Filed 10/27/15 P. v. Yarbrough CA2/4
               NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   SECOND APPELLATE DISTRICT

                                                DIVISION FOUR



THE PEOPLE,                                                          B259513
                                                                     (Los Angeles County
         Plaintiff and Respondent,                                   Super. Ct. No. PA073596)

         v.

EDWARD YARBROUGH,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of Los Angeles County,
Daniel B. Feldstern, Judge. Affirmed.
         Rachel Lederman, 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, James
William Bilderback and Jaime L. Fuster, Deputy Attorneys General, for Plaintiff
and Respondent.
      Appellant Edward Yarbrough challenges the constitutionality of Evidence
Code section 1109, which permits introduction of evidence of uncharged acts of
domestic violence to support a current charge of domestic violence, contending the
introduction of such evidence violated his right to due process under the state and
federal constitutions.1 He further challenges CALCRIM No. 852, which informs
the jury that the evidence of uncharged acts may be used to support an inference
that the defendant was disposed or inclined to commit the current offenses. We
conclude, in line with the many courts that have considered the same or similar
challenges, that section 1109 is constitutional and that CALCRIM No. 852
properly instructs the jury on the controlling principles that must guide it in its
consideration of evidence introduced under the provision. Accordingly, we affirm.


              FACTUAL AND PROCEDURAL BACKGROUND
      A. Information
      On May 8, 2014, appellant was charged by information with inflicting
corporal injury on a cohabitant on April 25, 2012 (count one, Pen. Code § 273.5,
subd. (a)); assault by means likely to produce great bodily injury that same date
(count two, Pen. Code, § 245, subd. (a)(4)); attempting in May and June 2012 to
dissuade a witness from testifying (count three, Pen. Code, § 136.1, subd. (a)(2));
failure to appear while on bail in August 2013 (count four, Pen. Code, § 1320.5);
injuring a cohabitant on February 11, 2014, after a prior conviction (count five,
Pen. Code, § 273.5, subd. (f)(1)); and inflicting corporal injury on a cohabitant on
October 10, 2013 (count six, Pen. Code, § 273.5, subd. (a)). The victim named in
counts one through three was Susan M. The victim named in counts five and six
was Patricia G.

1
      Undesignated statutory references are to the Evidence Code.

                                           2
       B. Evidence at Trial
              1. Susan M.
       Appellant was charged with assaulting and inflicting corporal injury on
Susan M. on April 25, 2012, and attempting to dissuade her from testifying a few
months later. Susan testified that in early 2011, she met appellant through a dating
Web site. He moved into her home within a couple of months. On the morning of
September 19, 2011, she asked him to leave, calling the sheriff’s department for
assistance when he refused to go. Appellant broke Susan’s cell phone, threw her
on a bed, grabbed her wrists above her head, and told her he was going to kill her.
Appellant eventually let her go, packed his things, asked Susan to take him to the
bus stop and then took her keys so he could drive. As they were approaching the
garage, Susan tried to get away. Appellant grabbed her, ripped her shirt, slammed
her to the ground and dragged her to the kitchen hallway, where they struggled and
she pleaded for her life. During the struggle, appellant pulled a chunk of hair from
her head. When appellant calmed down, Susan drove him to a bus station. Susan
did not immediately report the incident, first going to a stylist to attempt to fix her
hair and later going to pick up her sons from school. She called authorities later
that evening, after the boys had gone to sleep. A deputy came and took a report.
       Susan and appellant got back together six or seven weeks after the
September 2011 incident, and in February 2012, they both moved into a new
apartment. In March 2012, after accusing her of “messing with other guys,”
appellant kicked her and took her phone away.2



2
       Neither the September 2011 nor the March 2012 incidents was charged in the
information. As discussed in greater detail below, the evidence was admitted under
section 1109 as other acts of domestic violence relevant to the charged incidents in April
2012 and thereafter.

