People v. Garcia

Filed 11/6/17

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B270574

Plaintiff and Respondent, (Los Angeles County

Super. Ct. No. KA109983)

v.

DANNY MICHAEL GARCIA,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los

Angeles County, Bruce F. Marrs, Judge. Affirmed.

Emily Lowther Brough, under appointment by the

Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler,

Chief Assistant Attorney General, Lance E. Winters, Senior

Assistant Attorney General, Scott A. Taryle, Supervising

Deputy Attorney General, Tannaz Kouhpainezhad, Deputy

Attorney General, for Plaintiff and Respondent.

_______________________

People v. Cruz (2016) 2 Cal.App.5th 1178 (Cruz) held

that former CALJIC No. 2.50.01—which permits a juror to

draw an inference of a defendant’s disposition to commit a

sex offense based on proof of a charged crime by a

preponderance of the evidence—unconstitutionally lowers

the prosecution’s burden of proof and results in structural

error requiring reversal. We disagree with the reasoning in

Cruz. We hold that the former CALJIC No. 2.50.02, a

similarly worded pattern instruction on the use of charged

acts of domestic violence to prove a disposition to commit

domestic violence, does not lower the prosecution’s burden of

proof. Moreover, in this case the jurors were told seven

times that the burden of proof was on the prosecution to

prove guilt beyond a reasonable doubt, and no reasonable

juror would have concluded that a conviction could be based

on a preponderance of the evidence.

PROCEDURAL HISTORY AND DEFENDANT’S

CONTENTIONS

Defendant and appellant Danny Michael Garcia was

charged with committing eight offenses against Amanda P.,

his girlfriend and the mother of his child. The jury found

defendant guilty of four of the eight charges: count 2—first

degree burglary with another person present (Pen. Code,

§ 459) 1; count 3—infliction of injury on a spouse, cohabitant,

1Statutory references are to the Penal Code unless

otherwise indicated.

2

girlfriend, or child’s parent after a prior conviction (§ 273.5,

subd. (f)(1)); count 4—dissuading a witness from reporting a

crime (§ 136.1, subd. (b)(1)); and count 7—misdemeanor

violation of a domestic violence restraining order (§ 273.6,

subd. (a)). Defendant was found not guilty in count 8 of

robbery (§ 211), and the jury was unable to reach a verdict in

count 1, charging kidnapping (§ 207, subd. (a)), in count 5,

charging making a criminal threat (§ 422, subd. (a)), and in

count 6, charging false imprisonment (§ 236).2 The trial

court sentenced defendant to nine years four months in state

prison.

Over defendant’s objection, the prosecution introduced

evidence of his prior uncharged acts of domestic violence

against Amanda. The trial court instructed the jury under

former CALJIC No. 2.50.02 that it was permitted to draw a

discretionary inference as to all counts that defendant had a

disposition to commit domestic violence if the jury first found

defendant had committed a charged or uncharged offense

involving domestic violence by a preponderance of the

evidence.

Defendant’s appeal primarily challenges the

constitutionality and correctness of instructing that charged

offenses may be considered as evidence of propensity under

former CALJIC No. 2.50.02, and the propriety of admitting

the uncharged offenses. He contends: (1) the court

2 The jury was divided 11-1 favoring not guilty in count

1. It was divided 9-3 favoring a guilty verdict in counts 5

and 6.

3

committed prejudicial error by instructing the jury to

consider charges that are not crimes of domestic violence in

determining whether defendant should be convicted of

cohabitant injury; (2) the court lowered the prosecution’s

burden of proof by incorrectly instructing that propensity

evidence of current domestic violence charges may be used if

the charges are found true by a preponderance of the

evidence; (3) the court abused its discretion by admitting

evidence of past domestic violence incidents and phone sex

recordings; and (4) the cumulative effect of these errors

requires reversal of all convictions. In a separate argument,

defendant contends the court’s failure to properly instruct

the jury on witness intimidation was prejudicial error.

We hold that the jury was properly permitted to

consider the charges of burglary and dissuading a witness

when deciding whether to draw a discretionary inference

that he had a disposition to commit domestic violence,

because both of the charges qualify as domestic violence

offenses as defined under Evidence Code section 1109.

Former CALJIC No. 2.50.02 correctly stated the applicable

standard for a juror’s consideration of charged offenses for

this purpose as a preponderance of the evidence. The

instruction also clearly differentiated between the

preponderance of the evidence standard of proof for drawing

a discretionary inference of propensity and the beyond a

reasonable doubt standard that must be met before a

defendant may be convicted. The trial court did not err in

admitting evidence of past domestic violence incidents and

4

phone sex recordings. Having found no merit to these

contentions, we necessarily conclude that defendant was not

prejudiced by the cumulative effect of the alleged errors.

Finally, the trial court did not err in instructing the jury

that it must unanimously agree on the events that formed

the basis of the witness intimidation charge.

FACTS

The Relationship Between Defendant and Amanda P.

and Acts Occurring Before the Charged Offenses

Amanda P. and defendant began dating in June 2012,

maintaining a relationship through June 20, 2015, the date

of the charged offenses. They have a son born in November

2014.

On December 27, 2013, Amanda told defendant she

believed she was pregnant. Defendant denied being the

father. Defendant blocked the door as Amanda tried to

leave. Defendant hit Amanda in the lip, causing her to fall

to the floor and briefly lose consciousness. When Amanda

awoke her “lip was split in half.” Amanda called her mother

to pick her up. The police were called after her mother

arrived.

Officer Maxwell Moya responded to the domestic

violence call. He described Amanda as scared, frustrated,

and having a split lip, which Amanda told the officer was

caused by defendant. She explained that an argument

started when she told defendant she was pregnant and

5

defendant punched her in the mouth. Defendant, who

admitted being under the influence of methamphetamine,

told Officer Moya that Amanda showed up with a split lip

and she attacked him by hitting him multiple times with a

closed fist and open hand. Defendant said he did not punch

Amanda. Officer Moya observed no injuries to defendant.

As a result of the December 27 incident, defendant was

convicted on December 31, 2013, of inflicting corporal injury

in violation of section 273.5. A domestic violence restraining

order—People’s Exhibit No. 1—was issued on the date of

conviction, prohibiting defendant from coming within 100

yards of Amanda.

Amanda was in the hospital in labor with her son on

November 17, 2014. She told a nurse that defendant was the

father, and provided defendant’s name to her. Defendant

arrived at the hospital drunk. He gave a false name, which

caused security to investigate. Defendant was arrested once

it was determined he was the subject of the restraining

order. The Department of Children and Family Services (the

Department) became involved as a result of the incident at

the hospital. 3 Four days earlier, defendant hit Amanda, and

a report was taken by the police. The police had responded

to incidents involving Amanda and defendant more than

seven times.

3 The Department was also involved with Amanda’s

daughter as a result of a fight between Amanda and her

sister. Amanda was arrested and the Department took

custody of her daughter.

6

Despite the restraining order, Amanda and defendant

remained in contact. Amanda loved defendant during this

time period, but by the time of trial she felt she had to “put

my foot down. My kids deserve the best and so do I.”

The Charged Offenses

Amanda’s Testimony

Defendant and Amanda were together at her

apartment on June 19, 2015, despite the existing restraining

order.4 Defendant left sometime during the night to get

drugs, returning the next morning. 5 Amanda allowed

defendant into the apartment. Defendant was under the

influence of drugs and looked like he had not slept. Amanda

told him to go home. Defendant refused. She told defendant

she would call the police if he did not leave. Defendant

grabbed her phone from her hand. He hit Amanda on the

right side of her jaw, knocking her to the floor. Defendant

punched Amanda’s face and body with closed fists as she

tried to push him off. He choked her, making it difficult to

4 Amanda’s children were not living with her on June

20, having been taken from her custody after the incident at

the hospital.

5 Amanda, who took medicine that sometimes affected

her memory, inconsistently described the order of events on

the day of the charged offenses. She also attributed some

lack of recollection to the beatings inflicted by defendant.

7

breathe. Defendant threatened to kill her. He hit her more

than ten times. Amanda tried to get her phone to call the

police, but defendant grabbed and threw the phone.

After this round of violence, defendant and Amanda

went to a nearby swap meet. She did not want to go with

defendant, but he had her phone and would not give it back.

Defendant grabbed her by the arm as they were walking

down the stairs before letting go as they went to his car.

Amanda did not ask for help at the swap meet because she

was afraid defendant would hit her again. They were at the

swap meet for approximately 30 to 45 minutes.

They returned to Amanda’s apartment where a second

physical altercation ensued. Amanda told defendant to

leave. She tried to get away, but defendant pulled her hair

and threw her to the floor. He slapped and hit her more

than five times. Amanda told him he had to leave or she

would call the police. 6

Defendant left the apartment, but he returned and

knocked on the door. Amanda went to the window and told

defendant he could not come in. Defendant said he was not

going to leave. Amanda called defendant’s parents, put the

phone on speaker, and told them defendant had already hit

her twice. His parents told defendant he had to leave and

come home.

Defendant entered the apartment through the front

window after tearing off the window screen. A third physical

6 Amanda expressed uncertainty over whether she

regained her phone once back in the apartment.

8

altercation ensued. Once inside the apartment defendant

grabbed Amanda’s phone as she tried to fend him off. He

yelled and hit her more than once on the face, the last time

on the chin. Amanda told defendant it was over and he had

to leave. He refused, stating it was over when he said it was

over. Amanda walked toward the door and turned to look at

defendant. He hit her again, knocking her to the floor and

causing her to see “black for a couple of seconds.” Defendant

was gone when she got up.

The 911 Call

Amanda’s mother and father arrived at her apartment.

Amanda’s mother called 911. A recording of the 911 call was

played for the jury. Amanda took the phone from her

mother shortly after the 911 call began. While crying,

Amanda told the 911 operator it was an emergency and she

needed a police officer. She identified defendant by name.

She said it was domestic violence, explaining that defendant

broke her window and beat her up. Amanda said there was

supposed to be a restraining order in place, told the operator

defendant’s date of birth and description, and described the

car he was driving. Amanda said he “socked me in the head,

I got knots all over. I got a bloody nose, I got a busted lip.”

She said she could go to the hospital on her own. She

provided her name and was told an officer was being sent.

9

The Responding Officer and Corroborating

Photos

Officer Alan Pucciarelli responded to the 911 call. He

spoke with Amanda, who was crying and very distressed.

Officer Pucciarelli documented Amanda’s injuries with a

series of photographs, which he and Amanda identified at

trial. The photographs, which we have reviewed, depict

numerous bright red abrasions covering the center of

Amanda’s forehead, nose, and left cheek. The abrasions

reach into her hairline. There is a raised knot in the center

of her forehead. Amanda’s right ear is shown swollen and

covered in red abrasions. Scratches and abrasions, inflicted

when defendant choked Amanda, are clearly visible on her

neck. Other photos showed large red areas on Amanda’s

right shoulder, back, and arm. Officer Pucciarelli and

Amanda identified a photo of the damaged window screen

defendant had ripped from the window frame and another of

the window from which he entered. Officer Pucciarelli saw

defendant after he was detained. He observed no injuries to

defendant.

