Filed 5/28/14 P. v. Ferea CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT
THE PEOPLE, Plaintiff and Respondent,

v. WILLIAM JOHN FEREA, Defendant and Appellant. H037332 (Santa Clara County Super. Ct. No. C1087198)

Defendant William John Ferea was convicted by a jury of one count of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and one count of threatening to commit a crime resulting in deat h or great bodily injury ( id ., § 422). The jury found him not guilty on a charge of first degree burglary ( id ., §§ 459, 460, subd. (a)). In a bifurcated proceeding, the trial court found true the special allegations that Ferea had a prior strike conviction ( id ., §§ 667, subds. (b)-(i), 1170.12) and a prior serious felony conviction ( id ., § 667, subd. (a)). Prior to sentencing, Ferea moved for a new trial based on a claim of juror
misconduct. The trial court denied the motio n. At sentencing, after denying Ferea’s
Romero 1 motion, the trial court sentenced him to a total term of 10 years and four months in prison. On appeal, Ferea argues: (1) the trial c ourt erred in admitting evidence of Ferea’s prior encounters with police o fficers; (2) the trial court erre d in limiting the evidence of

1 People v

. Superior Court ( Romero ) (1996) 13 Cal.4th 497.2 prior convictions Ferea could use to impeach the victim’s testimony; (3) the trial court erred in admitting irrelevant evidence of injuries to Ferea’s wife and permitting the prosecutor to ask prejudicial questions about the cause of those injuries; (4) there was insufficient evidence to support his conviction for making criminal threats; and (5) the trial court erred in denying his motion for new trial. In a supplemental brief, Ferea argues
the trial court’s denial of his new trial mo tion was a violation of his constitutional rights
under the Fifth and Fourteenth Amendmen ts to the United States Constitution. We reject all of Ferea’s arguments and will affirm.
I. F ACTUAL AND P ROCEDURAL B ACKGROUND
A

. Charges Ferea was charged by information with bu rglary (Pen. Code, §§ 459, 460; count 1), assault with a deadly weapon ( id ., § 245, subd. (a)(1); count 2), and making a criminal threat ( id ., § 422; count 3). The information furthe r alleged Ferea had both a prior strike ( id ., §§ 667, subds. (b)-(i), 1170.12) and a prior serious felony conviction ( id ., § 667, subd. (a)).
B

. Prosecution case
1

. Victim ’ s testimony The victim, Michael Vest, te stified he was not feeling well and was sleeping in his bedroom on the afternoon of September 8, 20 10, when he suddenly woke up to discover
Ferea in his room. 2 Ferea was drunk and mumbling incoherently. Vest told Ferea to get out, but Ferea di d not do so. He just kept mumbling and
was so drunk Vest was unable to understand him. Vest beca me angry and told Ferea to “get the fuck out.” When Fe rea still made no move to leave, Vest pushed him out the bedroom door. Ferea took a swing at Vest, but missed.

2 Vest admitted he may have seen Ferea in his home earlier that day, playing video games and possibly drinking with Vest’s adult son.3 Now in the hallway, the two men began wrestling. Ferea gr abbed Vest’s hair, pulling out a substantial clump, and Vest punched Ferea in th e face. Ferea punched back, but never connected. Ferea was hollering some thing that Vest coul d not understand, and after a couple of minutes, Vest was able to pu sh Ferea out the front door. Vest thinks he may have also told everyone else in the hou se, including his son, to get out, after which
he locked the door and went back to bed. A few minutes later, Vest heard a noise in the living room and went out to find Ferea standing inside his house, along with Vest’s adult nephew. Vest was confused because his nephew did not have a key, and he thought no one else could have let them in. After later inspecting hi s front door, he believed Ferea had forced his way in. Ferea was angry, acting “all crazy,” and drunkenly mumbling some “crazy stupiditiness [ sic ].” Vest told him to leave, but Ferea ignored him. Vest then noticed that Ferea was holding a meat cleaver and his hands and face were bloody. Ferea brandished
the cleaver at Vest.
Vest ran around the television in his livi ng room and was able to run out the front door. Ferea chased after Vest, still brandish ing the meat cleaver over his head. Vest went around the outside of his house, with Ferea in pursuit. Once he got back to the front, Vest ran inside and barricaded his d oor. He then went back to bed. Vest denied having any kind of weapon during his encounters with Ferea that
afternoon. Vest also testified that, at the time of trial, he was serving a six month sentence on
an unrelated matter and he and Ferea were hous ed near each other in the county jail.
Ferea contacted Vest and asked if Vest woul d “go to bat for [him],” i.e., not testify against him. About three or four weeks before the trial, Ferea called Vest a “rat.” Ferea and Vest also exchanged notes and Ferea gave Vest a copy of the police report. Vest subsequently wrote to Ferea asking for some soup, coffee, and “an apology or something.”4 2

. D

. C .’ s testimony D.C., a 12-year-old neig hbor, testified she was doing her homework when she heard Vest’s daughter screami ng at him outside. D.C. saw a man holding a knife chasing
after another man. 3 She saw the first man throw the kn ife in the street. Although she did not identify Ferea as the man with the knife, she said the man with the knife knows her
mom’s brothers and had visited at her house earlier that day. He did not talk to her then, but he did say “Hi,” to her brother.
3

. San Jose Police Officer Thomas O ’ Donnell
Officer Thomas O’Donnell of the San Jose Police Department testified he
interviewed D.C. on the afternoon of the inci dent. O’Donnell said he had some difficulty conducting the interview, as D. C.’s mother “did not want he r to cooperate with me,” and did not “want her daughter to get involved or give me any information as to what she had seen.” D.C. told O’Donnell she was doing he r homework when she heard glass breaking. She looked outside and saw Ferea standing ac ross the street screami ng, bleeding from his hands. He threw a knife across the street, th en sat down on the lawn. Ferea was the only person she saw outside. She then saw the pol ice arrive and start talking to him.
4

. Kimberlee Kelley ’ s testimony Kimberlee Kelley testified that Ferea is th e son of one of her best friends and, at the time of the incident, she was renting a room to Ferea and his wife, Andrea. Kelley lived in one of the other bedrooms, and sh ared the kitchen and living space with the
Fereas.

