People v. Mani ( 2021 )

Filed 9/30/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C088716
Plaintiff and Respondent, (Super. Ct. No. 18FE006114)
v.
ASHNEEL MANI,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Sacramento County, Kevin R.
Culhane, Judge. Affirmed as modified.
Denise M. Rudasill, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General, Lance E. Winters, Chief
Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K.
Indermill, Supervising Deputy Attorney General, Kari Ricci Mueller, Deputy Attorney
General, for Plaintiff and Respondent.
1
On the night of March 29, 2018, defendant broke into the house where his mother
and his brother lived. After hearing a loud noise, defendant’s brother opened his
bedroom door and saw defendant running up the stairs holding a kitchen knife. Scared,
defendant’s brother went back into his room and locked the door, and defendant’s mother
called 911. At the time, defendant’s brother had a restraining order in place against
defendant.
A jury found defendant guilty of first degree residential burglary and willfully
disobeying a court order. The jury found true the allegation that a person, other than an
accomplice, was present during the burglary. At a bifurcated proceeding, the jury found
that defendant had a previous strike conviction. The trial court sentenced defendant to an
aggregate term of 13 years.
On appeal, defendant asserts that: (1) the trial court abused its discretion in
admitting evidence of prior acts of domestic violence under Evidence Code sections 1109
and 352, including prior acts of domestic violence to prove propensity to commit
residential burglary grounded on a theory of intent to steal, (2) the trial court abused its
discretion in admitting prior acts evidence under Evidence Code sections 1101,
subdivision (b), and 352, (3) the trial court committed instructional error in instructing
the jury with a modified version of the Evidence Code section 1109 instruction,
CALCRIM No. 852A, because burglary based on an intent to steal theory is assertedly
not a crime involving domestic violence, and (4) he was prejudiced by the cumulative
effect of these errors.1
We conclude the trial court did not abuse its discretion in allowing the prior acts
evidence and the modified CALCRIM No. 852A was not erroneous. We reject
defendant’s contention that residential burglary based on an intent to steal theory is not an
1 Further undesignated statutory references are to the Evidence Code.
2
act of domestic violence for which the prior acts of domestic violence are admissible
under Evidence Code section 1109 and the related contention that the trial court erred in
instructing that the prior acts in this case could be used as evidence of propensity to
commit the residential burglary charge grounded on a theft theory. We conclude that
breaking into the victims’ home with the intent to steal is a form of harassment and surely
disturbed the peace of the victims. Consequently, given the expanded definition of
domestic violence in the Family Code, which includes as forms of abuse both harassment
and disturbing the peace, we hold that such a burglary is a crime of domestic violence for
purposes of Evidence Code section 1109. Having rejected defendant’s claims of error,
we necessarily reject his cumulative error contention.
However, we have discovered a sentencing error as to the application of Penal
Code section 654. Because the trial court failed to impose a term of imprisonment and
then suspend execution of that sentence on count two, we shall remand for resentencing
with directions that the trial court to do so. We otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Charges
Defendant was charged with first degree residential burglary (Pen. Code, § 459;
count one), willfully disobeying a court order (Pen. Code, § 166, subd. (a)(4); count two),
and drawing and exhibiting a deadly weapon in a rude, angry, or threatening manner
(Pen. Code, § 417, subd. (a)(1); count three). In connection with count one, it was
alleged that a person, other than an accomplice, was present during the burglary (Pen.
Code, § 667.5, subd. (c)(21)), and it was further alleged that, in the commission of the
burglary, defendant personally used a deadly and dangerous weapon, a knife, within the
3
meaning of Penal Code section 12022, subdivision (b)(1).2 A prior serious felony and
prior strike conviction were also alleged. (§§ 667, subd. (a); 667, subds. (b)-(i), 1170.12).
Trial Evidence Presented by the Prosecution
Defendant’s brother lived in a house with their mother. Defendant’s brother
testified that he had a restraining order in place against defendant. Both defendant’s
brother and mother had restraining orders against defendant in the past. Defendant’s
brother testified that defendant “always violated the restraining orders” and their mother
testified that defendant violated restraining orders on a number of occasions.
The Prior Acts
On April 29, 2016, Officer Luis Canela was dispatched to defendant’s mother’s
house for a family disturbance. Upon his arrival, Canela saw several people outside,
including defendant. Defendant told Canela that he knew there was a restraining order in
place against him. He told Canela he had been invited over to get his bed, “and that his
family had software to control his mind.”
On March 14, 2017, defendant’s brother was at home when defendant came over.
Defendant came in, yelling and screaming. Defendant’s sister told defendant to leave,
and then she called to defendant’s brother. Defendant’s brother came downstairs and saw
defendant sitting in their mother’s vehicle. He asked defendant to leave, but defendant
just yelled, screamed, and cursed. Defendant’s brother told defendant he was not allowed
to be at the house and that there was a restraining order in place, and he warned defendant
that they would call the authorities. Defendant backed up the vehicle and “came right
towards” his brother. Defendant’s brother was on the sidewalk, and defendant backed
out, turned around, and “plow[ed] right towards” him, accelerating “[p]retty quickly,”
driving onto the sidewalk. Defendant’s brother stepped away, and defendant missed
2 At sentencing, the trial court granted the prosecutor’s motion to dismiss the Penal Code
section 12022, subdivision (b)(1), enhancement allegation.
4
hitting him by a matter of inches. Defendant yelled and screamed at his brother, telling
him he did not belong there and accusing him of being the cause of their father’s death.
Defendant drove away in their mother’s vehicle before the police arrived. The incident
frightened the brother.
On July 11, 2017, defendant came to the house, knocked or banged on the door,
and started yelling. Defendant’s mother was home alone. She called 911. There was a
restraining order in effect at the time.
Defendant’s mother testified that, on January 10, 2018, defendant came to the
house, banged on the door, yelled, and cursed. She told defendant she was going to call
911 and she did. Defendant left before the police arrived. Defendant’s brother testified
he came home and discovered a stereo receiver and speaker were missing from the
garage. A pair of his custom running shoes was also missing and a pair of shoes that
belonged to defendant were left behind.3 The door leading into the garage was damaged.
It had been kicked open, the doorjambs were “ripped open,” and the locking mechanisms
“were off the door.” As with the other incidents, there was a restraining order in place at
the time.
On January 23, 2018, defendant again violated a restraining order. When his
mother came home from work, she saw defendant sitting on the back of her landscaper’s
truck, which was parked on the street between her house and the neighbor’s house. She
went into the garage and noticed that the door frame and lock were broken. When she
asked defendant why he broke into the house, he left without saying anything. She
3 Defendant’s brother was not entirely clear in his trial testimony on which dates he
discovered property missing. For instance, discussing his custom running shoes, he
testified, “I’m not sure when it was missing, but it was missing in one of the
incidences . . . .”
5
testified she “didn’t notice about the stereo . . . until [defendant’s brother] came. He said
the stereo was missing.”
On February 21, 2018, defendant’s brother heard defendant banging and yelling at
the door of the house at approximately 4:00 a.m. Defendant was there for approximately
10 or 15 minutes before he left. Later in the day, defendant’s brother went to work.
When he came home in the afternoon, he saw that the garage door had been opened. He
had previously pushed a dresser against the door to keep it closed because the lock and
door had not been fixed from the last incident. The dresser had been moved and stereo
equipment was missing. There was a restraining order in effect at this time as well.
The Charged Offenses
On March 29, 2018, defendant’s mother and brother were at home. During the
night, the brother, who had been asleep in his second-floor bedroom, heard a loud bang at
the door that led from the garage into the house. It sounded like the door being kicked in.
Defendant’s brother opened his second-floor bedroom door and saw defendant running
up the stairs holding a kitchen knife. Defendant was holding the knife in his hand with
his arm at a right angle and the blade pointed away from his body. He was on the turn on
the first landing of the stairs, approximately six to seven feet away. Defendant was
yelling. Defendant’s brother was scared and nervous at the sight of defendant.
Defendant’s mother, who was on her bed in her bedroom awake, also heard a loud
bang. She came out of her bedroom and asked what was happening. Defendant’s brother
told her to go back inside, that defendant had a knife, and that she should call 911.
Although she did not see defendant from her vantage point, she went back in her
bedroom and called 911. Defendant’s brother went back inside his room and closed and
locked the door.
After seven or eight minutes of looking for his pepper spray, defendant’s brother
found it and slowly opened his bedroom door. Defendant was no longer there.
6
Defendant’s brother and mother then went downstairs and outside. By then, a CHP
helicopter was overhead.
Police were dispatched at 11:10 p.m. and arrived at the victims’ home
approximately 5 to 10 minutes later. A neighbor who lived a couple of houses away from
defendant’s mother and brother testified that his daughter alerted him to the presence of
police officers outside. He turned on the light in his backyard and saw a chair cushion
move. Thereafter, he told police officers on the scene that someone was hiding in his
backyard. An officer responded and looked out the sliding glass door. He observed the
cushion move and saw someone’s hand emerge from underneath the cushion. Another
officer released his K-9 partner. The dog found defendant and officers took him into
custody. After defendant was detained, one of the officers found a kitchen knife in a
bucket near where defendant had been hiding. The knife had a wooden handle and a
four-and-a-half-inch blade that was bent in half.