                                             3
      On April 24, 2012, appellant became angry after finding old photographs of
Susan with other men. He hit her multiple times, including once in the right eye,
causing profuse bleeding and extensive damage to her eye socket, and fracturing
her nose.3 Susan went to an emergency room for treatment and called law
enforcement officers to report the incident. The next day, appellant turned up at
Susan’s home and demanded to be let in. She called 911 and he left. Shortly
thereafter, she allowed him to move back in, planning to persuade him to stay in
her home until she could call authorities and have him arrested. She contacted
authorities and appellant was arrested on May 21, 2012.
      Appellant called Susan multiple times from jail. After she testified at the
preliminary hearing, appellant attempted to persuade her not to appear at trial.4


             2. Patricia G.
      Appellant was charged with inflicting injury on Patricia G. on October 10,
2013 and February 11, 2014. Patricia testified that in August 2013, she met
appellant through a dating Web site. Within a short period, he moved into her
home. He told Patricia he had hit other women in the past, and had been in jail for
domestic violence. On October 9, 2013, appellant accused Patricia of having an




3
      Susan eventually had extensive surgery to save her eye, but it remained damaged
two years after the incident.
4
       The preliminary hearing for the April 25, 2012 assault took place in June 2012,
and an information charging appellant with assaulting Susan was filed that same month.
In November 2012, appellant was released on bail. On August 13, 2013, appellant failed
to appear for trial. The court ordered bail forfeited and declared a mistrial. Appellant
was not located and arrested until April 8, 2014.

                                           4
affair and pulled her hair.5 The next day, she refused his request for money and he
punched her in the face. Patricia called authorities and appellant left for a time. In
January 2014, Patricia allowed him to move back in with her. On February 11,
2014, he again accused her of infidelities. He pulled her hair and pushed her down
on a bed. She gave him money and told him to leave. While she was driving him
to a bus stop, he hit her on the right temple. Appellant reappeared a few days later
outside Patricia’s home and threatened to slash her tires. She called authorities, but
he left the area before they arrived.


             3. Jeannette W.
      Jeannette W. was permitted to testify concerning additional incidents of
domestic violence not charged in the information. Jeannette met appellant through
a chat site and began dating him in 2008. In February 2009, appellant moved in
with her. On October 14, 2009, after Jeannette questioned him about a telephone
conversation he had had with another woman, appellant punched her in the head
and eye, and dragged her by the hair from the kitchen to the bedroom, where he
continued to punch and kick her. He pulled the telephone out of the wall and
threatened to kill her if she told anyone about the assault. When Jeannette tried to
stop appellant from taking her car and leaving, he punched her again. In February
2010, appellant was convicted for his assault on Jeannette.


             4. Defense
      Appellant took the stand and denied that Susan told him to move out of her
home in September 2011, or that he had engaged in an altercation with her in

5
       Appellant was not charged in the October 9, 2013 hair pulling incident. The
evidence of this incident was admitted under section 1109 as another act of domestic
violence to support the charged incidents on October 10, 2013 and February 11, 2014.

                                           5
which he pulled her hair out. He said that in April 2012, they had looked at some
old photographs and laughed about them. He denied having any argument with
Susan in connection with the photographs. He claimed that he accidentally hit
Susan in the eye in his sleep. He testified that he walked out of the original trial
because he heard a prospective juror say she could not judge him fairly. He denied
assaulting Patricia in October 2013. He claimed they had had an open relationship
and that she was free to see other men. He denied hitting Patricia when she drove
him to the train station in February 2013, or ever physically abusing her.
      The defense also called Ana Rubalcava, the deputy sheriff who responded to
Susan’s September 19, 2011 call. Rubalcava saw no evidence of Susan’s physical
injuries, but was shown chunks of hair, a broken phone and a torn shirt. Detective
Juan Carrillo testified that when he followed up on Deputy Rubalcava’s report,
Susan told him she did not want appellant prosecuted and signed a complaint
refusal form. Detective Roland De La Maza testified that when he spoke to Susan
on May 18, 2012, she did not mention appellant was again living in her residence.
      Audrey Hernandez testified she met appellant on a dating Web site. They
had a relationship for approximately six weeks, during which appellant neither
threatened nor assaulted her. Appellant told Hernandez he had accidentally
punched Susan in the eye in his sleep.