3 D.C.’s testimony was reluctant and she did not identify Ferea in court. She began to cry when shown a picture of the knife recovered from the scene.5 On September 8, Kelley had return ed from work and saw Ferea on Vest’s 4 porch talking to someone. She waved and asked him to come over when he was finished talking. Kelley went inside, changed her clot hes and ate. About an hour after she got home, she heard yelling outside. She saw Fere a in the front yard and she heard Andrea crying. Kelley went outside and asked Andrea what was wron g. Ferea and Vest were yelling and cursing at each othe r, saying things like “bring it on.” Kelley also may have told a defense investigator she heard Andrea sa y, “No Bill, No Bill, don’t go over there.” Kelley saw that Ferea’s face was puffy and it look ed like he had been in a fight. His face, mouth and hands were bloody. Kelley, Ferea and Andrea went inside their house. Ferea was drunk and was asking Kelley for the telephone . He was unsteady and bounced into the walls in the hallway, knocking a picture off the wall and some knick-knacks off a wall unit. She asked him what was going on and he said, “W e got in a mother-fuckin g fight.” She told him to go in the bathroom so they could clean him up. Kelley then heard a “boom” at the doo r, though she does not know what caused the noise. Ferea stepped out onto the porch , and Kelley could see Vest outside on the sidewalk, armed with a knife. Vest gestured at Ferea with the knife, challenging him.
Ferea went into the kitc hen and grabbed a knife 5 from the butcher block and returned
outside to confront Vest. Ke lley told him to stay inside, but he ignored her. She called 911, and as she took the phone into the front yard, she saw Ferea running around the corner where she lost sight of him for a period of time.

4 Kelley testified that she did not know Ve st’s real name at the time, and instead always referred to him as “Mr. Asshole.” Sh e did not want to testify because Vest was vindictive and, as she still lived ne xt door to him, she was afraid. 5 When shown the knife found by police at the scene, Kelley was unable to say whether or not it came from her kitchen. She also could not recall if she told a defense investigator that Ferea grabbed a meat cleaver, as opposed to a “knife.”6 Ferea reappeared, still running and yelling, but without the knife. He sat down on the front porch where he and Kelley waited fo r the police to arrive . When the police arrived, they stood by their cars at first and asked what was going on. Kelley heard Ferea say, “Great, yeah, you mother fuckers are comi ng, just go ahead, take me to jail, I know I’m going there anyway.” Ferea kept referri ng to the police as “mother fuckers” and was also telling Kelley to shut up, saying “You don’t have to talk to th em, you don’t have to answer any their [ sic ] bullshit.” She did not hear Fer ea tell Andrea not to talk to the police. She also did not hear Ferea tell any of the officers that he would find them and kill them when he got out of jail. Kelley says she kept te lling Ferea to be quiet because
she did not allow such la nguage in her house. Kelley saw Ferea trying to stand up as the officers approached. Because he was bleeding profusely, he was spitti ng blood out of his mouth, some of which landed on one of the officers’ shoes. At that point, Kelley saw four officers shove Ferea to the ground and put his face in the dirt before putting a spit mask over his head.
5

. Defense investigator Douglas Coffey Douglas Coffey testified he interviewed Kelley on October 19 , 2010. She told Coffey that on September 8, 2010, her evenin g routine had been interrupted when she heard Andrea outside screaming “at the top of her lungs ‘No Bill, no Bill, don’t go over there.’ ” Kelley went outside and saw Fere a, upset, drunk and shirtless, engaged in a
confrontation with Vest. Fer ea was not making any sense, but at one point, he told her he was going to “fuck that mother fucker up.” Kelley saw Ferea return to her house and grab a meat cleaver from her kitchen. Kelle y also told Coffey she overheard Ferea tell the responding police officers, “Go ahead and take me to jail. When I get out I’ll find you and I will kill you.”
6

. Other physical evidence Police retrieved a bloody meat cleaver on the street, less than half a block from where they arrested Ferea. They also found a blood trail leading from a vehicle with a7 smashed windshield towards the front of Fere a’s residence. There was a wooden block on the ground near this vehicle, but no br icks or other large, heavy objects.
7

. San Jose Police Officer John Terry When Officer John Terry and other officer s arrived in response to Kelley’s 911 call, they encountered Ferea sitting near his fr ont porch. He did not have a shirt on, and was bleeding from his hands and mout h. Ferea appeared to be drunk 6 and he was confrontational and verbally ab usive towards the officers. He cursed at them repeatedly, screaming “fuck you, pigs.” He was also ye lling at his wife, Andrea, telling her not to talk to the police. Terry approached to within seven feet of Ferea, who was still sitting down, and
asked him for his identification. Ferea refuse d to provide it, and said, “My identification is in my pocket and I dare you to come get it.” As he said that, he stood up quickly, puffed out his chest and clenched his fists. Terry became c oncerned about his safety and the safety of the other officers , so he moved closer and trie d to detain Ferea, who pulled away. Terry pulled Ferea’s arm behind his back and took him down to the ground. With the help of other officers, he handcuffed Ferea. Ferea continued to curse at the officers and tried to spit on one of them. Terry grabbed Ferea’s hair and pushed his face into the grass. A spit mask was placed over Ferea’s head. As fire department and emerge ncy medical technicians moved in to try to render medical assistance to Ferea, he cursed at them as well, tried to spit at them and continued struggling, so offi cers held his legs down. Ferea was transported to the hospital and Terry followed to continue his investigation. At the hospital, Ferea continue d to be aggressive, cursing and trying to spit at the nurses who were attending him. Terry stood by, as he was concerned that Ferea,

6 Ferea had a blood sample drawn at th e hospital following his arrest and it was stipulated that his blood alcohol content measured 0.21 percent.8 though still handcuffed, could ha rm the staff at the medical cen ter. As Terry stood there, Ferea told him he would pull the police report , remember Terry’s face and when he got out of prison he would find him and kill him. Specifically, Ferea said he would shoot Terry. Because Ferea articulated how he wa s going to discover Terry’s name from the police report and remember his face, Terry cons idered this to be a genuine threat to his safety. Terry was still fearful at the time of trial because the police report had his name
on it.
8

. Testimony regarding Ferea ’ s prior violent enc ounters with police 7 At approximately 2:10 a.m. on January 25, 2004, San Jose Police Sergeant Richard Delisser responded to a report of a family disturbance. Delisser was the first officer to arrive at the reported address, so he stood outside waiting for backup and made no effort to contact anyone inside the reside nce. As he stood there, Ferea opened the door and came out. Ferea was talking on a co rdless phone with the po lice dispatcher. He made eye contact with Delisser and Delisser believed he appeared “hostile.” Delisser
heard a distressed female voice from the back of the residence, behind a closed door. The
woman’s voice was “loud and frantic.” Delisse r told Ferea why he was there, and Ferea told Delisser there “was no way we [i.e., po lice] were going to be coming into the apartment.” Delisser then expl ained that he needed to co ntact the woman in the other room to make sure she was okay, but Ferea again said, “there was no way that we were going to be entering the apartment and that we would have to stay out of his house.” During this exchange, Ferea was hostile and cursing at Delisser. Delisser entered the apartment to investigat e, but Ferea stepped in front of him and attempted to block him. He told Delisser to “get out” and that he “was not allowed in the

