What is the test for making criminal threats under CALCRIM No. 358?

In this case, defendant's alleged out-of-court statement that "I'll burn this bitch down with all of you in it" was the criminal act charged. The trial court instructed the jury that it must conclude defendant committed the offense of making criminal threats beyond a reasonable doubt. Instructing the jury with CALCRIM No. 358 "could have misled the jury into believing" that it could find defendant guilty "even if it did not conclude beyond a reasonable doubt that the statements were made, as long as the jury exercised 'caution' in making its determination." (People v. Zicho, supra, 118 Cal.App.4th at p. 1060.)

Moreover, any error in failing to instruct the jury on CALCRIM No. 358 was harmless. A failure to instruct is not "'reversible error if upon a reweighing of the evidence it does not appear reasonably probable that a result more favorable to defendant would have been reached in the absence of the error.'" (People v. Stankewitz (1990) 51

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