People v. Cubel CA2/8 ( 2020 )

Filed 12/1/20 P. v. Cubel CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B299491
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. BA466184)
v.
FRANCISCO CUBEL,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, William N. Sterling, Judge. Affirmed.
Lori Nakaoka, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Julie L. Garland, Assistant Attorney
General, Daniel Rogers and Kristen Kinnaird Chenelia, Deputy
Attorneys General, for Plaintiff and Respondent.
_______________________
Francisco Cubel appeals his conviction for making criminal
threats (Pen. Code, § 422)1 on the grounds (1) the court failed to
give a unanimity instruction; (2) the evidence was insufficient to
support the conviction; and (3) the court erred in admitting
evidence of prior uncharged conduct. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Cubel was charged with making criminal threats against
his wife Petrona F. in 2016 and raping her in 2017. (§ 262, subd.
(a)(1).) As Cubel was convicted of making criminal threats only,
we omit evidence pertaining to the rape charge.
I. Petrona F.’s Testimony
Petrona F. testified she and Cubel were married in 1999
and had four children. Their marriage was unhappy and Cubel
was often violent. She said Cubel had begun raping her when
she was 14 years old, and all their sexual contact for the duration
of their relationship had been against her will. She behaved
affectionately with Cubel in front of the children and others so
they would think she and Cubel were happy.
Petrona F. testified about one uncharged incident. On a
Saturday in 2013 Cubel insulted her, hit her, and kicked her in
the abdomen. He threatened to hurt her and her mother and to
take the children if Petrona F. called the police. Petrona F. asked
why he had to hurt her family; Cubel told her to “shut up” and
kicked her leg. Petrona F. was scared and felt ill at the thought
Cubel would harm her family. Later that day, Cubel offered
Petrona F. money for sex. When she declined, he forced her to
have sex with him
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2
Petrona F. did not go to the police immediately. It was the
weekend and Cubel was around constantly. She was afraid all
weekend and Cubel continued to mistreat her. Monday morning,
once Cubel had left for work, Petrona F. took the children to a
friend’s home and reported Cubel to the police. She reported
Cubel had kicked her leg but did not tell the police he had raped
her. Petrona F. and the children stayed with her friend for two
weeks, but she and the children returned home when Cubel
promised to change.
On September 23, 2016, Petrona F. was in the kitchen and
the three younger children were in the bedroom of the family’s
one-bedroom apartment when Cubel called Petrona F. into the
bathroom to talk. She did not want to go into the bathroom but
complied when Cubel told her it would “get worse for” her if she
did not. Cubel attempted to force Petrona F. to ingest drugs, but
she refused.
While the couple was in the bathroom their oldest child
Brandon and Cubel’s brother David2 arrived home and knocked
on the bathroom door. Cubel opened the door, told David not to
get involved, grabbed and shoved him, and attempted to stab him
with a kitchen knife. Petrona F. intervened, took the knife away
from Cubel, and threw it into the kitchen. Cubel retrieved the
knife, but Brandon approached him, crying and asking why he
was behaving this way.
Petrona F. attempted to calm Brandon, David and Cubel
exchanged words, and David left. Cubel turned his attention
2 Because the appellant, the children, and David share a
surname, we refer to the children and David by their first names
for clarity.
3
back to Petrona F., saying, “If you call the police, remember you
have your mom in Guatemala. I’m going to tear her apart. Once
I’m done with your mother, I’m going to go ahead with your
sisters. You’ll get me killed in jail. I’m not the only person
around. My family is also around.” He also said, “You have hurt
how many people in Guatemala and them hanging from the
trees?”
Petrona F. took Brandon into the bedroom, where the
younger children were, because Cubel continued to threaten to
hurt her “with any object, like, for example, hammer.” Cubel
began to kick the door, trying to enter the room. Petrona F.
blocked the door with a couch and called 911. The recording of
the 911 call was played for the jury. While Petrona F. was on the
phone she could hear Cubel rummaging in the kitchen. She was
scared Cubel would hurt her with a knife and afraid he would
harm her in front of the children.
Cubel left the apartment when he heard Petrona F. call the
police. He returned the following day and apologized, saying he
had been drunk. About a week later, Petrona F. unsuccessfully
attempted to get a restraining order against Cubel because she
was still afraid.
