People v. Morales CA4/1 ( 2021 )

Filed 12/16/21 P. v. Morales CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D079041
Plaintiff and Respondent,
v. (Super. Ct. No. 16CR06619)
JESUS VELASCO MORALES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Santa Cruz County,
John Steven Salazar, Judge. Affirmed.
Rudolph J. Alejo, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Eric D.
Share and Karen Z. Bovarnick, Deputy Attorneys General, for Plaintiff and
Respondent.
In an incident in a parking lot after their son’s soccer game, Jesus
Velasco Morales pulled a gun on his estranged wife and threatened to kill
her. He subsequently sent her offensive and harassing text messages,
violating a criminal protective order precluding him from contacting her
except to arrange the peaceful exchange of their son. He was charged with
making criminal threats (Pen. Code, § 422), assault with a firearm (id., § 245,
subd. (a)(2)), battery (id., § 243, subd. (e)(1)), and three misdemeanor counts
of contempt of court for violating the criminal protective order (id., § 166,
subd. (c)(1)). At trial, the jury heard evidence regarding the charged offenses
as well as evidence of prior uncharged incidents of domestic violence
pursuant to Evidence Code section 1109.1 The jury convicted him on all
counts.
On appeal, Morales contends the trial court should not have mentioned
the three misdemeanor counts—violations of the criminal protective order—
in the instruction allowing incidents of domestic violence to be used as
propensity evidence pursuant to section 1109. Morales reasons that these
offenses do not constitute domestic violence within the meaning of the statute
because they did not involve physical force or a threat of physical force.
Because these offenses fall within a broader definition of domestic violence,
which is not limited to acts of physical violence or the threat of physical
violence, we reject Morales’s claim of error and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Jessica R. married Morales in March 2009 when they were both
teenagers. They had a son together and lived with Jessica’s parents. Jessica
had a good relationship with her husband until she went back to school in
2012. Morales became jealous; he called and texted her constantly to ask
who she was with and what she was doing.
1 Unless otherwise specified, statutory citations are to the Evidence
Code.
2
In 2015, Morales became violent with her for the first time when she
was at home with him and their son. After Jessica told Morales she did not
want to spend her birthday with him, they got into a “big argument” and
Morales started hitting her with the bow portion of a toy bow and arrow. He
hit her legs, and after she fell to the floor, he started hitting her on her back.
Jessica yelled for him to stop, but he only stopped when their son began
crying. She had bruises on her arms and legs and a cut on her finger. She
took photographs of the injuries; the images were shown to the jury. She told
her cousin about the attack but did not call the police.
Jessica and Morales broke up but got back together after a few months.
Jessica explained she thought the abuse “was just a one-time thing,” and she
wanted to keep the family together. Initially, things “seemed to be going
well,” but after several months, Morales “started to bring up his old patterns
of thinking that [Jessica] was cheating on him again.”
In early 2016, Morales was physically violent with Jessica again. She
testified that they got into an argument and Morales got angry. He dragged
her across the floor (from their bedroom to the living room); slammed her “up
against things”; grabbed her again by the back of her head and let go; and
then grabbed again and “smacked” her on her face with either a closed fist or
a slap while she was on the floor. Jessica thought he was going to kick her,
but their son came into the room and he stopped. During the attack, Morales
called Jessica names like “slut,” “whore,” and “bitch.” She had a mark on her
face after the attack. She took a picture of it; the photo was shown to the
jury.2
2 Jessica testified she took the photographs “[t]o remind [herself] why
[she] wasn’t going back.” In addition to the two prior incidents of physical
violence, Jessica recalled other “arguments in the car” when Morales “would
do like one punch to the side of [her] body” while she was driving.
3
Jessica told Morales to leave and that she was going to file for divorce.
He refused to leave, so Jessica took their son to her cousin’s house. She only
went home after her parents were there; she told them she “couldn’t do it
anymore” and asked them to ask him to leave, at which point he did.
After Morales moved out, he began to harass and threaten Jessica.