             5. Rebuttal
      In rebuttal, Detective Ryan Elsee, who arrested appellant on May 21, 2012,
testified that after being advised of his constitutional rights, appellant stated that he
had been involved in a “tussle” with Susan on April 25, 2012, and that she had hit
her face on a dresser after falling off the bed.




                                            6
      C. Verdict and Sentence
      The jury found appellant guilty on all counts, and found true the allegation
that he had inflicted great bodily injury on Susan M. Appellant admitted having a
prior “strike” conviction. The court sentenced appellant to an aggregate prison
term of 29 years (19 years on count one, 10 years on count two (stayed), 16 months
on count three, 40 months on count four, 32 months on count four, and 32 months
on count five). This appeal followed.


                                   DISCUSSION
      A. Admission of Propensity Evidence Under Section 1109
             1. Background
      The information stated that pursuant to section 1109, prior incidents of
domestic violence “may be used in the prosecution of [the case].” Prior to trial, the
prosecutor identified the prior incidents she intended to introduce into evidence:
the October 2009 incidents with Jeannette for which appellant suffered a
conviction; the September 2011 incident, when appellant allegedly broke Susan’s
cell phone, threw her on the bed, held her arms, threw her to the ground, dragged
her, and pulled out a chunk of her hair; the March 2013 incident, when appellant
allegedly kicked Susan; and the February 2014 incident, when appellant allegedly
came to Patricia’s house and threatened her. Defense counsel objected to the
introduction of this evidence, arguing that the circumstances surrounding the prior
incidents were not similar to the charged offenses, and that the sole reason for
introducing such evidence was to show a general proclivity to engage in domestic
violence.




                                          7
      The court found the evidence relevant under section 1109 to demonstrate
propensity to inflict injury upon a cohabitant or someone in a dating relationship.6
The court further found that the potential for prejudice did not substantially
outweigh the probative value.
      Prior to deliberations, the jury was instructed pursuant to CALCRIM No.
852 that it could consider the evidence of prior acts of domestic violence to
establish that appellant was “disposed or inclined to commit domestic violence,” if
it found the People had proven by a preponderance of the evidence that appellant
committed the acts. It was further instructed that such evidence was “only one
factor to consider along with all the other evidence,” that it was “not sufficient by
itself to prove that the defendant is guilty of corporal injury to a cohabitant,” and
that “[t]he People must still prove each charge and allegation beyond a reasonable
doubt.”


             2. Analysis
      Section 1109, subdivision (a)(1) provides that with limited exceptions not
applicable here, “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 [precluding
evidence of character to prove conduct] if the evidence is not inadmissible
pursuant to Section 352.” Subdivision (b) under section 1109 provides that “[i]n
an action in which evidence is to be offered under this section, the people shall
disclose the evidence to the defendant, including statements of witnesses or a
summary of the substance of any testimony that is expected to be offered . . . .”