Defendant’s Jail Phone Calls

Defendant made three recorded phone calls to Amanda

from jail following his arrest. He made the calls using the

jail account of another inmate, rather than using his own

name and account. Recordings of the calls were played for

the jury.

10

The first recorded call was made on July 2, 2015.

Defendant told Amanda he was not taking a deal. She

responded that they were making her go to court. Defendant

assured her that “they’re just scaring you. Babe, please,

babe. . . . Don’t show up.” Amanda explained that she had

a subpoena and if she did not appear in court, she faced time

and would permanently lose custody of her children.

Defendant told her that the case had nothing to do with the

children and they would not take them away. Defendant

said, “Please babe. Don’t show up babe, don’t show up,

please,” and that “[i]t wasn’t me babe. I’m sorry.” Amanda

and defendant each said they loved the other, but Amanda

repeatedly expressed concern over losing custody of her

children, and defendant repeated that they were just scaring

her. Defendant told her, “I can’t do all this time in here

babe,” “[i]t’s like nothing happened if you don’t show up,”

and “[i]t was the drugs babe.” Defendant offered to marry

Amanda and said they would release him if she did not show

up. Defendant told her they were trying to give him eight

years “[f]or some bullshit.” “[I]f you[] don’t show up my

attorney says they will dismiss all the cases.” “I wanta

change babe.”

The second recorded call was made on July 4, 2015.

Amanda told defendant she was drunk. She said they would

take away her kids if she did not come to court. Defendant

assured her that they could not take the children, despite

her protests that lawyers told her a warrant would be issued

for her arrest if she did not show up. Defendant responded

11

that lawyers are professional liars and they were lying to

her.7

The third call from jail was made on July 14, 2015.

Amanda began by telling defendant she was drunk at home,

lying in bed. He told her, “[D]on’t show up babe.” He said if

she did not show up they would let him go home. He begged

her not to come to court, promising, “I’ll change for reals [sic]

this time.” Defendant asked her to ignore the subpoena,

explaining, “you’re my only hope. And I think you don’t

want to press charges, alright?” Defendant told her they are

going to give him “a long time,” and “I can’t do this.”

Defendant continued, “You better not show up, if you really

loved me, eh. That’s what, that’s how [I will] know if you

really loved me or not, eh. And if not, then don’t even bother

writing me Amanda. Just let me go, alright?” She replied

that she loved him. Defendant continued to press Amanda

not to show up to court. He said he cared about the kids but

needed to be out to do his classes. His attorney said they

would drop the charges and then they would not do anything

to her. Defendant said he was going to help her get her

children back and they would have more kids. He was going

to go to classes and get a job.

7 Amanda explained in her testimony that her concern

over losing the children was based on her experience of

losing custody after the incident at the hospital during the

birth of their son, when defendant came to the hospital

drunk and used a false name.

12

Amanda admitted sending defendant love letters after

his arrest and telling him in phone conversations that she

loved him. By the time of trial she changed her mind

because defendant had shown no remorse or caring for her

children. “All he cared about was himself, what he was

doing. I seen him for who he is.” She began to realize

defendant was not completely honest with her. She was

scared of defendant because he “would beat me like I was a

guy.”

13

DISCUSSION

Issues Relating to Former CALJIC No. 2.50.028

8 The trial court instructed the jury with the Spring

2013 revision of CALJIC No. 2.50.02. The instruction was

modified in 2016 and 2017, and now separately addresses

proof of charged and uncharged offenses offered to prove

disposition to commit domestic violence. As to charged

offenses, the modified version requires proof beyond a

reasonable doubt, while the preponderance of the evidence

standard is limited to uncharged offenses. The Judicial

Council’s Advisory Committee on Criminal Jury Instructions

in 2017 adopted separate instructions for charged and

uncharged offenses offered to prove disposition to commit

domestic violence. (CALCRIM Nos. 852A, 852B.) CALCRIM

No. 852A, applicable to uncharged offenses offered to prove a

propensity to commit domestic violence, uses a

preponderance of the evidence standard. CALCRIM No.

852B, applicable to charged offenses offered to prove a

propensity to commit domestic violence, requires proof

beyond a reasonable doubt.

We do not consider the modifications made by CALJIC

and CALCRIM in response to Cruz as an indication the

committees concluded that Cruz was correctly decided.

Pattern jury instructions follow the law as stated in binding

precedent. The modifications made reflect nothing more

than the committees’ decisions to provide the law as stated

in Cruz for the guidance of trial courts because the courts

are bound to follow Cruz in the absence of contrary

authority.

14

The trial court instructed the jury regarding the use of

evidence of charged and uncharged crimes as follows:

“In determining whether defendant has been proved

guilty of [] any crime of domestic violence of which he [] is

charged, you should consider all relevant evidence, including

whether defendant committed any other domestic violence

crimes, whether charged or uncharged, about which evidence

has been received. The crimes charged in Counts 1–8, may

be considered by you in that regard. [¶] . . . [¶]

“If you find by a preponderance of the evidence that the

defendant committed any such offense involving domestic

violence, you may, but are not required to, infer that the

defendant had a disposition to commit another other [sic]

offenses involving domestic violence. If you find that the

defendant had this disposition, you may, but are not

required to, infer that he [] was likely to commit and did

commit the crime or crimes of which he [] is accused.

“However, even though you find by a preponderance of

the evidence that the defendant committed a prior crime or

crimes involving domestic violence, that is not sufficient by

itself to prove beyond a reasonable doubt that he []

committed the offenses you are determining. If you

determine an inference properly can be drawn from this

evidence, this inference is simply one item for you to

consider, along with all other evidence, in determining

whether the defendant has been proved guilty beyond a

reasonable doubt of the charged crime that you are

determining.

15

“Unless you are otherwise instructed, you [] must not

consider this evidence for any other purpose.” (Italics

added.)

Propensity Evidence

Evidence of a person’s character or predisposition to

act in a certain way is generally inadmissible to prove that

the person acted in conformance with that character trait on

a given occasion. (Evid. Code, § 1101, subd. (a); People v.

Villatoro (2012) 54 Cal.4th 1152, 1159 (Villatoro).) “‘Such

evidence “is [deemed] objectionable, not because it has no

appreciable probative value, but because it has too much.”

. . . [Citations.]’ [Citations.]” (People v. Falsetta (1999) 21

Cal.4th 903, 915.) Evidence Code section 1109 permits proof

of a defendant’s character in the form of evidence of a

defendant’s commission “of other domestic violence.” (Evid.

Code, § 1109, subd. (a)(1).) Evidence Code section 1108 has

a similar provision regarding “evidence of the defendant’s

commission of another sexual offense or offenses.” (Evid.

Code, § 1108, subd. (a)(1).) “[Evidence Code] sections 1108

and 1109 can properly be read together as complementary

portions of the same statutory scheme. A bill analysis

prepared for those who voted to enact [Evidence Code]

section 1109, states that ‘[t]his section is modeled on the

recently enacted Evidence Code [section] 1108, which

accomplishes the same for evidence of other sexual offenses,

in sexual offense prosecutions.’ (Assem. Com. on Public

16

Safety, Analysis of Sen. Bill No. 1876 (1995–1996 Reg. Sess.)

June 25, 1996, at p. 3.)” (People v. Brown (2000) 77

Cal.App.4th 1324, 1333 (Brown I).)

“‘[T]he legislative history of [Evidence Code section

1109] recognizes the special nature of domestic violence

crime, as follows: “The propensity inference is particularly

appropriate in the area of domestic violence because on-going

violence and abuse is the norm in domestic violence cases.

Not only is there a great likelihood that any one battering

episode is part of a larger scheme of dominance and control,

that scheme usually escalates in frequency and severity.

Without the propensity inference, the escalating nature of

domestic violence is likewise masked. If we fail to address

the very essence of domestic violence, we will continue to see

cases where perpetrators of this violence will beat their

intimate partners, even kill them, and go on to beat or kill the

next intimate partner. Since criminal prosecution is one of

the few factors which may interrupt the escalating pattern of

domestic violence, we must be willing to look at that pattern

during the criminal prosecution, or we will miss the

opportunity to address this problem at all.” (Assem. Com. []

on Public Safety[, Analysis of Sen. Bill No. 1876 (1995–1996

Reg. Sess.) [June 25, 1996, at] pp. 3–4.)’” (People v. Brown

(2011) 192 Cal.App.4th at 1222, 1235–1236 (Brown II).)

“[B]y enacting [Evidence Code] sections 1108 and 1109, the

obvious intention of the Legislature was to provide a

mechanism for allowing evidence of past sexual offenses or

acts of domestic violence to be used by a jury to prove that

17

the defendant committed the charged offense of the same

type; recidivist conduct the Legislature has determined is

probative because of its repetitive nature. Furthermore, it is

apparent that the Legislature considered the difficulties of

proof unique to the prosecution of these crimes when

compared with other crimes where propensity evidence may

be probative but has been historically prohibited.” (Brown I,

supra, 77 Cal.App.4th at pp. 1333–1334, fn. omitted.)

Our courts have consistently interpreted Evidence

Code sections 1108 and 1109 to allow consideration of

evidence of uncharged offenses. (Villatoro, supra, 54 Cal.4th

at p. 1160.) In 2012, our Supreme Court held that Evidence

Code sections 1108 and 1109 permit consideration of charged

offenses to prove a defendant’s disposition as well. (Id. at

pp. 1161–1167.) In the context of uncharged offenses, the

jury must find that an offense was committed by a

preponderance of the evidence before it may be considered

for propensity. (People v. Carpenter (1997) 15 Cal.4th 312,

382, superseded by statute on another point as noted in

Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106, which

in turn was superseded by statute on another point as noted

in Maldonado v. Superior Court (2012) 53 Cal.4th 1112,

1119, fn. 5.) The Supreme Court has not yet addressed the

question of which standard the jury must apply before

considering a charged offense as propensity evidence.

18

Standard of Review for Jury Instructions

“We review a claim of instructional error de novo.

(People v. Ghebretensae (2013) 222 Cal.App.4th 741, 759.)

‘“‘[T]he correctness of jury instructions is to be determined

from the entire charge of the [trial] court, not from a

consideration of parts of an instruction or from a particular

instruction.’”’ (People v. Musselwhite (1998) 17 Cal.4th 1216,

1248.)” (People v. Fiore (2014) 227 Cal.App.4th 1362, 1378

(Fiore).) “‘If a jury instruction is ambiguous, we inquire

whether there is a reasonable likelihood that the jury

misunderstood and misapplied the instruction.’ (People v.

Smithey (1999) 20 Cal.4th 936, 963; see Estelle v. McGuire

(1991) 502 U.S. 62, 72 & fn. 4.)” (People v. Young (2005) 34

Cal.4th 1149, 1202.) “In particular, ‘“‘[t]he absence of an

essential element in one instruction may be supplied by

another or cured in light of the instructions as a whole.’

[Citation.]”’ (People v. Bolin (1998) 18 Cal.4th 297, 328.)

‘Jurors are presumed able to understand and correlate

instructions and are further presumed to have followed the

court’s instructions.’ (People v. Sanchez (2001) 26 Cal.4th

834, 852.)” (Fiore, supra, at p. 1378.)

Offenses Involving Domestic Violence

The jury was instructed that former CALJIC No.