Once, when they met to exchange custody of their son, Morales asked if
Jessica would join him with their son to eat. When she refused, Morales
became angry and called her names. Morales repeatedly showed up at
Jessica’s workplace unannounced. On one occasion, he questioned her about
who she was seeing and accused her of leaving him for someone else. On
another occasion, after she refused to speak to him, he told her that he was
going to shoot her in the head.
On October 1, 2016, Jessica and her parents went to a park to watch
her son’s soccer game. Morales was also there. During the game, Morales
“seemed fine” and Jessica did not “see anything out of the ordinary.” After
the game, Jessica’s uncle took her son to play with his cousins, and her
parents went home. Morales asked Jessica if they could “grab coffee” and
talk. Jessica was hesitant, but she accepted because she “wanted to have
some type of good relationship for [their] son.”
Jessica wanted to take separate cars, but Morales asked to come in
hers, claiming he was having car trouble. Jessica felt uncomfortable but
agreed. Morales got into the car’s passenger seat and began questioning
Jessica, asking her who she had been talking to and who she was seeing.
Jessica told him she did not want to talk about anything not concerning their
son. He pulled a gun from his waist band and “pulled it back on the top.” He
pushed the gun into her ribs while grabbing her arm to hold onto her. He
said he was going to shoot her if she did not answer his questions. Jessica
4
was terrified and thought he would kill her. Jessica opened her car door and
cried out, hoping to draw attention in the parking lot. She cried and pleaded
with Morales not to hurt her, while he told her to “get into the car and drive.”
Then Morales removed the magazine from the gun—Jessica said she thought
he did it “to calm [her] down”—and pointed the gun toward the floor of the
car. Jessica “decided to try and fight him for the gun.” At some point during
the struggle, they both fell out of the vehicle on the passenger’s side. Morales
reached back for the magazine which had fallen inside the vehicle, and
Jessica got up and drove away.
Jessica drove to her cousin’s house and later went to the sheriff’s office
to report the incident. At the sheriff’s station, a deputy recorded Jessica’s
statement, which was played for the jury. She told the deputy she was
“terrified” when it happened, and feared he was going to kill her. The deputy
who took Jessica’s statement testified that Jessica was “[v]isibly scared,”
“tearing up,” and crying when she described the incident.3
A sheriff’s deputy arrested Morales later in the evening, after taking
Jessica’s statement. When officers searched the house where Morales was
located, they found a magazine or “clip” for a nine-millimeter pistol in or near
a closet in which Morales’s identification card was also found. A sheriff’s
deputy interviewed Morales, and an audio recording of the conversation was
played for the jury. During the interview, Morales told the deputy, “I was
with that chick for ten years, saving money and she fucking cheated on me,”
and “[s]he just fucked my life over man.” He told the deputy he had gone to
3 Immediately after the incident in the parking lot, Jessica did not
believe she had any injuries. However, a bruise that “looked like a finger
indent” later developed on her right forearm, where Morales had grabbed her
while he held the gun to her. A law enforcement officer photographed the
bruise on October 5, and the image was shown to the jury.
5
soccer with his son, and that he and Jessica “got into an argument in there,
like, and then after I just went for a very—very long walk.” He said she
made “a smart fricking comment,” “like, I don’t want to talk to you.” He
denied getting in her car, pulling out a gun, and pointing a gun at Jessica,
but said, “I knew that she was [going] to say that . . . .”4 He denied owning a
gun. The deputy testified that Morales “was upset” when he was discussing
his marital problems with Jessica.
On October 7, 2016, a boy and his mother found a nine-millimeter
pistol at a park near the soccer fields and called law enforcement. A sheriff’s
deputy collected and impounded the weapon as evidence. Subsequent DNA
analysis showed “very strong support” that Morales was the major
contributor to the DNA found on the pistol, with lesser contributors being the
boy and mother who found the pistol. The magazine seized from the home
where Morales was arrested was determined to be compatible with the gun
discovered at the park.
Jessica obtained a protective order that precluded all contact with
Morales other than for peaceful exchange of their son for visitation purposes.
