NOT TO BE PUBLISHED IN OFFICIAL REPORTS

OPINION

ARONSON, J.

A jury convicted Felix Vivar Moguel of rape (Pen. Code, § 261, subd. (a)(2); all further statutory references are to this code), and making a criminal threat against the victim (§ 422.) The jury also found defendant guilty of misdemeanor assault (§ 240), a lesser included offense of assault with intent to commit rape. Defendant contends the trial court misinstructed the jury concerning his claim he previously had intercourse with the victim and also erred in responding to a jury question during deliberations by explaining the jury could consider evidence of a prior uncharged threat. (See Jud. Council of Cal. Crim. Jury Instns. CALCRIM Nos. 1194, 375.) Finally, defendant argues section 654 required the trial court to stay sentencing on his criminal threat conviction to avoid duplicating punishment for his rape conviction. As we explain, defendant's contentions lack merit and we therefore affirm the judgment.

I

FACTUAL AND PROCEDURAL BACKGROUND

M.O. met defendant, a mechanic, when she left her car with him for repairs. The two became friendly, sometimes having lunch or doing laundry together. M. did not view their relationship as romantic; she had ovarian surgery in May 2008 and in August 2008 considered reuniting with the father of her four children.

On a Saturday in August 2008, she denied defendant's entreaties to move in with him and consummate their relationship. He angrily responded she would be no one's girlfriend if not his, threatening he would kill her and then himself. M. left, but returned the next day to drive him to the laundromat. On their return, she again brushed aside his romantic overtures. Defendant angrily pulled her hair, threatened to kill her and himself, stepped out of the car, and laid down under it, directing her to drive over him or he would sabotage the car to crush him. She departed after a protracted discussion.

He called her the next day, Monday, and threatened a confrontation at her house, which she shared with other tenants, unless she visited him. She agreed to see him at his residence, although she remained outside his home. Defendant grabbed her hair and her arm to pull her inside his trailer home, stating he wanted to have sex with her. She managed to break free and left. She concluded defendant was pressuring her to have sex because he had loaned her a thousand dollars for her daughter's surgery. He texted her that night, "[P]lease, I ask you that you don't think that it's because of money that that's why I want you to be mine."

She responded the next morning, "The thing is that you want to have me by force, with violence, and I don't love you." Defendant called her later in the day and managed to persuade her to come over again by threatening to show up at her home. Once she entered his residence, defendant closed and locked his bedroom door, and then pulled out a camera to take a picture of her, ostensibly to send his mother. Angry, M. grabbed at the camera, scratching defendant. Her anger turned to fear and she told defendant she wanted to leave. He grabbed her neck with both hands, threatened to kill her, and threw her to the floor. He pressed his knee into her chest and tightened his hands around her throat so she could barely breathe. When she tried to push back, he grabbed her wrists and pinned them to the floor.

Defendant then released her. He later told a police officer that he "came back to his senses" at that moment, apologized, and asked M. to help him regain control of himself. Still frightened that defendant was going to kill her, M. pleaded she would do what he wanted but begged for her life because her children depended on her. He directed her to undress and she removed her pants and underwear. Defendant placed her on the bed, inserted his penis in her vagina, and raped her. He also took photographs of her. He eventually allowed her to leave.

At the end of the workday the next day, M. disclosed the rape to a female friend, who accompanied her to the Santa Ana Police Department. The investigating officer interviewed defendant later that night. Defendant claimed he and M. were dating and had sex 60 to 70 times in the course of their relationship, meeting and having intercourse in hotels. While he was "crazy" about M., he knew she did not feel the same way, and he felt rejected when she refused to move in with him. He was afraid she would leave him. He admitted he "lost it" on Sunday when she would not have sex with him, and that he laid under her vehicle, telling her he was willing to die and also take her life. He claimed M. had dinner with him at his home the next night and asked him to be patient. She returned on Tuesday, they quarreled over the camera, and he admitted he grabbed her by the neck to prevent her from leaving. After they fell to the ground, him on top of her, she told him she wanted to leave. Defendant claimed he came to his senses, apologized and asked her to help him control himself. He knew she did not want to have sex with him before he strangled her. She finally agreed to have intercourse and he admitted it was possible she agreed out of fear.

Defendant did not testify, but instead called his landlords, who claimed M. visited almost every day, spending an hour or two in defendant's room with the door closed. Defendant's manager and a coworker also testified M. visited defendant at work three or four times every week. The manager testified he saw defendant and M. holding hands and kissing, once passionately; but he earlier described the kiss as "a peck" to the prosecution's investigator.