On cross-examination, Petrona F. admitted a prior petty
theft conviction. She had learned in a domestic violence class
that undocumented domestic violence survivors could obtain a
“U” visa if they cooperated with law enforcement. Petrona F.
denied applying for a “U” visa or speaking with anyone about
them outside of class. She denied offering to help David’s
girlfriend obtain one.
Petrona F. also testified on cross-examination Cubel was
visibly drunk during the incident and was nearly falling down.
4
Because Cubel was threatening her, Petrona F. later told the
police she did not want to pursue criminal proceedings against
him.
II. Brandon’s Testimony
Brandon, who often heard his parents argue, confirmed
Cubel was verbally abusive to Petrona F. Cubel yelled and called
Petrona names, kicked her, punched her, and sometimes dragged
her by the hair. Cubel threatened Petrona F. not to call the
police: “ ‘If you do that, I will kill you. I’ll kill your family
members. I will mix your blood,’ or stuff like that; any kind of
threat that has to do with killing.” It happened “[p]retty often,”
“[l]ike, five times a week.”
Brandon was 17 or 18 years old in 2016. He and his uncle
David came home around 9:00 p.m. or 10:00 p.m. and found the
other children crying. Brandon could hear Cubel yelling in the
bathroom and Petrona F. saying, “No, I don’t want to do it.” He
listened to his parents for about three minutes before he asked
David to intervene.
David knocked on the door, and Cubel demanded to know
what he wanted. David said he needed to use the bathroom.
Cubel opened the door, came out of the bathroom, and “got right
up in [David’s] face.” They argued for about five minutes. Cubel
went to the kitchen and returned holding a knife. He approached
David threateningly as if to stab him. David left the apartment.
After David left, Brandon took the knife away from Cubel
and hid it. Cubel retrieved another knife from the kitchen.
Brandon took that knife too and threw it across the kitchen.
Petrona F. was scared, the younger children were screaming, and
they were all crying. Petrona F. went into the kitchen to prepare
food for the children, but she went into the living room when
5
Cubel began calling her names. Cubel yelled, “ ‘If you call the
police, I’m going to mix your blood,’ or something like that, ‘I’m
going to drink it. I’m going to cut you up into small little pieces
just like I’m going to do to your family.’ ”
Petrona F. sent the younger children into the bedroom.
Brandon stayed with his parents, “trying to reason with [Cubel],
telling him to calm down, to maybe possibly leave, just leave us
alone.” Petrona F. also attempted to calm Cubel down.
Cubel said if Petrona F. called the police, he would hurt her
and “cut [her] in little pieces.” Brandon continued to try to calm
Cubel and to reason with him, but Cubel kept yelling at
Petrona F. Brandon estimated he and Petrona F. spent almost
an hour trying to calm Cubel down. Cubel was “just saying more
nonsense.”
Eventually Cubel went into the bathroom. Petrona F. and
Brandon went into the bedroom and locked the door. They
pushed a couch against the door and then Petrona F. called 911.
She was crying and shaky, her eyes were red, her hair was
disheveled, and her voice cracked as she spoke.
Cubel kicked the door, and then Brandon heard him
moving things in the kitchen. Cubel returned and announced if
they did not open it he would find a way in. Brandon’s siblings
were scared, shaking, and silent. Brandon was afraid of what
Cubel would do to Petrona F. if he managed to enter the bedroom.
Petrona F. looked worried while she waited for the police.
Cubel left before the police arrived. The police spoke
primarily with Petrona F. and asked Brandon only a few
questions. He told the police what had happened but did not
mention the knives.
6
Cubel came back to the apartment later in the night or
early morning. To Brandon’s knowledge Petrona F. did not call
the police when he returned.
Brandon understood a “U” visa would allow him to travel
internationally, and he had talked with his mother about how
nice it would be to have one because he wanted to go to
Guatemala to visit his grandmother. His grandmother had
recently taken ill, leading Brandon to ask the investigating
officer on the case about “U” visas shortly before trial. Petrona F.
had told Brandon getting a “U” visa was not a priority for her.
Brandon acknowledged telling a social worker after the
2016 incident that Cubel was not abusive and he was not afraid
of Cubel. The following year he told another social worker there
was no physical abuse in the home. Brandon had lied and failed
to disclose information to the social workers at his parents’
direction. Cubel had instructed the children never to say
anything bad about him to a social worker and to deny abuse and
neglect. Petrona F. told them to lie because she feared they
would be taken away.