7 This evidence was the subject of comp eting in limine motio ns brought by Ferea and the People. The court fo und it was admissible against Ferea under Evidence Code section 1101, subdivision (b), a ruling we di scuss in detail below. Further statutory references are to the Evidence Code.9 apartment.” Ferea threw the cordless telephone at Delisser, hitting him just above the left eyebrow, saying “You ain’t coming in here, b itch,” and “Get the fuck out of my house.”
Delisser took Ferea down to the ground to try and control him, but Ferea kept punching Delisser in the torso. During the struggle, Ferea grabbed Delisser’s radio mic from its shoulder clip, and threw it at Delisser’s head, hitting him agai n above the left eyebrow.
Another officer arrived and he lped Delisser subdue and arre st Ferea, who continued to offer significant resistance. Delisser suffe red a one-inch laceration over his eyebrow which required treatment at the emergency room. On March 10, 2008, San Jose Police Detective Marco Yba rra and two other officers were dispatched to a 9 11 call. When they arrived at the scene, they found Ferea, wearing sweatpants but no shirt. There was bl ood on Ferea’s clothing. Ferea was yelling at the officers and acting “very aggressive.” Ferea’s fists were clenched. Ybarra saw he was holding something in one hand but he c ould not identify what it was. A woman at the scene, subsequently identif ied as Ferea’s mother, screamed to the officers that Ferea
had a knife. Ferea approached the officers, yelling pr ofanities, and the o fficers moved off the sidewalk, out of his path. Ferea followed them into the street. One of the officers pulled out his gun, and Ybarra pulled out his Taser. The officers rep eatedly directed Ferea, who was standing about 15 to 20 feet away, to drop the knife, but he did not comply. Instead,
Ferea threw the knife at the offi cers. Ybarra dodged to his left, otherwise the knife would
have hit him. The knife landed be tween Ybarra and another officer. Ybarra yelled at Ferea, telling him multip le times to get on the ground, but Ferea refused to comply. Ferea res ponded, “Let’s go, let’s do this,” again clenching his fists and adopting a fighting stance. Ybarra tasered him and Ferea was taken into custody. He was transported to the hospital, which is standard procedure when a suspect is tasered.10 Ybarra also went to the hospital to contin ue his investigation. Ybarra read Ferea
his Miranda 8 rights and asked Ferea if he unders tood them. Ferea responded, “Yes, mother-fucking [ sic ] cop, I understand my constitutiona l rights.” When Ybarra asked Ferea if he wanted to give a statement, Ferea sa id, “Sure, why not. It’s not the first time I assaulted an officer. It’s not going to be the la st time, either.” Ferea told Ybarra the last time he assaulted an officer he only got a year in jail and some time working at the Salvation Army. Ferea threatened Ybarra, saying he knew the detective’s name and badge number and “was going to come out and kill [him].” Ferea claimed he had the badge number and name of every officer at the scene, and “he was going to come back and kill everybody.” Ybarra also said Ferea asked why the o fficers did not kill him since he was armed
with a knife. He said he wa s hoping one of the officers woul d shoot and kill him. Ybarra wrote in his report that Ferea was tryi ng to commit “suicide by cop.”
C

. Defense case Ferea’s wife, Andrea, testified she came home late in the af ternoon on September 8, 2010 and saw Vest, armed with a knife, chas ing her husband. Ferea had a bloody nose and mouth, and his face was swollen. She got out of the car, and asked Ferea what was going on. She could smell alcohol on his br eath and noticed he was stumbling and slurring his words. Vest ran down the alleyw ay between their two houses. Andrea went
inside with her husband an d she went to get a towel for him from the bathroom. She heard pounding on the door and sa w Kelley answer the door. Vest was outside the house, still armed with a knife. Ve st was taunting Ferea. Ferea went outside, unarmed, and Andrea followed him. Ferea bega n to chase after Vest and, again, Andrea
followed after the two. The chase ended near some cars parked down the street. Vest, joined by his nephew, began throwing bricks or blocks at Ferea. Ferea was hit in the

8 Miranda v. Arizona (1966) 384 U.S. 436.11 head by one and fell to the gr ound. As Andrea went to help Ferea up, Vest and the nephew threw more blocks at her, the last of which shattered the windshield of a car parked nearby. Andrea and Ferea returned to their porch, where they sat with Kelley waiting for the police to arrive. Andrea no ticed that her husband’s hands were also bleeding heavily. The police arrived and Ferea stood up. When the police took out their tasers, Andrea asked them not to taser Ferea. The po lice pulled her aside, th en took Ferea to the ground. She tried to watch wh at was going on, but the police told her to tu rn away and
not look at her husband. Andrea said she injured herself early that morning, after her feet got tangled in her bedsheets while getting out of bed. She fell against the night stand, suffering a bump on her forehead and a cut lip. Andrea, who was pr egnant at the time, and Ferea drove to the emergency room for treatment. She denied th at the injuries were caused by Ferea and
said Ferea has never struck her. As she was being interviewed by police, a gray-haired officer came up to her as she was talking to another officer. The gray-haired officer suggested Andrea was a
victim of domestic violence and accused her of being a manipulator who would cover for her husband. After that, Andrea was upset a nd did not give a comple te statement to the other officer who was interviewing her. She denied that Ferea was yelling at her not to talk to the police.
D

. Verdict and sentencing The jury found Ferea guilty on the assau lt and criminal threat charges (counts 2 & 3), but found him not gu ilty of burglary (count 1). In a bifurcated proceeding, the court found true the allegations that Ferea had a prior strike convicti on and a prior serious felony conviction.12 The court denied Ferea’s motion fo r a new trial. After denying his Romero motion, the trial court subsequently sentenced him to an aggregate term of 10 years, four months in prison.
II. D ISCUSSION A

. The trial court properly admitted evidence of Ferea ’ s two prior encounters with police officers Ferea argues the trial court should have granted his in limine motion and excluded evidence of his two prior encoun ters with police. This evid ence was initially offered to
establish his motive and intent in relation to the charge of making a criminal threat but
was later allowed to be considered as char acter evidence. However, Ferea contends the trial court erred in admitting this evidence because the incidents were not sufficiently similar to the charged offens e to warrant admission under section 1101, subdivision (b) and the prejudicial impact of the evid ence outweighed its probative value.
1