Morales was served with the protective order on October 5, 2016. Afterward,
on three occasions, he sent offensive, harassing text messages in violation of
the protective order. On December 10, 2017, after Jessica sent a text
message attempting to coordinate exchange of their son, Morales sent a
series of text messages berating her. He called her a “selfish piece of shit”
who does not “deserve to be call[ed] mom,” a “bitch,” a “pendeja,” and “a
4 A sheriff’s deputy had coordinated with Jessica to send Morales a
pretext communication via text, to see if he would admit his conduct. Jessica
texted, “How could you do that to me, [Morales]? How could you do that with
all these children around? Why would you bring a gun to your son’s soccer
game?” Morales responded, “What are you talking about?”
6
whore.” On March 1, 2018, again after Jessica sent a text message
attempting to coordinate exchange of their son, Morales responded by calling
Jessica a “[s]nitch,” which she understood as a reference to her report of the
assault to the police. On March 29, 2018, after Jessica texted to remind
Morales that child support was due soon, Morales responded using profanity,
calling her a “fucking bitch piece of shit” and warned her to “[k]eep running u
fucking mouth bitch [sic].” Jessica testified the messages made her feel bad
and belittled. She agreed with the prosecutor they were an accurate
depiction of the verbal abuse inflicted by Morales.
Morales testified in his defense. He denied striking Jessica with the
bow and denied pulling her hair and striking her face. He claimed they
separated because she was having an affair. He claimed he was not angry or
upset she had an affair, just surprised and hurt.5 He denied attacking
Jessica after the soccer game. He claimed that after the game, they spoke
briefly about their son going with Jessica’s uncle, and then he left alone to eat
at a nearby restaurant while he waited for his brother because his car was
not working. He denied his DNA was on the gun found at the park and
claimed he had never touched a gun.6 He admitted he was served with the
protective order and understood it precluded all contact with Jessica, except
to arrange the peaceful exchange of their son. But he denied sending the
abusive text messages and claimed he had never seen them before. He
claimed they had been sent by an ex-girlfriend who had been stalking him.
5 Morales repeatedly denied that he was ever angry with Jessica, denied
using words of anger, and claimed that they did not get into “a lot of
arguments,” only “disagreements.”
6 Morales denied that it was his DNA found on the gun, and insisted, “I
never touched no gun. That’s my answer.”
7
The district attorney charged Morales with one felony count of making
criminal threats (Pen. Code, § 422; count 1), one felony count of assault with
a firearm (id., § 245, subd. (a)(2); count 2), one misdemeanor count of battery
(id., § 243, subd. (e)(1); count 3), and three misdemeanor counts of contempt
of court for violating the protective order (id., § 166, subd. (c)(1); counts 4-6).
Counts 1 through 3 were based on the October 1, 2016 incident following the
soccer game, and counts 4 through 6 were based on the dates of the text
messages—December 10, 2017, March 1, 2018, and March 29, 2018,
respectively.
The jury found Morales guilty on all counts. The trial court sentenced
him to the middle term of three years in state prison on count 1, a concurrent
middle term of two years on count 2, plus concurrent terms of 30 days each on
counts 3 through 6.
DISCUSSION
Morales contends the conduct underlying his contempt convictions—
sending abusive text messages in violation of a no-contact criminal protective
order—does not constitute domestic violence under section 1109 and
8
therefore should not have been included in the corresponding instruction on
propensity evidence. We reject Morales’s claim of instructional error.7
A. Governing Legal Principles and Standard of Review
“Section 1101(a) prohibits the admission of character evidence if offered
to prove conduct in conformity with that character trait, sometimes described
as a propensity to act in a certain way.” (People v. Bryant, Smith and
Wheeler (2014) 60 Cal.4th 335, 405-406, fn. omitted (Bryant, Smith &
Wheeler).) Although evidence of a defendant’s other criminal conduct is
generally not admissible to prove a propensity to commit the charged crime
(§ 1101, subd. (a)), “[i]n domestic violence cases, Evidence Code section 1109
‘ “permits the admission of defendant’s other acts of domestic violence for the
purpose of showing a propensity to commit such crimes.” ’ ” (People v. Wang
(2020) 46 Cal.App.5th 1055, 1075, fn. omitted; see People v. Fruits (2016)
247 Cal.App.4th 188, 202 [“section 1109 is an express exception to the
prohibition against propensity evidence set forth in Evidence Code
section 1101, subdivision (a),” and “allows a jury to draw propensity
inferences from prior acts”].)