III. Other Testimony
Cubel and Petrona F.’s daughter, Susan, age 11 at the time
of trial in 2019, recalled she was helping her mother in the
kitchen when her father became angry and yelled at her mother.
Susan did not remember what he was screaming about. Susan
and Petrona F. went in the bedroom. Petrona F. locked the door
and they moved a couch. Cubel banged on the door. Petrona F.
called the police and said, “[H]e is coming. And she just start[ed]
screaming.”
Susan, who tried not to listen to her parents’ arguments
and often played music when they argued, lay on the bed with
7
her brother and sister and listened to music while Brandon
talked with their mother. Her sister Juana looked at her phone.
Cubel eventually left, and the police arrived. Susan did not recall
later telling a social worker she was not scared of her parents,
this was the first time she saw her parents fight, and she felt safe
with her father.
Juana, age 14 at trial, testified she went into the bedroom
that night because Cubel was yelling at Petrona F. Juana did not
remember words her father used, but his voice was angry and it
scared her. They moved a couch in front of the door. Cubel yelled
angrily and kicked the door hard. He told Petrona F., “Get
outside because I’m gonna hurt you.” Juana did not remember
how Cubel said he was going to hurt Petrona F. Petrona F. was
scared, shaking and crying, and Brandon hugged her. Juana and
her siblings were in the bed. She did not remember how long
they were in the bedroom, whether they listened to music, or
whether she used her phone. She did not recall telling a social
worker she was not afraid of Cubel, he was a good dad, and she
had never seen violence between her parents before.
A police officer who responded to Petrona F.’s 911 call
testified Petrona F. was nervous and shaking, and she had visible
redness and swelling on her right arm and right leg. Brandon
said Cubel had grabbed Petrona F. by the arm and kicked her leg.
Brandon did not describe Cubel threatening to kill Petrona F.,
pulling out a knife, or threatening to drink Petrona F.’s blood.
A detective spoke with Petrona F. in October 2016.
Petrona F. confirmed the information the responding police
officers had put in their report, but she did not want to pursue
criminal proceedings against Cubel. She said Cubel was “a nice
guy as long as he wasn’t drunk,” and he had not bothered her
8
since the incident. It was not uncommon for a victim of domestic
violence to downplay or minimize the perpetrator’s actions.
An employee of the Los Angeles Police Department testified
two U visa applications had been filed for Petrona F. in 2014.
Both were denied because Petrona F. had failed to cooperate with
law enforcement.
The defense called the police officer who took Petrona F.’s
report in 2013 to testify. The officer testified Petrona F. had
reported Cubel kicked her leg when she refused him sex. She did
not mention threats to kill, being kicked in the stomach, or being
raped, and she also said she left the home the same day rather
than a few days later. Petrona F. had a visible bruise above her
right knee.
David testified Cubel and Petrona F. had a “normal” and
“fine” relationship until Petrona F. was unfaithful. David once
heard Cubel curse at Petrona F. after she told him she did not
love him anymore and to leave. Petrona F. and Cubel were
disrespectful to each other when they argued. Petrona F. would
tell him to shut up or she would call the police and he would go to
jail and lose his home. She would provoke Cubel, they would
argue, Petrona F. would ask forgiveness, and things would return
to normal. They held hands, hugged, and spent time with family.
David testified about the 2016 incident. He found Petrona
F. and Cubel angrily arguing through the bathroom door about
their marriage. Petrona F. was yelling, and Cubel was asking
her personal questions. Petrona F. told Cubel, “Don’t ask me
things. Leave from the house or else I’ll call the police.” The
younger children were in the living room but Brandon was in the
room while they argued.
9
Cubel left the restroom when David said he needed to use
it. Cubel, frustrated and angry, told David he wanted to fix
things with his wife but she would not communicate. Cubel did
not try to attack David that day and there was no confrontation.
Cubel simply went into the living room and sat down to play with
the children. This took place around 7:00 p.m. David left later in
the evening. While David was there he did not see Cubel pull out
a knife.
Cubel’s sister testified she believed Petrona F. was
unfaithful, although she also defined infidelity so broadly as to
include a woman speaking with a man other than her husband.