. In limine ruling Prior to trial, the court heard argument on Ferea’s motion to exclude evidence of
his 2004 and 2008 encounters with police. The court deni ed the motion, stating the evidence in question “is perhaps some of the clearest evidence of th e [defendant’s] state of mind . . . , specifically of his specific intent that his words be taken as an unequivocal and unconditional threat. [¶] The statemen ts made on the previous occasion were designed to give the officers notice that he had previo usly committed an assault on officers, that he receive[d] what he though t was a pittance of a sentence, implying that
there was no motivation for him no t to carry out those threats, and that if he did carry out
those threats in the future the sentence woul d be unsubstantial in his view, are clearly designed to engender fear. [¶] And that clearly shows in conduct, al beit similar in this case, that the defendant’s speci fic intent is to engender fear, and it is very unequivocal
evidence of the defendant’s mo tive, his animus against polic e officers. [¶] And for those reasons I do find that under [section] 1101 [, subdivision] (b) th is evidence is highly13 relevant, perhaps some of the most relevant evidence that could be introduced in this case, and will answer questions that otherwis e would obviously be pr esent in the mind of the jury as to why the defendant would commit seemingly unprovoked and over-the-top reactions to the simple arrest th at occurred in this case. [¶] So for all of those reasons I do
find that in balance this evid ence is not unduly prejudicial, it is highly probative, and it
will be allowed.”
2

. The evidence was admissible und er sections 1101 and 1103
Character evidence in the form of specific instances of a person’s conduct is inadmissible when offered to pr ove the person’s conduct on a specific occasion. (§ 1101, subd. (a).) This prohibition, ho wever, does not apply if the evid ence is relevant to prove some fact such as motive, opportunity, intent, preparatio n, plan, knowle dge, identity, absence of mistake, or accident, other than the person’s disposition to commit the act. ( Id ., subd. (b); People v

. Ewoldt (1994) 7 Cal.4th 380, 393 ( Ewoldt ).) On appeal, the trial
court’s determination of whether to admit prior conduct evidence under section 1101, “being essentially a determination of relevanc e, is reviewed for abuse of discretion. [Citations.] [¶] . . . [¶] . . . A court abuses its discretion when its ruling ‘falls outside the bounds of reason.’ ” ( People v

. Kipp (1998) 18 Cal.4th 349, 369, 371.)
In Ewoldt , supra , 7 Cal.4th 380, the California Supr eme Court held that the least degree of similarity between the uncharged act and the charged offense is required in order to prove intent. However, an uncharge d act “must be sufficiently similar to [the charged offense] to support the inference th at the defendant ‘ “probably harbor[ed] the
same intent in each instance.” ’ ” ( Id . at p. 402.) Under section 1103, where the defendant o ffers evidence which puts at issue the victim’s violent character, evidence of th e defendant’s violent character becomes relevant. Section 1103 expressly removes lim its that would otherwise be placed on the evidence by section 1101. (See § 1103, subd. (b).)14 The trial court did not abuse its discretion in ad mitting testimony regarding Ferea’s 2004 and 2008 encounters with police. In both instances, Ferea demonstrated his animosity toward police officers . In the 2008 incident, Fer ea explicitly thre atened to kill the responding officers and even threw a knife at them, while in the 2004 incident, Ferea attacked an officer who was trying to chec k on the welfare of a person the officer heard crying out inside Ferea’s residence. In the instant case, Ferea thre atened to kill a police officer using language similar to that used in the prior knife-thro wing incident. The
evidence was offered to establish that when Ferea threaten ed Terry at the hospital, he did
so with the same intent as in the prior incidents. It show ed his conduct was motivated by a demonstrated hatred of police officers, and as the court recognized, it offered the jurors insight into Ferea’s behavior. The eviden ce was relevant and admissible under section
1101. Furthermore, once Ferea elicited testim ony regarding Vest’s violent character, his own violent character was put at issue pursuan t to section 1103, subdivision (b). Ferea
offered evidence to show it was Vest who was armed and who came over to challenge him to a knife fight after their initial verbal altercation. On cross-examination by Ferea’s counsel, Kelley testified she was afraid Vest would retaliate against her for testifying about the fight. At that point, the People were permitted to respond with evidence showing Ferea’s character for violence. (See People v

. Blanco (1992) 10 Cal.App.4th 1167, 1171-1176.)
3

. The evidence was admissible under section 352 Under section 352, “[t]he court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of mi sleading the jury.” “[I]t is the exclusive province of the trial court to determine whether the probative value of evidence outweighs its possible prejudicial effect.” ( People v

. Sassounian (1986) 182 Cal.App.3d15 361, 402.) Evidence of uncharg ed offenses can be so prejudicial that its admission requires extremely careful analysis and, since s ubstantial prejudicial effect is inherent in such evidence, uncharged offenses are admissible only if they have substantial probative value. ( Ewoldt , supra , 7 Cal.4th at p. 404.) Regardless, the trial court’s exercise of
discretion on this issue will not be disturbed on appeal absent a clear showing of abuse. ( People v

. Sassounian , supra , at p. 402.) No such showing has been made here. The testimony offered in this case rega rding the uncharged offenses was brief, not likely to confuse the jury, nor was it unduly pr ejudicial when compar ed to the evidence presented regarding the charge d offenses. The two witnesse s, Kelley and Andrea, who gave the most favorable testimony for Ferea, both confirmed that Ferea was drunk and (at least somewhat) belligerent. Th ey also testified Ferea had be en involved in some type of confrontation with Vest, though they mainta ined Vest was the in stigator. However, Kelley testified Ferea cursed repeatedly at th e police. Ferea’s counsel even conceded in final argument that Ferea made the threat agai nst Terry, but argued that it could not have been taken seriously because Fe rea was so drunk when he made it. The trial court did not err in finding that the evidence of Ferea’s 2004 and 2008 encounters with police was not substantially more prejudicial than probative under section 352. We do not think our opinion in People v