6
       The court also found the evidence admissible under section 1101, subdivision (b)
to show motive and intent.

                                           8
       Appellant’s primary contention on appeal is that his state and federal due
process rights were violated by introduction of evidence of prior acts of domestic
violence that were not charged in the information. As appellant acknowledges,
overwhelming authority, including Supreme Court precedent, supports the
admissibility of such evidence and precludes us from assigning error to its
admission.
       In People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta), our Supreme Court
concluded that admission of evidence of uncharged sexual offenses under the
substantially similar provisions of section 1108 did not violate a defendant’s due
process rights.7 The court found that even if “the rule against ‘propensity’
evidence in sex offense cases should be deemed a fundamental historical principle
of justice,” section 1108 “did not unduly ‘offend’ those fundamental due process
principles.” (Falsetta, supra, 21 Cal.4th at pp. 914-915, italics deleted.) “By their
very nature, sex crimes are usually committed in seclusion without third party
witnesses or substantial corroborating evidence. The ensuing trial often presents
conflicting versions of the event and requires the trier of fact to make difficult
credibility determinations. Section 1108 provides the trier of fact in a sex offense
case the opportunity to learn of the defendant’s possible disposition to commit sex
crimes,” which evidence is “at least circumstantially relevant to the issue of his
disposition or propensity to commit these offenses.” (Falsetta, supra, at p. 915,
italics deleted; see ibid., quoting People v. Alcala (1984) 36 Cal.3d 604, 631


7
       Section 1108, subdivision (a) provides: “(a) In a criminal action in which the
defendant is accused of a sexual offense, evidence of the defendant’s commission of
another sexual offense or offenses is not made inadmissible by Section 1101, if the
evidence is not inadmissible pursuant to Section 352. [¶] (b) In an action in which
evidence is to be offered under this section, the people shall disclose the evidence to the
defendant, including statements of witnesses or a summary of the substance of any
testimony that is expected to be offered . . . .”

                                             9
[“‘Such evidence ‘is [deemed] objectionable, not because it has no appreciable
probative value, but because it has too much.’ . . . [Citations.]”].) The court further
explained that the limitation on the scope of evidence admissible under the statute
(evidence of prior sex offenses only and only when the defendant is charged with
committing another sex offense) meant no undue burden would be imposed on the
defense; the requirement of pretrial notice of the intention to introduce such
evidence precluded any possibility of surprise or lack of preparedness; and the
discretion afforded the trial judge to exclude the proffered evidence eliminated the
potential for “protracted ‘mini-trials’” to determine the truth or falsity of the prior
charge and undue prejudice to the defendant. (21 Cal.4th at pp. 915-916.) The
court held that with these checks and balances in place, admission of propensity
evidence under section 1108 did not violate state or federal due process. (21
Cal.4th at pp. 918, 922.)
      In the immediate wake of Falsetta, three Courts of Appeal were called on to
address due process challenges to section 1109: People v. Brown (2000) 77
Cal.App.4th 1324, People v. Hoover (2000) 77 Cal.App.4th 1020, and People v.
Johnson (2000) 77 Cal.App.4th 410. In People v. Brown, Division Two of the
First District concluded the reasoning in Falsetta was equally applicable to a due
process challenge to section 1109, finding sections 1108 and 1109 to be
“complementary portions of the same statutory scheme” creating an exception to
the usual exclusion of propensity evidence due to “the difficulties of proof unique
to the prosecution of [the specified] crimes.” (77 Cal.App.4th at p. 1333.) The
court observed that both section 1108 and section 1109 require “‘pretrial notice of
the offenses sought to be proved, assuring that the defendant will not be surprised
or unprepared to rebut the proposed evidence.’” (Id. at p. 1334, italics deleted,
quoting Falsetta, supra, 21 Cal.4th at p. 916.) In addition, both sections “limit the
admissibility of evidence of prior misconduct if its probative value is substantially
                                           10
outweighed by its prejudicial effect. [Citations.]” (77 Cal.App.4th at p. 1334.)
Further, “[t]he specific retention of the power to exclude evidence under section
352 found in both [provisions], provides a ‘realistic safeguard that ensures that the
presumption of innocence and other characteristics of due process are not
weakened by an unfair use of evidence of past acts.’” (Ibid., quoting People v.
Harris (1998) 60 Cal.App.4th 727, 730.) Accordingly, Falsetta’s reasoning was
“fully applicable to section 1109 . . . .” (77 Cal.App.4th at p. 1334.)
      The Third District and Division Two of the Fourth District reached the same
conclusion in People v. Johnson, supra, 77 Cal.App.4th at p. 420 [“Falsetta, by
parity of reasoning, supports upholding the constitutional validity of Evidence
Code section 1109 against a due process challenge”] and People v. Hoover, supra,
77 Cal.App.4th at pp. 1026-1027 [“In determining the constitutionality of section
1109, we adopt the reasoning of the California Supreme Court as put forth in
Falsetta”], as has every other Court of Appeal to have considered the issue. (See,
e.g., People v. Brown (2011) 192 Cal.App.4th 1222, 1232-1237; People v. Cabrera
(2007) 152 Cal.App.4th 695, 703-704; People v. Price (2004) 120 Cal.App.4th
224, 239-240; People v. Escobar (2000) 82 Cal.App.4th 1085, 1095-1096; People
v. Jennings (2000) 81 Cal.App.4th 1301, 1309-1310; People v. James (2000) 81
Cal.App.4th 1343, 1353.) In light of this overwhelming authority, we view the
constitutionality of section 1109 to be settled.