She had seen Petrona F. talking with another man and believed
Petrona F. was cheating because she stopped talking to the man
when she noticed Cubel’s sister watching. Cubel’s sister had seen
Cubel and Petrona F. argue and she had seen them behave
affectionately. Petrona F. had never told her Cubel forced her to
have sex with him. Petrona F. had once said she wanted to get
rid of Cubel and get her “papers.” She had mentioned something
about U visas before 2017, possibly in 2014. Petrona F. said,
“This man does not have any money. And one day he’ll go to jail.”
David’s girlfriend testified she had only seen Petrona F.
happy; Petrona F. never told her about the 2013 or 2016
incidents, said Cubel raped her, or said she was scared to call the
police or tell anyone about Cubel. In 2017 Petrona F. had
advised her if she ever had problems with David, Petrona F.
could help her get the information she needed in order to get a U
visa. In 2017 she heard Petrona F. call Cubel a “fucking idiot”;
he did not respond. Petrona F. had once, in 2017, asked her to lie
to Cubel while Petrona F. went to see her lover.
10
A detective testified that in 2018 Juana said she had never
observed Cubel being violent, and in 2019 Susan said she did not
recall her father ever hurting her mother or speaking to her
mother about hurting her.
A social worker who had interviewed members of the family
in 2017 testified that Brandon had said he was not afraid of
anyone in the home, sometimes his parents argued but had never
been physical, and the first time an argument between his
parents became physical was in 2017. Juana said she had never
witnessed physical violence in the home. It was not unusual for
children to be reticent to discuss problems in the home due to
fear, guilt, a sense of responsibility to their parents, or safety
concerns.
During deliberations, the jury asked for readback of two
pieces of evidence, one of which was Brandon’s testimony about
the 2016 incident, “specifically describing any verbal threats from
the defendant.” The jury found Cubel guilty of making criminal
threats and was unable to reach a verdict on the spousal rape
charge. The court declared a mistrial on the rape charge, and it
was subsequently dismissed. Cubel appeals.
DISCUSSION
I. Absence of an Unanimity Instruction
Cubel argues the trial court erred in not instructing the
jury it must unanimously agree upon which of Cubel’s
September 23, 2016 threats against Petrona F. was the basis for
the criminal threats charge. We review this instructional issue
de novo (People v. Covarrubias (2016) 1 Cal.5th 838, 919) and
conclude there was no error.
11
“A unanimity instruction is required if there is evidence
that more than one crime occurred, each of which could provide
the basis for conviction under a single count.” (People v. Grimes
(2016) 1 Cal.5th 698, 727 (Grimes).) A prosecutor’s express
election of acts upon which he or she intends to rely as proof of
each charged offense may relieve the trial court of the obligation
to instruct on the unanimity requirement if the prosecutor’s
election is communicated to the jury “with as much clarity and
directness as would a judge in giving instruction. The record
must show that by virtue of the prosecutor’s statement, the jurors
were informed of their duty to render a unanimous decision as to
a particular unlawful act.” (People v. Melhado (1998)
60 Cal.App.4th 1529, 1539.) The People assert they made an
election when the prosecutor in closing argument relied on
threats to hurt Petrona F. and her family in a grotesque manner,
but while the prosecutor did refer to Cubel’s statements about
hanging people from trees and drinking blood, he did not inform
the jury it could not rely on other evidence and it had to agree
unanimously as to the facts underlying each count. The
prosecutor’s argument was insufficient to establish an election.
Cubel argues there was evidence of a wide variety of acts
the jury could have found constituted a criminal threat, and it
cannot be determined whether the jury agreed unanimously on
any one as the basis for liability. He argues the jury could have
found the criminal threat to be his comment he would “make it
worse” for Petrona F. if she did not come into the bathroom; his
pledge to tear apart her mother and sisters if she called the
police; his threat to hurt her with an object; his statement he
would mix Petrona F.’s blood and cut her and her family into
small pieces if she called the police; the death threat she reported
12
to 911; or, more generally, the near-daily threats of physical
harm Brandon reported Cubel making.
We disagree the statement Cubel would make it worse for
Petrona F. if she did not enter the bathroom could have
supported a separate conviction for making criminal threats.