Defendant’s brother and mother observed damage to the door connecting the
house to the garage. The hinges were “ripped open,” the doorjambs were “ripped out,”
and there was damage to the door itself. Nothing was missing from the house.
Verdicts and Sentencing
The jury found defendant guilty of burglary in the first degree (Pen. Code, § 459;
count one) and willfully disobeying a court order (Pen. Code, § 166, subd. (a)(4); count
two). In connection with count one, the jury found true a special allegation that a person,
other than an accomplice, was present during the burglary. (Pen. Code, § 667.5, subd.
(c)(21).) The jury found defendant not guilty of drawing and exhibiting a deadly weapon
in a rude, angry, or threatening manner. (Pen. Code, § 417, subd. (a)(1); count three.)
At a bifurcated trial, the jury found true the allegation that defendant had
previously been convicted of assault with a deadly weapon in violation of Penal Code
section 245, subdivision (a)(1).
7
The trial court sentenced defendant to an aggregate term of 13 years in state
prison, calculated as follows: the midterm of four years on count one, doubled because
of the strike prior, plus five years on the Penal Code section 667, subdivision (a),
enhancement. The court did not impose a sentence on count two, stating it was not doing
so because of Penal Code section 654.
DISCUSSION
I. Prior Acts Evidence
A. Additional Background
In an in limine motion, the prosecution sought to admit evidence of the prior
uncharged acts under section 1109 and as evidence of defendant’s intent, knowledge, and
motive pursuant to section 1101, subdivision (b).
Defendant sought to exclude that same evidence in an in limine motion. He
asserted that, with the exception of one incident, none of the prior uncharged conduct
constituted domestic violence because the conduct did not constitute “abuse” as defined
in Penal Code section 13700. As for section 1101, subdivision (b), defendant asserted
that the evidence was not relevant to intent, motive, or knowledge. Further, regarding the
allegations of theft, defendant argued the prosecution could not prove the thefts actually
happened and that he was the perpetrator. Defendant also made section 352 objections to
the admission of the evidence.
At the in limine hearing, the prosecutor asserted that the prior acts were admissible
under section 1101, subdivision (b) because “each have to do with the same house . . . .”
The prosecutor emphasized that, on two of the occasions, defendant entered the garage
and took items, including a stereo speaker, an amplifier, other stereo equipment, and
running shoes. On a third occasion, defendant confronted his brother “and it kind of
turns into an assault with a deadly weapon. Ultimately, he leaves with his mother’s
vehicle, and when the brother comes out to confront him, it turns into a 245(a)(1).” The
8
prosecutor asserted that the prior acts constituted evidence of intent related to the
burglary charge.
Defense counsel argued, regarding the January 23, 2018, incident, that there had
not been sufficient evidence of identity to support a holding order, and there still was not
sufficient evidence of identity for the evidence to be presented at trial. Counsel further
asserted there was insufficient proof of identity in connection with the theft of
defendant’s brother’s running shoes. Counsel asserted that presenting evidence on these
matters would be distracting, consume undue time, and be prejudicial. Counsel also
asserted that the prior acts were insufficiently similar to the charged offenses.
In additional oral argument the following day, the prosecutor asserted that the
prior acts contextualized what was going on with the family and with defendant being a
family member subject to a restraining order. The prosecutor asserted that there would
be sufficient evidence to prove the prior acts, regardless of whether defendant was
charged for them, and that they were sufficiently similar. Addressing similarity, the
prosecutor again asserted that “it starts with the fact that it’s the same location for all
these incidences, which is . . . the family home . . . ,” and the same victims. Additionally,
defendant entered using the same side garage door. And a restraining order was violated
in all of the prior incidents; in all but one of incidents the same restraining order was
violated as defendant violated during the charged offenses. Further, defendant left the
scene before the police arrived.
Defense counsel asserted that prior thefts should not be admissible under section
1109, because that provision addresses prior acts of domestic violence. Acknowledging
that the Family Code contains a more expansive definition of abuse, counsel argued the
trial court still has discretion to preclude the evidence under section 352. Counsel argued
the evidence was potentially prejudicial, lacked probative value to prove defendant’s
intent when he entered the house, and would consume undue time and confuse the jury.
Regarding section 1101, subdivision (b), defense counsel asserted that the similarity of
9
the prior acts was insufficient to warrant admission of the evidence. Counsel further
maintained that defendant’s violations of prior restraining orders were not relevant to the
issue of knowledge because “the issue isn’t whether he has knowledge of how restraining
orders work, it’s whether he had knowledge of this particular restraining order” which
counsel stated was issued March 2017.
Addressing section 1109 and the definition of abuse relevant to that section, the
court noted that Family Code section 6211 defines domestic violence as abuse, and that
Family Code section 6203 defines abuse. The court further noted that Family Code
section 6203 incorporates Family Code section 6320 in its definition of abuse. The court
concluded that “these all fit within the definition of domestic violence and abuse as
defined in the Family Code, and in the Penal Code . . . . And so it puts the Court in a
place to having to analyze them from a 352 perspective.” The court also noted that
section 1109 allows the admission of prior domestic violence acts as to offenses
“involving domestic violence,” which is not the same as an offenses “charging domestic
violence.” The court determined the admission of the evidence was not unduly
inflammatory and that the probative value was not outweighed by any prejudicial effect.
As for section 1101, subdivision (b), the court recognized the evidence would be
probative of knowledge related to the restraining order. One incident would be probative
as to intent to engage in assaultive conduct and the thefts would be probative as to an
intent to steal. The court ruled the incidents involving theft “go to” defendant’s intent
when he entered the home during the charged event. All the prior events involved
violations of a restraining order, and so they “go to count 2,” the charged restraining
order violation. Again, the court concluded the evidence would not inflame the jury and
cause the jurors to use the evidence for an improper purpose.
Ultimately, the trial court granted the prosecution’s in limine motion to admit
evidence of defendant’s prior acts pursuant to sections 1109 and 1101, subdivision (b).
10
At the close of trial, the court instructed the jury on these theories and the purposes for
which the jury could consider the evidence.4
4 As for section 1109, the court instructed with a modified version of CALCRIM No.
852A, which stated in pertinent part: “Domestic violence means abuse committed against
a brother or mother of the defendant. [¶] Abuse means intentionally or recklessly
causing or attempting to cause bodily injury, or placing another person in reasonable fear
of imminent serious bodily injury to himself or herself or to someone else, attacking,
striking, threatening, battering or, having been restrained from doing so by a valid court
order, coming within a specified distance of or disturbing the peace of a named family
member. [¶] . . . [¶] If you decide that the defendant committed the uncharged domestic
violence, you may, but are not required to, conclude from that evidence that the
defendant was disposed or inclined to commit domestic violence and, based on that
decision, also conclude that the defendant was likely to commit burglary, the violation of
a court order, and/or brandishing of a deadly weapon, in the manner alleged in this case.
If you conclude that the defendant committed the uncharged domestic violence, 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 burglary, violation of a court
order, and brandishing of a deadly weapon. The People must still prove each charge
beyond a reasonable doubt. [¶] Except as otherwise provided in Instruction 375, do not
consider this evidence for any other purpose.”
As for section 1101, subdivision (b), the court instructed with CALCRIM No. 375,
which stated, in pertinent part: “The People presented evidence that the defendant
committed other offenses that were not charged in this case. [¶] . . . [¶] If you decide
that the defendant committed the offenses, you may, but are not required to, consider that
evidence for the limited purpose of deciding whether: [¶] The defendant acted with the
intent to commit theft, Assault with a Deadly Weapon, or Assault with Force Likely to
Cause Great Bodily Injury in this case; or [¶] The defendant knew he had an active
restraining order when he allegedly acted in this case. [¶] . . . [¶] When considering the
evidence in this way, do not conclude from this evidence that the defendant has a bad
character or is disposed to commit crime. [¶] Except as otherwise provided in
Instruction 852A, do not consider this evidence for any other purpose. [¶] If you
conclude that the defendant committed the uncharged offenses, 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 Counts One and Two. The People must still prove
every charge beyond a reasonable doubt.”
11
B. Principles of Statutory Construction and Standard of Review
“Analysis of the requirements of [the Evidence Code] . . . must begin with the
plain language of the statute, giving the words their ordinary and common meaning.
[Citation.] ‘If the language [of the statute] is unambiguous, the plain meaning controls,’
and no further analysis is warranted. [Citations.] When the language allows for more
than one reasonable construction, we consider ‘such aids as the legislative history of the
[statute] and maxims of statutory construction. In cases of uncertain meaning, we may
also consider the consequences of a particular interpretation, including its impact on
public policy.’ ” (Riske v. Superior Court (2016) 6 Cal.App.5th 647, 657.)
We review a challenge to a trial court’s decision to admit evidence pursuant to
section 1109 for abuse of discretion. (People v. Johnson (2010) 185 Cal.App.4th 520,
531 (Johnson).) Likewise, we review a trial court’s section 1101, subdivision (b) ruling
for abuse of discretion. (People v. Winkler (2020) 56 Cal.App.5th 1102, 1144 (Winkler);
People v. Reyes (2019) 35 Cal.App.5th 538, 550.)
