest, several people had come on to the family’s property and attempted to get into their cars, which had never before happened in the 11 years th ey had been at that residence. Emmanuel told Officer Garay that he believed Gutierrez was sending these individuals to their home through his contacts in jail because he was a gang member. Emmanuel also described Gutierrez’s statement to Brito th at he would see her soon and told Officer Garay that he took that statemen t as a threat. At trial, both Emmanuel and Brito testifie d that Gutierrez was a drug user and that they believed he was under the influence of drugs at the time he threatened Emmanuel and their daughter. Emmanuel explained that he had lived with Gutierrez for over 20 years and knew how he acted when he was u nder the influence of drugs. According to Emmanuel, when Gutierrez was on drugs, he tended to act erratically and speak nonsensically. Although Brito had not obse rved Gutierrez taking drugs, she had found his pipes and other drug paraphernalia in the past. As described by Brito, Gutierrez was a5 different person when he was on drugs. Hi s facial expression would change, his eyes would become red, and his finge rs would start to twitch. He also tended to stutter and become very aggressive. Neither Emmanuel nor Brito had ever observed Gutierrez being violent or aggressive when he was sober. On the night of the incident, Brito noti ced that Gutierrez was stuttering slightly and repeating the same statements. She also saw that his eyes were red and his fingers were twitching. Brito testified that she want ed Gutierrez to be pros ecuted and to remain in custody because “he really ne eds help with his addiction, and that way I won’t have to deal with him or see him.” Emmanuel testifie d that he wanted Gutierrez to get help for his drug problem, but “not to go to jail for some thing he hasn’t done or is not capable of doing.”

III. Jury Verdict and Sentencing The jury found Gutierrez not guilty of th e charged offenses of making criminal threats, but guilty of the lesse r included offenses of attempte d criminal threats. In a bifurcated proceeding, the tria l court found the allegations that Gutierrez had suffered one prior serious or violent felony conviction to be true. Gutierrez was sentenced to a total state prison term of seven years and eight mont hs. He filed a timely notice of appeal.

DISCUSSION

I. Rulings on the Admission of Evidence On appeal, Gutierrez raises two arguments regarding the admission of evidence. First, he contends the trial court erred in admitting evidence of his membership in a gang because such evidence was in flammatory and overly prejudi cial in the absence of any gang enhancement allegation or proof the char ged crimes were gang-related. Second, he claims the trial court erred in admitting evid ence of his alleged attempts to intimidate Emmanuel and Brito from jail because such ev idence was speculative, irrelevant, and unduly prejudicial. Gutierrez al so asserts that the errors ha d the effect of depriving him6 of his constitutional right to due process. We conclude that the tr ial court did not abuse its discretion or violate due process in admitting the challenged evidence.

A. Standard of Review A trial court generally has broad discretion concerning the admission of evidence. ( People v. Cole (2004) 33 Cal.4th 1158, 1197; People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) When an objectio n under Evidence Code section 352 is raised, “the trial court ‘must weigh the admission of [the challenged] evidence carefully in terms of whether the probative value of the evidence is greater than the potentially prejudicial effect its admission would ha ve on the defense.’” ( People v. Cardenas (1982) 31 Cal.3d 897, 904.) Evidence is overly prejudicial if it “uniquely tends to evoke an emotional bias against a party as an individual, while having only slight probative value with regard to the issues.” ( People v. Crittenden (1994) 9 Cal.4th 83, 134.) “‘[A]n appellate court applies the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence, including one that turns on the relative probativeness and prejudice of the evid ence in question. . . .’ [Citation.]” ( People v. Jablonski (2006) 37 Cal.4th 774, 805.) “Where, as here, a discretionary power is statutorily vested in the trial court, its exer cise of that discretion ‘must not be disturbed on appeal except on a showing that the court exercise d its discretion in an arbitrary, capricious or patently absurd manner that resulted in a mani fest miscarriage of justice. [Citations.]’ [Citation.]” ( People v. Rodrigues , supra , 8 Cal.4th at pp. 1124-1125.) As a general matter, application of th e ordinary rules of evidence does not impermissibly infringe on a defendant’s constitutional rights. ( People v. Lindberg (2008) 45 Cal.4th 1, 26; People v. Kraft (2000) 23 Cal.4th 978, 1035 .) “To prove a deprivation of federal due process rights, [a defendant] mu st satisfy a high constitutional standard to show that the erroneous admissi on of evidence resulted in an un fair trial. ‘Only if there are no permissible inferences the jury ma y draw from the evid ence can its admission violate due process. Even th en, the evidence must “be of such qu ality as necessarily prevents a fair trial.” [Citati ons.] Only under such circum stances can it be inferred that7 the jury must have used th e evidence for an improper purpose.’ [Citation.]” ( People v. Albarran (2007) 149 Cal.App.4th 214, 229.) Acco rdingly, “[t]he admission of relevant evidence will not offend due process unless the ev idence is so prejudicial as to render the defendant’s trial fundamentally unfair.” ( People v. Falsetta (1999) 21 Cal.4th 903, 913.)