2.50.02 applied to all eight counts charged against

defendant. Defendant argues that two of the charged

19

offenses—burglary and dissuading a witness—should not

have been included in the instruction, because those offenses

“plainly do not fall within the definition of ‘domestic violence’

or ‘abuse’ as set forth in Penal Code § 13700 and Family

Code § 6211.”

Evidence Code section 1109 provides, in relevant part,

that “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 if the evidence is not

inadmissible pursuant to Section 352.” (Evid. Code, § 1109,

subd. (a)(1), italics added.)

Evidence Code section 1109 further states: “‘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.” (Evid. Code, § 1109, subd.

(d)(3).) Both statutes define “domestic violence” as “abuse”

committed against certain classes of people, including a

person with whom the suspect has cohabitated, had a child,

or had a dating relationship. (§ 13700, subd. (b); Fam. Code,

§ 6211, subds. (b)–(d).)

20

Burglary in Count 2

Under section 13700, subdivision (a), “‘Abuse’ means

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.” “Although the crime of burglary is not a

crime of domestic violence on its face, [a] trial court [may]

properly [find] that under the facts of the case, the burglary

was a qualifying offense allowing the People to seek to

present propensity evidence under section [Evidence Code

section] 1109.” (People v. James (2010) 191 Cal.App.4th 478,

484 (James) [burglary with the intent to commit domestic

violence falls within the definition of domestic violence in

section 13700].) Where the defendant burgles with the

intent to commit domestic violence, that “intent [] makes the

burglary an offense ‘involving domestic violence.’” (Ibid.)

The facts of this case indicate that defendant removed the

screen from Amanda’s window and entered her home with

the intent to commit domestic violence against her.

Defendant does not argue otherwise on appeal. The trial

court did not err in instructing the jury that it was permitted

to consider the burglary in count 2 as evidence of defendant’s

propensity to commit domestic violence under former

CALJIC No. 2.50.02.

21

Dissuading a Witness in Count 4

Under section 6211 of the Domestic Violence

Prevention Act (Fam. Code, § 6200 et seq.), neither proof of

physical violence nor the threat of imminent physical

violence is necessary to establish abuse. (§ 6203, subd. (b);

Phillips v. Campbell (2016) 2 Cal.App.5th 844, 853

(Phillips).) To the contrary, abuse includes “engag[ing] in

any behavior that has been or could be enjoined pursuant to

Section 6320.” (Fam. Code, § 6203, subd. (a)(4).) “Section

6320, subdivision (a) permits the court to enjoin a party from

‘harassing . . . or disturbing the peace of the other party. . . .’

[¶] ‘“[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. . . . Therefore, the plain meaning of

the phrase ‘disturbing the peace’ in section 6320 may

include, as abuse within the meaning of the [Domestic

Violence Prevention Act], a [defendant]’s alleged conduct in

destroying the mental or emotional calm of his [former

cohabitant, former girlfriend, or the mother of his child]. . . .”

[Citation.]’ (Burquet v. Brumbaugh (2014) 223 Cal.App.4th

1140, 1146.)” (Phillips, supra, at pp. 852–853.) Defendant

was convicted in count 4 of dissuading a witness from

reporting a crime (§ 136.1, subd. (b)(1)). The recorded jail

calls are replete with defendant’s threatening, pleading, and

cajoling statements in which he tried desperately to convince

Amanda not to attend court or to testify. Amanda was

22

clearly distressed by defendant’s attempts and torn between

her instinct to comply with him, and her fear of having her

children taken from her. Considering the strong evidence

that defendant “destroy[ed] [Amanda’s] mental or emotional

calm,” the trial court’s instruction that the jury could

consider the charge of dissuading a witness in count 4 as

evidence of defendant’s propensity to commit domestic

violence was not error.9

Burden of Proof Arguments

Defendant contends that the trial court committed

structural error by incorrectly instructing the jury on the

burden of proof required when considering whether other

charged offenses may be used to draw a discretionary

inference that defendant had a propensity to commit

domestic violence. He asserts that the correct standard of

proof is beyond a reasonable doubt—not a preponderance of

the evidence as stated in former CALJIC No. 2.50.02—and

that by incorrectly instructing the jury, the trial court

effectively lowered the burden of proof for conviction.

9 Defendant appears to challenge the inclusion of the

dissuading a witness charge solely on the basis that he did

not threaten violence during the jail calls to Amanda. He

does not expressly contest that his actions during the attack

on her were not threatening or violent, nor could he do so

convincingly given the overwhelming evidence against him.

23

Defendant relies primarily on Cruz, supra, 2

Cal.App.5th 1178, to support his contention. Cruz was

convicted of three counts of committing a lewd act against a

child under the age of 14 (§ 288, subd. (a)), and sentenced to

105 years to life in prison. (Cruz, supra, at p. 1180.) The

trial court instructed the jury that it could consider charged

and uncharged sexual offenses to draw the discretionary

inference that the defendant had a propensity to commit

sexual offenses. (Id. at pp. 1183–1184.) It gave a version of

CALJIC No. 2.50.01 that parallels the version of CALJIC

No. 2.50.02 given in the present case in all pertinent

respects. (Ibid.) The Cruz court held that it was error to

give CALJIC No. 2.50.01 because it believed that our

Supreme Court’s decision in Villatoro, supra, 54 Cal.4th

1152, “strongly implied” the correct standard for considering

other charged crimes in this context was beyond a

reasonable doubt (Cruz, supra, at p. 1186), and because the

instruction was a “hopeless muddle” (ibid.) that was too

complex for jurors to correctly understand or apply. The

Cruz court reasoned that the instruction “presented the jury

with a nearly impossible task of juggling competing

standards of proof during different phases of its

consideration of the same evidence.” (Id. at p. 1187.) It

concluded, “the ultimate effect is to lower the prosecution’s

burden of proving guilt beyond a reasonable doubt.” (Ibid.)

The Cruz court found the error to be structural, and reversed

24

the judgment. (Ibid.) We respectfully disagree with Cruz’s

reasoning and result. 10

Echoing Justice Corrigan’s dissent in Villatoro, our

dissenting colleague essentially argues Cruz was correctly

decided and Villatoro was not. We offer a few preliminary

comments in response. First, under Auto Equity Sales, Inc.

v. Superior Court (1962) 57 Cal.2d 450, 455, we are bound by

the majority decision in Villatoro, not by the dissent (even if

we were to agree, which we have no occasion to address).

Second, the Legislature could have amended sections 1108

and 1109 to preclude use of charged offenses to prove

disposition by adopting Justice Corrigan’s reasoning, but it

has not done so. Third, Justice Corrigan’s (and the Cruz

court’s) concern over the risk that a jury might be confused

by the difference between proof by a preponderance of the

evidence to create an inference of disposition, and the

requirement of proof beyond a reasonable doubt to prove a

charged offense, is simply not present in this case—the jury

convicted on four counts, acquitted on one count, and was

unable to reach a verdict on three. Fourth, the dissent’s

contention that any error was structural requiring reversal

fails to mention that all seven justices in Villatoro agreed

10 The former Attorney General did not file a petition

for review in Cruz, nor did she request depublication of the

opinion. In briefing and at oral argument in this case, the

Attorney General’s position was that Cruz was incorrectly

decided.

25

that any error was harmless under the People v. Watson

(1956) 46 Cal.2d 818, 834 standard of review.

Burden of Proof for Charged Crimes as

Propensity Evidence

We are unpersuaded that the Supreme Court intended

to imply other charged crimes evidence must be proved

beyond a reasonable doubt before it may be used to infer

propensity. In Villatoro, supra, 54 Cal.4th at page 1167, the

trial court instructed the jury it could draw the discretionary

“conclusion” that Villatoro was inclined to commit the

charged sex crimes if it “decided” he had committed other

charged sexual offenses. 11 The instruction specified this was

only one factor to consider and was insufficient to support a

guilty verdict alone. (Ibid.) The instruction concluded:

“‘The People must still prove each element of every charge

beyond a reasonable doubt and prove it beyond a reasonable

doubt before you may consider one charge as proof of another

charge.’” (Ibid., fn. omitted.)

11 Villatoro involved the application of Evidence Code

section 1108 to charged and uncharged sex offenses. The

court referenced Evidence Code sections 1108 and 1109 in its

analysis. The court made clear its analysis applied to both

statutory provisions. (Villatoro, supra, 54 Cal.4th at pp.

1162–1163, fn. 5 [expressly disapproving People v.

Quintanilla (2005) 132 Cal.App.4th 572 (Quintanilla), which

held that Evidence Code section 1109 does not apply to

charged offenses].)

26

Villatoro contended that other charged offenses could

not be considered as evidence of propensity to commit

charged crimes under Evidence Code section 1108. He also

challenged the propriety of instructing under a modified

version of CALCRIM No. 1191, which “failed to designate

clearly what standard of proof applied to the charged

offenses before the jury could draw a propensity inference

from them. [Villatoro] insist[ed] that without such guidance,

a juror could have used any standard of proof, or no standard

at all, to convict him based on even a minimal amount of

evidence supporting another sexual offense, thus depriving

him of the presumption of innocence.” (Villatoro, supra, 54

Cal.4th at p. 1167.)

The Supreme Court rejected Villatoro’s argument that

charged offenses could not be considered to support an

inference of propensity. It held that the language of

Evidence Code section 1108 “does not distinguish between

charged or uncharged sexual offenses.” (Villatoro, supra, 54

Cal.4th at p. 1160.) The court emphasized that for purposes

of Evidence Code section 1108 there were few distinctions

between charged and uncharged offenses, noting that

“[w]hether an offense is charged or uncharged in the current

prosecution does not affect in any way its relevance as

propensity evidence.” (Id. at p. 1164.) The court recognized

that in contrast to evidence of uncharged offenses, charged

offenses may not be excludable under Evidence Code section

352. However, it concluded that the necessary constitutional

safeguards remained in place because trial courts may

27

“consider[] [Evidence Code] section 352 factors when

deciding whether to permit the jury to infer a defendant’s

propensity based on this evidence.” (Id. at p. 1163.)

The Supreme Court likewise rejected Villatoro’s

argument that the failure to clearly instruct on the burden of

proof applied to the charged offenses for purposes of proving

propensity could lead the jury to convict him of another

charge upon proof less than beyond a reasonable doubt.

(Villatoro, supra, 54 Cal.4th at p. 1167.) Because the

reasonable doubt burden of proof was the only burden of

proof identified in the instruction—the final sentence of the

instruction informed the jury that the burden of proof for

both determinations was beyond a reasonable doubt—the

Supreme Court held there was no possibility that the jury

would apply a lower standard when reaching a verdict. (Id.

at p. 1168.) The court specifically declined to express a view

as to whether the instruction should be given in the future.

(Id. at p. 1169.)

We do not interpret Villatoro as signaling that the

correct burden of proof when considering whether charged

offenses may be used to infer propensity is beyond a

reasonable doubt. The question of the burden of proof

applicable to charged offenses in that context was not before

the court. The court addressed only whether the

instruction’s statement of the burden of proof for

consideration of propensity evidence had the effect of

lowering the burden of proof for conviction. The court

logically held that because the only burden of proof

28

referenced in the instruction was beyond a reasonable doubt,

there was “no risk” that the jury would apply some other

unmentioned standard when reaching a verdict. (Villatoro,

supra, 54 Cal.4th at p. 1168.) At the same time, the court

expressly declined to approve the instruction for future use,

effectively reserving the question of the burden of proof

when considering charged offenses in the propensity context

for another day.

