Filed 1/29/14 P. v. Duenas CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                    (San Joaquin)
                                                            ----




THE PEOPLE,                                                                                  C071883

                   Plaintiff and Respondent,                                    (Super. Ct. No. SF109960A)

         v.

GERARDO DUENAS,

                   Defendant and Appellant.




         A jury found defendant Gerardo Duenas guilty of corporal injury upon a child and
felony child abuse of his three-year-old daughter, B. In a trial to the court, defendant was
found to have two prior strike convictions. Defendant was sentenced to concurrent terms
of 25 years to life on each count.1




1       Defendant was subsequently resentenced pursuant to Penal Code section 1170.126
to a term of 14 years eight months.

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       On appeal, defendant contends the trial court prejudicially erred by: (1) admitting
evidence of two uncharged acts of domestic violence by him against his wife, I.; and
(2) admitting expert testimony regarding victim abuse. We reject both contentions.
                                STATEMENT OF FACTS
       Defendant married 16-year-old I. in 1999 and they divorced in 2009. During the
marriage they had five children, one of whom was B., who was born in 2004.2
According to I., defendant “hated” B. from the time of her birth. He struck her daily with
a belt, pinched her, would not let their other children play with her, would leave her in a
closet without food, and would make her face the wall when she displeased him.
                                     Charged Offenses
       In October 200,7 I. left home to go to a laundromat. At that time, B. was standing
facing the wall in the living room. When I. returned home she found B. standing naked
in a washroom tub, shaking and clinching her hands while defendant poured cold water
over her. B.’s lower back and “rib area” were covered with bruises and red marks. I.
asked defendant what he was doing and defendant said, “ ‘She just didn’t want to eat her
food.’ ”
       On October 13, 2007, the day after I. gave birth to her youngest son, she returned
home from the hospital and saw that B. had a “slash” or “gash” on her head. Fearful that
defendant would kill B., I. packed B.’s clothes and medical records and took her to I.’s
mother’s home for safe keeping. I. then returned to her home, gathered the rest of her
children and moved into a trailer with her father. When relatives of I. saw the bruises and
welts on B. they reported the matter to the police.
       On October 28, 2007, Officer Beverly Young conducted a welfare check on B.
“head to toe.” B. “had bruising pretty much from the top of her body to the bottom. She




2      In 2007, I. learned that defendant was not the father of her youngest child.

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had bruising on her face, her chest, back, bottom, arms and legs. She had some bald
patches on her head, and a cut on her head. She had a lump above her right eye, and
some swelling below the eye, in the face. [¶] She had a very large bruise on the right
side of her body on her rib cage that also had some abrasions around it. . . . Some of them
scabbed and some of them just red.”
                                   Uncharged Offenses
       On May 23, 2006, I. and defendant got into an argument regarding her cheating on
him. Defendant began hitting her and she called the police, but may have hung up on
them. Nevertheless, officers showed up at the residence and, over defendant’s
protestations, entered and questioned I. I. signed a police report prepared by one of the
officers, but she never went to court because defendant threatened to leave the country
and she would be without financial support.
       In December 2006, I. and defendant again got into an argument about her cheating
on him. The argument became physical when I. caused defendant’s laptop to fall to the
floor. Defendant began kicking and choking her. She tried to call her mother on the cell
phone, but defendant took it from her and broke it. Officers arrived, but I. was
uncooperative because defendant threatened to go to Mexico and not support her or the
children if he got sent to jail.
                            Expert Testimony On Domestic Abuse
       Melinda Shrock, a marriage and family therapist, testified regarding several means
by which domestic male abusers gain control of household members and prevent them
from reporting physical abuse. Specifically, the abusers may gain control by intimidation
(looks, abuse of pets, displaying weapons); emotional abuse (name calling, putting the
female down); isolation (controlling where the female goes and who she talks to); use of
children (threatening to take the children away from her); economic abuse (controlling
money); and threatening physical abuse or actually using physical abuse.



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                                      DISCUSSION
                                             I
                               Uncharged Acts Testimony
       Defendant contends the trial court prejudicially erred by admitting evidence of two
uncharged acts of domestic violence committed by him against his wife.3 The court did
not err.



3      Over defendant’s objection, the trial court instructed the jury (pursuant to
CALCRIM No. 852) regarding the jury’s use of evidence of uncharged domestic violence
by the defendant. As instructed, CALCRIM No. 852 provides: “The People presented
evidence that the defendant committed domestic violence that was not charged in this
case, specifically: Acts committed on May 23, 2006, and December 28, 2006.

      “Domestic violence means abuse committed against an adult who is a spouse, or
person with whom the defendant has had a child.

        “Abuse means intentionally or recklessly causing or attempting to cause bodily
injury, or placing another person in reasonable fear of imminent serious bodily injury to
himself or herself or to someone else.

       “You may consider this evidence only if the People have proved by a
preponderance of the evidence that the defendant in fact committed the uncharged
domestic violence. Proof by a preponderance of the evidence is a different burden of
proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the
evidence if you conclude that it is more likely than not that the fact is true.

       “If the People have not met this burden of proof, you must disregard this evidence
entirely.