. Earle (2009) 172 Cal. App.4th 372, compels a different result. In Earle , the trial court consolidated for trial two separate cases against the defendant--one for misdemea nor indecent exposure in September 2004, and a second for felony sexual assault in December 2004. ( Id . at p. 380.) Although the two charges arose from “entirely distinct a nd dissimilar incidents with no apparent historical connection to one another,” the tr ial court denied the defendant’s motion to sever the matters for trial. ( Id . at p. 378.) After the de fendant was convicted on both charges, this court reversed because the evid ence proving his indecent exposure charge would not have been admissible in a separate trial on the sexual assault charge, and the trial court should have gran ted the motion to sever. ( Id . at p. 379.)16 Unlike Earle , this case involv ed a contiguous series of events, beginning with the
altercation between Ferea and Ve st and culminating in Ferea’s threat to kill Terry. There was never an issue regarding severance of th e charges against Fer ea and the evidence of Ferea’s prior encounters with police invol ved similar unprovoked violence and abusive language. Unlike Earle , this case does not present di fferent types of conduct (e.g., indecent exposure versus sexual assault) for wh ich separate intents may or may not have been present. 4

. Assuming the evidence sh ould have been excluded , any error was harmless Regardless, any error in admittin g the evidence was harmless. ( People v

. Watson (1956) 46 Cal.2d 818, 836; see People v

. Scott (2011) 52 Cal.4th 452, 492 [employing
Watson analysis where evidence erroneously ad mitted under § 1101].) The evidence against Ferea was strong and much of it was corroborated by other witnesses, including witnesses who gave otherwise favorable test imony. All the witnesses said Ferea was drunk and everyone but Andrea testified Fere a was cursing at and belligerent towards the police. The officers testified Ferea was urging witnesses, including his wife, not to speak to police, and even Kelle y admitted Ferea told her she did no t have to talk to the officers.
After he was incarcerated and Vest was in cu stody in the same facility, Ferea attempted to persuade Vest to testify in his favor. Ferea’s counsel essentially admitted Ferea threatened to kill Terry, but ar gued the threat could not have been taken seriously, given
Ferea’s level of intoxication. Even had the jury not heard the testimony regarding Ferea’s two prior violent encounters with pol ice, it is not reasona bly likely they would have found him not guilty of making a criminal threat toward Terry.
B

. No error in excluding certain im peachment evidence related to Vest
Ferea contends the trial court erred in excluding evidence of eight crimes committed by Vest between 1987 a nd 1995. At least five of these crimes involved theft and one was for extortion. Although the cour t admitted several of Vest’s priors dating17 from 2005 for the purposes of impeachment as moral turpitude offenses, it should have allowed Ferea to impeach him further w ith the 1987 to 1995 convictions.
1

. In limine ruling The People brought a motion in limine to preclude ev idence of moral turpitude crimes committed by Vest prior to 1997. After hearing argument from both sides, the trial court granted the motion, finding that Ve st had committed no th eft-related or other crimes of moral turpitude since 1996, and his convictions since 2005 have all been domestic violence related charges. At trial, Vest admitted the follo wing offenses: (1) a
2010 conviction for violation of a stay-away order, for which he was then serving a sixmonth sentence; (2) a 2010 conviction for co rporal punishment of a child; (3) a 2005 conviction for violating a re straining order; and (4) a 2005 conviction for harassing telephone calls. The parties stipulated Vest was convicted of misdemeanor battery in 1990, misdemeanor infliction of corporal inju ry to a spouse in 1996 and felony infliction of corporal injury on his spouse in 1995.
2

. Standard of review
“As with all relevant evid ence, . . . the trial court re tains discretion to admit or exclude evidence offered for impeachment. [C itations.] A trial court’s exercise of discretion in admitting or excl uding evidence is reviewable for abuse [citation] and will not be disturbed except on a showing the tr ial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a ma nifest miscarriage of justice.” ( People v

. Rodriguez (1999) 20 Cal.4th 1, 9-10.) When exercising its discretion under section 352 to bar impeachment with prio r conduct, a trial cour t should “b e guided- -but not bound--by the factors set forth in People v

. Beagle (1972) 6 Cal.3d 441, and its progeny. [Citations.] When the witness subject to impe achment is not the defendant, those factors prominently include whether the [conduct] (1) reflects on honesty and (2) is near in time.” ( People v

. Clair (1992) 2 Cal.4th 629, 654.)18 3

. No abuse of discretion in limiting impeachment evidence The court, after hearing argument from bot h sides, granted the People’s motion to preclude evidence of Vest’s pre-1997 convictions . The record shows the court was aware that many or most of these earlier offenses were theft-related and acknowledged they
would therefore be relevant to gauging Vest’s credibility. However, the court was also cognizant that there was a nine-year period of time (i.e., between 1996 and 2005) where
Vest had no criminal convictions, and from 2005 on, none of his criminal offenses was
theft-related. On that basi s, the court determined the pr e-1997 convictions were much less probative for impeachment purposes. We ca nnot say, on this record, the trial court’s decision was arbitrary, capricious , or “patently absurd.” ( People v

. Rodriguez , supra , 20 Cal.4th at p. 9.) The trial court’s decision to preclude th is evidence also did not violate Ferea’s Sixth Amendment right to effective confrontation of adverse witnesses. 9 Despite not being able to impeach Vest with his pre-1997 convictions, the jury did hear about Vest’s multiple domestic violence related convictions dating back to 2005, and knew that Vest
was incarcerated due to one of those convictions at the time he testified. The jury was
also aware that at least one of the witnesses, Kelley, was afraid of Vest and specifically feared he would retaliate against her in some way for testifying at trial. Based on the verdict, the jury appears to have discredited Vest’s uncorroborated testimony relating to the first degree burglar y charge since it acquitted Ferea on that particular count. Though it convicted Ferea on the charge of assaulting Vest, the jury heard testimony from witnesses other than Vest about that incident, such as Kelley, who

9 The People contend Ferea has forfeited this issue by failing to object on this ground below. Assuming without deciding th e argument is forfeited, we address it nonetheless in order to preclude it being late r raised in the contex t of an ineffective assistance of counsel claim. (See People v

. Williams (1998) 61 Cal. App.4th 649, 657 [addressing the merits of a claim, despite its forfeiture, to preclude ineffective assistance of counsel claim].)19 testified she saw Ferea arm himself with a kni fe before going outside and chasing after Vest. Precluding Ferea from further impeaching Vest with his pre-1997 convictions did not violate Ferea’s Sixth Amendment rights.
C

. No error in allowing questions and evidence regarding Andrea ’ s injuries
Ferea contends the trial court abused its discretion in permitti ng the prosecutor to
ask Andrea about the cause of fresh bruise s observed on her face on the day of the
incident.
1

. In limine motion The court granted Ferea’s in limine moti on precluding the People from referencing officers’ suspicions Andrea was the victim of domestic violence. However, the court ruled that, if Andrea were called as a defens e witness, the People had a good faith basis for asking her about the facial injuries she had on the day of the incident.
2