B. Admission of the Gang Evidence 1. Relevant Facts At trial, defense counsel objected to th e introduction of any evidence regarding Gutierrez’s gang affiliation. Defense counse l argued that such evidence was irrelevant because the case arose out of a domestic dis pute and no gang enha ncement allegation had been alleged. Defense counsel further asse rted that the victims’ vague belief that Gutierrez associated with gang members did no t provide an adequate foundation for such evidence. The prosecutor coun tered that the evidence was relevant to Emmanuel’s fear that Gutierrez was continuing to harass him fr om jail through his gang contacts. The prosecutor also explained that Emmanuel a nd Brito recently had be come reluctant to cooperate, but previously had indicated th at they knew of Gutierrez’s gang involvement based on their familial rela tionships with him. The trial court ruled as follows: “I am going to allow the witnesses to be questioned about the sustained fear aspect and element of the crime. And if they believed Mr. Gutierrez to be a gang member, then that goes to the sustained fear. Whether or not he actually is is a different issue. But . . . it’s the victims’ state of mind as to why they were afraid of him. So . . . in terms of wh ether he is a gang member or not, that goes to the weight of the evidence.” The trial court al so held that the evid ence was probative on the issue of witness bias and recanting of prior testimony. Officer Garay testified at trial about Emma nuel’s statements to him that Gutierrez had been involved with gangs all of his life and may have been sending people to the family’s home to intimidate them through his contacts with the gang. During her testimony, Brito was asked by the prosecut or if she knew whether Gutierrez was a gang member and if she was afraid of Gutierrez because of his gang affiliation. Brito testified8 that she was aware Gutierrez wa s a member of the Lynwood Rude Boys with the moniker “Lefty.” She denied that Gutierrez’s gang a ffiliation caused her any fear or affected her testimony in any way. During his testimony, Emmanuel was asked about his statements to the probation officer concerning Gutierr ez’s gang involvement and suspected use of gang contacts to intimidate Emmanuel from ja il. Emmanuel was also asked whether he feared Gutierrez because of his gang affiliation. Emmanuel testified that he did not recall making any statements about Gu tierrez’s membership in a gang to the probation officer. He also stated that it “was just a thought” that Gutierrez might be sending people to the house through gang contacts, but denied it ca used him any fear. On cross-examination, Emmanuel testified that Gutierrez had not been involved in gang s for a very long time. Following the witnesses’ testimony, the trial court issued the following limiting instruction to the jury: “[A]ny testimony that you heard about whether or not Mr. Gutierrez was a member of a gang, anything about a gang, anything about people coming by the house, the only reason y ou heard that testimony was for a limited purpose. It goes to whether or not these witne sses who testified were fearful because of their thoughts. There is no evidence that Mr. Gutierrez is a gang member. That’s not for you to decide or whether or not people came to the house because of him; it’s just what the people believed and how that affected them. And it will be evidence you can consider for that purpose. . . .”