      B. CALCRIM No. 852
      Appellant also challenges CALCRIM No. 852, contending it is
argumentative in that it “‘invite[s] the jury to draw inferences favorable to the
defendant from specified items of evidence on a disputed question of fact.’”
(Quoting People v. Wright (1988) 45 Cal.3d 1126, 1135.)


                                          11
      Apart from whether appellant’s failure to object to the wording of the
instruction or request any modification precludes consideration of this issue on
appeal (see People v. Bolin (1998) 18 Cal.4th 297, 327-328 [where instruction
correctly states the law, failure to request clarification or amplification of its terms
waives challenge to the instruction on appeal]), these attacks on CALCRIM No.
852 have been uniformly rejected by appellate courts, which have held that the
instruction correctly states the law concerning the purpose for which the jury may
consider prior acts of domestic violence admitted under section 1109. (People v.
Reyes (2008) 160 Cal.App.4th 246, 250-253; People v. Pescador (2004) 119
Cal.App.4th 252, 261-262; People v. Johnson (2008) 164 Cal.App.4th 731, 739;
People v. Brown, supra, 77 Cal.App.4th at pp. 1335-1337.) In addition, our
Supreme Court has approved an instruction similar in all material respects to
CALCRIM No. 852, except that it instructs the jury as to the proper inferences and
burden of proof where evidence of uncharged sex crimes is admitted under section
1108. (People v. Reliford (2003) 29 Cal.4th 1007, 1009, 1012-1016.) Although
none of these cases addressed the contention that the instruction was argumentative
under the definition in People v. Wright, supra, 45 Cal.3d 1126 (quoted above), the
Supreme Court addressed an analogous issue in People v. Kelly (1992) 1 Cal.4th
495, where the instruction (CALJIC No. 2.03) allowed the jury to infer
consciousness of guilt from a defendant’s pretrial fabrications: “CALJIC No. 2.03
. . . not merely pinpoint evidence the jury may consider. It tells the jury it may
consider the evidence but it is not sufficient by itself to prove guilt. [Citation.]
Defendant obviously does not quarrel with the emphasized language. If the court
tells the jury that certain evidence is not alone sufficient to convict, it must
necessarily inform the jury, either expressly or impliedly, that it may at least
consider the evidence. Nothing in Wright affects such an instruction. There was
no error.” (Kelly, supra, 1 Cal.4th at pp. 531-532.) Here, the instruction similarly
                                           12
highlighted the evidence in order to inform the jurors that it was not sufficient to
prove appellant’s guilt, but that it could be considered in conjunction with the other
evidence to support a guilty verdict. There was no error in giving the instruction.
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                                 DISPOSITION
     The judgment is affirmed.
     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                          MANELLA, J.

We concur:




EPSTEIN, P. J.




WILLHITE, J.




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