7 The Attorney General contends Morales forfeited his claim by failing to
object to the instruction given. “We may review defendant’s claim of
instructional error, even absent objection, to the extent [a defendant’s]
substantial rights were affected.” (People v. Townsel (2016) 63 Cal.4th 25,
59-60; Pen. Code, § 1259.) “ ‘Ascertaining whether claimed instructional
error affected the substantial rights of the defendant necessarily requires an
examination of the merits of the claim—at least to the extent of ascertaining
whether the asserted error would result in prejudice if error it was.’ ” (People
v. Ramos (2008) 163 Cal.App.4th 1082, 1087; see also People v. Mitchell
(2008) 164 Cal.App.4th 442, 465 [“ ‘Substantial rights’ are equated with
errors resulting in a miscarriage of justice under People v. Watson (1956)
46 Cal.2d 818 [(Watson)].”].) Because Morales contends the jury instruction
at issue here is erroneous and impacts his substantial rights, we consider the
merits of Morales’s claim. (People v. Coffman and Marlow (2004) 34 Cal.4th
1, 103, fn. 34.)
9
Section 1109 provides, in relevant part, “in 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 . . . .” (§ 1109, subd. (a)(1), italics added.) As
discussed post, the phrase “domestic violence” in Evidence Code
section 1109—which is defined by reference to two different statutes (the
Penal Code and the Family Code)—is in dispute here. There are two
corresponding pattern jury instructions for evidence of uncharged domestic
violence (CALCRIM No. 852A) and evidence of charged domestic violence
(CALCRIM No. 852B), admissible pursuant to section 1109. Morales
ostensibly challenges only the latter instruction here.
“A claim of instructional error is reviewed de novo. [Citation.] An
appellate court reviews the wording of a jury instruction de novo and assesses
whether the instruction accurately states the law. [Citation.] In reviewing a
claim of instructional error, the court must consider whether there is a
reasonable likelihood that the trial court’s instructions caused the jury to
misapply the law in violation of the Constitution. [Citations.] The
challenged instruction is viewed ‘in the context of the instructions as a whole
and the trial record to determine whether there is a reasonable likelihood the
jury applied the instruction in an impermissible manner.’ ” (People v.
Mitchell (2019) 7 Cal.5th 561, 579.)
Instructional error requires reversal of the judgment only if it resulted
in a miscarriage of justice—which, in this context, means that there is a
reasonable probability that the defendant would have achieved a more
favorable result in the absence of the error. (Cal. Const., art. VI, § 13;
Watson, supra, 46 Cal.2d at p. 836; see People v. Moore (2011) 51 Cal.4th
1104, 1130-1133 [applying Watson harmless error analysis to claim of
10
instructional error]; People v. Falsetta (1999) 21 Cal.4th 903, 924-925
[applying Watson standard to alleged error in failing to instruct jury on
proper use of propensity evidence].)
B. Additional Background
Prior to trial, the prosecutor moved to introduce evidence of other
incidents of domestic violence Morales perpetrated against Jessica as
propensity evidence admissible under section 1109. Morales sought to
exclude the same evidence. The trial court ruled that the evidence was
admissible.
During a break in trial, the parties discussed proposed jury
instructions. With respect to the instruction regarding uncharged domestic
violence (CALCRIM No. 852A), defense counsel stated he had “[n]o objection.”
With respect to the instruction regarding charged domestic violence
(CALCRIM No. 852B), defense counsel initially objected on the ground that it
was “confusing.” However, in a subsequent discussion, when the court noted
that the People had requested instructions on both uncharged and charged
domestic violence offenses, defense counsel stated he had no objection to the
instructions.
The jury was instructed with CALCRIM No. 852A, regarding evidence
of uncharged domestic violence, as follows:
“The People presented evidence that the defendant
committed domestic violence that was not charged in this
case.