2. Relevant Law In cases not involving a section 186.22 gang enhancement allegation, it generally has been held that “evidence of gang membership is pot entially prejudicial and should not be admitted if its proba tive value is minimal.” ( People v. Hernandez (2004) 33 Cal.4th 1040, 1049.) Ga ng evidence is not ad missible where its sole relevance is to show that a defendant has a criminal disposition or bad character. ( People v. Albarran , supra , 149 Cal.App.4th at p. 223; People v. Avitia (2005) 127 Cal.App.4th 185, 192.) On the other hand, “evidence of gang membership is of ten relevant to, and admissible regarding, the charged offense. Eviden ce of the defendant’s gang a ffiliation – including evidence9 of the gang’s territory, memb ership, signs, symbols, belie fs and practices, criminal enterprises, rivalries, and the like – can help prove identity, motive, modus operandi, specific intent, means of applying force or fea r, or other issues pertinent to guilt of the charged crime. [Citations.]” ( People v. Hernandez , supra , at p. 1049.) Gang evidence is therefore admissible if it is logically relevant to some material issue in the case other than character evidence, is not more prejudicial than probative, and is not cumulative. ( People v. Carter (2003) 30 Cal.4th 1166, 1194; People v. Albarran , supra , at p. 223; People v. Avitia , supra , at p. 192.)

3. The Gang Evidence Wa s Properly Admitted In this case, the trial court did not abuse its discretion in admitting the evidence of Gutierrez’s gang affiliation. To prove Gutie rrez was guilty of making criminal threats, the prosecution had to establis h, among other elements, that Gutierrez’s threats caused Emmanuel and Brito to be in actual and reasona ble sustained fear for their own safety or the safety of their family. (§ 422; In re George T. (2004) 33 Cal.4th 620, 630.) In the context of section 422, “susta ined fear” means a fear that continues for “a period of time that extends beyond what is momentary, fleeting, or transitory. . . .The victim’s knowledge of defendant’s prior co nduct is relevant in establis hing that the victim was in a state of sustained fear. [Citation.]” ( People v. Allen (1995) 33 Cal.App.4th 1149, 1156.) Here, the evidence pertaining to Gutierre z’s gang affiliation was probative of whether the victims were in actual and reas onable sustained fear of Gutierrez based on his threats, and whether any fear experience d by the victims affected their testimony at trial. As discussed, Officer Garay testif ied that, when he sp oke to Emmanuel a few weeks after the incident, Emmanuel stated that he believed Gutierrez, a life-long gang member, was sending people to the family’s home through his contacts with his gang. Officer Garay further testified that Emmanuel appe ared to be in fear for his safety at the time he reported these concerns . The evidence was thus re levant to establishing that Emmanuel’s fear of Gutierrez was not momentary, fleeting, or trans itory. The evidence was also relevant to countering Emmanuel’s te stimony that he was never afraid for his or10 his family’s safety based on Gutierrez’s th reats, and was merely concerned about an imminent physical altercation with Gu tierrez when he contacted the police. Gutierrez contends that the gang eviden ce could not have been probative on the element of sustained fear because both Emmanuel and Brito testified at trial that they did not believe Gutierrez would carry out his thre ats to kill Emmanuel and their daughter, and were not afraid of Gutierre z based on his gang affiliation. However, in speaking with Officer Garay, Emmanuel specifically menti oned Gutierrez’s life-l ong gang involvement and his concern that Gutierrez might be us ing his gang contacts to intimidate Emmanuel from jail. Additionally, ther e was evidence that, immediat ely after the incident, both Emmanuel and Brito told Officer Duran that they were in fe ar for their own safety and the safety of their daughter due to Gutierrez’ s violent history. Given the victims’ prior inconsistent statements to law enforcement about their state of mi nd, the evidence of Gutierrez’s gang affiliation was relevant to demonstrating that his threats caused them to be in a state of reasonable sustained fe ar despite their subsequent testimony to the contrary. The gang evidence was also relevant to eval uating the credibility of the victims’ testimony and explaining their reluctance to testify against Gutierrez at trial. Furthermore, admission of the gang evid ence was neither unduly prejudicial nor did it render the trial fundamentally unfair. The prosecutor’s questions about Gutierrez’s gang affiliation were narrow in scope, neutrally -phrased, and directed at establishing the foundation for the victims’ knowledge about whether Gutierrez was a gang member and the extent to which such kn owledge caused them fear. The prosecutor only addressed Gutierrez’s gang affiliation in rebuttal afte r the issue was raised by defense counsel. Additionally, the trial court inst ructed the jury to consider the gang eviden ce only for the limited purpose of evaluating the victims’ stat e of mind, and reminded the jury of its limiting instruction during closin g arguments. We must presum e that the jury understood and followed this instruction. ( People v. Lindberg , supra , 45 Cal.4th at p. 26; People v. Coffman and Marlow (2004) 34 Cal.4th 1, 107.) Th e fact that the jury acquitted Gutierrez of the charged offenses of making cr iminal threats, and instead convicted him11 of the lesser included offenses of attempted cr iminal threats, furthe r suggests that the gang evidence did not have an infla mmatory impact on the verdict. The trial court acted within its discreti on and in accordance with due process in concluding that the probative value of th e gang evidence outweig hed the potential for undue prejudice.