This statement, while undoubtedly menacing, is so non-specific
that no reasonable jury could have concluded it was a threat to
commit a “crime which will result in death or great bodily injury,”
nor could a reasonable jury have found it “so unequivocal,
unconditional, immediate, and specific as to convey to the person
threatened, a gravity of purpose and an immediate prospect of
execution of the threat.” (§ 422, subd. (a).) Similarly, the record
offers no reason to believe the jury may have convicted Cubel of
making criminal threats based on Brandon’s brief testimony that
Cubel threatened Petrona F. most days of the week. Not only
was the date of the offense clearly identified by the People, there
was no evidence these nonspecific frequent threats were to kill or
cause great bodily injury. Nor were they so clear, immediate,
unconditional and specific that they communicated to Petrona F.
a serious intention and the immediate prospect they would be
carried out, or caused Petrona F. to be in sustained fear.
Accordingly, these acts, while threatening in the colloquial sense,
fall short of the legal standard for a criminal threat and could not
have offered a basis for conviction here. We “ ‘presume that
jurors are intelligent and capable of understanding and applying
the court’s instructions.’ ” (People v. Mora and Rangel (2018)
5 Cal.5th 442, 515.)
That leaves Cubel’s promise to tear apart Petrona F.’s
mother and sisters if she called the police; Petrona F.’s testimony
Cubel said he would hurt her with an object; her report in the
13
911 call that Cubel was threatening to kill her; and the threat
reported by Brandon that Cubel would cut Petrona F. and her
family into small pieces if she called the police. To the extent
these were distinct threats rather than variations across accounts
or a later report of a threat already made, no unanimity
instruction was required. A unanimity instruction “is not
required ‘ “where multiple theories or acts may form the basis of
a guilty verdict on one discrete criminal event.” ’ ” (Grimes,
supra, 1 Cal.5th at p. 727.) A defendant’s separate acts do not
suggest more than one discrete crime—and thus do not
necessitate a unanimity instruction—if they “are so closely
connected,” including closely connected in time, “as to form part
of one transaction.” (People v. Stankewitz (1990) 51 Cal.3d
72, 100; People v. Crandell (1988) 46 Cal.3d 833, 875, abrogated
on another ground in People v. Crayton (2002) 28 Cal.4th 346,
364–365.) Courts are more likely to view separate acts as
forming part of one transaction “when the defendant offers
essentially the same defense to each of the acts, and there is no
reasonable basis for the jury to distinguish between them.”
(Stankewitz, at p. 100.)
Contrary to Cubel’s argument the various threatening
statements he made were “distinct incidents separated by time
and space,” Cubel’s threats were so closely connected spatially,
temporally, and contextually that they constituted part of one
transaction. Cubel’s statements were closely connected in time:
over the course of an hour he threatened physical injury to his
wife and her family until she was able to usher her children to
relative safety and call for help. All the events occurred within a
one-bedroom apartment, and they were all part of a single
incident in which an enraged Cubel threatened to kill Petrona F.
14
while she attempted to defuse the situation and extricate herself
and her four children from the danger he posed. After they
disarmed the ranting Cubel, Petrona F. and Brandon attempted
to calm him, and Petrona F. directed the three younger children
into the bedroom. When Cubel stepped away to use the
bathroom, Petrona F. and Brandon seized their opportunity and
fled to the bedroom as well. There Petrona F. locked the door,
barricaded herself and her children inside, and summoned police.
Cubel’s threats were all of a piece: They were directed to
one person, Petrona F., although he at least once expansively
threatened to harm Petrona F.’s family in another country in
addition to killing her; and to the extent the statements indicated
a motive, they had the same apparent motive of dissuading
Petrona F. from calling the police. Additionally, Cubel offered
one defense—the threats, if they were made at all, did not place
Petrona F. in sustained fear, and he was voluntarily intoxicated.
There was no reasonable basis for the jury to distinguish between
the threats. On analogous facts, courts have consistently
concluded no unanimity instruction was necessary. (E.g., People
v. Percelle (2005) 126 Cal.App.4th 164, 182 [defendant’s acts
occurred during a little over a one-hour period; no unanimity
instruction required]; People v. Dieguez (2001) 89 Cal.App.4th
266, 275 [multiple false statements to fraudulently obtain
benefits made during a single medical visit; no unanimity
instruction required]; People v. Haynes (1998) 61 Cal.App.4th
1282, 1296 [defendant’s acts occurred “just minutes and blocks
apart and involved the same property”; no unanimity instruction
required]; People v. Mota (1981) 115 Cal.App.3d 227, 233
[multiple sexual assaults over the course of one hour; no
unanimity instruction required].) There was no error here.