. Standard of review and analysis
A court has broad discretion to admit ev idence of bias and motive under section 352. A trial court’s discretionary decision to admit or exclude evidence “ ‘ “will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd ma nner that resulted in a manife st miscarriage of justice.” ’ ” ( People v

. Geier (2007) 41 Cal.4th 555, 585; People v

. Brown (2003) 31 Cal.4th 518, 534.)
The court has discretion to admit evidence showing that a witness is afraid for her safety if she testifies. ( People v

. Abel (2012) 53 Cal.4th 891, 924-925; see § 780.) As we have recognized, “ ‘[e]vidence th at a witness is afraid to testify or fears retaliation for testifying is relevant to the credibility of that witness and is th erefore admissible. [Citations.] An explanation of the basis for th e witness’s fear is likewise relevant to her credibility and is well within the di scretion of the trial court.’ ” ( People v

. Mendoza (2011) 52 Cal.4t h 1056, 1084.)20 The jury was shown a photograph taken of Andrea’s injuries on the day of her husband’s arrest and heard her testimony about those injuries being caused by her getting caught in the bedsheets that morning and falling into the nightstand. The jury also heard her deny that the injuries were caused by Ferea hitting her and heard her explain she stopped talking to police only af ter one of the officers said she was a victim of domestic
violence and thus not credible. On the other hand, one of the police o fficers testified Ferea was aggressively yelling at Kelley and Andrea, telling them not to cooper ate. Kelley denied this, saying Ferea did not yell at her, but rather told her she did not have to talk to police. Kelley also denied Ferea said anything to Andrea. Given that ther e was some, albeit conflicting, evidence Ferea was trying to convince his wife not to coop erate with police at the scene, the court did not abuse its discretion by allo wing the prosecutor to question her about the source of her injuries. Even assuming this was error, how ever, the error was harmless. ( People v

. Watson , supra , 46 Cal.2d at p. 836.) Andrea deni ed the prosecutor’s accusations that Ferea may have hit her that morning, a nd she offered her own explanation for her injuries. The jury was free to decide which version was more likely and weigh the credibility of her other testimony accordingly. Regardless, there was no dispute that Ferea was very drunk that da y and abusive towards both police officers and Vest. There is no dispute that Ferea threatened to kill at least one of the responding officers. Although Andrea was the only contemporaneou s witness who denied Ferea was armed,
even she testified that Fe rea chased after Vest.
D

. No cumulative error Since we have found no error with respect to any of the evid entiary claims Ferea raised, and no prejudice even if error were shown, there is no basis for finding that
reversal is warranted due to any cumulative error.21 E

. Sufficiency of evidence supporti ng conviction on cr iminal threat Ferea next argues that his statements to Terry were not, under the circumstances, sufficient to convey the necessary “immediate prospect of execution of the threat” to
establish a violation of Penal Code secti on 422, subdivision (a). Given his level of
intoxication and the lack of evidence that Ferea would somehow be able to remember Terry or track him down when he eventual ly got out of custody, the evidence was insufficient to support his conviction for making a criminal threat.
1

. Standard of review and statutory overview To prove the crime of criminal threat , the prosecution must prove, among other things, that the threat caused the victim to be in sustained fear for his or her own safety or for his or her immediate family’s safety and that the fear was reasonable under the circumstances. (Pen. Code, § 422; People v

. Toledo (2001) 26 Cal.4th 221, 228.) “In order to sustain a finding that appellant made a terrorist threat in violation of [Penal Code] section 422, th e People [are] required to sh ow: (1) appellant willfully
threatened to commit a crime th at would result in death or great bodily injury; (2) he made the threat with the specifi c intent that it be taken as a threat; (3) the threat, on its
face and under the circumstances in which it was made, was so unequivocal, unconditional, immediate and specific as to co nvey to the person thr eatened a gravity of purpose and an immediate prospect of executi on of the threat; and (4) the threat caused the person threatened reasonably to be in su stained fear for his own safety [or for his immediate family’s safety].” ( In re Ricky T . (2001) 87 Cal.App.4t h 1132, 1136; Pen. Code, § 422.) “In reviewing the sufficien cy of the evidence, we must determine ‘whether, after viewing the ev idence in the light most favor able to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” ( People v

. Davis (1995) 10 Cal.4th 463, 509.) “ ‘In making this determination, the reviewing court must consid er the evidence in a li ght most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce22 from the evidence in suppo rt of the judgment. The test is whether substantial evidence supports the [conclusion of th e trier of fact], not whet her the evidence proves guilt beyond a reasonable doubt.’ ” ( People v

. Crittenden (1994) 9 Cal.4th 83, 139.)
2

. Sufficient evidence supported the c onviction for making a criminal threat Ferea argues the circumstances surroundi ng his threat “failed to convey an immediate prospect of execution.” He was very drunk, had just been arrested and would likely be given a lengthy prison term for his offenses. There was no reason to believe he could actually track down one police officer based on a name in a police report. Citing the dissenting opinion in People v