C. Section 1109
1. Defendant’s Contentions
Defendant asserts the trial court abused its discretion in admitting the prior acts
under section 1109 because the evidence was inadmissible both under that section and
under section 352. Defendant asserts that, with one exception, the acts did not constitute
abuse within the meaning of Penal Code section 13700. According to defendant, the trial
court erred by employing an expanded definition of abuse found in Family Code sections
6203 and 6320, which together include behaviors not listed in the Penal Code section
13700 definition of abuse. He further asserts that some of the evidence was inadmissible
because there was insufficient corroboration. And he asserts that one of the theories
under which he was charged with burglary—intent to commit theft—did not constitute an
offense involving domestic violence within the meaning of section 1109, and therefore
the prior acts of domestic violence were not admissible under that section “to be
12
considered as domestic violence propensity evidence to decide whether [defendant]
committed burglary by entering with intent to commit theft.” Defendant also asserts that
the evidence was more prejudicial than probative, consumed undue time, confused the
issues, and misled the jury, and therefore the trial court abused its discretion under
section 352 in admitting the evidence.
2. Definitions of Domestic Violence and Abuse Applicable to Section 1109
Section 1109, subdivision (a)(1), provides with exceptions not applicable here:
“[I]n a criminal action in which the defendant is accused of an offense involving domestic
violence, evidence of the defendant’s commission of other domestic violence is not made
inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section
352.” (Italics added.)
Regarding the definition of domestic violence, section 1109 provides:
“ ‘Domestic violence’ has the meaning set forth in Section 13700 of the Penal Code.
Subject to a hearing conducted pursuant to Section 352, which shall include consideration
of any corroboration and remoteness in time, ‘domestic violence’ has the further meaning
as set forth in Section 6211 of the Family Code, if the act occurred no more than five
years before the charged offense.” (§ 1109, subd. (d)(3), italics added.) Thus, there are
two definitions of domestic violence applicable to section 1109, one in the Penal Code
and another in the Family Code.
The Penal Code definition is in Penal Code section 13700, subdivision (b). It
defines “[d]omestic violence” as “abuse committed against an adult or a minor who is a
spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect
has had a child or is having or has had a dating or engagement relationship.” (Italics
added.) Subdivision (a) of section 13700 defines “abuse” as “intentionally or recklessly
causing or attempting to cause bodily injury, or placing another person in reasonable
apprehension of imminent serious bodily injury to himself or herself, or another.”
13
The Family Code definition of domestic violence is found in a combination of
several provisions. Family Code section 6211, expressly referenced in section 1109,
subdivision (d)(3), provides that domestic violence “is abuse perpetrated against” persons
with specified relationships, including, as applicable here, any “person related by
consanguinity or affinity within the second degree.” (Fam. Code, § 6211, subd. (f),
italics added.) In section 6203, the Family Code defines abuse as any of the following:
“(a) (1) To intentionally or recklessly cause or attempt to cause bodily injury. [¶] (2)
Sexual assault. [¶] (3) To place a person in reasonable apprehension of imminent serious
bodily injury to that person or to another. [¶] (4) To engage in any behavior that has
been or could be enjoined pursuant to Section 6320. [¶] (b) Abuse is not limited to the
actual infliction of physical injury or assault.” (Italics added.)
Family Code section 6320, subdivision (a), referenced in subdivision (a)(4) of
Family Code section 6211, lists the following behaviors: “molesting, attacking, striking,
stalking, threatening, sexually assaulting, battering, credibly impersonating as described
in Section 528.5 of the Penal Code, falsely personating as described in Section 529 of the
Penal Code, harassing, telephoning, including, but not limited to, making annoying
telephone calls as described in Section 653m of the Penal Code, destroying personal
property, contacting, either directly or indirectly, by mail or otherwise, coming within a
specified distance of, or disturbing the peace of the other party.” (Italics added.) “[T]he
plain meaning of the phrase ‘disturbing the peace of the other party’ in section 6320 may
be properly understood as conduct that destroys the mental or emotional calm of the other
party.” (In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1497 (Nadkarni),
italics added.)
3. Analysis
Defendant asserts that the trial court erred by using a definition of abuse found in
the Family Code to apply to other acts of domestic violence in section 1109. He asserts
that the only definition of abuse applicable for purposes of section 1109 is the definition
14
found in Penal Code section 13700. According to defendant, section 1109’s invocation
of Family Code section 6211 inappropriately served to expand the classes of people who
could be deemed victims of a prior act of domestic violence within the meaning of
section 1109. Defendant asserts that section 1109 does not state that the Family Code
definition of abuse applies when admitting evidence under section 1109.
We reject defendant’s construction of section 1109. As stated ante, section 1109,
subdivision (d)(3), provides, “ ‘Domestic violence’ has the meaning set forth in Section
13700 of the Penal Code,” but further states, “Subject to a hearing conducted pursuant to
Section 352, which shall include consideration of any corroboration and remoteness in
time, ‘domestic violence’ has the further meaning as set forth in Section 6211 of the
Family Code, if the act occurred no more than five years before the charged offense.”
(Italics added.) This plain and unambiguous language incorporates the Family Code
section 6211 definition of abuse for purposes of defining “domestic violence” within the
scope of section 1109, subject to the five-year limitation and a section 352 analysis.
Nothing in section 1109 limits the scope of subdivision (d)(3) in the manner asserted by
defendant.
Family Code section 6211 defines “ ‘[d]omestic violence’ ” as “abuse perpetrated
against” persons with specified relationships. Family Code section 6203, as is pertinent
here, defines abuse as “any behavior that has been or could be enjoined pursuant to”
Family Code section 6320. (Italics added.) Family Code section 6320, subdivision (a)
includes harassment and disturbing the peace among the list of behaviors. We conclude
that the plain and unambiguous language of section 1109, subdivision (d)(3),
incorporates, in addition to Penal Code section 13700, the Family Code definition of
abuse—including the behaviors listed in Family Code section 6230, subdivision (a)(4)—
15
provided that the events occurred within five years of the charged offense.5 Thus,
encompassed within the meaning of “offense involving domestic violence” in section
1109 is an offense involving conduct constituting harassment and disturbing the peace of
the victim.
Defendant misplaces reliance on People v. Zavala (2005) 130 Cal.App.4th 758(Zavala). In Zavala, the defendant was charged with stalking and asserted that the trial
court erred in instructing the jury on the use of prior violent acts evidence to prove that
offense. (Id. at pp. 761, 770.) The defendant “note[d] that . . . .section 1109 is a limited
exception to the general ban (under Evid. Code, § 1101) against using prior acts to infer
the defendant’s disposition to commit the charged acts, and permits such evidence as the
basis for such inference if the defendant is accused of a crime involving domestic
violence within the meaning of section 13700.” (Zavala, at p. 770, italics added.) The
defendant in Zavala further asserted that “to the extent the stalking offense does not
require that the threat induced the victim to fear great bodily injury or death, stalking is
concomitantly not a crime of domestic violence (as defined by [Penal Code] section
13700) and therefore the prior violent acts evidence may not be used by the jury to infer
Zavala had a disposition the type of which made it likely he committed the stalking
offense.” (Zavala, at pp. 770-771.) The Fourth Appellate District, Division One, without
further analysis or explanation, “agree[d] it was error to give the [section 1109]
instruction as to the count charging Zavala with stalking.” (Zavala, at p. 771.)
Approximately five years later, the Second Appellate District, Division Six,
decided People v. Ogle (2010) 185 Cal.App.4th 1138 (Ogle), upon which the Attorney
5 Because we arrive at our conclusion based on the plain and unambiguous language of
the statute, we do not reach defendant’s arguments addressed to the legislative history
behind the amendment to section 1109, subdivision (d)(3).
16
General relies. The appellate court in Ogle declined to follow Zavala and essentially
rejected the same arguments defendant makes here.
In Ogle, the defendant asserted that his prior conviction for stalking should not
have been admitted to prove his propensity to commit the charged criminal threats
because stalking was not domestic violence within the meaning of section 1109. (Ogle,
supra, 185 Cal.App.4th at p. 1142.) Rejecting the argument, the Ogle court held that
“[s]talking is an act of domestic violence within the meaning of section 1109 as defined
by Family Code section 6211, and is therefore admissible to prove propensity in a
prosecution for domestic violence.” (Ogle, at pp. 1142-1143.) The court expressly
declined to follow the contrary holding in Zavala, reasoning that the Zavala court’s
analysis “overlooks Family Code section 6211, which defines domestic violence more
broadly . . . .” (Ogle, at pp. 1143-1144.) The Ogle court concluded that section 1109
“applies if the offense falls within the Family Code definition of domestic violence even
if it does not fall within the more restrictive Penal Code definition.” (Ogle, at p. 1144,
italics added.)
Defendant asserts that Ogle was wrongly decided based on his arguments
concerning the plain language of section 1109, the legislative history behind its
amendment, and based on a case on which the Ogle court relied. We disagree with
defendant and instead agree with the court’s analysis in Ogle.