After the jury convicted defendant as noted, the trial court suspended sentencing on the misdemeanor assault conviction, but imposed a middle term of six years for rape and a concurrent sentence of two years on the criminal threat count. Defendant now appeals.

II

DISCUSSION

A. The Trial Court Correctly Instructed the Jury Concerning Alleged Instances of Prior Consensual Sexual Intercourse

Defendant did not ask for an instruction concerning prior acts of consensual intercourse with the victim, but the trial court correctly concluded one was necessary based on defendant's claim of consent. (See, e.g., People v. Wilson (1967) 66 Cal.2d 749, 762-763 (Wilson) [defendant "entitled to have the jury instructed on the law applicable to the evidence he presents"].) The trial court modified CALCRIM No. 1194, which provides in unaltered form: "You have heard evidence that (_______ <insert name of complaining witness> . . .) had consensual sexual intercourse with the defendant before the act that is charged in this case. You may consider this evidence only to help you decide . . . whether the alleged victim consented to the charged act[s] . . . [and] whether the defendant reasonably and in good faith believed that (_______ <insert name of complaining witness> . . .) consented to the charged act[s] . . . . Do not consider this evidence for any other purpose." (CALCRIM No. 1194, italics and brackets in original.)

The trial court modified this instruction by adding the following italicized language: "You have heard evidence that the defendant made a statement to Officer Ponce de Leon that [M.] O. had consensual sexual intercourse with the defendant on other occasions prior to the act that is charged in this case. If you believe this evidence, you should consider it only for the limited purpose of determining whether [M.] O. consented to the charged act and whether the defendant reasonably and in good faith believed that [M.] O. consented to the charged act. Do not consider this evidence of any other purpose."

Defendant asserts the jury may not have realized it could consider defendant's statement concerning prior sex acts as evidence because CALCRIM No. 222 defines evidence narrowly: "`Evidence' is the sworn testimony of witnesses, the exhibits admitted into evidence, and anything else I told you to consider as evidence." But CALCRIM No. 358 expressly instructed the jury in pertinent part: "You have heard evidence that the defendant made an oral or recorded statement before the trial. You must decide whether the defendant made any of these statements, in whole or in part. If you decide that the defendant made such statements, consider the statements, along with all the other evidence, in reaching your verdict. It is up to you to decide how much importance to give to the statements." (Italics added.) Accordingly, the court's instructions expressly informed the jury that defendant's statements, as testified to by Officer de Leon, constituted evidence for their consideration.

Next, defendant attacks the trial court's modifications to CALCRIM No. 1194. Defendant suggests that by identifying defendant's statement to the officer as the evidence of prior sexual encounters, the trial court "eliminated consideration by the jury" of inferences of sexual activity reasonably drawn from defense witness testimony. We are not persuaded. First, defendant's landlords and coworkers did not identify prior instances of sexual intercourse, so the trial court's reference to defendant's statement as the evidence of sexual activity was accurate.

Second, the court's instruction did not expressly prohibit the jury from considering other evidence supporting defendant's claim. The jury was free to draw the inferences defendant sought from his landlords' testimony he spent hours behind closed doors with M.O. and from his coworkers' testimony she visited him at work and may have embraced him passionately. Nothing in the trial court's modification of CALCRIM No. 1194 prevented inferences of sexual activity from this evidence, nor did anything in the modification contradict CALCRIM No. 358, which expressly directed the jury to consider defendant's statements "along with all the other evidence[] in reaching your verdict."

Similarly unpersuasive is defendant's assertion the trial court's "If you believe this evidence" language constituted error or prejudiced him. Defendant suggests the modification implied he was lying, but it did no more than properly leave to the jury whether to believe defendant or not. Witness credibility was the jury's province (CALCRIM No. 105), and informing the jury it could determine whether it believed defendant's out-of-court statements was neither error, nor prejudicial. The trial court drew the "If you believe this evidence" language from CALJIC No. 10.61.1, and defendant points to no authority condemning its use in that instruction.1 While, as the trial court acknowledged, the user guide for CALCRIM (see Vol. 1, CALCRIM (2011) p. xxiii) generally cautions against intermixing CALJIC and CALCRIM instructions, and that bar remains a prudent restraint that trial courts should heed, defendant has identified no prejudice here. Thus, even assuming any error occurred, his argument for reversal fails.

B. The Trial Court Properly Instructed the Jury Concerning the Prior Threat

Defendant argues the trial court improperly answered a jury question during deliberations concerning threats he made against the victim. The jury sent a note asking, "Does charge 2 [criminal threat] only apply to Tuesday or does it apply to Sunday-Tuesday?" The information referred only to the threat on Tuesday. The trial court discussed the matter with counsel and, with their agreement, alerted the jury the Tuesday threat formed the basis of count 2 and that the jury could, in reaching its conclusion on count 2, consider evidence defendant made an earlier threat. (See Evid. Code, § 1101, subd. (b) [evidence of uncharged offense to prove intent, motive, etc.]; CALCRIM No. 375 [same].)