C. Admission of the Witness Intimidation Evidence 1. Relevant Facts At trial, defense counsel also objected to the introduction of evidence concerning the alleged attempts to intim idate Emmanuel and Brito while Gutierrez was in custody. Defense counsel argued that such evidence was imperm issibly speculative because Emmanuel had no basis for knowing that the individuals he had observed outside his home had been sent by Gutierrez. Defense c ounsel further asserted that any fear the victims may have felt based on such conduct was not probative of whether Gutierrez’s charged threats caused them fear. The prosecu tor responded that he did not intend to use the evidence to prove th at Gutierrez had, in fact, sent people to intimidate the victims, but rather to show that Emmanuel remained in a state of fear even after Gutierrez was in custody. The prosecutor also opined that Gutierrez’ s statement to Brito that he would see her soon was relevant to Emmanuel’s demea nor on the witness stand and his reluctance to testify against Gutierrez due to fear for his family’s safety. The trial court overruled defense counsel’s objection and held as follows: “I think the cases are clear that those inquiries are ap propriate in terms of recanting witnesses or witnesses who may have initially testified. So I am going to allow [the prosecutor] to inquire of the witness, and whether or not he can prove up the statements is another issue.” As discussed, the trial court also i ssued a limiting instructio n to the jury that it was not allowed “to decide whether people came to the house because of [Gutierrez],” and that such evidence was to be considered solely for the purpose of determining “what the [witnesses] believed and ho w that affected them.”12 Brito testified at trial about Gutierrez’s re peated statement to her on the telephone that he would see her soon. She related that she did not necessarily regard the statement as a threat, but she was “a litt le” concerned because she di d not know what Gutierrez meant by it and whether he was upset that sh e and Emmanuel had contacted the police. Brito also testified that, on another occas ion while Gutierrez was in custody, an unidentified person broke into her car as it was parked in the driveway . Brito stated that she did not know if Gutierrez had sent anyo ne to the family’s home, but she was not fearful that he had done so. In his te stimony, Emmanuel admitted that he told the probation officer about Gutierrez’s statement to Brito that he would see her soon, but denied telling the officer that he perceived it as a threat. Emmanuel also confirmed that he told the probation officer about people comi ng onto the family’s property and trying to break into their cars, but denied telling him that he believed those people had been sent by Gutierrez.

2. Relevant Law Evidence of a third party’s attempt to intimidate a witness generally is inadmissible to prove a defendant’s cons ciousness of guilt unless the defendant authorized the intimidation. ( People v. Abel (2012) 53 Cal.4th 891, 924; People v. Williams (1997) 16 Cal.4th 153, 200). However, “ ‘[e]vidence that a witness is afraid to testify or fears retaliation for te stifying is relevant to the cr edibility of that witness and is therefore admissible. [Citations.] An explana tion of the basis for the witness’s fear is likewise relevant to [his or] her credibility and is well within the discretion of the trial court. [Citations.]’ [Citations.]” ( People v. Mendoza (2011) 52 Cal.4th 1056, 1084.) “For such evidence to be admissible, there is no requirem ent to show threats against the witness were made by the defendant personally or the witness’s fear of retaliation is ‘directly linked’ to the de fendant. [Citation.]” ( People v. Guerra (2006) 37 Cal.4th 1067, 1142, disapproved on another ground in People v. Rundle (2008) 43 Cal.4th 76, 151; see also People v. Mendoza , supra , at p. 1084 [“evidence of a ‘third party’ threat may bear on the credibility of th e witness, whether or not the threat is directly linked to13 the defendant”].) “It is not n ecessarily the source of the thr eat -- but its existence -- that is relevant to the witness’s credibility.” ( People v. Burgener (2003) 29 Cal.4th 833, 870.)