We do not discern any reason why the burden of proof

applied to charged offenses when used for propensity

purposes should differ from that applied to uncharged

offenses. As with uncharged offenses, “[i]t is not the verdict

itself, but rather the jury’s factual finding that defendant

has committed a [charged] sex offense, that the jury relies on

to draw an inference of disposition or propensity.” (Villatoro,

supra, 54 Cal.4th at p. 1165.) Arguments that advocate a

higher burden of proof for charged offenses as evidence of

propensity appear to be rooted in concerns regarding the

“‘bootstrapping of verdicts’ [citation] and the possibility that

the jury may ‘simply conclude that because it found the

defendant guilty of one count, he must be guilty of the

others’ [citation], . . .” (Ibid.) But as the Villatoro court

stated when it held that charged offenses may be considered

under Evidence Code section 1108, these arguments “merely

identif[y] the general concern against allowing a jury to

consider propensity evidence in a criminal case.” (Ibid.)

This general concern applies equally to charged and

uncharged offenses—perhaps to an even greater extent to

29

uncharged offenses that would not otherwise be presented to

the jury—and provides no logical basis for requiring

different burdens of proof.

The Legislature carefully considered the question of

when propensity evidence may be admitted, and determined

that strong public policy considerations favored allowing

such evidence in cases involving domestic violence. Just as

it did not differentiate between charged and uncharged

crimes for purposes of consideration as propensity evidence,

it did not differentiate between the two categories of offense

with respect to the burden of proof, or, in fact, designate a

burden of proof for evidence of other domestic violence

offenses generally. Where, as here, the legislature is silent,

“the burden of proof requires proof by a preponderance of the

evidence.” (Evid. Code, § 115.) The Legislature’s decision to

apply the default standard of proof to other domestic

violence offenses is consistent with the well-settled principle

that “‘evidentiary facts’” are governed by the preponderance

standard, while the reasonable doubt standard applies to the

ultimate determination of guilt. (People v. Medina (1995) 11

Cal.4th 694, 763; People v. Lisenba (1939) 14 Cal.2d 403,

430.) A defendant’s propensity to commit a crime is such an

evidentiary fact. (People v. Anderson (2012) 208 Cal.App.4th

851, 896–897.) When considered for this purpose, evidence

of charged crimes is collateral to the question of the

accused’s guilt or innocence and does not “‘bear directly on

any link in the chain of proof of any element of the crime.’

[Citation.]” (Ibid.) “There is [] no constitutional compulsion

30

that such collateral fact[s] be proved beyond a reasonable

doubt, nor does the presumption of the accused’s innocence

aid in the resolution of such fact[s].” (People v. Tewksbury

(1976) 15 Cal.3d 953, 965.)

The important public policy concerns behind Evidence

Code section 1109 also lead us to believe the preponderance

of the evidence standard of proof for propensity evidence is

appropriate for both charged and uncharged offenses. “The

degree of burden of proof applied in a particular situation is

an expression of the degree of confidence society wishes to

require of the resolution of a question of fact. [Citation.]

The burden of proof thus serves to allocate the risk of error

between the parties, and varies in proportion to the gravity

of the consequences of an erroneous resolution. [Citations.]

Preponderance of the evidence results in the roughly equal

sharing of the risk of error. [Citation.] To impose any

higher burden of proof demonstrates a preference for one

side’s interests.” (In re Marriage of Peters (1997) 52

Cal.App.4th 1487, 1490.) In enacting Evidence Code section

1109, the Legislature acknowledged the seriousness of

domestic violence offenses, and the difficulty of proving such

crimes, which are secretive and often result in a credibility

contest between perpetrator and victim. (People v. Jennings

(2000) 81 Cal.App.4th 1301, 1311.) It corrected the

imbalance of power in favor of perpetrators by allowing the

jury to consider highly relevant propensity evidence. (Ibid.)

Application of the preponderance of the evidence standard is

consistent with the statute’s purpose.

31

The dissent is troubled that Amanda’s testimony was

the sole source of the propensity evidence, and that the

crimes concerned differed in nature and occurred over the

course of a few hours. That concern is not relevant to the

issues defendant raises here. Evidence Code section 1109

does not limit propensity evidence to evidence provided by

third parties. (See People v. Gonzales (Oct. 24, 2017,

B276101) __Cal.App.5th__ (Gonzales) [holding that evidence

of uncharged crimes is not limited to evidence provided by

third parties under section 1108].) Villatoro held that the

definition of another sexual offense or offenses in Evidence

Code section 1108 “contains no limitation, temporal or

otherwise, to suggest that [it] covers only offenses other than

those for which defendant is currently on trial.” (Villatoro,

supra, 54 Cal.4th at p. 1161, italics added.) It follows that

the parallel language in Evidence Code section 1109 also

allows evidence of crimes that occurred within the same time

period to be used to demonstrate propensity. As for the

disparate nature of the crimes, the legislature clearly

defined evidence of another crime to encompass crimes of a

dissimilar nature but involving similar intent, as courts have

recognized. (See James, supra, 191 Cal.App.4th at p. 484

[holding that where the defendant burgles with intent to

commit domestic violence that “intent [] makes the burglary

an offense ‘involving domestic violence’” under section 1109];

People v. Story (2009) 45 Cal.4th 1282, 1291–1294 (Story)

[first degree felony murder with rape and burglary based on

entry with the intent to rape qualifies as a sexual offense

32

under section 1108]; People v. Pierce (2002) 104 Cal.App.4th

893, 898–899 [assault with intent to commit rape qualifies

as a sexual offense under section 1108]).

The issues raised by the dissent are not without

redress. In Villatoro, the Supreme Court noted with

approval the Court of Appeal’s observation that “[although]

evidence of the charged offenses may not be excludable

under section 352 . . . nothing precludes a trial court from

considering section 352 factors when deciding whether to

permit the jury to infer a defendant’s propensity based on

this evidence . . . . ‘Even where a defendant is charged with

multiple sex offenses, they may be dissimilar enough, or so

remote or unconnected to each other, that the trial court

could apply the criteria of section 352 and determine that it

is not proper for the jury to consider one or more of the

charged offenses as evidence that the defendant likely

committed any of the other charged offenses.’” (Villatoro,

supra, 54 Cal.4th at p. 1163; accord, Story, supra, 45 Cal.4th

at pp. 1294–1295.) Thus, a defendant is safeguarded from

the use of charged crimes that are more prejudicial than

probative as propensity evidence under Evidence Code

section 352. In appropriate cases, the trial court may

instruct the jury that it is not to consider other charged

crimes evidence for propensity purposes.

In the present case, defendant has not argued that the

propensity evidence was more prejudicial than probative

under Evidence Code section 352. Absent such a challenge,

we will not address the issue on appeal. (See Gonzales,

33

supra, __Cal.App.5th__ [declining to address whether

uncharged crimes evidence was properly admitted as

propensity evidence where defendant instead challenged the

propriety of instructing under CALCRIM No. 1191].)

Burden of Proof for Conviction

We also disagree with Cruz’s conclusion that the

application of two different standards of proof within a single

instruction creates confusion sufficient to lower the burden

of proof for conviction. In our opinion, the reasoning of our

Supreme Court in People v. Reliford (2003) 29 Cal.4th 1007

(Reliford), which held the 1999 revised version of CALJIC

No. 2.50.01 constitutional, resolves the issue because as in

Reliford, the instructions here clearly conveyed the proper

burden of proof for conviction to the jury. Moreover, the

jury’s divided resolution of the eight charged offenses in this

case belies the suggestion in Cruz that a jury would be

unable to understand the way the instruction operated. (See

People v. Ellison (2011) 196 Cal.App.4th 1342, 1353

[acquittal of three charges demonstrated that jury

understood the applicable burden of proof].)

In Reliford, the defendant challenged a modified

version of the 1999 revised version of CALJIC No. 2.50.01,

which instructed on prior uncharged sexual offenses in

relevant part:

“If you find that the defendant committed a

prior sexual offense in 1991 involving S[.]B[.], you

34

may, but are not required to, infer that the

defendant had a disposition to commit the same

or similar type sexual offenses. If you find that

the defendant had this disposition, you may, but

are not required to, infer that he was likely to

commit and did commit the crime of which he is

accused.

“However, if you find by a preponderance of

the evidence that the defendant committed a

prior sexual offense in 1991 involving S[.]B[.],

that is not sufficient by itself to prove beyond a

reasonable doubt that he committed the charged

crime. The weight and significance of the

evidence, if any, are for you to decide.

“You must not consider this evidence for

any other purpose.”

(Reliford, supra, 29 Cal.4th at p. 1012.)

Reliford argued that the instruction was “‘likely to

mislead the jury concerning the supposedly limited purpose

for which they may consider the prior crimes evidence,’ and

[] the instruction is ‘likely to mislead the jury concerning . . .

the prosecution’s burden of proof.’” (Reliford, supra, 29

Cal.4th at p. 1012.) Our Supreme Court disagreed.

The Reliford court reasoned, “the instruction nowhere

tells the jury it may rest a conviction solely on evidence of

prior offenses. Indeed, the instruction’s next sentence says

quite the opposite: ‘if you find by a preponderance of the

evidence that the defendant committed a prior sexual offense

35

. . . , that is not sufficient by itself to prove beyond a

reasonable doubt that he committed the charged crime.’ The

jury, of course, was instructed to consider the instructions

‘as a whole’ (CALJIC No. 1.01) . . . . [Citations.] Viewed in

this way, the instructions could not have been interpreted to

authorize a guilty verdict based solely on proof of uncharged

conduct. [Citations.]” (Reliford, supra, 29 Cal.4th at p.

1013.) “Nothing in the instructions authorized the jury to

use the preponderance-of-the-evidence standard for anything

other than the preliminary determination whether

defendant committed a prior sexual offense in 1991 involving

S.B. The instructions instead explained that, in all other

respects, the People had the burden of proving defendant

guilty ‘beyond a reasonable doubt.’ (CALJIC Nos. 2.61, 2.90;

see CALJIC No. 10.65.) . . . In addition, the jury was told

that circumstantial evidence could support a finding of guilt

of the charged offenses only if the proved circumstances

could not be reconciled with any other rational conclusion

(CALJIC No. 2.02)—which is merely another way of

restating the reasonable-doubt standard. (See People v.

Carpenter (1997) 15 Cal.4th 312, 383.) The jury thus would

have understood that a conviction that relied on inferences

to be drawn from defendant’s prior offense would have to be

proved beyond a reasonable doubt.” (Reliford, supra, 29

Cal.4th at p. 1016.)

The Reliford court also “reject[ed] the . . . assertion

that the instruction, even if correct, is too ‘complicated’ for

jurors to apply.” (Reliford, supra, 29 Cal.4th at p. 1016.)