“Domestic violence means abuse committed against an
adult who is a spouse.
“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.
11
“You may consider this evidence only if the People have
proved by a preponderance of the evidence that the
defendant in fact committed the uncharged domestic
violence. Proof by a preponderance of the evidence is a
different burden of proof from proof beyond a reasonable
doubt. A fact is proved by a preponderance of the evidence
if you conclude that it is more likely than not that the fact
is true.
“If the People have not met this burden of proof you must
disregard this evidence entirely.
“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 and did commit the offenses as charged
here. 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 the charged offenses in this case. The People must still
prove each charge and allegation beyond a reasonable
doubt.
“Do not consider this evidence for any other purpose.”
In addition, the jury was instructed with CALCRIM No. 852B,
regarding evidence of charged domestic violence, as follows:
“The People presented evidence that the defendant
committed all of the charged offenses in this case.
“If the People have proved beyond a reasonable doubt that
the defendant committed one or more of these crimes, you
may, but are not required to, conclude from that evidence
that the defendant was disposed or inclined to commit
domestic violence offenses, and based on that decision, also
conclude that the defendant was likely to commit and did
commit the other domestic violence offenses charged in this
case.
12
“If you find that the defendant committed one or more of
these crimes, 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 another crime.
The People must still prove each charge beyond a
reasonable doubt.” (Italics added.)
C. Analysis
The scope of Morales’s challenge on appeal is limited. He does not
challenge the admission of prior acts of domestic violence involving the use of
force or threats of physical violence—including evidence that he struck
Jessica with a bow, dragged her across the floor, pulled her hair, and struck
her in the face. He also does not challenge the propensity instruction relating
to this evidence, or to the charged offenses involving physical force or threats
of physical force (counts 1-3). Instead, Morales contends his violations of the
criminal protective order (counts 4-6) do not constitute domestic violence—
because they “do not constitute an act of physical force . . . nor do they
threaten physical force”—and therefore should not have been included in the
propensity instruction regarding charged domestic violence (see CALCRIM
No. 852B).
As noted ante, the instruction regarding charged domestic violence
referred to “all of the charged offenses” and therefore included the contempt
counts based on the protective order violations when instructing the jury on
how to use the propensity evidence. The jury was instructed the People had
to prove “the defendant committed one or more of these crimes” beyond a
reasonable doubt; the jurors then were told they “may, but are not required
to, conclude from that evidence that the defendant was disposed or inclined to
commit domestic violence offenses, and based on that decision, also conclude
that the defendant was likely to commit and did commit the other domestic
violence offenses charged in this case.” (Italics added.) We conclude the
13
instruction was proper because section 1109 incorporates two definitions of
domestic violence, including a definition from the Family Code which is not
limited to offenses involving physical violence but rather includes conduct
which constitutes harassment and disturbing the peace of the victim. The
violations of the protective order fall within this category of offenses for
purposes of section 1109, and were properly included within the
corresponding jury instructions given here.
Evidence Code 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.) Evidence Code section 1109 does not specify which offenses
qualify as those “involving domestic violence.” Instead, Evidence Code
section 1109 incorporates the definition of domestic violence in Penal Code
section 13700 and, under certain circumstances, the broader definition in
Family Code section 6211. Specifically, Evidence Code section 1109 provides:
“ ‘Domestic violence’ has the meaning set forth in Section 13700 of the Penal
Code. Subject to a hearing conducted pursuant to [Evidence Code]
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.” (Evid. Code, § 1109, subd. (d)(3).)8 As the
court in People v. Mani (2021) 69 Cal.App.5th 799, 814 (Mani) explained:
“Thus, there are two definitions of domestic violence applicable to
8 It is undisputed here that all of Morales’s conduct occurred during this
five-year window.
14
section 1109, one in the Penal Code and another in the Family Code.” We
address each definition below.
Under the Penal Code, “ ‘[d]omestic violence’ ” is defined 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.” (Pen.
Code, § 13700, subd. (b), italics added.) Subdivision (a) of section 13700 of
the Penal Code defines “ ‘[a]buse’ ” 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.”