Defendant asserts, among other things, that Ogle was wrongly decided because
according to defendant, a case on which that court relied, People v. Dallas (2008) 165
Cal.App.4th 940 (Dallas) “did not find that the definition of ‘abuse’ should be expanded
in this manner.” In Ogle, the court relied on Dallas in stating that section 1109 applied
“if the offense falls within the Family Code definition of domestic violence even if it
does not fall within the more restrictive Penal Code definition.” (Ogle, supra, 185
Cal.App.4th at p. 1144, citing Dallas, at p. 952.)
17
In Dallas, the defendant was charged with child abuse of the son of his girlfriend
with whom he resided. (Dallas, supra, 165 Cal.App.4th at p. 942.) The trial court
admitted evidence of prior domestic violence against a former girlfriend. (Id. at pp. 942,
946-949.) The defendant argued that, because section 1109 does not expressly provide
that acts of domestic violence may be introduced in a child abuse prosecution, it was
improper to do so. (Dallas, at p. 949) The Dallas court noted that, while Penal Code
section 13700 may not include a child within the definition of cohabitant, a child could be
a cohabitant under Family Code section 6209, which is expressly referenced in Family
Code section 6211, subdivision (b). (Dallas, at p. 953.) Thus, for purposes of section
1109, the child abuse charge was a domestic violence offense as defined in Family Code
section 6211. (Dallas, at p. 953.) As stated by the Ogle court, “[i]n Dallas, abuse of a
baby was admissible pursuant to section 1109 because it was domestic violence within
the meaning of Family Code section 6211, although it was not domestic violence within
the meaning of Penal Code section 13700, which did not include the baby in its narrower
class of protected victims.” (Ogle, supra, 185 Cal.App.4th at p. 1144; see Dallas, at
pp. 951-957.)
Defendant is correct that the court in Dallas did not expressly hold that definitions
of abuse found in sections 6203 and 6320 are incorporated into section 1109. However,
the Dallas court did hold that section 6211, defining domestic violence more broadly than
the Penal Code, incorporated other provisions of the Family Code into the ambit of
section 1109 (albeit a section of the Family Code expressly referenced in section 6211
pertaining to the nature of the victim, Family Code section 6209). (Dallas, supra, 165
Cal.App.4th at p. 953.) Thus, the Ogle court did not misplace reliance on Dallas for the
specific proposition that section 1109 incorporates the definitions of abuse found in
sections 6203 and 6320. Instead, the Ogle court reasonably relied on the reasoning in
Dallas for the premise that sections 1109 and 6211 incorporate other provisions from the
18
Family Code which are broader than Penal Code section 13700. We agree with that
reasoning.
Moreover, apart from Dallas, the Ogle court also relied on the plain meaning of
the language of section 1109 in reaching its determination. (Ogle, supra, 185
Cal.App.4th at pp. 1143-1145.) Again, so do we. As discussed ante, the plain language
is clear. Indeed, this is not the first time this court has agreed with Ogle’s reasoning
recognizing that for purposes of section 1109, the Family Code definition of domestic
violence is broader than the Penal Code definition. (See People v. Kovacich (2011) 201
Cal.App.4th 863, 893-895 [evidence that defendant violently kicked the family dog was
an act of domestic violence and admissible under section 1109 in defendant’s trial for the
murder of his wife because Family Code section 6320, subdivision (b) lists various
behaviors relative to pets including “striking” or “harming” the animal].)
We do disagree with the court in Ogle on one thing. It criticized the Zavala court
for “overlook[ing]” Family Code section 6211. (Ogle, supra, 185 Cal.App.4th at
p. 1144.) We do not think that is what happened. The Zavala appeal was decided in June
2005. This was only six months after the effective date of the amendment to subdivision
(d)(3) of section 1109 that incorporated the Family Code’s definition of domestic
violence. (Stats. 2004, ch. 116, § 1.) We take judicial notice of information on the
Fourth Appellate District, Division One’s online docket indicating that judgment was
entered in the trial court in Zavala on April 19, 2004. (§ 452, subd. (d) [judicial notice
may be taken of records of any court of this state]; Lockley v. Law Office of Cantrell,
Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882 [“The court may in its
discretion take judicial notice of any court record”].) Thus, the Family Code definition of
domestic violence would not have been incorporated into section 1109 at the time of the
19
trial in Zavala.6 Accordingly, for this additional reason, we reject defendant’s argument
based on Zavala.
The defendant in Ogle also made the argument defendant makes here, that “the
Family Code reference in section 1109’s definition of domestic violence was intended
only to bring abuse of children of domestic partners within the statute and that it was not
really intended to incorporate all forms of abuse that fall within the broader Family Code
definition.” (Ogle, supra, 185 Cal.App.4th at p. 1144.) We reject that argument, as did
the Ogle court. (Ibid.) Section 1109 clearly and unambiguously incorporates the Family
Code definitions of domestic violence and abuse without the limitation urged by
defendant. (Ogle, at p. 1144.)
As was the case in Ogle (Ogle, supra, 185 Cal.App.4th at p. 1143), the Family
Code definitions of domestic violence and abuse apply here because defendant’s prior
conduct at issue occurred within five years of trial. (§ 1109, subd. (d)(3).) Consequently,
the prior incidents at issue here qualify as domestic violence within the meaning of
section 1109, as defined Family Code section 6211. In each of the instances, a
restraining order was in place against defendant. In each instance, defendant came to the
house where defendant’s mother and brother lived in violation of the effective restraining
order and committed acts which, at the least, would constitute harassing conduct or
conduct disturbing the peace of the victims. (Fam. Code, §§ 6211, 6203, 6320.) As
noted, disturbing the peace for purposes of this Family Code provision means “conduct
that destroys the mental or emotional calm of the other party.’ ” (Nadkarni, supra, 173
Cal.App.4th at p. 1497.)
6 Neither party here discussed this important aspect of the procedural history in Zavala,
supra, 130 Cal.App.4th 758. Nor, to our knowledge, has any published appellate
decision discussed this either.
20
This brings us to the question of whether the prior acts evidence was admissible to
prove the burglary count, an issue not addressed in any published case. The prosecutor
advanced two theories as to defendant’s intent when he broke into the family home
during the charged event: intent to commit aggravated assault and intent to steal.
Because section 1109 allows prior acts of domestic violence when a defendant is accused
of “ ‘an offense involving domestic violence,’ ” the issue defendant raises is whether a
burglary based on an intent to steal theory is an offense involving domestic violence.
Defendant argues it is not because such conduct does not constitute abuse under either the
Penal Code or Family Code definitions. We disagree.
The Attorney General relies on People v. James (2010) 191 Cal.App.4th 478(James), a case that supports only a determination that burglary based on entry with the
intent to commit an aggravated assault or threat to cause injury is a crime “ ‘involving
domestic violence’ ” within the meaning section 1109. There the defendant broke into
his former girlfriend’s home and made threatening statements towards her, placing her in
reasonable apprehension of imminent serious bodily injury. (James, at p. 483.) Noting
the Penal Code section 13700, subdivision (a) definition of abuse includes
“ ‘intentionally or recklessly causing or attempting to cause bodily injury, or placing
another person in reasonable apprehension of imminent serious bodily injury to himself
or herself, or another,’ ” the James court reasoned that, under the circumstances of that
case, burglary was an act of domestic violence for purposes of Penal Code section 13700,
subdivision (a). (James, at pp. 482-483.) In this regard, the court held: “Although the
crime of burglary is not a crime of domestic violence on its face, the trial court properly
found that under the facts of the case, the burglary was a qualifying offense allowing the
People to seek to present propensity evidence under section 1109.” (James, at p. 484.)
Here, defendant entered into the house his mother and brother shared in the middle
of the night while they were in their beds. He was then seen running up the stairs holding
a kitchen knife. Sufficient evidence supported the conclusion that defendant’s alleged
21
actions would have placed his brother “in reasonable apprehension of imminent serious
bodily injury to himself or . . . another.” (Pen. Code, § 13700, subd. (a).) Thus, under
the reasoning of James, the evidence was admissible under section 1109 as to the
aggravated assault theory of burglary. But James does not address the issue presented by
defendant’s challenge here.
Defendant argues that the prior acts were not admissible pursuant to section 1109,
under any definition of abuse, to prove defendant entered into the house with the intent to
commit theft. Thus, according to defendant, the trial court erred in admitting his prior
acts as domestic violence propensity evidence to prove burglary on a theft theory. We
disagree. On this point, it is important to note that section 1109 merely requires that the
criminal action in which the defendant is accused be one “involving domestic violence.”
(§ 1109, subd. (a)(1), italics added; see People v. Megown (2018) 28 Cal.App.5th 157,
166 [noting that § 1109 allows evidence of prior acts of domestic violence in a criminal
action in which the defendant is “ ‘accused of an offense involving domestic
violence’ ”].) “[B]eing ‘accused of an offense involving domestic violence’ encompasses
a broader range of conduct than the domestic violence defined as abuse committed
against one of certain specified individuals under Penal Code section 13700.” (People v.