. Wilson (2010) 186 Cal.App.4th 789, 823 ( Wilson ), Ferea argues that his threat to kill Terry “w hen he got out of pris on” did not convey the necessary “immediate prospect of executio n of the threat.” We disagree.
In Wilson , supra , 186 Cal.App.4th 789, the defenda nt was serving a state prison sentence and scheduled to be released in ap proximately 10 months when he threatened a correctional officer who was escorting him to a “ ‘cooling off’ ” cell. ( Id . at pp. 797- 798.) The defendant “ ‘started talking about killing officers, claiming that he had done it before.’ ” ( Id . at p. 797, italics removed.) He l ooked over at one of the officers and stated, “ ‘ “I can find anybody and blas t them. That’s what I do.” ’ ” ( Id . at p. 798, italics removed.) The defendant continued, “ ‘I get out in ten months. I find people. That’s what I do, and I’m going to find you, and I’m going to blast you.’ ” ( Ibid ., italics removed.) In the majority opinion, the court found substantial ev idence supported
defendant’s conviction under Penal Code secti on 422. In examining the third element of that statute, which requires that there be “ ‘ “an immediate prospect of execution of the threat,” ’ ” the court determined this language “ ‘does not require an immediate ability to carry out the threat.’ ” ( Wilson , supra , 186 Cal.App.4th at p. 807. ) The court rejected the defendant’s arguments that he could not “ ‘do anything for at least ten months’ ” and that23 there was “no evidence he had the ability to ‘find’ ” the victim. ( Id . at p. 816.) The court found that the statute’s requirement that th ere be an “ ‘immediate prospect’ ” of the threat’s execution was not “intended to pla ce a limited timeline on when a specific and
unconditional threat woul d be executed.” ( Ibid .) The threats against the correctional
officer “satisfied this elemen t of [Penal Code] section 422 because [they] were extremely specific and based only upon the ‘condition’ and certainty of his upcoming release.” ( Id. at pp. 816-817.) The defendant “effectively made an appointment to kill [the correctional officer] at his earliest possible opportunity . . . .” ( Id. at p. 814.) In this case, Ferea’s threat was not vague or ambiguous. At the hospital, he told Terry that when he got out of prison, he was going to use the information in the police report to find and kill him. Ferea even sp ecified the manner in which he would kill Terry, i.e., that he would shoot him. The only condition to Ferea’s threat was that it
would be carried out after Ferea “got out of prison.” There was nothing in the circumstances of the statement that suggested he was joking, or simply rambling because he was drunk and angry at being arrested. Ferea makes much of his claim that Terry could not have been genuinely fearful
since Ferea was about to be incarcerated fo r some length of time. However, there is no
evidence in the record to establish that Terry could ha ve any idea how long Ferea might be in custody. As far as Terry knew, Ferea could be out on bail in a few hours. At the time Ferea threatened Terry, there were any nu mber of possible outcomes to the case, not all of which would result in Ferea going to jail, let alone prison. The district attorney might decide not to prosecute Ferea or perhap s Ferea would be able to negotiate a plea bargain and be released on probation. Re gardless, numerous cases have upheld such
threats even where the defendant was actua lly incarcerated and utterly incapable of (directly) harming the victim at the tim e the threats were made. (See, e.g., Wilson , supra , 186 Cal.App.4th 789 [criminal threat convicti on upheld despite defe ndant in custody for at least 10 more months]; People v

. Mosley (2007) 155 Cal.App.4th 313 [incarcerated24 defendant threatened to obta in and pass along officer’s contact information to gang
associates who would kill o fficer and rape his wife]; People v

. Gaut (2002) 95 Cal.App.4th 1425 [incarcerated defendant calle d girlfriend from jailhouse phone and told her she would die].) We agree with the rationale set forth by the majority in Wilson , and find there was substantial evidence presented here to support the jury’s verdict on the charge of making a criminal threat.

F

. The trial court did not abuse its disc retion in denying an evidentiary hearing on Ferea ’ s motion for new trial
1

. Background At trial, following the te stimony by D.C.--who refused to identify Ferea in court--
and O’Donnell--who recounted hi s interview of D.C. at the scene that day where she did identify Ferea as the person she saw with a knife--a juror sent a note 10 to the judge, asking “Can we look at and take into acc ount the defendant’s body language while the witnesses are being questioned?” Outside the jury’s presence, the court invited counsel to address the question. Ferea’s counsel said, “although I hate to concede anything, I would have to say the answer to [the juror’s] question is, yes, th ey can consider it.” The court advised it intended to respond to the no te “by informing the jurors that they will be given a complete set of instructions on evaluating ev idence at the conclusion of the proceedings, that it is important that they focus on the witnesses as th ey testify and the witness’s demeanor as they testify so that they are ab le to evaluate for them selves that witness’s testimony.” The court also indicated it believe d the issue would have to be addressed in the jury instructions and asked counsel to prepare proposed in structions to that end.

10 The note itself is not containe d in the clerk’s transcript.25 After the jury returned, however, the cour t did not respond to the note or even acknowledge its receipt. No specific instru ctions were provided by counsel and the matter was apparently forgotte n by everyone involved. Following Ferea’s convicti on, new counsel was appointe d, who filed a motion for
a new trial based on the court’s failure to ad dress the juror’s question. Accordingly, one or more jurors may have improperly consid ered Ferea’s demeanor during trial in evaluating his case. The motion was sup ported by a declaration from Ferea’s trial counsel who admitted he forgot to follow up on this matter durin g the trial. Ferea’s trial counsel also asserted that he had to “repea tedly remind[]” Ferea to behave appropriately during the trial since Ferea “had used foul language and physical intimidation in his dealings with me, both at Elmwood and in th e trial department.” According to trial counsel, “Ferea continued to act in an inappropriate manner dur ing the trial pr ocess; [¶] . . . used inappropriate language and made faci al gestures in the presence of prospective jurors; [¶] [and] . . . initially refused to wear civilian clot hing for trial and appeared before the jury in his jail garb.”
The trial court denied the motion without an ev identiary hearing. In announcing its ruling, the court noted that Ferea did not engage in “disruptive behavior or otherwise inappropriate behavior . . . when the jurors were present” nor did he use inappropriate language in front of the jurors. The court acknowledged it “may be true” that Ferea made “facial gestures in the presence of prospectiv e jurors.” Despite the court’s failure to respond to the juror’s question, it did instruct th e jury at the close of trial “the only things they were to consider was th e evidence produced during the trial and that . . . evidence meant testimony of the witnesses, physical exhibits introduc ed during the course of the trial and anything else I specifically told them to consider as evidence.”
2

. Relevant legal principl es and standard of review
It is well-settled that the decision to co nduct an evidentiary hearing on allegations of juror misconduct is within the trial court’s discretion a nd the defendant is not entitled26 to such a hearing as a matter of right. ( People v

. Avila (2006) 38 Cal.4th 491, 604.) An evidentiary hearing should only be held where “ ‘necessary to resolve material, disputed issues of fact,’ ” and where “ ‘the defense ha s come forward with evidence demonstrating a strong possibility that prejudicial misconduct has occurred.’ ” ( Ibid .) Even then, “ ‘an evidentiary hearing will generally be unnecessa ry unless the parties’ evidence presents a material conflict that can only be resolved at such a hearing.’ ” ( Ibid .) Accordingly, the trial court’s denial of a request for an evidentiary hearing into allegations of jury misconduct is reviewed for abuse of discretion. ( People v

. Avila , supra , 38 Cal.4th at p. 604.)
3

. Analysis We first dispose of the People’s conten tion that Ferea has either forfeited this claim by failing to object below or invited th e error by conceding that it was permissible for the jurors to consider Ferea’s body langu age as witnesses were testifying. Assuming without deciding the argument is forfeited, we address it nonetheless because Ferea has also claimed that his trial counsel provided ineffective assistance of counsel in this regard. (See People v