Evidence Code section 1109, subdivision (d) further defines domestic
violence by reference to the Family Code. “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, [a ‘spouse or former
spouse.’] (Fam. Code, § 6211, subd. [(a)], 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.)”
(Mani, supra, 69 Cal.App.5th at p. 814.)
“Family Code section 6320, subdivision (a), referenced in
subdivision (a)(4) of Family Code section 6211, lists the following behaviors:
15
‘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 [93 Cal.Rptr.3d
723], italics added (Nadkarni).)” (Mani, supra, 69 Cal.App.5th at
pp. 814-815.)9
9 At the time of the offenses at issue, subdivision (a) of Family Code
section 6320 read: “The court may issue an ex parte order enjoining a party
from 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, and, in the discretion of the court, on a showing of good
cause, of other named family or household members.” (Stats. 2013, ch. 260,
§ 2 (Assem. Bill No. 157), operative July 1, 2014). Effective January 1, 2021,
Family Code section 6320 was amended to add subdivision (c), which defines
“ ‘disturbing the peace of the other party’ ” as “conduct that, based on the
totality of the circumstances, destroys the mental or emotional calm of the
other party.” (Fam. Code, § 6320, subd. (c); Stats. 2020, ch. 248, § 2 (Sen. Bill
No. 1141).) The legislative history indicates the amendment was intended to
“build[] on existing law and [was] not, in any way, meant to reduce the
protections available under existing law to victims of domestic violence[.]”
(Assem. Com. on Judiciary, Analysis of Sen. Bill No. 1141 (2019-2020 Reg.
16
Here, Morales violated the protective order by sending Jessica
harassing, demeaning text messages laced with profanity. At a minimum,
Morales’s conduct disturbed Jessica’s “peace” and harassed her. (See Fam.
Code, § 6203.)10 Morales’s actions therefore constituted abuse amounting to
domestic violence for purposes of Family Code section 6211. (Fam. Code,
§§ 6203, subd. (a)(4), 6320, subd. (a), 6211, subd. (a).) Family Code
section 6203, which defines abuse for purposes of Family Code section 6211,
expressly states it is “not limited to the actual infliction of physical injury or
assault.” (Fam. Code, § 6203, subd. (b).) We therefore reject Morales’s
contention that the court erred when it included acts not involving physical
force—i.e., his violations of the protective order—in the propensity
instruction relating to charged offenses involving domestic violence. The
instruction was proper in light of the broader definition of abuse under the
Family Code. (See People v. Brown (2011) 192 Cal.App.4th 1222, 1234, fn. 15
[“Family Code section 6211 defines domestic violence ‘more broadly’ than the
more restrictive provisions of Penal Code section 13700.”]; People v.
Ogle (2010) 185 Cal.App.4th 1138, 1144 (Ogle) [“[s]ection 1109 applies if the
Sess.), as amended Aug. 6, 2020, p. 6.) We refer to the statute as it existed
when Morales committed the offenses in this case, but our analysis would
remain the same under the amended statute.
10 Morales contends Jessica “never testified that the texts caused her any
fear.” Given our conclusion that the text messages constitute abuse within
the meaning of the Family Code, it is unnecessary for us to determine
whether there was sufficient evidence establishing that Morales’s actions
placed Jessica “in reasonable apprehension of imminent serious bodily injury
to . . . herself, or another.” (Pen. Code, § 13700, subd. (a); see also Fam. Code,
§ 6203, subd. (a)(3) [abuse includes conduct which “place[s] a person in
reasonable apprehension of imminent serious bodily injury to that person or
to another”].)
17
offense falls within the Family Code definition of domestic violence even if it
does not fall within the more restrictive Penal Code definition”].)