Wang (2020) 46 Cal.App.5th 1055, 1077 (Wang), italics added; Megown, at p. 166.) As
we have noted, that broader range of conduct includes harassment and disturbing the
peace. (Fam. Code, § 6230, subd. (a).) Here, it cannot be seriously argued that breaking
into the family home and stealing property is not behavior constituting harassment or
disturbing the peace of defendant’s brother and mother. Thus, under the circumstances
here, residential burglary grounded on a theft theory was an “offense involving domestic
violence.” (§ 1109, subd. (a)(1), italics added.)
22
D. Section 1101, Subdivision (b)
1. Additional Background and Defendant’s Contentions
The trial court ruled that the prior act evidence would be admissible under section
1101, subdivision (b) for “the targeted purposes” in the instructions. The instructions
listed the following purposes for which the jury could consider the evidence: intent to
commit theft, assault with a deadly weapon or assault with force likely to cause great
bodily injury, and that defendant knew he had an active restraining order when he
allegedly acted in this case. (See fn. 4, ante.)
Defendant asserts that the trial court abused its discretion in admitting the prior
acts under section 1101, subdivision (b). He asserts that this evidence was not relevant to
prove he entered the home with the intent to steal property or commit an aggravated
assault, or to prove he had knowledge of the restraining order in effect at the relevant
time. This is so, according to defendant, because the prior incidents were insufficiently
similar to be probative, and further that the prior acts of alleged theft were not established
by a preponderance of the evidence. He also asserts that this evidence was inadmissible
on section 352 grounds. Again, we disagree.
2. Analysis
Section 1101, subdivision (a) generally prohibits evidence of character to prove
conduct. Apart from the exception under section 1109, subdivision (b) of section 1101
provides that “evidence of a prior uncharged act may also be admissible to prove a
disputed material fact—other than a criminal disposition—such as motive, intent,
knowledge, or the absence of mistake or accident.” (Wang, supra, 46 Cal.App.5th at
p. 1075.)
Our high court has stated: “The least degree of similarity (between the uncharged
act and the charged offense) is required in order to prove intent. . . . In order to be
admissible to prove intent, the uncharged misconduct must be sufficiently similar to
support the inference that the defendant ‘ “probably harbor[ed] the same intent in each
23
instance.” ’ ” (People v. Ewoldt (1994) 7 Cal.4th 380, 402 (Ewoldt).) As our high court
has explained, “the recurrence of a similar result tends to negate an innocent mental state
and tends to establish the presence of the normal criminal intent.” (People v. Jones
(2011) 51 Cal.4th 346, 371; see also Ewoldt, at p. 402.) “[T]he similarities between the
two events must be substantial enough to have probative value.” (Winkler, supra, 56
Cal.App.5th at p. 1145.)
We conclude the prior acts were sufficiently similar for admissibility under section
1101, subdivision (b). (See generally People v. Fruits (2016) 247 Cal.App.4th 188, 202-
203 (Fruits) [evidence of threats the defendant made against his mother, and other acts of
violence against her were similar to the charged offense involving his mother as the
victim and thus highly probative]; People v. Hoover (2000) 77 Cal.App.4th 1020, 1029
(Hoover) [§ 1109 evidence relevant to domestic violence was admissible in view of the
fact that the evidence involved the defendant’s history of similar conduct against the
same victim and the evidence was not unduly inflammatory].) Defendant emphasizes
differences between the prior acts and the charged offenses such as the time of day and
the fact that he previously went into the garage rather than the residence itself. He also
asserts that, during the prior acts, he did not carry a weapon. We conclude that these
differences were insignificant compared to the fact that he victimized the same people, at
the same place, employed a similar means of entry causing similar damage, repeatedly
violated a restraining order and, with the exception of one incident, left the scene before
the police arrived. In the context of this case, these similarities were substantial enough
to have sufficient probative value.
Regarding the burglary, as stated ante, the prosecution proceeded on the theories
that, when defendant entered the house, his intent was to commit aggravated assault or
theft. The circumstantial evidence pointed to defendant as the person who stole items of
property from the home on at least two prior occasions. Additionally, in another prior
act, defendant went to the house and attempted to assault his brother with a motor
24
vehicle. These prior acts were relevant to defendant’s intent when he entered into the
house on March 29, 2018.7
The evidence of defendant’s violation of prior restraining orders by going to the
residence where his mother and brother lived was also relevant to defendant’s knowledge
concerning the existence of the restraining order. Defendant asserts that knowledge was
not a material issue in the case because he was previously served with the restraining
order violated here in open court, and thus his knowledge of that restraining order is
presumed. However, “By pleading not guilty . . . defendant placed all elements of the
crime in dispute.” (People v. Hendrix (2013) 214 Cal.App.4th 216, 239-240 (Hendrix).)
And the prosecution had latitude in the manner in which it chose to prove its case. In
other words, “the prosecutor is not required ‘to present its case in the manner preferred by
7 Without explanation that appears on the record, the trial court apparently ruled the prior
acts evidence was not admissible pursuant to section 1101, subdivision (b), to prove
defendant’s motive. However, we think it important to point out that defendant’s prior
acts involving the same victims could also be relevant and admissible to prove motive
pursuant to section 1101, subdivision (b) in that the acts showed defendant’s ongoing
animus as to his brother and mother. (See, e.g., Fruits, supra, 247 Cal.App.4th at p. 204
[prior threats and acts of violence against a victim are admissible under § 1101, subd. (b),
to establish motive in a prosecution involving violence or the threat of violence against
the same victim; “[a] defendant is not entitled to have the jury determine his guilt or
innocence on a false presentation that his and the victim’s relationship was peaceful and
friendly”]; People v. Guilford (2014) 228 Cal.App.4th 651, 661-662 [“ ‘Where a
defendant is charged with a violent crime and has or had a previous relationship with a
victim, prior assaults upon the same victim, when offered on disputed issues, e.g.,
identity, intent, motive, etcetera, are admissible based solely upon the consideration of
identical perpetrator and victim without resort to a “distinctive modus operandi” analysis
of other factors’ ”]; People v. Linkenauger (1995) 32 Cal.App.4th 1603, 1610 [evidence
tending to establish prior quarrels, antagonism and enmity between a defendant and the
victim is properly admissible to show motive under § 1101, subd. (b)]; People v. Zack
(1986) 184 Cal.App.3d 409, 415 [same].) Apart from the intent to commit aggravated
assault theory, residential burglary when someone is home is a violent felony offense.
(Pen. Code, § 667.5, subd. (c)(21)).
25
the defense.’ ”8 (People v. Clark (2011) 52 Cal.4th 856, 894, quoting People v. Salcido
(2008) 44 Cal.4th 93, 150.) Moreover, the prior acts evidence related to restraining order
violations was also relevant to demonstrate defendant’s willfulness in violating the
existing restraining order and the absence of mistake or accident. (See Hendrix, at pp.
237-246 [discussing the admissibility of other act evidence to establish knowledge and
absence of mistake or accident].)9
8 Defendant cites to pages of the reporter’s transcript to support his contention of
presumptive knowledge that there was a restraining order in effect and thus knowledge
was not a material issue in the case. However, the pages to which he cites merely
memorialize a colloquy in which defendant’s trial counsel represented that “[w]e need to
enter a stipulation that [defendant] knew there was a restraining order against his brother.
He was served with it. Ultimately, all that has to happen for him to be -- to have
presumptive knowledge is to be served with it, which he was in open court. . . . So I
don’t think that’s an issue -- a material issue here . . . .” The statements of counsel are
not evidence. (People v. Hamilton (2009) 45 Cal.4th 863, 928-929; accord, People v.
Saelee (2018) 28 Cal.App.5th 744, 755; CALCRIM No. 222.) The only stipulation read
to the jury addressed a restraining order that expired on March 16, 2018. This was not
the restraining order defendant stood accused of violating in count two. A certified copy
of the July 5, 2016, restraining order that defendant was accused of, and found guilty of,
violating in count two was admitted into evidence. However, no evidence in the
appellate record speaks to the in-court service on defendant of this restraining order and
there is no stipulation in the record establishing such service or defendant’s presumptive
knowledge of the restraining order.
9 Unlike the motive theory, the trial court was not asked to consider whether the
evidence was admissible to prove willfulness regarding the restraining order violation or
absence of mistake or accident, and consequently, there was no ruling on these theories.
We conclude the evidence was admissible on these additional theories related to the
restraining order violation. “We will affirm the trial court’s evidentiary ruling if it is
correct on any theory of law applicable to the case, even if for reasons different than
those expressly stated by the trial court.” (Fruits, supra, 247 Cal.App.4th at p. 205.) “ ‘
“ ‘No rule of decision is better or more firmly established by authority, nor one resting
upon a sounder basis of reason and propriety, than that a ruling or decision, itself correct
in law, will not be disturbed on appeal merely because given for a wrong reason. If right
upon any theory of the law applicable to the case, it must be sustained regardless of the
considerations which may have moved the trial court to its conclusion.’ ” ’ ” (Ibid.,
quoting People v. Zapien (1993) 4 Cal.4th 929, 976.)