        “If you decide that the defendant committed the uncharged domestic violence, you
may, but are not required to, conclude from that evidence that the defendant was disposed
or inclined to commit domestic violence and, based on that decision, also conclude that
the defendant was likely to commit and did commit the charged offenses. If you
conclude that the defendant committed the uncharged domestic violence, that conclusion
is only one factor to consider along with all the other evidence. It is not sufficient by
itself to prove that the defendant is guilty of the charged offenses involving domestic
violence. The People must still prove each charge beyond a reasonable doubt.

       “Do not consider this evidence for any other purpose.”

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       In prosecutions for child abuse under Penal Code sections 273d, subdivision (a)
and 273a, subdivision (a), Evidence Code section 1109 makes admissible prior uncharged
acts of domestic violence by the defendant to establish his or her propensity for
committing such acts as long as the evidence is not inadmissible under Evidence Code
section 352. (People v. Dallas (2008) 165 Cal.App.4th 940, 942-943, 951-957.)
Evidence Code section 352 provides that: “The court in its discretion may exclude
evidence if its probative value is substantially outweighed by the probability that its
admission will . . . create substantial danger of undue prejudice, of confusing the issues,
or of misleading the jury.”
       Defendant argues that “admission of the uncharged acts . . . served merely to
confuse the issues and mislead the jury.” This is so, he claims, because “[t]he fact--if it
was a fact--that he hit his wife one year earlier because he discovered she had cheated on
him--does not logically tend to show that he committed the totally unrelated violent acts
upon his daughter. A person who strikes another adult during an argument about
infidelity does not harbor the same intent or motive [as] someone who strikes a three-
year-old child. The prosecution presented no evidence that a wife-beater is also a
childbeater.” Defendant’s argument is not persuasive.
       It is a defendant’s commission of prior acts of domestic violence that is
particularly probative in demonstrating whether he or she has a propensity to commit
such acts, including the one or ones charged, rather than a defendant’s intent or motive
for doing so. (People v. Cabrera (2007) 152 Cal.App.4th 695, 705-706; People v.
Jennings (2000) 81 Cal.App.4th 1301, 1318-1319.)
       Further, any potential danger that the jury would confuse or misuse the evidence
of the uncharged offenses was effectively eliminated by the trial court’s instruction
limiting the jury’s use of that evidence. Specifically, the court instructed the jury: “If
you decide that the defendant committed the uncharged domestic violence, you may, but
are not required to, conclude from that evidence that the defendant was disposed or

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inclined to commit domestic violence and, based on that decision, also conclude that the
defendant was likely to commit and did commit the charged offenses. If you conclude
that the defendant committed the uncharged domestic violence, that conclusion is only
one factor to consider along with all the other evidence. It is not sufficient by itself to
prove that the defendant is guilty of the charged offenses involving domestic violence.
The People must still prove each charge beyond a reasonable doubt. [¶] Do not consider
this evidence for any other purpose.”
       Consequently, we find no error by the trial court in admitting evidence of
defendant’s uncharged acts of domestic violence.
                                              II
                         Expert Testimony Regarding Victim Abuse
       Defendant contends the trial court prejudicially abused its discretion in admitting,
over his objection, testimony by Melinda Shrock regarding intimate partner battering and
the means used by male abusers to control their female victims. Defendant argues that
because Schrock “failed directly to offer expert testimony that an abused mother likely
would fail to report the abuse of her daughter” the net effect of Schrock’s testimony was
“to simply assassinate the character of [defendant], and make it likely the jury would
believe anything about him, including that he abused his child.” Again, we find no error
in admitting the challenged testimony.
       Evidence Code section 1107, subdivision (a) makes admissible in a criminal trial
expert testimony regarding intimate partner battering and its effects on the victim, but
makes such evidence inadmissible to prove the act or acts which form the basis for the
criminal charge. Subdivision (b) of section 1107 states that a foundation for admission of
the expert testimony is sufficient if its proponent establishes its relevancy and the
qualifications of the expert.
       I. testified that immediately after she and defendant were married he severely
limited her communication with her family because “[e]very body was a heathen to him”

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and the family was trying “to destroy us.” When asked if she ever tried to intervene
when defendant was hitting B. with a belt, I. explained that she tried to argue with
defendant but he would get “physical” with her and she “couldn’t defend [B.].” I. also
feared reporting defendant’s physical abuse because he threatened to leave the country,
go to Mexico, and she would have no one to support her.
       Shrock’s testimony was offered to show why I. stayed in the relationship with
defendant and did not report his abuse to law enforcement. In People v. Kovacich (2011)
201 Cal.App.4th 863, we determined that such expert testimony was relevant to explain
why victims of domestic violence may stay in a relationship with their abusers. (Id. at
pp. 901-902.) When Shrock was asked if there had been research on “misconceptions
that still exist about domestic violence,” she reported that there was a “myth” that if the
abuse “[w]asn’t reported [then] [i]ts probably not going on.” Since Shrock’s testimony
was relevant to show I.’s proffered reasons for not reporting the abuse and remaining
with defendant was not uncommon among victims of domestic abuse, the court did not
err in admitting Shrock’s testimony.
                                       DISPOSITION
       The judgment is affirmed.



                                                        ROBIE                  , Acting P. J.



We concur:



      BUTZ                  , J.



      MAURO                 , J.

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