Morales nonetheless contends that, when Evidence Code section 1109
was amended, the Legislature intended to retain the existing, more
restrictive definition of “abuse” set forth in Penal Code section 13700,
subdivision (a).11 In other words, Morales claims Evidence Code
section 1109 was amended to include the definition of domestic violence in
Family Code section 6211, but not the definition of abuse in Family Code
section 6203. We reject Morales’s arguments as inconsistent with the plain
statutory language of Evidence Code section 1109 and Family Code
section 6211. We agree with the court’s reasoning in Mani: “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)—provided that the events occurred within five years of the
charged offense. 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.” (Mani, supra,
69 Cal.App.5th at pp. 815-816, fn. omitted; see id. at p. 819 [“Section 1109
11 Section 1109 was amended in 2004. (See Stats. 2004, ch. 116, § 1
(Assem. Bill No. 141); Stats. 2004, ch. 823, § 6.5 (Assem. Bill No. 20).)
18
clearly and unambiguously incorporates the Family Code definitions of
domestic violence and abuse without the limitation urged by defendant.”],
italics added.) Other courts have reached similar results, concluding
Evidence Code section 1109 incorporates both the Penal Code definition, and
the broader Family Code definition of domestic violence. (See, e.g., Ogle,
supra, 185 Cal.App.4th at p. 1144 [Family Code section 6211 “defines
domestic violence more broadly” than Penal Code section 13700]; People v.
Caceres (2019) 39 Cal.App.5th 917, 922 [even if crime of making criminal
threats (Pen. Code, § 422) did not meet the definition of domestic violence
under Penal Code section 13700, it met the “broader definition under Family
Code section 6211”]; People v. Kovacich (2011) 201 Cal.App.4th 863, 893-895
[defendant kicking family dog qualifies as domestic violence admissible under
Evidence Code section 1109 because it constitutes “abuse” under the broader
definitions in Family Code §§ 6211, 6203, subd. (a)(4), and 6320, subd. (b)].)
We are not persuaded by Morales’s contention that the Legislature
intended to incorporate only the Family Code definition of domestic violence,
but not the Family Code definition of abuse. Morales’s contention ignores the
plain language and overall structure of the statutes. Both Penal Code
section 13700 and Family Code section 6211 define “ ‘[d]omestic violence’ ” as
“abuse” committed against specified categories of people, including spouses.
(Pen. Code, § 13700, subd. (b); Fam. Code, § 6211, subd. (a).) The definition
of “abuse” is found elsewhere, however. Under the Penal Code, abuse is
defined in subdivision (a) of Penal Code section 13700. Under the Family
Code, abuse is defined in Family Code section 6203 for purposes of Family
Code section 6211. We therefore reject Morales’s contention that the only
definition of abuse applicable for purposes of Evidence Code section 1109 is
the definition found in Penal Code section 13700. As relevant here,
19
propensity evidence was admissible under Evidence Code section 1109—and
it was appropriate to refer to the protective order violations in the
corresponding jury instruction—because: Evidence Code section 1109 defines
a prosecution “involving domestic violence” by reference to the Family Code
(see Evid. Code, § 1109, subds. (a) & (d)); Family Code section 6211 defines
domestic violence as abuse against a spouse or former spouse (Fam. Code,
§ 6211, subd. (a)); Family Code section 6203 defines abuse as including, inter
alia, any behavior that has been or could be enjoined pursuant to Family
Code section 6320 (Fam. Code, § 6203, subd. (a)(4)); and Family Code
section 6320, in turn, provides that the court may enjoin a party from
“contacting, either directly or indirectly, by mail or otherwise, coming within
a specified distance of, or disturbing the peace of the other party” (Fam. Code,
§ 6320, subd. (a)); see Ogle, supra, 185 Cal.App.4th at p. 1144 [“Family Code
section 6211 defines domestic violence to require abuse and Family Code
section 6203, subdivision (d) defines ‘abuse’ to include ‘engag[ing] in any
behavior that has been or could be enjoined pursuant to [Family Code
s]ection 6320.’ ”].) Failing to read the entire statutory scheme as a whole, as
Morales proposes, would undermine the plain language of the statute and
ignore the broad statutory definition of domestic violence under the Family
Code. (Ogle, at p. 1144 [rejecting argument that “the Family Code reference
in [Evidence Code] section 1109’s definition of domestic violence . . . was not
really intended to incorporate all forms of abuse that fall within the broader
Family Code definition”]; Mani, supra, 69 Cal.App.5th at p. 819
[“Section 1109 clearly and unambiguously incorporates the Family Code
definitions of domestic violence and abuse”].)