26
Defendant also argues that “the first foundational requirement for admitting prior
bad act evidence, pursuant to . . . section 1101, subdivision (b) is that it must be
established by a preponderance of evidence that the prior bad act actually occurred.”
Defendant is correct, in that a trial court does have a gatekeeping function under section
403, subdivision (a) to determine by a preponderance of the evidence the existence of the
prior uncharged act and defendant’s connection to it before the prior misconduct can be
deemed admissible. (Winkler, supra, 56 Cal.App.5th at p. 1144.) Thus, in the context of
this case, the trial court had a duty to determine whether there was sufficient evidence to
establish by a preponderance of the evidence that defendant committed the prior acts.
The only acts raising a question in this regard are the incidents of theft, where nobody
actually saw defendant take items that later turned up missing. As we noted ante,
defendant made his arguments concerning the lack of sufficient proof and the trial court
determined that the evidence was admissible. While an express ruling on the sufficiency
of the proof would create a clear record, the record demonstrates an implied finding
concluding there was indeed sufficient evidence. And we agree that, although
circumstantial, the evidence was sufficient to establish by a preponderance of the
evidence that defendant took the missing items to allow the jury to consider the evidence
on both the section 1109 and 1101, subdivision (b) theories.10
10 Defendant was originally charged in this case with burglary related to the incident on
January 23, 2018. The magistrate found there was insufficient evidence presented at the
preliminary hearing to support the charge, ruling that the Proposition 115 evidence
concerning the statements of defendant’s mother and the neighbor who saw defendant
walking away with something in his hand, were insufficient to place defendant at the
scene and establish defendant took stereo components. Defendant asserts that because
the January 23, 2018, incident was charged and a magistrate concluded there was
insufficient evidence to establish probable cause, there was also insufficient evidence to
allow the jury to consider it for purposes of section 1101, subdivision (b). There may
have been some confusion between defendant’s mother and brother about the days the
theft incidents involving the stereo equipment took place, because trial testimony of
27
E. Section 352 Analysis
1. Defendant’s Contentions
Defendant asserts that the prior acts evidence should have been excluded under
section 352. As for the section 1109 theory, he asserts that the prior incidents were not
similar to the circumstances of the charged offense, and the evidence addressed to the
prior acts was not sufficiently corroborated. He asserts as to both section 1109 and 1101,
subdivision (b), the probative value of the prior acts was low or nonexistent. Defendant
further asserts that the potential for prejudice was high. He also asserts that the March
14, 2017, incident, during which he drove a car at his brother, was far more inflammatory
than the charged offenses. Additionally, defendant asserts that the jury would be tempted
to punish him for the prior acts because he had previously escaped punishment for those
defendant’s brother indicated those thefts took place on January 10 and February 21.
During the trial, the only evidence of a theft having taken place on January 23, 2018, was
the mother’s recollection that defendant’s brother told her the stereo was missing. We
note that defendant’s brother did not testify at the preliminary hearing. And a review of
the preliminary hearing reveals that no Proposition 115 testimony was introduced
relaying a statement from defendant’s brother through the police other than a follow-up
identification of a photograph of defendant as his brother and “the person who broke in
the garage and stole my speaker.” The officer who conducted the follow-up did not
testify what date defendant’s brother said the speaker was stolen. Nor was evidence
concerning the thefts that took place on January 10 or February 21, 2018, introduced at
the preliminary hearing. And no evidence was introduced at the preliminary hearing
about the running shoes having been taken from the garage at some point and defendant’s
shoes left behind. Nor was there preliminary hearing evidence regarding the mother
confronting defendant on January 23, 2018, about breaking into the garage. As we noted
in our summary of the facts ante, instead of denying responsibility, defendant did not
respond to the mother’s accusatory question. Looking to the totality of the evidence, we
conclude that, despite the denial of the holding order concerning a burglary charge related
to the January 23, 2018, incident, there was sufficient evidence to allow the jury to
consider all of the testimony concerning the January 23, 2018, incident, and there was
sufficient evidence to establish defendant took property from the home on at least two
other occasions.
28
acts. Defendant also maintains that presentation of this evidence consumed undue time
and confused the jury.
2. Section 352 and Standard of Review
“The 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 misleading the jury.” (§ 352.) “Evidence is not inadmissible under section
352 unless the probative value is ‘substantially’ outweighed by the probability of a
‘substantial danger’ of undue prejudice or other statutory counterweights. Our high court
has emphasized the word ‘substantial’ in section 352. [Citations.] [¶] Trial courts enjoy
‘ “broad discretion” ’ in deciding whether the probability of a substantial danger of
prejudice substantially outweighs probative value. [Citations.] A trial court’s exercise of
discretion ‘will not be disturbed except on a showing the trial court exercised its
discretion in an arbitrary, capricious, or patently absurd manner that resulted in a
manifest miscarriage of justice.’ ” (People v. Holford (2012) 203 Cal.App.4th 155, 167-
168 (Holford).)
3. Analysis
In applying the balancing analysis under section 352, a court must determine the
probative value of the evidence and place that on the probative value side of the section
352 scales. Here, as we have noted, the prior acts were highly probative under two
Evidence Code theories, section 1109 and section 1101, subdivision (b). The evidence
was probative of: (1) defendant’s propensity to threaten or assault his brother, (2)
defendant’s propensity to harass and/or disturb the peace of his brother and mother by a
variety of conduct, including stealing from the family’s home; (3) defendant’s intent to
threaten or injure his brother, (4) defendant’s intent to steal property when he entered the
home during the charged incident; (5) defendant’s knowledge of the restraining order,
and (6) defendant’s willfulness and lack of mistake or accident in violating the restraining
29
order. “ ‘ “The principal factor affecting the probative value of an uncharged act is its
similarity to the charged offense.” ’ ” (Johnson, supra, 185 Cal.App.4th at pp. 531-532.)
Contrary to defendant’s contention, as previously noted, we conclude that there are
substantial similarities between the charged offense and the prior acts.
And contrary to defendant’s contention, problems of proof did not detract from the
tendency to prove these material facts and thus did not diminish the probative value of
the evidence. (Cf. Winkler, supra, 56 Cal.App.5th at pp. 1153-1154 [evidence
concerning death of prior wife was inadmissible under § 1101, subd. (b) because there
was insufficient evidence to establish defendant committed an act that resulted in her
death].) As noted, the circumstantial evidence here pointed to defendant as the person
who stole items of property from the home on at least two occasions.
We further conclude the introduction of this evidence did not consume an undue
amount of time. The testimony concerning the prior acts was supplied almost exclusively
by defendant’s mother and brother, who also testified as to the charged offenses. That
testimony concerning the prior acts did not consume an undue period of time relative to
the trial as a whole.
We also conclude that the evidence concerning the prior acts did not give rise to a
danger of undue prejudice against the defendant. “ ‘ “ ‘[T]he prejudice which exclusion
of evidence under . . . section 352 is designed to avoid is not the prejudice or damage to a
defense that naturally flows from relevant, highly probative evidence. “[A]ll evidence
which tends to prove guilt is prejudicial or damaging to the defendant’s case. The
stronger the evidence, the more it is ‘prejudicial.’ The ‘prejudice’ referred to in . . .
section 352 applies to evidence which uniquely tends to evoke an emotional bias against
the defendant as an individual and which has very little effect on the issues.” ’ ” ’ ”
(Fruits, supra, 247 Cal.App.4th p. 205, quoting Holford, supra, 203 Cal.App.4th at
p. 167.) Here, the prior acts are materially similar, and in almost every case, clearly less
inflammatory, than the charged offenses. Defendant asserts the assault with a vehicle
30
incident is more inflammatory than the charged event. It is debatable whether that
incident is more inflammatory than the nighttime home invasion charged here. In any
event, it was not significantly more inflammatory than the charged offenses such that
there was a substantial danger that the introduction of this evidence would cause undue
prejudice. (See Hoover, supra, 77 Cal.App.4th at p. 1029 [§ 1109 evidence was
admissible in view of the fact that the evidence involved the defendant’s history of
similar conduct against the same victim and the evidence was not unduly inflammatory].)
Defendant argues the evidence “reasonably likely misled or confused the jury
because the same prior incidents were admitted pursuant to Evidence Code section 1109
for use as propensity evidence and pursuant to Evidence Code section 1101 to prove
intent for the burglary and knowledge of the criminal protective/restraining order, which
could not be used to prove criminal propensity.” According to defendant, this was
“inherently confusing.” Defendant does not explain why telling the jury it can consider
evidence for different purposes is confusing in a generic sense or why in the specific
context of this case it is “inherently confusing.” We conclude it was not. The court
properly instructed the jury on these matters and the record shows no confusion in this
regard. (See fn. 4, ante.) We assume jurors are intelligent, particularly when it comes to
understanding jury instructions. (See People v. Sattiewhite (2014) 59 Cal.4th 446, 475
[“ ‘ “ ‘we must assume that jurors are intelligent persons and capable of understanding
and correlating all jury instructions which are given’ ” ’ ”].)