36

“This is not the first time jurors have been asked to apply a

different standard of proof to a predicate fact or finding in a

criminal trial. (E.g., CALJIC Nos. 2.50 [evidence of other

crimes under Evid. Code, § 1101], 4.43 [necessity defense],

4.60 [entrapment], 4.74 [statute of limitations], 6.24

[admissibility of coconspirator’s statements], 7.73 [failure to

file tax returns in prior years], 12.06 [lawful possession of

controlled substance].) As we do in each of those

circumstances, we will presume here that jurors can grasp

their duty—as stated in the instructions—to apply the

preponderance-of-the-evidence standard to the preliminary

fact identified in the instruction and to apply the reasonable-

doubt standard for all other determinations.” (Id. at

p. 1016.)

The instruction given in the present case differs in only

a few respects from the instruction in Reliford, the primary

distinction being that here the jury was told that it could

consider whether defendant committed any other domestic

violence crimes, charged or uncharged—Reliford involved

only uncharged crimes. We see no reason to conclude that

the addition of charged offenses makes the instruction any

more difficult to understand or apply. The procedure for

determining whether an inference of propensity may be

drawn remains the same in either case. As in Reliford,

defendant’s jury was nowhere told that it could rest its

conviction on other crimes evidence, or that it could apply

the preponderance of the evidence standard for anything

other than determining whether defendant committed

37

another offense involving domestic violence for the purpose

of drawing a discretionary inference that defendant had a

propensity to commit such offenses. Every jury instruction

the trial court gave that mentioned a burden of proof to

establish defendant’s guilt advised the jury that a conviction

could only be based on proof beyond a reasonable doubt.

(See CALJIC No. 2.9012 [definition of proof beyond a

reasonable doubt]; CALJIC No. 2.01 [circumstantial

evidence]; CALJIC No. 4.21.1 [effect of voluntary

intoxication]; CALJIC No. 9.58 [reasonable belief of consent

to kidnapping]; CALJIC No. 9.35.01 [domestic violence with

a prior conviction]; CALJIC No. 17.01 [unanimity

requirement].) No jury instruction referenced conviction on

anything other than proof beyond a reasonable doubt. Read

as a whole, the charge to the jury was not susceptible to an

interpretation that defendant could be convicted on less than

proof beyond a reasonable doubt.

Our resolution of this issue is not dependent on which

standard of proof is applied to charged offenses for

propensity purposes. As Reliford emphasized, it is not

uncommon for a jury to be instructed on multiple standards

of proof in the same case, even when the different standards

must be applied to the same evidence for the purpose of

making different determinations. In the event that we have

incorrectly identified preponderance of the evidence as the

12 The trial court also instructed the jury on the

definition of proof beyond a reasonable doubt, in the

language of CALJIC No. 2.90, at the time of jury selection.

38

standard for propensity evidence, the inclusion of that

standard of proof in the instruction would not undermine our

conclusion that the burden of proof for conviction is clear.

Trial Error Subject to Harmless Error

Analysis

Assuming the trial court erred in instructing that the

burden of proof for charged crimes used as propensity

evidence was a preponderance of the evidence, such error is

trial error, subject to harmless error analysis. We reject

defendant’s contention that the error is structural, which

requires reversal per se. Given the strength of the evidence,

any assumed error is non-prejudicial.

“In the nearly 50 years since Chapman was decided,

the high court repeatedly has emphasized that most errors

implicating a federal constitutional right, including most

instructional errors, are amenable to harmless error analysis

and that only a ‘very limited class of cases’ are subject to per

se reversal. [Citations.]” (People v. Aranda (2012) 55

Cal.4th 342, 363 (Aranda).) As explained by the United

States Supreme Court, “while there are some errors to which

Chapman does not apply, they are the exception and not the

rule. [(United States v. Hasting [(1983)] 461 U.S. [499,]

509.)] Accordingly, if the defendant had counsel and was

tried by an impartial adjudicator, there is a strong

presumption that any other errors that may have occurred

are subject to harmless-error analysis. The thrust of the

many constitutional rules governing the conduct of criminal

39

trials is to ensure that those trials lead to fair and correct

judgments. Where a reviewing court can find that the record

developed at trial establishes guilt beyond a reasonable

doubt, the interest in fairness has been satisfied and the

judgment should be affirmed. As we have repeatedly stated,

‘the Constitution entitles a criminal defendant to a fair trial,

not a perfect one.’ [(Delaware v. Van Arsdall [(1986)] 475

U.S. [673,] 681; United States v. Hasting[, supra,] at [pp.]

508–509.)]” (Rose v. Clark (1986) 478 U.S. 570, 578–579

(Rose).)

Following the Court of Appeal in Cruz, defendant and

our dissenting colleague rely on the following statement in

Aranda, supra, 55 Cal.4th at page 365: “An instruction that

effectively lowers the prosecution’s burden of proving guilt

beyond a reasonable doubt is structural error because it

‘vitiates all the jury’s findings’ and its effect on the verdict is

‘necessarily unquantifiable and indeterminate.’ [Citations.]”

The two cases cited by Aranda for this proposition are

Sullivan v. Louisiana (1993) 508 U.S. 275, 279–282

(Sullivan), and Hedgpeth v. Pulido (2008) 555 U.S. 57, 61

(Hedgpeth). A careful examination of the holding in Aranda,

and the cases cited, indicates that the Cruz court’s cursory

citation to Aranda misapplied the one sentence on which it

relied.

The issue in Aranda was whether the trial court’s

failure to provide a standard jury instruction on reasonable

doubt constituted structural error requiring reversal. As to

one charge, Aranda held the instructional deficiency “did not

40

constitute federal constitutional error” because of other

instructions referencing the requirement of proof beyond a

reasonable doubt, and as to “state law, we conclude that the

state law error was harmless.” (Aranda, supra, 55 Cal.4th

at p. 350.) As to a second charge, the other jury instructions

failed to specify that guilt beyond a reasonable doubt was

required, and “this omission constituted error under both

state law and the federal Constitution” but “the error, like

most instructional errors of federal constitutional dimension,

is amenable to harmless error analysis under Chapman v.

California (1967) 386 U.S. 18 (Chapman), and is not

reversible per se.” (Ibid.) The court held the error was

harmless beyond a reasonable doubt. (Ibid.)

The Aranda court therefore applied harmless error

analysis to a case which involved an error potentially far

more egregious than any instructional error here,

considering that defendant’s jury was given the approved

standard instruction on reasonable doubt during voir dire

and prior to deliberations, and six other instructions

referenced the correct burden of proof. Under the reasoning

of Aranda, any purported error was amenable to harmless

error review, and as discussed below, error could not possibly

have been prejudicial.

Our conclusion that Cruz read too much into Aranda is

bolstered by an examination of the two cases Aranda cited

on this point—Sullivan and Hedgpeth. Sullivan stands for

the unremarkable proposition that when the jury is provided

an instruction that understates the burden of proof, the

41

error is prejudicial per se. (Sullivan, supra, 508 U.S. at pp.

279–282.) There is no Sullivan error here; defendant’s jury

did not receive a deficient instruction on reasonable doubt.

Defendant does not dispute that the trial court correctly

instructed the jury with the approved definition of proof

beyond a reasonable doubt under CALJIC No. 2.90 both

prior to jury selection and at the conclusion of the case, or

that the court made repeated references to the correct

burden of proof throughout the charge to the jury. (See

People v. Crew (2003) 31 Cal.4th 822, 847–848 [rejecting

defendant’s argument that instructions lowered the burden

of proof, in part because jury was “repeatedly instructed” on

proper burden of proof].)

Hedgpeth, the other case cited by the Aranda court,

provides no support for Cruz’s finding of structural error. In

a per curiam decision reversing the Ninth Circuit Court of

Appeals, the Hedgpeth court held that where a jury is

instructed on alternate theories of guilt, one of which is

invalid, the error is not structural requiring reversal.

(Hedgpeth, supra, 555 U.S. at p. 58.)

The analysis in Rose, supra, 478 U.S. 570, a case cited

with approval in Aranda, is instructive. The issue in Rose

was “whether the harmless-error standard of Chapman v.

California 386 U.S. 18, applies to jury instructions that

violate the principles of Sandstrom v. Montana [(1979)] 442

U.S. 510 [(Sandstrom)], and Francis v. Franklin [(1985)] 471

U.S. 307.” (Id. at p. 572, fn. omitted.) The Sandstrom court

held that an instruction in a homicide prosecution that “‘the

42

law presumes that a person intends the ordinary

consequences of his voluntary acts,’ violates the Fourteenth

Amendment’s requirement that the State prove every

element of a criminal offense beyond a reasonable doubt.”

(Sandstrom, supra, at p. 512.) The Rose court held

Sandstrom error is trial error amenable to harmless error

analysis under Chapman. (Rose, supra, at p. 582.)

As Rose explained, “the prosecution must prove ‘every

fact necessary to constitute the crime with which [the

defendant] is charged’ beyond a reasonable doubt.” (Rose,

supra, 478 U.S. at p. 580.) “When the verdict of guilty

reached in a case in which Sandstrom error was committed

is correct beyond a reasonable doubt, reversal of the

conviction does nothing to promote the interest that the rule

serves.” (Ibid.) Significantly, the Rose court observed that

“[n]o one doubts that the trial court properly could have

instructed the jury that it could infer malice from

respondent’s conduct. [(See Francis v. Franklin, supra, 471

U.S. at [pp.] 314–315; Ulster County Court v. Allen [(1979)]

442 U.S. 140, 157–163.)]” (Id. at p. 581.) The court

ultimately held “that Chapman’s harmless-error standard

applies in cases such as this one.” (Id. at p. 582, fn. omitted.)

Rose compels the conclusion that any error in former

CALJIC No. 2.50.02 is subject to harmless error analysis.

The alleged error in the instant case is less egregious than

that in Sandstrom and Rose. The jury was not instructed to

presume the existence of an element of a charged offense.

Defendant’s jury was instructed that it was permitted to

43

draw an inference from defendant’s conduct—a proposition

that the Rose court emphasized “no one doubts.” The court

then expressly admonished that the inference alone was

insufficient to prove guilt and that a guilty verdict required

review of all the evidence.

We address the issue of prejudice as to individual

counts, but before doing so, we have two observations. The

first is that the jury did not view former CALJIC No. 2.50.02

as directing a verdict. The jury found defendant not guilty

on one count and was unable to reach verdicts on three

others. (See Quintanilla, supra, 132 Cal.App.4th at p. 583.)

Second, the parties’ arguments to the jury completely

ignored former CALJIC No. 2.50.02 and lacked even a single

reference to the principle of disposition to commit domestic

violence. These two considerations, along with the strength

of the evidence as reviewed below, point to an absence of

prejudice.

Defendant was convicted in count 2 of first degree

burglary with a person present. The burglary was premised

on defendant tearing off the window screen to Amanda’s

apartment and entering with the intent to commit theft or

domestic violence. The only theft issue in the case involved

the alleged taking of Amanda’s cell phone in a robbery, but

the jury acquitted defendant of the robbery charge. As a

result, the burglary conviction was based on entry to commit

domestic violence. The evidence relating to the burglary is

essentially uncontested. Amanda testified that she refused

to allow defendant to reenter the apartment. She told the

44

911 operator defendant had broken the screen and beat her

up. Officer Pucciarelli and Amanda identified photos of the

damaged window screen and the window. In the recorded

jail phone calls defendant not only failed to deny committing

the charged offenses, he assured Amanda that his conduct

was the result of drug use—something he would “change.”