15
II. Sufficiency of the Evidence
Cubel claims the evidence was insufficient to support his
conviction for making criminal threats because the prosecution
failed to prove the threat was so clear, immediate, unconditional
and specific that it communicated a serious intention and
immediate prospect that it would be carried out. “ ‘ “When
considering a challenge to the sufficiency of the evidence to
support a conviction, we review the entire record in the light most
favorable to the judgment to determine whether it contains
substantial evidence—that is, evidence that is reasonable,
credible, and of solid value—from which a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt.”
[Citation.] We determine “whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond
a reasonable doubt.” [Citation.] In so doing, a reviewing court
“presumes in support of the judgment the existence of every fact
the trier could reasonably deduce from the evidence.” ’ ” (People
v. Rangel (2016) 62 Cal.4th 1192, 1212–1213.) “ ‘[A]n appellate
court may not substitute its judgment for that of the jury. If the
circumstances reasonably justify the jury’s findings, the
reviewing court may not reverse the judgment merely because it
believes that the circumstances might also support a contrary
finding.’ [Citation.] We do not reweigh the evidence or resolve
conflicts in the testimony when determining its legal sufficiency.
[Citation.] Rather, before we can set aside a judgment of
conviction for insufficiency of the evidence, ‘it must clearly appear
that upon no hypothesis whatever is there sufficient evidence to
support [the jury’s finding].’ ” (People v. Garcia (2020)
46 Cal.App.5th 123, 144–145.)
16
The evidence was sufficient to support the conviction. Both
Petrona F. and Brandon testified to Cubel’s threats and the fear
they caused her. Given Cubel’s prior domestic violence and the
fact he had just armed himself with a knife in a physical
confrontation with his own brother, a jury could easily conclude
Cubel’s threats to kill Petrona F. and to cut her and her family
into small pieces if she called the police were so clear, immediate,
and specific that they communicated to her a serious intention
and the immediate prospect the threat would be carried out.
Petrona F.’s statements to the police and her 911 call indicated
she feared Cubel and believed he would carry out his threat.
Cubel points out Petrona F. and Brandon had “credibility
problems,” but we neither reweigh the evidence nor reevaluate
witness credibility. (People v. Lindberg (2008) 45 Cal.4th 1, 27.)
He asserts neither Brandon nor Petrona F. “seemed concerned
about appellant’s alleged threats” while the incident was taking
place, but there was evidence that during this time Petrona F.
removed her three younger children from Cubel’s immediate
presence; she and Brandon attempted to reason with and calm
Cubel as he raved; and she and Brandon escaped to and
barricaded themselves in the bedroom as soon as Cubel turned
his attention away from them. The jury could reasonably have
understood the events not as a display of indifference but as an
attempt to defuse the situation and to devise an escape for
Petrona F. and her children. If the circumstances reasonably
justify the findings made by the trier of fact, reversal of the
judgment is not warranted simply because the circumstances
might also reasonably be reconciled with a contrary finding.
(Ibid.)
17
Cubel’s final challenges to the sufficiency of the evidence
concern Brandon and Petrona’s conduct after the incident. He
argues Brandon’s later statements to the police and a social
worker “undermined []his testimony” Petrona F. appeared afraid
of Cubel when she called 911, and Petrona F.’s desire not to
prosecute and her description of Cubel as a “nice guy” when he
was not drinking “were indicative that she did not perceive
appellant’s alleged threats as a ‘clear, immediate, unconditional,
and specific’ communication that he ‘seriously’ intended to
immediately carry out his threat.” Here again Cubel invites the
court to reevaluate credibility and reweigh the evidence.
“ ‘Conflicts and even testimony which is subject to justifiable
suspicion do not justify the reversal of a judgment, for it is the
exclusive province of the trial judge or jury to determine the
credibility of a witness and the truth or falsity of the facts upon
which a determination depends. [Citation.] We resolve neither
credibility issues nor evidentiary conflicts; we look for substantial
evidence.’ ” (People v. Lee (2011) 51 Cal.4th 620, 632.) The
evidence was sufficient to support Cubel’s conviction.
III. Admission of Uncharged Acts
Over defense objection, the trial court admitted evidence of
the uncharged 2013 rape, threats, and domestic violence. Cubel
argues the evidence was inadmissible as propensity evidence; and
even if it was admissible under Evidence Code section 1109, it
should nonetheless have been excluded as more prejudicial than
probative under Evidence Code section 352. We review the
court’s ruling on the admissibility of evidence for an abuse of
discretion (People v. Lewis (2001) 25 Cal.4th 610, 637), and
conclude the evidence was properly admitted.