Defendant also complains the evidence was insufficiently corroborated to be
admissible under section 1109. His argument seems to be focused only on the incidents
of theft. Under section 1109, a trial court must consider the existence of corroboration in
the section 352 analysis for application of the Family Code section 6211 definition of
“domestic violence.” (§ 1109, subd. (d)(3).) However, contrary to the implication of
defendant’s argument, corroboration is not a requirement. As noted, section 1109,
subdivision (d)(3) states in pertinent part: “Subject to a hearing conducted pursuant to
31
Section 352, which shall include consideration of any corroboration and remoteness in
time, ‘domestic violence’ has the further meaning as set forth in Section 6211 of the
Family Code, if the act occurred no more than five years before the charged offense.”
(Italics added.) Considering the plain language of this provision, we conclude that the
word “any” is important. It directs the court to consider whether there is “any”
corroboration in the section 352 analysis. However, nothing in this provision requires
corroboration.11 Moreover, we view the Legislature’s use of the word “any” to mean the
nature of the corroboration can be anything that serves as corroboration. Thus,
contemporaneous reports to the police can serve as corroboration that an event occurred.
And in this case, there was additional corroboration in the evidence that defendant’s
shoes were left behind when his brother’s running shoes were taken. Thus, even if the
trial court did not expressly state it considered corroboration, and even if corroboration
was a requirement, there was corroboration here.
Defendant asserts that there was a danger of prejudice under section 352 because
he was not punished for the prior acts and thus the jury would be tempted to punish him
because he had previously escaped punishment for those acts. It is well settled that this is
a legitimate factor for the prejudice side of the section 352 scales in the context of the
admissibility of uncharged acts. (Winkler, supra, 56 Cal.App.5th at p. 1156, citing
People v. Soper (2009) 45 Cal.4th 759, 772-773; People v. Tran (2011) 51 Cal.4th 1040,
1047; Ewoldt, supra, 7 Cal.4th at p. 405.) But we conclude the potential for this to
11 The Legislature knows how to make corroboration a requirement and has expressly
done so when that is the intent. (E.g. Pen. Code § 1111 [“A conviction can not be had
upon the testimony of an accomplice unless it be corroborated by such other evidence as
shall tend to connect the defendant with the commission of the offense; and the
corroboration is not sufficient if it merely shows the commission of the offense or the
circumstances thereof”].)
32
happen did not substantially outweigh the probative value we have concluded exists here.
(See generally § 352; Holford, supra, 203 Cal.App.4th at p. 167.)
We conclude that, contrary to defendant’s contention, the trial court did not abuse
its discretion in admitting the prior acts evidence under section 1109 or 1101, subdivision
(b) over defendant’s section 352 objections.
F. Due Process Contention
Citing our high court’s decision in People v. Falsetta (1999) 21 Cal.4th 903(Falsetta), defendant asserts the admission of the prior acts evidence under section 1109
violated his due process rights because the trial court allowed propensity evidence in
violation of section 352. (See generally Falsetta, at pp. 917-918 [§ 352 provides a due
process check on the admissibility of uncharged sexual misconduct under section 1108
and therefore section 1108 does not violate the due process clause].) But, as we have
concluded, the trial court did not err in ruling that any prejudice of the prior acts evidence
here did not substantially outweigh the probative value.
Defendant also argues he had a due process right to have a jury decide his guilt
“based on what he did in the instant case, not on who they think he is as a result of the
prior bad act evidence they heard.” For this argument, he relies on two cases published
before the enactment of section 1109.
In People v. Garceau (1993) 6 Cal.4th 140, disapproved on another ground in
People v. Yeoman (2003) 31 Cal.4th 93, 117, the defendant was charged with the murder
of his girlfriend and her son. (Garceau, at p. 156.) Evidence of defendant’s uncharged
drug activity and the murder of a third person was introduced under section 1101,
subdivision (b). (Garceau, at p. 185.) The jury was instructed that, if it believed this
prior act evidence, it “ ‘may be considered by [the jury] for any purpose, including but
not limited to any of the following: [¶] [Defendant’s] character or any trait of his
character . . . .’ ” (Id. at p. 186.) The Attorney General acknowledged, and our high
court agreed, that this instruction was erroneous. (Id. at pp. 186-187.) Garceau
33
obviously has no application in the context of section 1109, in which the Legislature
subsequently allowed prior acts of domestic violence to prove propensity to commit
offenses involving domestic violence.
In the other case on which defendant relies, United States v. Myers (5th Cir. 1977)
550 F.2d 1036, a federal bank robbery prosecution, the circuit court determined the
district court erred in admitting evidence that the defendant committed an uncharged
bank robbery under Federal Rules of Evidence, rule 404(b) (28 U.S.C.), the federal
analogue to section 1101, subdivision (b).12 There, the court noted that uncharged act
evidence is not admissible to show criminal disposition and that “[a] concomitant of the
presumption of innocence is that a defendant must be tried for what he did, not for who
he is.” (Myers, at p. 1044.) The court then went on to engage in the federal analysis for
the admissibility of uncharged act evidence under Federal Rules of Evidence, rule 404(b),
an analysis that is similar to our uncharged acts evidence analysis, which includes a
similarity assessment as well as the application of Federal Rules of Evidence, rule 403,
the federal counterpart to our section 352.13 (Myers, at pp. 1044-1048.)
Much has transpired in the law concerning the admissibility of uncharged acts
since the cases cited by defendant were published. Indeed, the first version of section
1109, allowing prior acts of domestic violence to be admitted to prove propensity to
12 Federal Rules of Evidence, rule 404(b) provides, in pertinent part: “(1) Prohibited
uses. Evidence of any other crime, wrong, or act is not admissible to prove a person’s
character in order to show that on a particular occasion the person acted in accordance
with the character. [¶] (2) Permitted uses. This evidence may be admissible for another
purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake, or lack of accident.”
13 Federal Rules of Evidence, rule 403 provides: “The court may exclude relevant
evidence if its probative value is substantially outweighed by a danger of one or more of
the following: unfair prejudice, confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence.”
34
commit offenses involving domestic violence did not become law until 1997, four years
after Garceau. (Stats. 1996, ch. 261, § 2.) And since its enactment, due process
challenges to section 1109 have been repeatedly rejected. (See Johnson, supra, 185
Cal.App.4th at p. 529 & cases cited therein.)
Similarly, Federal Rules of Evidence, rules 413 and 414,14 federal counterparts to
California’s section 1108, allowing evidence of prior sexual misconduct to show
propensity to commit such crimes, were enacted in 1994 (Violent Crime Control and Law
Enforcement Act of 1994, Pub.L. No. 103-322, Title XXXII, § 320935). As this court
has previously noted, “[t]he federal court cases rejecting due process challenges to rule
413 and . . . rule 414 are many and we have found no federal cases concluding that these
rules of evidence offend due process.” (People v. Phea (2018) 29 Cal.App.5th 583, 604.)
Similar to our high court, the federal courts recognize Federal Rules of Evidence, rule
403, the federal analogue to section 352, is a firewall to protect against due process
violations resulting from the admission of unduly prejudicial evidence in the context of
admission of uncharged sex crimes evidence admitted to prove propensity. (United
States v. Abrams (9th Cir. 2019) 761 Fed.Appx. 670, 675, quoting United States v.
LeMay (9th Cir. 2001) 260 F.3d 1018, 1027 [“The introduction of propensity or character
evidence ‘can amount to a constitutional violation only if its prejudicial effect far
outweighs its probative value’; ‘As long as the protections of Rule 403 remain in place to
ensure that potentially devastating evidence of little probative value will not reach the
jury, the right to a fair trial remains adequately safeguarded’ ”].)
14 Federal Rules of Evidence, rule 413(a) provides, in pertinent part: “In a criminal case
in which a defendant is accused of a sexual assault, the court may admit evidence that the
defendant committed any other sexual assault. The evidence may be considered on any
matter to which it is relevant.” Federal Rules of Evidence, rule 414(a) provides, in
pertinent part: “In a criminal case in which a defendant is accused of child molestation,
the court may admit evidence that the defendant committed any other child molestation.
The evidence may be considered on any matter to which it is relevant.”
35
At this point, the law allowing the admissibility of prior acts to prove propensity to
commit uncharged acts of domestic violence and sexual misconduct over a due process
challenge appears to be settled. Where, as here, the trial court does a proper section 352
analysis, there is no due process violation.
We conclude defendant’s due process rights were not violated.
II. CALCRIM No. 852A
A. Additional Background
The prosecution requested a pinpoint instruction related to evidence of uncharged
domestic violence, specifically with regard to the definition of “abuse.” Over defendant’s
objection, the trial court instructed the jury with a modified version of CALCRIM No.
852A which read in pertinent part: “[T]he People presented evidence that the defendant
committed domestic violence that wasn’t charged in this case. [¶] [D]omestic violence
means abuse committed against a brother or a mother of the defendant. [¶] Abuse means
intentionally or recklessly causing or attempting to cause bodily injury or placing another
person in reasonable fear of imminent serious bodily injury to himself or herself or to
someone else; attacking, striking, threatening, battering, or having been restrained from
doing so by a valid court order, coming within a specific distance, or disturbing the peace
of a family member.” (Italics added; see fn. 4, ante.)