Photographs dramatically illustrated the substantial beating

inflicted by defendant. Additional evidence of defendant’s

intent at the time of entry is found in the prior act of

domestic violence defendant committed against Amanda in

2013, including corroboration from Officer Moya, who saw

her split lip in 2013. On this record, the assumed trial error

is harmless beyond a reasonable doubt as to the burglary in

count 2.

In count 3, defendant was convicted of infliction of

injury on a spouse, cohabitant, girlfriend, or child’s parent

after a prior conviction (§ 273.5, subd. (f)(1)). There is no

dispute defendant suffered the prior conviction, which was

proven by the record of conviction and Amanda’s testimony.

The evidence that defendant inflicted the requisite injury on

Amanda, his girlfriend and the mother of his child, was

overwhelming. In combination, Amanda’s testimony, the

photographs which graphically depict the results of the

beatings, the 911 call, Officer Pucciarelli’s testimony, and

the admissions made by defendant in the jail calls, establish

that any assumed error in giving former CALJIC No. 2.50.02

was harmless beyond a reasonable doubt.

45

Defendant was convicted in count 4 of dissuading a

witness from reporting a crime (§ 136.1, subd. (b)(1)). The

recorded jail calls are replete with defendant’s threatening,

pleading, and cajoling statements in which he tried

desperately to convince Amanda not to attend court or

testify. Defendant did not suffer prejudice from former

CALJIC No. 2.50.02 in connection with count 4.

Finally, in count 7 defendant was convicted of violation

of a domestic violence restraining order (§ 273.6, subd. (a)).

The existence of the restraining order is not disputed. The

overwhelming testimony outlined above demonstrates

defendant violated the restraining order by being in contact

with Amanda and inflicting injuries upon her. Nothing in

former CALJIC No. 2.50.02 affects the jury’s verdict in count

7. No prejudice exists.

Admission of Prior Domestic Violence and Phone

Sex Evidence

Defendant argues the trial court abused its discretion

under Evidence Code section 352 in overruling his objection

to prior acts of domestic violence between himself and

Amanda, and in refusing to redact portions of his recorded

calls from jail relating to phone sex.

“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

46

jury.” (Evid. Code, § 352.) We review a trial court’s ruling to

exclude evidence under Evidence Code section 352 for abuse

of discretion. (People v. Fuiava (2012) 53 Cal.4th 622, 663

(Fuiava); People v. Hamilton (2009) 45 Cal.4th 863, 929–

930.) A court abuses its discretion with a ruling that falls

beyond the bounds of reason, or where the ruling is

arbitrary, capricious, or patently absurd. (Fuiava, supra, at

p. 663; People v. Carrington (2009) 47 Cal.4th 145, 195;

People v. Osband (1996) 13 Cal.4th 622, 666.)

We see no abuse of discretion in the trial court’s

rulings. The nature of the relationship between defendant

and Amanda was relevant to the charges in the case. The

allegations of violation of the restraining order and

dissuading a witness were closely related to defendant’s

prior acts of domestic violence. Trial of the domestic violence

charge involved consideration of defendant’s drug usage,

which was connected to his prior violent acts, and which

defendant relied upon in arguing that he lacked the

necessary specific intent on several of the charges.

Amanda’s credibility was attacked by the defense, and

corroboration of her testimony with defendant’s prior violent

conduct tended to bolster her credibility. The violent

relationship between defendant and Amanda, typical of

many domestic violence cases, was relevant to the jury’s

understanding of Amanda’s attitude toward the action and

her feelings for defendant. Defendant’s prior violence also

assisted the jury in understanding the context of the

statements made in the recorded jail calls.

47

The trial court could reasonably conclude that the

evidence of the prior acts of violence by defendant—

including the 2013 incident in which Amanda suffered a split

lip—was not so prejudicial as to be substantially outweighed

by its probative value. The prior conduct was benign in

comparison to what was depicted in the photographs of

Amanda’s injuries in the current case.

Defendant’s brief, both in the statement of facts and

the argument, fails to set forth the actual content of what he

considers inadmissible “phone sex” in one of the recorded jail

calls. This alone is a sufficient basis to reject the contention.

In any event, defendant’s brief concedes the phone sex “had

‘very little effect on the issues.’” And although defendant

concludes that the evidence “could have only created undue

prejudice” against him, he fails to explain how this trivial

portion of the evidence affected the outcome of the trial. We

conclude there was no abuse of discretion, nor has defendant

carried his burden of establishing prejudice. (Cal. Const.,

art. VI, § 13; People v. Watson (1956) 46 Cal.2d 818, 836.)

Cumulative Error

Defendant argues that the cumulative effect of the

errors relating to the instructions and introduction of

evidence requires reversal. “We have rejected his claim of

errors or, if error, of individual prejudice, and therefore he

could not have suffered cumulative prejudice.” (People v.

Tully (2012) 54 Cal.4th 952, 1020.)

48

Unanimity Instruction on the Witness Intimidation

Count

Defendant argues the dissuading a witness charge in

count 4 was based on more than one act—his conduct on the

date of the charged offenses, and his statements in the

recorded jail phone calls. The trial court did not initially

give the unanimity instruction (CALJIC No. 17.01) on the

charge, although it was given as to other counts. Defendant

contends the failure to give CALJIC No. 17.01 was reversible

error.

Defendant is correct that the trial court did not

initially instruct the jury on the requirement of unanimity

with CALJIC No. 17.01 as to count 4, although the

instruction was given as to counts 3 and 7.13 During

deliberations, the jury sent a written question to the trial

court, asking if count 4 addressed the “prison phone calls” or

13 The court instructed the jury with CALJIC No. 17.01

as follows: “The defendant is accused of having committed

the crime of 273.5 in Count[s] 3 & 7. The prosecution has

introduced evidence for the purpose of showing that there is

more than one act or omission upon which a conviction on

Count[s] 3 & 7 may be based. Defendant may be found

guilty if the proof shows beyond a reasonable doubt that he []

committed any one or more of the acts or omissions.

However, in order to return a verdict of guilty to Count[s] 3

& 7, all jurors must agree that he [] committed the same act

or omission or acts or omissions. It is not necessary that the

particular act or omission agreed upon be stated in your

verdict.”

49

also the incident on June 20. The court answered the jury’s

question with the following response: “both but you all must

agree which (or both) to find defendant guilty.” A minute

order reflects that counsel were notified telephonically of the

question and they “approve[d] the response.”

We reject the claim that the court’s failure to repeat

CALJIC No. 17.01 in its entirety as to count 4 was reversible

error. First, the issue is forfeited, as the record reflects there

was no objection to the court’s response, and in fact, counsel

approved the court’s answer. (See People v. Dykes (2009) 46

Cal.4th 731, 798 [defense counsel approved court’s response

to jury question]; People v. Hughes (2002) 27 Cal.4th 287,

402 [counsel’s agreement with the court’s response forfeits

the issue on appeal].) Second, the trial court’s response to a

jury question is reviewed for abuse of discretion. (People v.

Waidla (2000) 22 Cal.4th 690, 745–746.) Here, the jury had

already received the unanimity instruction as to other

counts, and nothing required the court to reread it in its

entirety as to count 4. The court’s answer was correct—the

jury was required to unanimously agree that defendant was

guilty of dissuading a witness either during the charged acts

on June 20, during the jail phone calls, or both. There was

no error.

50

DISPOSITION

The judgment is affirmed.

KRIEGLER, Acting P.J.

I concur:

LANDIN, J.∗

∗ Judge of the Los Angeles Superior Court, assigned by

the Chief Justice pursuant to article VI, section 6 of the

California Constitution.

51

The People v. Danny Garcia

B270574

BAKER, J., Dissenting

Justice Corrigan warned there would be cases like this.

In a case of recent vintage, People v. Villatoro (2012) 54

Cal.4th 1152 (Villatoro), a majority of our Supreme Court

held a trial court properly instructed jurors they could

consider evidence a defendant committed one or more

charged sex crimes as evidence the defendant was

predisposed to commit additional charged sex crimes that

the prosecution was tasked with proving in the very same

criminal trial. (Id. at pp. 1164-1165.) Justice Corrigan

disagreed, explaining the court’s holding “sows the seeds for

confusion and unintended consequences.” (Id. at p. 1169

(conc. & dis. opn. of Corrigan, J.).) Justice Corrigan

specifically cautioned that confusion was inevitable if jurors

were told they should use the preponderance of the evidence

standard to decide whether a defendant committed one or

more charged crimes, so as to infer he or she had a

propensity to commit other similar charged crimes, but

simultaneously told to somehow evaluate whether the

defendant was guilty of all the charged crimes by using the

constitutionally required beyond a reasonable doubt

standard of proof. (Id. at p. 1181 (conc. & dis. opn. of

Corrigan, J.) [“If the same preponderance standard is

applied to charged offenses, . . . there is a serious risk of

confusion. Requiring the jury to apply two standards of

proof to evidence of the same crime would inevitably lead to

confusion and could potentially erode the presumption of

innocence”].)

The jurors in this case were told precisely what Justice

Corrigan foresaw as inevitably confusing. And that is not

all. The trial court gave a propensity instruction at the

prosecution’s behest even though the charges and evidence

in this case were nowhere near as amenable to a propensity

inference as the charges and evidence in Villatoro. The

ultimate consequence was a hopelessly circular jury

instruction, along with an erosion of the presumption of

innocence and the beyond a reasonable doubt standard of

proof.

The majority nevertheless affirms the judgment of

conviction. To arrive at that result, the majority expressly

disagrees with a recent Court of Appeal decision that—

correctly, in my view—holds a propensity instruction of the

type given in this case asks far too much of lay jurors and,

for practical purposes, lowers the standard of proof to

determine guilt in a criminal trial. (People v. Cruz (2016) 2

Cal.App.5th 1178, 1186 (Cruz).) The majority also does not

account for another Court of Appeal decision that helps to

highlight the problems with the trial court’s propensity

instruction when considering the evidence in this case—

2

particularly, the dissimilar nature of the various charges

and the jumbled chronology of the victim’s testimony.

(People v. Nicolas (2017) 8 Cal.App.5th 1165 (Nicolas).) And

furthermore, the majority mistakenly invokes a 30-year-old

United States Supreme Court case to cast aside our Supreme

Court’s direction just five years ago that “[a]n instruction

that effectively lowers the prosecution’s burden of proving

guilt beyond a reasonable doubt is structural error” that is

not subject to review for harmlessness. (People v. Aranda

(2012) 55 Cal.4th 342, 365 (Aranda).) For my part, I believe

reversal is required, and I write separately to further

explain these three areas of disagreement.

I

Evidence of a person’s character, i.e., evidence that a

person is predisposed to act in a certain way, is generally

inadmissible to prove the person acted in conformity with

that character trait on a given occasion. (Evid. Code, § 1101,

subd. (a); Villatoro, supra, 54 Cal.4th at p. 1159.) Evidence

Code section 1109, however, is one of the few exceptions the

Legislature has made to the general ban on character

evidence. The statute provides that “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

[Evidence Code] Section 1101 if the evidence is not

inadmissible pursuant to [Evidence Code] Section 352.”