18
Although evidence of a person’s past conduct is generally
not admissible to prove a propensity to commit the charged crime
(Evid. Code, § 1101, subd. (a)), Evidence Code section 1109,
subdivision (a)(1) provides, “[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.” For the purposes of
Evidence Code section 1109, domestic violence “has the meaning
set forth in Section 13700 of the Penal Code,” and if the act
occurred no more than five years prior to the charged offense, as
here, it also has the broader meaning set forth in Family Code
section 6211. (Evid. Code, § 1109, subd. (d)(3).)
Both section 13700 and Family Code section 6211 define
domestic violence as abuse committed against specified categories
of people, including spouses. (§ 13700, subd. (b); Fam. Code,
§ 6211.) Section 13700, subdivision (a) 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.”
Family Code section 6203 defines abuse for purposes of Family
Code section 6211 and the Domestic Violence Prevention Act
(DVPA), stating it is “not limited to the actual infliction of
physical injury or assault.” (Fam. Code, § 6203, subd. (b).) Abuse
under the DVPA includes not only “intentionally or recklessly
caus[ing] or attempt[ing] to cause bodily injury,” sexual assault,
and “plac[ing] a person in reasonable apprehension of imminent
serious bodily injury to that person or to another” (Fam. Code,
§ 6203, subd. (a)(1)-(3)), but also conduct that may be enjoined
under Family Code section 6320, including “molesting, attacking,
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striking, stalking, threatening, sexually assaulting, [and]
battering.” (Fam. Code, §§ 6320, subd. (a), 6203, subd. (a)(4).)
Cubel’s 2013 uncharged conduct clearly falls within these
statutory definitions of domestic violence. (See, e.g., People v.
Ogle (2010) 185 Cal.App.4th 1138, 1144–1145 [prior stalking of
wife was domestic violence admissible under Evid. Code, § 1109];
People v. Kovacich (2011) 201 Cal.App.4th 863, 892–896 [evidence
of assault on family dog in front of family was domestic violence
admissible under Evid. Code, § 1109].)
Based on People v. Zavala (2005) 130 Cal.App.4th 758, in
which the court ruled stalking is not domestic violence within the
meaning of Evidence Code section 1109, Cubel argues making
criminal threats is not a crime of domestic violence. Zavala is
inapposite. The Zavala court concluded stalking was not
domestic violence as defined by section 13700 because stalking
“does not require that the threat induced the victim to fear great
bodily injury or death.” (Zavala, at p. 771.) But a “reasonable
apprehension of imminent serious bodily injury to himself or
herself” (§ 13700, subd. (a)) is required for the offense of making
criminal threats: To constitute a criminal threat, the threat must
be to commit a crime “which will result in death or great bodily
injury to another person,” it must “convey to the person
threatened, a gravity of purpose and an immediate prospect of
execution of the threat,” and the victim must reasonably be in
sustained fear for his or her own safety or that of his or her
immediate family. (§ 422, subd. (a).) Additionally, the Zavala
court considered only whether stalking was domestic violence
under section 13700, not under Family Code section 6211.
Making criminal threats against a spouse falls within the
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definition of domestic violence under both statutory definitions of
domestic violence contemplated by Evidence Code section 1109.
Cubel argues even if the evidence was admissible under
Evidence Code section 1109, it should have been excluded
because it was uncorroborated, Petrona F.’s testimony was
contradictory, it was placed in front of the jury first to bolster the
People’s weak case on the charged offenses, and it was
inadmissible under Evidence Code section 352. The trial court
did not abuse its discretion. The 2013 uncharged conduct was
highly probative because it involved similar threats and was
relevant to the element of sustained fear. It was not remote, as it
occurred just a few years before the charged offenses, nor was it
particularly inflammatory, as the conduct alleged was
comparable to the charged offenses. The chronological
presentation gave the jury context for Petrona F.’s description of
her feelings and behavior in later incidents. Petrona F.’s
credibility, the absence of corroborating evidence, the
circumstances of her report of the incident, and inconsistencies in
her testimony were all factors for the jury to consider in
evaluating the value and weight to accord the evidence, but they
do not demonstrate an abuse of discretion in admitting it.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, J.
We concur:
GRIMES, Acting P. J.
WILEY, J.
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