3. The Witness Intimidation Ev idence Was Properly Admitted Here, the trial court acted within its di scretion in admitting the evidence of the threats allegedly directed at the victims fo llowing Gutierrez’s arrest . The credibility of Emmanuel and Brito, their general reluctance to testify against Gutierrez, and the extent to which their testimony may have been influe nced by a fear of retaliation were critical issues in the case. While both Emmanuel an d Brito informed Officer Duran immediately after the incident that they were in fear for their own sa fety and the safety of their daughter based on Gutierrez’s thr eats, they told a different story at trial. Although Brito testified at one point that sh e called the police b ecause Gutierrez’s threats caused her to fear for her family’s safety, sh e later stated that she was ne ver afraid that Gutierrez would carry out his threats and wa s merely concerned that the verbal argument between Gutierrez and Emmanuel might escalate into a physical altercation. Emmanuel completely denied at trial that he was ever in fear for his or his family’s safety due to Gutierrez’s threats, and claimed that he knew Gutierrez was not capable of carrying them out. Emmanuel further testified that he calle d the police solely because he was fed up with Gutierrez’s drug habit and wanted to avoi d a physical confrontation. Evidence that Brito and Emmanuel felt they were being th reatened after they reported Gutierrez’s crimes to the police was thus highly releva nt to evaluating their credibility at trial. Gutierrez asserts that the evidence of his statement to Brito that he would see her soon should have been exclud ed because Brito and Emmanuel could only speculate that the statement was intended to be a threat. However, the probative va lue of the statement did not depend on Gutierrez’s inte nt in making it, but on the victims’ perception of the statement as a threat and the impact such perception may have had on their testimony. While not necessarily regarding it as a threat, Brito testified that the statement caused her concern about whether Gutierrez was angry that she and Emmanuel had contacted the police and whether Gutierrez might soon be released from custody. Although Emmanuel14 testified that he did not view the statement as a threat because he did not hear it firsthand from Gutierrez, Officer Garay recalled that E mmanuel specifically told him that he did consider the statement to be a threat. Give n the victims’ reluctance to testify against Gutierrez at trial, the probative value of Gutierrez’s repeated statement to Brito that he would see her soon substantially out weighed the potential for prejudice. For similar reasons, the evidence rela ting to the victims’ concern about unidentified individuals trespass ing onto their property and tryi ng to break into their cars was also admissible. Contra ry to Gutierrez’s claim, the evidence was not impermissibly speculative simply becau se the victims admitt ed they did not know whether Gutierrez had sent those individuals to their home. Irrespec tive of whether the alleged trespassers could be directly linked to Gutierrez, the evidence was relevant to establishing that Emmanuel and Brito remained fearful of Gutierrez se veral weeks after he had been taken into custody. Although both victims denied at trial that the presence of these strangers on their property caused them any fear, Officer Garay testified that Emmanuel did appear to be afraid for his family’s sa fety when he report ed these suspicious activities to him. Moreover, any potential for prejudice was mitigated by the trial court’s limiting instruction to the jury that it was not to decide whether Gutierrez actually directed anyone to the victims’ home but was to consider such evidence for the sole purpose of evaluating the victims’ state of mind. In sum, because the substantial probative value of the witness intimidation evidence outweighed any potentially prejudicial effe ct, the trial court did not abuse its discretion or violate due proc ess in admitting the challenged evidence.