(Evid. Code, § 1109, subd. (a)(1).) In other words, “evidence

3

of a prior act of domestic violence is admissible to prove the

defendant had a propensity to commit domestic violence

when the defendant is charged with an offense involving

domestic violence. The trial court has discretion to exclude

the evidence if its probative value is outweighed by a danger

of undue prejudice or confusing the jury, or would result in

an undue consumption of time.” (People v. Rucker (2005) 126

Cal.App.4th 1107, 1114.)

Prior to 2012, California criminal cases that confronted

questions concerning the admission of propensity evidence

most often involved evidence of other uncharged acts by a

defendant, meaning acts that did not serve as the basis for

the criminal charges in the prosecution at issue. (See, e.g.,

People v. Reliford (2003) 29 Cal.4th 1007, 1013-1014

(Reliford); People v. Anderson (2012) 207 Cal.App.4th 1440,

1484-1485 (Anderson); People v. Reyes (2008) 160

Cal.App.4th 246, 250-253 (Reyes); see also Villatoro, supra,

54 Cal.4th at p. 1160.) Many of these cases, like the Reliford

and Anderson cases, were decided under Evidence Code

section 1108, which permits introduction of propensity

evidence in sex offense prosecutions in the same way

Evidence Code section 1109 does in domestic violence

prosecutions.

The rule these cases settled on is that the prosecution

need only prove the defendant committed other uncharged

acts by a preponderance of the evidence to permit the jury to

consider those uncharged acts when deciding whether the

defendant had been proven guilty of the charged offenses

4

beyond a reasonable doubt. (See, e.g., Reliford, supra, 29

Cal.4th at p. 1016 [rejecting argument that the

preponderance standard for other uncharged acts lowered

the prosecution’s burden of proof as to the charged crimes

because “jurors can grasp their duty—as stated in the

instructions—to apply the preponderance-of-the-evidence

standard to the preliminary fact identified in the instruction

and to apply the reasonable-doubt standard for all other

determinations”]; Anderson, supra, 207 Cal.App.4th at

p. 1484 [noting the United States Supreme Court has

adopted the preponderance standard for proof of uncharged

bad acts]; Reyes, supra, 160 Cal.App.4th at pp. 250, 253

[rejecting argument that instruction on use of uncharged

acts of domestic violence impermissibly lowered the

prosecution’s burden to prove the charged offenses].)

In 2012, however, our Supreme Court decided

Villatoro, supra, 54 Cal.4th 1152. The question presented in

that case was whether Evidence Code section 1108 permits

juries to consider not only uncharged sexual offenses as

evidence of guilt, but whether juries may also “consider the

defendant’s charged sexual offenses as evidence of his

propensity to commit the other charged sexual offenses.”

(Id. at p. 1156.) Specifically, the defendant was charged

with raping five women on separate occasions between 2005

and 2008, and the question was whether the trial court

appropriately instructed the jury that it could “use evidence

of [the] defendant’s guilt of [any] one of the charged sexual

5

offenses as evidence of his propensity to commit the other

charged sexual offenses.” (Id. at pp. 1156, 1158.)

The Villatoro court held Evidence Code section 1108

does authorize juries to “draw an inference of propensity

from other charged offenses” and the trial judge properly

instructed the jury it could do just that. (Villatoro, supra, 54

Cal.4th at pp. 1164-1166, 1168; Cruz, supra, 2 Cal.App.5th

at p. 1185 [“[O]ur Supreme Court held that it . . . allows

evidence of sexual offenses charged in the current

prosecution to be used to show a propensity to commit other

charged offenses in the same case”].) But key to the Court’s

holding in Villatoro was the specific wording of the jury

instruction given by the trial judge in that case. 14 The

14 The instruction provided: “‘The People presented

evidence that the defendant committed the crime of rape as

alleged in counts 2, 4, 7, 9, 12 and 15 and the crime of

sodomy as alleged in count 14. These crimes are defined for

you in the instructions for these crimes. [¶] If you decide

that the defendant committed one of these charged offenses,

you may, but are not required to, conclude from that

evidence that the defendant was disposed or inclined to

commit the other charged crimes of rape or sodomy, and

based on that decision also conclude that the defendant was

likely to and did commit the other offenses of rape and

sodomy charged. If you conclude that the defendant

committed a charged offense, that conclusion is only one

factor to consider along with all the other evidence. It is not

6

instruction informed the jury “all offenses must be proven

beyond a reasonable doubt, even those used to draw an

inference of propensity,” such that there was “no risk the

jury would apply an impermissibly low standard of proof.”

(Villatoro, supra, at pp. 1167-1168.)

In response to the Villatoro decision, the CALJIC

committee revised its pattern instruction numbers 2.50.01

and 2.50.02, which concern the admission of propensity

evidence under sections 1108 and 1109, respectively. Before

Villatoro, both instructions made reference only to the

potential to use uncharged acts as propensity evidence;

shortly after Villatoro, language was included in each of the

instructions in an attempt (unsuccessful, in my view) to

marry the standard for consideration of uncharged other acts

and Villatoro’s holding permitting consideration of other

charged crimes. (CALJIC Nos. 2.50.01, 2.50.02 (Spring 2013

ed.) [citing Villatoro in the comment to the pattern

instructions].)

The trial court in this case instructed the jury with

CALJIC No. 2.50.02 as it existed at the time (it has recently

been revised again in light of Cruz, as noted by the majority

sufficient by itself to prove the defendant is guilty of another

charged offense. The People must still prove each element of

every charge beyond a reasonable doubt and prove it beyond

a reasonable doubt before you may consider one charge as

proof of another charge.’” (Villatoro, supra, 54 Cal.4th at

p. 1167.)

7

and post). This was the instruction given to the jury, with

emphasis on the portions that are relevant to the issues

presented in this appeal:

“In determining whether defendant has been

proved guilty of the any [sic] crime of domestic

violence of which he she [sic] is charged, you

should consider all relevant evidence, including

whether defendant committed any other domestic

violence crimes, whether charged or uncharged,

about which evidence has been received. The

crimes charged in Counts 1–8, may be considered

by you in that regard.

“‘Domestic violence’ means abuse committed

against an adult or a fully emancipated minor

who is a spouse, former spouse, cohabitant,

former cohabitant, or person with whom the

defendant has had a child or is having or has had

a dating or engagement relationship.

[¶] . . . [¶]

“‘Abuse’ means 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.

8

“If you find by a preponderance of the

evidence that the defendant committed any such

offense involving domestic violence, you may, but

are not required to, infer that the defendant had a

disposition to commit another other [sic] offenses

involving domestic violence. If you find that the

defendant had this disposition, you may, but are

not required to, infer that he she [sic] was likely to

commit and did commit the crime or crimes of

which he she [sic] is accused.

“However, even though you find by a

preponderance of the evidence that the defendant

committed a prior crime or crimes involving

domestic violence, that is not sufficient by itself to

prove beyond a reasonable doubt that

he . . . committed the offenses you are determining.

If you determine an inference properly can be

drawn from this evidence, this inference is simply

one item for you to consider, along with all other

evidence, in determining whether the defendant

has been proved guilty beyond a reasonable doubt

of the charged crime that you are determining.”

Thus, as worded, the first paragraph instructed the

jury that all of the crimes charged against defendant were

“domestic violence crimes.” That is because the instruction

defined “other domestic violence crimes, whether charged or

9

uncharged” to include each and every count of the

information against defendant. Of course, this meant the

instruction would permit the jury to use its findings on any

individual count (e.g., dissuading a witness) as reason to

convict defendant on any of the other counts (e.g., disobeying

a domestic relations court order). The fourth paragraph of

the instruction, as quoted above, explained the conditions

under which the jury could do this. That is, paragraph four

told the jury it could rely on its findings on one or more of

the counts to influence its verdict on other counts (i.e., it

could conclude defendant “was likely to commit and did

commit” the charged crimes) if it found one or more of the

counts proven by a preponderance of the evidence and used

that finding to infer defendant had a disposition to commit

the other offenses. At the same time, the final paragraph of

the instruction cautioned the jury that if it found by a

preponderance of the evidence that defendant committed “a

prior crime or crimes involving domestic violence,” that

would not be sufficient by itself to prove beyond a reasonable

doubt that defendant “committed the offenses you are

determining.”

The Cruz decision holds that giving this sort of

instruction is error. In Cruz, supra, 2 Cal.App.5th 1178, the

defendant was charged with three counts of committing a

lewd act against a child under age 14. (Id. at pp. 1180-1181.)

The trial judge instructed the jury with the CALJIC-modeled

sex crimes propensity instruction that is in all material

respects identical to the domestic violence propensity

10

instruction in this case. (Id. at pp. 1183-1184 [reciting the

instruction given].)

Unlike the jury instruction given by the trial judge in

Villatoro (but like the instruction here), the instruction in

Cruz stated “the preponderance [of the evidence] standard

applied to the determination of whether Cruz committed

charged and uncharged offenses for the purpose of deciding

whether he had a propensity to commit sexual offenses.”

(Cruz, supra, 2 Cal.App.5th at p. 1185.) As Cruz explains,

this was problematic: “In effect, the instruction . . . told the

jury it should first consider whether the offenses charged in

counts 1, 2, and 3 had been established by a preponderance

of the evidence, while holding its ultimate decision on the

same offenses in suspension. Then the jury was required to

decide whether the preponderance finding showed a

propensity, and whether this propensity, in combination

with the other evidence, proved those offenses a second time,

this time beyond a reasonable doubt. [¶] We conclude the

court was incorrect to instruct the jury in this way. Villatoro

did not expressly hold that currently charged offenses must

be proved beyond a reasonable doubt before they can be used

to show a propensity under Evidence Code section 1108, but

it strongly implied that rule. . . . [¶] A robot or a computer

program could be imagined capable of finding charged

offenses true by a preponderance of the evidence, and then

finding that this meant the defendant had a propensity to

commit such offenses, while still saving for later a decision

about whether, in light of all the evidence, the same offenses

11

have been proven beyond a reasonable doubt. A very

fastidious lawyer or judge might even be able to do it. But it

is not reasonable to expect it of lay jurors. We believe that,

for practical purposes, the instruction lowered the standard

of proof for the determination of guilt.” (Id. at pp. 1185-

1186.)

The Cruz analysis, which largely parallels Justice

Corrigan’s earlier observation in Villatoro, should control

here.15 As in Cruz, the instruction the trial court gave told

15 Perhaps the most revealing sentence in the majority’s

opinion is this: “Echoing Justice Corrigan’s dissent in

Villatoro, our dissenting colleague essentially argues Cruz

was correctly decided and Villatoro was not.” (Maj. Opn. at

p. 25.) That misses the point entirely. Justice Corrigan’s

opinion is significant here not because of the points on which

it disagreed with the holding of Villatoro, but because it

understood Villatoro “sow[ed] the seeds for confusion” in

future cases if a jury received a propensity instruction

concerning charged offenses that did not incorporate the

beyond a reasonable doubt language that saved the

instruction in Villatoro and instead incorporated

preponderance of the evidence language used for other

uncharged acts. (Villatoro, supra, 54 Cal.4th at pp. 1169,

1181 (conc. & dis. opn. of Corrigan, J.).) The majority

opinion does not recognize the distinction and, indeed, is

founded on the notion that a charged offense is no different

from an uncharged offense for purposes of crafting a

12

the jury it should first consider whether all the charged

offenses had been established by a preponderance of the

evidence, then decide whether that preponderance finding

demonstrated a propensity, and then consider whether this

propensity, in combination with the other evidence, proved

the same offenses again beyond a reasonable doubt. That

“presented the jury with a nearly impossible task of juggling

competing standards of proof during different phases of its

consideration of the same evidence” and “the ultimate effect

[was] to lower the prosecution’s burden of proving guilt

beyond a reasonable doubt.” (Cruz, supra, 2 Cal.App.5th at

p. 1187.)