B. Defendant’s Contentions
Defendant asserts that the trial court abused its discretion by incorporating the
Family Code definition of abuse in its CALCRIM No. 852A instruction. He further
asserts that the trial court erred in giving this instruction without modifying it “to explain
that jurors could not consider the alleged prior domestic violence . . . to determine
whether [defendant] likely committed a burglary by entering a room in his mother’s
house with the intent to commit theft,” because theft is not an offense involving domestic
violence. (Capitalization omitted.) Consistent with our conclusion that offenses
involving domestic violence in section 1109 include offenses involving behavior
36
amounting to harassment and disturbing the victims’ peace, we reject this contention as
well.
C. Applicable General Principles of Law
“A trial court has a sua sponte duty to ‘instruct on general principles of law that
are closely and openly connected to the facts and that are necessary for the jury’s
understanding of the case . . . .’ ” (People v. Blacksher (2011) 52 Cal.4th 769, 845-846,
quoting People v. Carter (2003) 30 Cal.4th 1166, 1219.) “ ‘We determine whether a jury
instruction correctly states the law under the independent or de novo standard of review.
[Citation.] Review of the adequacy of instructions is based on whether the trial court
“fully and fairly instructed on the applicable law.” ’ ” (People v. Turner (2019) 37
Cal.App.5th 882, 887.) “We consider the instructions as a whole as well as the entire
record of trial, including the arguments of counsel. [Citation.] If reasonably possible,
instructions are interpreted to support the judgment rather than defeat it.” (People v.
McPheeters (2013) 218 Cal.App.4th 124, 132.)
D. Analysis
We have concluded that section 1109 incorporates the Family Code definition of
abuse. Thus, the trial court did not err in including the legally correct and applicable
Family Code definition of abuse in its modified CALCRIM No. 852A instruction.
Defendant asserts that CALCRIM No. 852A, as given, was erroneous because it
allowed the jury to infer from prior acts of domestic violence his propensity to commit
burglary on a intent to steal theory, which according to defendant, is not an act of
domestic violence. However, as we have pointed out, breaking into the victims’ home to
steal property can result in a disturbance of the victims’ peace. Disturbing the peace was
included in the court’s modified CALCRIM No. 852A. And although harassment was
not included in the instruction, under the circumstances presented here, stealing from the
37
home could also be a form of harassment and thus, a form of abuse. We conclude the
instruction was not erroneous.15
E. Due Process Violation
Defendant further asserts that the propensity evidence, and the trial court’s use of
the definition of abuse from the Family Code in CALCRIM No. 852A, reduced the
prosecution’s burden of proving every element of burglary beyond a reasonable doubt.
Again, we disagree.
As a general matter, our high court has previously approved CALJIC No. 2.50.01,
a substantially similar instruction to CALCRIM No. 852A, in People v. Reliford (2003)
29 Cal.4th 1007, 1016. Insofar as applicable, we are, of course, bound to follow our high
court’s decision in Reliford. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d
450, 455.) Additionally, this court has previously rejected similar challenges to
CALCRIM No. 852, the former instruction involving section 1109 uncharged act
evidence. (See People v. Reyes (2008) 160 Cal.App.4th 246, 250-253; People v. Johnson
(2008) 164 Cal.App.4th 731, 738-740.)
Defendant asserts that the trial court’s error in instructing the jury that it could
consider the prior acts of domestic violence to conclude that defendant entered the house
with the intent to commit theft, which, according to defendant, is not an act of domestic
violence, reduced the prosecution’s burden of proof. However, the Legislature
established what evidence is admissible to prove propensity to commit domestic violence
and defined offenses involving domestic violence to include harassment and disturbing
15 The standard language of CALCRIM No. 852A regarding “abuse” reads as follows:
“Abuse means intentionally or recklessly causing or attempting to cause bodily injury, or
placing another person in reasonable fear of imminent serious bodily injury to himself or
herself or to someone else.” We recommend that the Judicial Council’s CALCRIM
Advisory Committee consider adding a bracketed alternative definition for “abuse” that
would include the behaviors listed in Family Code section 6320.
38
the victim’s peace. The evidence here was admissible to prove a propensity to engage in
such behavior toward the victims. Consistent with our analysis concerning the
admissibility of this evidence over defendant’s due process challenge, we conclude the
modified version of CALCRIM No. 852A did not violate defendant’s due process rights.
Moreover, we note that the court also properly instructed with CALCRIM No. 375
covering section 1101, subdivision (b) theories, including use of the same evidence to
establish defendant’s intent to steal when entering the victims’ home.16
III. Cumulative Error
Defendant asserts that the cumulative effect of the errors he alleges prejudiced
him, mandating reversal. We reject this contention. The premise behind the cumulative
error doctrine is that, while a number of errors may be harmless taken individually, their
cumulative effect requires reversal. (People v. Bunyard (1988) 45 Cal.3d 1189, 1236-
1237, disapproved on another ground in People v. Diaz (2015) 60 Cal.4th 1176.) We
have concluded there has been no error. Moreover, defendant “was entitled to a fair trial
but not a perfect one.” (People v. Cunningham (2001) 25 Cal.4th 926, 1009.) Defendant
was not deprived of a fair trial.
IV. Sentence on Count Two – Penal Code section 654
In imposing sentence on count two, willfully disobeying a court order, the trial
court stated: “As to the guilty finding on Count 2, the Court agrees with the probation
16 In addition to the CALCRIM No. 852A and CALCRIM No. 375 instructions more
fully set forth is footnote 4, ante, the trial court also instructed the jurors on the
prosecution’s burden of proving defendant’s guilt beyond a reasonable doubt.
(CALCRIM No. 220.) And the court instructed the jury that certain evidence was
admitted for a limited purpose, and to only consider the evidence for that purpose and no
other. (CALCRIM No. 303.) The trial court also properly instructed the jury with the
elements of burglary. (CALCRIM No. 1700.) We presume the jury understood and
followed the court’s instructions. (People v. Wilson (2008) 44 Cal.4th 758, 803.)
39
report that it’s part of a continued course of conduct and is going to treat it under 654 and
not impose additional time.” (Italics added.)
The pronouncement of sentence on count two was error. Because this constituted
an unauthorized sentence, it may be corrected at any time. (See People v. Sanders (2012)
55 Cal.4th 731, 743, fn. 13 [“[I]t is well established that the appellate court can correct a
legal error resulting in an unauthorized sentence (including a misapplication of [Penal
Code] § 654) at any time”].) Accordingly, we reach this issue notwithstanding the fact
that it was raised by neither defendant nor the Attorney General. Although the law here
is well-settled, we publish this portion of our opinion because this is a reoccurring error
in our district.
Penal Code section 654, subdivision (a), provides: “An act or omission that is
punishable in different ways by different provisions of law shall be punished under the
provision that provides for the longest potential term of imprisonment, but in no case
shall the act or omission be punished under more than one provision.” “[W]hen a court
determines that a conviction falls within the meaning of section 654, it is necessary to
impose sentence [and] to stay the execution of the duplicative sentence . . . .” (People v.
Duff (2010) 50 Cal.4th 787, 796; see People v. Alford (2010) 180 Cal.App.4th 1463, 1469
(Alford); People v. Niles (1964) 227 Cal.App.2d 749, 755-756.) “This procedure ensures
that the defendant will not receive ‘a windfall of freedom from penal sanction’ if the
conviction on which the sentence has not been stayed is overturned.” (People v. Salazar
(1987) 194 Cal.App.3d 634, 640.) It is improper to impose no sentence. It is also
improper to stay imposition of the sentence. (Couzens, Bigelow & Prickett, Sentencing
Cal. Crimes (The Rutter Group 2017) § 13:10.) The trial court is required to impose
judgment on each count, which involves selecting a term, and then staying execution of
the sentence, the stay to become permanent upon defendant’s service of the portion of the
sentence not stayed. (Salazar, at p. 640; see Duff, at p. 796; Couzens, Bigelow &
Prickett, at § 13:10.) The trial court here thus “committed unauthorized sentencing error
40
by failing first to pronounce sentence on [count two] and then stay execution of the
sentence.” (People v. Crabtree (2009) 169 Cal.App.4th 1293, 1327; see Alford, at
p. 1472.)
On this record, we cannot say what sentence the trial court “undoubtedly” would
have imposed on count two before staying execution of that sentence pursuant to Penal
Code section 654. (Cf. Alford, supra, 180 Cal.App.4th at p. 1473 [this court imposed a
midterm sentence because the trial court imposed a midterm sentence on the nonstayed
count involving the same conduct].) Accordingly, we shall remand the matter to the trial
court for resentencing so that the court may select a sentence to impose on count two,
impose that sentence, and then stay execution of that sentence pursuant to Penal Code
section 654.
*****
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DISPOSITION
The matter is remanded to the trial court for that court to impose sentence on count
two and then stay execution of that sentence pursuant to Penal Code section 654. The
trial court is directed to prepare an amended abstract of judgment and to forward a
certified copy thereof to the Department of Corrections and Rehabilitation. The
judgment is otherwise affirmed.
/s/
MURRAY, J.
We concur:
/s/
RAYE, P. J.
/s/
RENNER, J.
42