Specifically, the trial court answered the jury's question as follows: "Count 2 charges defendant with having made a criminal threat to [M.] O. on Tuesday, August 12, 2008. You may only find the defendant guilty on count 2 if you find that the People have proved that he made a criminal threat on that date. [¶] The People have presented evidence that defendant threatened to kill [M.] O. on Sunday, August 10th, 2008. If you find that the People have proved defendant made such a threat on Sunday, you may consider that evidence only for the limited purpose of deciding whether defendant's statement to [M.] O. on Tuesday: [¶] was intended to be understood as a threat, [¶] actually caused [M.] O. to be in sustained fear for her safety, and [¶] whether [M.] O.'s fear was reasonable under the circumstances. [¶] Do not consider evidence of defendant's threat on Sunday for any other purpose. [¶] If you conclude the defendant made a threat on Sunday, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of Count 2. The People must still prove the charge beyond a reasonable doubt."

Defendant now challenges the trial court's response as exceeding the scope of the jury's inquiry about the date underlying count 2. But defendant forfeited this line of attack by agreeing to the trial court's proposed response. (People v. Valdez (2004) 32 Cal.4th 73, 113.) Moreover, the court has a sua sponte duty to "instruct on the general principles of law relevant to the issues raised by the evidence." (Wilson, supra, 66 Cal.2d at p. 759.) Accordingly, the trial court properly decided to instruct the jury on the principles concerning consideration of an uncharged prior threat.

Defendant argues that injecting consideration of one alleged threat into the question of whether he later made a different alleged threat could only be "misleading and confusing." But the history of the parties' relationship necessarily bears on how the trier of fact evaluates a charged threat. (People v. Mendoza (1997) 59 Cal.App.4th 1333, 1340.) Defendant contends that even assuming an earlier threat may have been relevant to determining his intent (Evid. Code, § 1101, subd. (b)), it was not relevant to the victim's state of mind on a later occasion. But the circumstances of an uncharged threat or threats against the victim are relevant not only to the defendant's intent, but also to the victim's fear of harm and reasonableness of that fear. (People v. Gaut (2002) 95 Cal.App.4th 1425, 1431-1432.) There was no error in instructing the jury on these principles.

C. Section 654 Did Not Require a Stay

Defendant argues section 654 required the trial court to stay the concurrent sentence on his criminal threats conviction because he harbored a single intent in making the threat and committing the rape. He insists the evidence showed the threat was merely incidental to accomplishing the rape. (See People v. Deloza (1998) 18 Cal.4th 585, 592 [section 654 bars concurrent and not just consecutive punishment].) Defendant's argument would have more force if the jury convicted him of assault with intent to commit rape, but the jury acquitted him of that charge, finding he engaged in misdemeanor assault instead. As we explain, the evidence supports the conclusion defendant formed two separate intents, first to assault and kill M. and then, only later, after he calmed down, to rape her.

Section 654 bars multiple punishment for acts violating more than one criminal statute if the defendant's acts constitute an indivisible course of conduct. (People v. Saffle (1992) 4 Cal.App.4th 434, 438.) In other words, a defendant may be punished only once if he or she harbored a single intent and the crimes were incidental to that objective. (People v. Harrison (1989) 48 Cal.3d 321, 335.) But "if the evidence discloses that a defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, the trial court may impose punishment for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct." (People v. Liu (1996) 46 Cal.App.4th 1119, 1134.) Whether the defendant pursued multiple criminal objectives is a question of fact for the trial court, and will not be disturbed on appeal if supported by substantial evidence. (People v. Akins (1997) 56 Cal.App.4th 331, 339.)

Here, the evidence showed defendant assaulted and threatened to kill M., but then, in his words, he came to his senses. M. told the officer that once defendant ceased his attack, he calmed down. The evidence supports the conclusion, which we may not second-guess, that defendant did not harbor an intent at the outset to rape M., but instead formed the intent only later, after he completed the assault and uttered his threat. In other words, the trial court reasonably could conclude — as the jury did — that defendant's sexual intent was opportunistic: he did not assault her with an intent to commit rape, but rather formed the intent to rape her only after she offered to do whatever he wished, fearing for her life. Under these circumstances, section 654 did not bar a concurrent sentence for the criminal threat.

III

DISPOSITION

The judgment is affirmed.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

BEDSWORTH, J.