II

Even putting aside the problem with the propensity

instruction given as illuminated by Cruz, the instruction

suffers from an additional weakness—one that appears

when focusing on the evidence and charges in this case as

contrasted with the evidence and charges at issue in other

cases where a propensity instruction was given.

propensity instruction. As the Cruz court understood,

however, the distinction makes all the difference. Use of

charged offenses to show propensity is what can introduce

(absent the features of the instruction in Villatoro)

confusing, competing standards of proof that effectively

lower the prosecution’s burden to prove guilt.

13

In Villatoro, our Supreme Court approved the use of a

propensity instruction in a case where there were five

alleged rapes, of five different victims, at five different times.

(Villatoro, supra, 54 Cal.4th at pp. 1156-1158.) In Cruz, the

trial judge gave a propensity instruction (albeit a defective

one, for reasons already recounted) in a case where there

were three child sex offenses involving separate conduct,

against separate victims, on separate dates. (Cruz, supra, 2

Cal.App.5th at pp. 1181-1182.) Here, however, the offenses

charged against defendant were not predicated on acts that

are fully distinct, both factually and temporally.

The eight crimes charged against defendant were

considered crimes of domestic violence, and were included in

the trial court’s propensity instruction, based on what was

essentially a continuous course of conduct by defendant as

described by victim Amanda during her trial testimony. The

problem, however, is that Amanda’s testimony (even if

believed in its entirety) concerned alleged criminal acts that

occurred over the course of mere hours within a single day,

and her recounting of the alleged criminal acts was

chronologically jumbled to the point that the order in which

defendant committed the acts alleged was unclear. The

Attorney General forthrightly acknowledges the problem,

conceding that “Amanda was unable to remember the exact

order of the incidents [that served as the basis for the

charged crimes] because they occurred on the same day and

[defendant] went back and forth to her apartment.” Indeed,

the manner in which Amanda testified at trial compels the

14

Attorney General to disclaim that his attempt to even recite

the facts of this case is “based on what appears to be the

most accurate order based upon Amanda’s disjointed

testimony.”

The logical principle that permits admission of

propensity evidence—encapsulated in the text of Evidence

Code section 1109 itself—is that a jury may draw an

inference a defendant is prone to commit a charged crime

from other incidents of a sufficiently similar nature. (Evid.

Code, § 1109, subd. (a)(1) [“[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 . . .”].)

Considering Amanda’s testimony in this case, there really

was no “other” domestic violence.16 Unlike Villatoro where

there were five discrete rapes such that a jury could

conclude, for instance, that the defendant had a propensity

16 In fact, because the jury had no reliable basis to

determine in which order the alleged criminal acts by

defendant occurred, the jury could not possibly have followed

the propensity instruction’s admonition that a finding “by a

preponderance of the evidence that the defendant committed

a prior crime or crimes involving domestic violence . . . is not

sufficient by itself to prove beyond a reasonable doubt that

he . . . committed the offenses you are determining.” The

jury had no way to determine which of the crimes were

“prior.”

15

to commit a charged rape against victim N.G. in June 2006

because he raped another victim R.I. in May 2005 (Villatoro,

supra, 54 Cal.4th at pp. 1156-1157), the jury in this case had

no reliable basis to distinguish among the alleged criminal

acts and instead was left with an inseparable tangle. Giving

a propensity instruction under these circumstances

permitted the jury to draw what, in effect, were self-

reinforcing, circular inferences—allowing the jury to infer,

for instance, that defendant was prone to disobeying a court

order and beating Amanda based on the same evidence the

jury would have to use to conclude he disobeyed a court

order and beat her.

That is not the only problem on the specific facts of this

case. Again unlike Villatoro, and even Cruz, the eight

charges against defendant are not all similar in a way that

the sex offenses in those cases very much were. (Villatoro,

supra, 54 Cal.4th at p. 1158 [five counts of rape]; Cruz,

supra, 2 Cal.App.5th at p. 1180 [three counts of committing

a lewd act against a child].) Under the statutory definition

of “domestic violence” (Evid. Code, § 1109, subd. (d)(3)), or at

least the trial court’s broad application of that definition, the

propensity instruction in this case swept so broadly as to

include every charge against defendant within its ambit—

from burglary to injuring a cohabitant, robbery to disobeying

a domestic relations court order.

While there is good reason to believe that a defendant

who commits sex crimes or core domestic violence offenses

may be disposed to commit similar crimes, that good reason

16

is absent when some of the charges are as disparate as they

are here. Only on the most aggressive application of

propensity principles would a factfinder be justified in

concluding that defendant’s commission of a burglary, for

instance, makes him particularly prone to dissuading a

witness. That sort of aggressive application, however, is

exactly what the trial court’s propensity instruction

permitted despite being inconsistent with the public policy

and fundamental fairness reasons why courts have long

recognized the danger of permitting juries to consider

propensity evidence. (See People v. Falsetta (1999) 21

Cal.4th 903, 913 [observing that the rule excluding criminal

propensity evidence is nearly three centuries old].) The

instruction at issue permitted the jury to use the

prosecution’s decision to charge defendant with multiple

crimes to infer defendant had a propensity to commit crimes

generally, and to use that sort of inference for all seasons

when deciding whether to find him guilty.

The Nicolas case, while not factually similar in all

respects, helps to highlight these fact-specific problems with

the trial court’s propensity instruction. In Nicolas, the trial

court gave the jury a propensity instruction that permitted

using uncharged acts (sending text messages before a car

collision resulting in death) to infer propensity if proven by a

preponderance of the evidence, even though the text

messages “‘were a continuous back-and-forth conversation

leading up to [the] time of the collision . . . [and] were an

indivisible part of the offense itself.’” (Nicolas, supra, 8

17

Cal.App.5th at p. 1178.) Analogously, the course of conduct

defendant engaged in, as described by Amanda, was such

that the evidence at trial constituted an indistinguishable

whole supporting all the charges, many of which bore little

elemental similarity. The consequence was an unwieldy and

erroneous jury instruction that, as in Nicolas, undercut the

burden of proof and the presumption of innocence on each of

the charged offenses. (Id. at pp. 1181-1182.)

III

Hedging its bets, the majority opinion holds that even

if it was error to give the propensity instruction at issue, the

error was harmless. I believe I must take our Supreme

Court at its word, and that means I must conclude the

instructional error here is not amenable to harmlessness

review and is instead reversible per se.

Our Supreme Court in Aranda articulated the

pertinent rule as follows: “An instruction that effectively

lowers the prosecution’s burden of proving guilt beyond a

reasonable doubt is structural error” and reversible per se. 17

(Aranda, supra, 55 Cal.4th at p. 365.) The courts in Cruz

and Nicolas had no difficulty applying this rule to conclude

17Our Supreme Court’s use of the word “effectively”

indicates the rule applies beyond those circumstances in

which a trial court gives a defective reasonable doubt

instruction (see, e.g., Sullivan v. Louisiana (1993) 508 U.S.

275).

18

the errors there—like the error here, in my view—required

reversal without any effort to attempt an analysis of

prejudice. (Nicolas, supra, 8 Cal.App.5th at pp. 1181-1182

[“Here, the trial court gave what the Attorney General

concedes was an erroneous and unnecessary jury instruction.

. . . [¶] [U]nder the rule announced by our Supreme Court in

Aranda . . . and appropriately applied by the Court of Appeal

in Cruz . . . , we find that the trial court’s erroneous jury

instruction concerning ‘uncharged offenses’ constitutes

structural error and is reversible per se”]; Cruz, supra, 2

Cal.App.5th at p. 1187.)

There is no basis to disregard the unqualified language

of Aranda by resort to a case that had long been on the books

when Aranda was decided: Rose v. Clark (1986) 478 U.S. 570

(Rose). As an initial matter, I doubt that Rose is

“instructive.” Rose holds that a jury instruction that

misallocates the burden of proof as to a single element of a

charged crime can be amenable to harmlessness review (id.

at pp. 579-580), but that is of course different from an

instructional error that effectively lowers the burden of proof

entirely. (Aranda, supra, 55 Cal.4th at p. 365 [citing

Hedgpeth v. Pulido (2008) 555 U.S. 57 for the proposition

that harmless-error analysis applies to instructional errors

so long as the error does not categorically vitiate all the

jury’s findings].) In that circumstance, which is the case

here, reliably assessing whether the jury would have

properly found defendant guilty on the proof presented is

prohibitively difficult, and a harmlessness inquiry runs the

19

risk of degenerating into a usurpation of the role of a jury in

a criminal trial. 18 (See Kotteakos v. United States (1946) 328

U.S. 750, 763 [“[I]t is not the appellate court’s function to

determine guilt or innocence. . . . Nor is it to speculate upon

probable reconviction and decide according to how the

speculation comes out”].) But my doubts aside, there is no

direct conflict between Rose and Aranda, and settled stare

decisis principles require this court to follow Aranda and

leave to our Supreme Court the task of announcing it

overlooked the implications of Rose when writing Aranda, if

that is in fact what occurred. (See People v. Superior Court

(Williams) (1992) 8 Cal.App.4th 688, 702-703 [“‘[W]e are . . .

bound by [decisions of] the California Supreme Court . . .

18 For example, it is immaterial that “the jurors were

told seven times that the burden of proof was on the

prosecution to prove guilt beyond a reasonable doubt . . . .”

(Maj. Opn. at p. 2.) While a court may properly conclude

that a jury is likely to have followed a more specific

instruction over a more general instruction, a court can only

guess what burden of proof a jury applied simply by counting

the number of references in a jury instruction packet and

concluding the jury probably was swayed by those that are

more numerous. When an error seriously threatens the

beyond a reasonable doubt standard that is fundamental to

the fairness of criminal trials, reviewing courts should

require parties and trial courts to get it exactly right, not

mostly right.

20

unless the United States Supreme Court has decided the

question differently’”], emphasis added.)

IV

Fortunately, the impact of today’s decision is limited.

As the majority recognizes, both the CALCRIM and CALJIC

committees have revised their pattern jury instructions

concerning the use of charged offenses to prove propensity. I

submit that even those who are inclined to agree with the

views espoused by the majority would see these clarifying

revisions as a step in the right direction. The recent

revisions also largely if not entirely eliminate the issue of

statewide importance this case would otherwise present.

Nevertheless, the impact on this defendant remains, and I

respectfully dissent from the affirmance of the judgment. As

the revised pattern instructions help illustrate, the confusion

generated by the earlier version of the propensity instruction

at issue in this case was “entirely avoidable” (Villatoro,

supra, 54 Cal.4th at p. 1181 (conc. & dis. opn. of Corrigan,

J.)), and I see no reason to hold this instruction up as a

model to which prosecutors and trial courts should aspire.

BAKER, J.

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