Even if we were to assume error, we would conclude Morales was not
prejudiced. (See People v. Megown (2018) 28 Cal.App.5th 157, 167 [“Under
20
the Watson test, the trial court’s judgment may be overturned on appeal only
if the defendant shows ‘it is reasonably probable that a result more favorable
to the [defendant] would have been reached in the absence of the error.’ ”].)12
The evidence against Morales was strong. Jessica’s accounts regarding
the assault incident, made initially to the police and recounted at trial, were
detailed, consistent, and compelling. Her claims of prior abuse were
corroborated by the photographs she took and preserved, and law
enforcement captured a photograph of the bruise on her arm sustained in the
charged assault, further corroborating her account. Meanwhile, Morales’s
self-serving trial testimony that he was not angry at Jessica was undermined
by his prior statements to police (for example, his statement that Jessica was
“that chick” who “just fucked [his] life over” and she was with another guy
like a “fucking dirty, like, fucking bitch”) and by the text messages he sent
Jessica calling her a “selfish piece of shit,” “bitch,” “pendeja,” “whore,”
“[s]nitch,” and “fucking bitch piece of shit.” Similarly, his testimony that the
gun was not his was undermined by the DNA evidence linking him to the gun
and by the seizure from his home of the magazine that fit the gun.
12 Morales claims the heightened Chapman standard should apply, such
that we should assess whether it appears beyond a reasonable doubt that the
error complained of did not contribute to the verdict obtained. (Chapman v.
California (1967) 386 U.S. 18, 24.) But this standard applies when an
instruction misstates the law on an element of an offense (see People v.
Hudson (2006) 38 Cal.4th 1002, 1013), which Morales does not contend here,
and Morales has not established that any claimed error amounts to a
violation of his constitutional rights. (Bryant, Smith & Wheeler, supra,
60 Cal.4th at p. 413, fn. 34 [“every state law error does not automatically
result in a violation of the federal Constitution”]; People v. Jandres (2014)
226 Cal.App.4th 340, 359 [rejecting defendant’s claim that instructional error
regarding sexual offense propensity evidence amounted to constitutional
error warranting assessment under the Chapman standard].)
21
The other acts of domestic violence, both charged and uncharged, were
unquestionably admissible to prove propensity under section 1109 because
they involved actual or attempted bodily injury or threats of harm.13 (See
Ogle, supra, 185 Cal.App.4th at p. 1145.) The text messages themselves were
independently admissible for the purpose of establishing guilt on the
contempt counts. Moreover, the text messages were “not so highly
inflammatory or emotionally charged as to prevent a fair trial.” (Ibid.)
Indeed, this evidence was relatively mild compared with the other evidence of
domestic violence that Morales does not dispute was properly introduced for
propensity.
Morales claims the propensity instructions allowed the jury to avoid
fundamental questions of credibility. We disagree. The jury had the
opportunity to hear testimony at trial both from Jessica and from Morales,
and thus had the opportunity to directly assess their respective credibility.
Moreover, the jury was properly instructed on the elements of the offenses,
the burden of proof, and assessing the credibility of witnesses. With respect
to the instruction regarding charged domestic violence, the jury was properly
instructed to consider the charged offenses only if they were proved beyond a
reasonable doubt. (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.’ ” ’ ”].)
13 Morales does not contend the propensity instructions should not have
been given at all, or that any evidence was erroneously admitted. Under his
claim of error, the instruction regarding charged domestic violence was
proper with respect to the charged counts of making a criminal threat,
assault, and battery (counts 1-3). He claims the instruction should have been
limited to direct the jury to consider only those three charged offenses, and
not the additional contempt of court counts, as propensity evidence.
22
In sum, we conclude Morales has not established any instructional
error, he was not prejudiced by the instructions given, and his substantial
rights were not adversely affected.
DISPOSITION
The judgment is affirmed.
GUERRERO, J.
WE CONCUR:
HALLER, Acting P. J.
O’ROURKE, J.
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