II. Sufficiency of the Evidence Supporting the Convictions Gutierrez also challenges the sufficien cy of the evidence supporting his conviction. He specifically contends the ev idence was insufficient to support a finding that he intended his statements to be taken as a true threat. Gutierrez claims the only reasonable inference that could be drawn from the evidence was that his statements were the result of an emotional outburst brought on by intoxication. We disagree.15 In assessing a claim of insufficient evid ence, “we review the whole record to determine whether any rational trier of fact c ould have found the essential elements of the crime or special circumstances beyond a reas onable doubt. [Citation.] The record must disclose substantial evidence to support the verdict – i.e., ev idence that is reasonable, credible, and of solid value – such that a re asonable trier of fact could find the defendant guilty beyond a reasonable doub t. [Citation.] In applying this test, we review the evidence in the light most fa vorable to the prosecution a nd presume in support of the judgment the existence of ev ery fact the jury could reasonably have deduced from the evidence. [Citation.] ‘Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judg ment, for it is the excl usive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [C itation.] . . . [Citation.]’ [Citation.] A reversal for insufficient evidence ‘is unw arranted unless it appears “that upon no hypothesis whatever is ther e sufficient substantial eviden ce to support”‘ the jury’s verdict. [Citation.]” ( People v. Zamudio (2008) 43 Cal.4th 327, 357.) To prove that a defendant made a criminal threat in violati on of section 422, “the prosecution must establish all of the following: (1) that th e defendant ‘willfully threaten[ed] to commit a crime which will re sult in death or great bodily injury to another person,’ (2) that the defendant made th e 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 the threat -- which may be ‘mad e 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, immedi ate, and specific as to convey to the person threat ened, a gravity of purpose and an immediate prospect of execution of the threat,’ (4) that the threat actually caused th e 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 pe rson’s fear was ‘reasonabl[e]’ under the circumstances. [Citation.]” ( People v. Toledo (2001) 26 Cal.4th 221, 227-228.)16 “[I]f a defendant, . . . acting with the requis ite intent, makes a sufficient threat that is received and understood by the threatened person, but, for whatever reason, the threat does not actually cause the threatened pers on to be in sustained fear for his or her safety even though, under the circum stances, that person reasonabl y could have been placed in such fear, the defendant properly may be found to have comm itted the offense of attempted criminal threat.” ( People v. Toledo , supra , 26 Cal.4th at p. 231.) In the context of section 422, “[a] th reat is sufficiently specific wh ere it threatens death or great bodily injury. A threat is not insufficient simply because it does ‘not communicate a time or precise manner of execution, section 4 22 does not require those details to be expressed.’ [Citation.]” ( People v. Butler (2000) 85 Cal.App.4th 745, 752.) Section 422 also “does not require an intent to actually carry out the threatened crime. [Citation.] Instead, the defendant must inte nd for the victim to receive and understand the threat, and the threat must be such that it would caus e a reasonable person to fear for his or her safety or the safety of his or her immediate family. [Citation.]” ( People v. Wilson (2010) 186 Cal.App.4th 789, 806.) “‘[T]he determ ination whether a defendant intended his words to be taken as a threat . . . can be based on all the surroun ding circumstances and not just on the words alone.’” ( People v. Gaut (2002) 95 Cal.App. 4th 1425, 1431.) In this case, there was sufficient evidence to sup port a finding that Gutierrez intended his statements to be taken as a thre at. “Evidence of intoxication, while legally relevant , may be factually unconvincing. ‘[A]s w ith any evidence, the jury may give this testimony whatever weight it deems appropriate in light of the evidence as a whole.’ [Citation.]” ( People v. Mendoza (1998) 18 Cal.4th 1114, 1134.) Although Emmanuel and Brito both testified that they believed Gutierrez was under the influence of alcohol or drugs at the time he made the threats, ne ither of the officers who questioned Gutierrez that night observed any objectiv e symptoms of intoxication. As described by the officers, Gutierrez appeared to be in full command of his faculties. He did not have watery or bloodshot eyes or an unsteady gait. He also answered the officers’ questions in a clear and coherent manner. Office Duran, who spoke with Gutierrez at th e police station less than an hour after th e incident, noted that Gutierrez was calm and quiet. Upon being17 advised of his Miranda rights, Gutierrez unequivocally chose to exercise those rights and told Officer Duran that he wanted a court date. From this record, the jury reasonably could have found that to the extent Gutie rrez consumed any alcohol or drugs that evening, he was not so into xicated that he was unable to form the requisite intent. The circumstances surround ing Gutierrez’s statements further supported a finding that he intended to communicate an actual threat. The words he used were specific and unambiguous. Gutierrez did not merely allude to an act of violence, but unequivocally stated that he was going to kill Emmanuel and chop off his legs . After kicking and punching Emmanuel’s car until he bled, Gutierrez then turned to Brito and told her that he was going to kill her daughter. At that point, both Brito and Emmanuel felt compelled to call the police. As Emmanuel was reportin g the threat to the 911 operator, Gutierrez could be heard in the backgr ound repeating his statement that he was going to kill Emmanuel. When officers arrived on the scen e shortly thereafter, Gutierrez told them without prompting, “If my brother tells you that I threatened to kill him, I didn’t do that.” Considering the totality of the evidence pres ented, each of Gutierrez’s convictions for attempted criminal threats was supported by substantial evidence.

DISPOSITION

The judgment is affirmed.

ZELON, J.

We concur:

PERLUSS, P. J. WOODS, J.