. Williams , supra , 61 Cal.App.4th at p. 657 [addressing the merits of a claim, despite its forfeiture, to preclude ineffective assistance of counsel claim].) Turning to the merits of his claim, we find the tr ial court did not abuse its discretion in denying his motion for new tr ial without first hol ding an evidentiary hearing. Ferea did not present the necessary evidence showing a “strong possibility” that juror misconduct occurred. The sum of the evidence presented to the trial court in
connection with the motion fo r new trial consisted of: (1) the reporter’s transcript 11 reflecting the juror’s question; and (2) a de claration from trial counsel describing how Ferea “had used foul language and physical intimidation in his dealings with me, both at

11 As discussed above, the juror’s note wa s apparently mispla ced as it does not appear in the record.27 Elmwood and in the trial department[;] [¶] . . . [¶] used inappropriate language and made facial gestures in the presence of prospective jurors; [¶] [and] . . . in itially refused to wear civilian clothing for trial and appeared before the jury in his jail garb.” The juror’s question, in and of itsel f, does not demonstrate a “strong possibility”
misconduct occurred. The note wa s submitted during trial. Prior to deliberations, the trial court again specifically inst ructed the jury what it could consider as evidence. Those
instructions made clear evidence consisted of the witnesses’ sworn testimony, exhibits
admitted into evidence as well as anything else the trial court told the jurors to consider as evidence. The jurors were also instructed that they could consider the witnesses ’ behavior while testifying. At no time during deliberations we re any additional notes sent out asking if the jurors could consider Ferea’ s body language as ev idence. Because the juror’s question was submitted following the testimony of D.C., wh o appeared to be frightened of testifying and refused to identif y Ferea in court as the man she saw armed with a knife that day, it raises a possibility something Ferea did during D.C.’s testimony caught this particular juror’s eye. Without more, though, th is note does not constitute a “strong possibility” of misconduct. The declaration by Ferea’s trial counsel fails to corroborate the possibility of misconduct. All trial counsel’s declaration says is that Ferea acted inappropriately in the presence of “prospective jurors,” not that he acted inap propriately or appeared hostile
toward witnesses in fr ont of impaneled jurors. The decl aration also makes clear the “foul language and physical intimid ation” was directed towards trial counsel , not witnesses, other court personnel or jurors. Trial counsel ’s declaration does not assert Ferea acted this way in front of any jurors, prospective or impaneled. Instead, Ferea was cursing at and trying to intimidate trial counsel at Elmwood and “in th e trial department.” The trial judge, who was present at voir dire and at trial, specifically disclaimed having witnessed any aggressive or hostile behavior by Ferea. According to the judge, “I saw no disruptive behavior or otherwise inappropriate behavior on the part of the28 defendant when the juro rs were present” and there was no inappropriate or foul language “in the presence of the jury at any point in time during this tr ial.” Had that occurred, the judge would have admonished Ferea “on the record.” She acknowledged Ferea may have made “facial gestures in the pres ence of prospective jurors.” As he did below, Ferea relies principally on People v

. Garcia (1984) 160 Cal.App.3d 82, 92 ( Garcia ), for the proposition that “the nontestimonial behavior of a
defendant while in the courtroo m cannot be judicially endorsed as evidence of his guilt.” While this is an accurate citation, Garcia is not as helpful as Ferea contends, nor does it
obtain to the facts of this case.
In Garcia , two jurors approached the trial judge after court had been dismissed for the day, and the judge consulted with them ex parte. ( Garcia , supra , 160 Cal.App.3d at p. 87.) The jurors complained that, during the testimony of the last witness, they had
observed the defenda nt turn to a woman sitting in the front row of the audience and the two would “ ‘jeer’ ” or smirk at each other, and they wanted th e judge to instruct them to stop doing so. ( Ibid .) The judge advised them to disreg ard what anyone in the audience was doing, that it was not evidence and they mu st base their decision in the case only on the legal evidence produ ced in the case. ( Ibid .) After the jurors left his chambers, the judge located counsel informed them what had happened and admonished the defendant
not to turn toward the audience. ( Ibid .) On appeal, the court made clear that it did not “entirely share” ( Garcia , supra , 160 Cal.App.3d at p. 91) the trial court’s view th at a “defendant’s courtroom demeanor could properly be considered by th e jury in their evaluation of his guilt or innocence.” ( Id. at p. 90.) The court warned that “focusing the ju rors’ attention on a defendant’s courtroom
conduct distracts their atten tion from and may diminish the weight they assign to the permissible factors identified by the inst ructions as legitimately aiding in the
determination whether the defendant committed the alleged offense.” ( Id . at p. 91.)29 Here, however, there was no judicial endorsement 12 of Ferea’s nontestimonial behavior. The juror in this case only asked if the jury could consider Ferea’s “body language” while witnesses were testifying. The juror did not specify what he or she observed. While we may infer that the ju ror asked the question because Ferea’s body language was intimidating or otherwise nega tive, there is no othe r evidence to buttress
that inference. The declaration from Ferea’ s trial counsel does not state that Ferea was acting inappropriately in front of any of the impaneled ju ry members. The evidence presented to the trial court in connection with the motion for new trial may have raised a possibility that a juror imprope rly considered Ferea’s courtr oom demeanor, but it did not raise a “strong possibility” of su ch an occurrence. Accordingly, the trial court did not err in not holding an eviden tiary hearing before denyi ng the motion for new trial. 13 Because there was no error by the trial cour t, the failure to re quest an evidentiary hearing did not constitute ineffectiv e assistance of counsel. (See People v

. Price (1991) 1 Cal.4th 324, 387 [failure to make unmeritori ous motion or request is not ineffective assistance of counsel].)

12 Nor was there judicial repudiation, but as the Garcia court observed, “[a] strong argument can be made that su ch an admonition [i.e., adm onishing a jury to ignore a defendant’s courtroom behavior in its delib erations] does little to dispel prejudice and only serves to emphasize an unruly defendant’s conduct.” ( Garcia , supra , 160 Cal.App.3d at p. 93, fn. 11.) 13 In a supplemental brief, Ferea argues “to th e extent that the ju ry’s verdict rested on an assessment of his demeanor,” the verd ict violated his rights under the due process and self-incrimination clauses of the Fifth Am endment, as well as the due process clause of the Fourteenth Amendmen t. Because Ferea did not make the necessary showing giving rise to an evidentiary hearing on th e issue of juror misconduct, however, there is no basis for presuming that the verdict rests on the jurors’ assessment of his demeanor. The trial court was not required to hold an evidentiary hearing on the basis of a supposition and its denial of his motion for ne w trial did not violate Ferea’s constitutional rights.30 III. D ISPOSITION The judgment is affirmed.

Premo, J.

WE CONCUR:

Rushing, P.J.

Elia, J.