Filed 1/23/15 P. v. Maldonado CA2/4
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   SECOND APPELLATE DISTRICT

                                                DIVISION FOUR


THE PEOPLE,                                                             B252968

         Plaintiff and Respondent,                                      (Los Angeles County
                                                                         Super. Ct. No. PA073111)
         v.

JESUS MALDONADO,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County,
Hayden Zacky, Judge. Affirmed as Modified.
         Mark Alan Hart, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney
General, Scott A. Taryle, Michael C. Keller and John Yang, Deputy Attorneys
General, for Plaintiff and Respondent.




         Believing that the mother of his children, F. G., was romantically involved
with his friend, Florentino Reyes-Lucas, appellant Jesus Maldonado beat and
stabbed Lucas to death, and kidnapped and threatened to kill F.G. A jury
convicted Maldonado of first degree murder (Pen. Code, § 187, subd. (a)),
kidnapping (Pen. Code, § 207, subd. (a)), making criminal threats (Pen. Code,
§ 422, subd. (a)), and found true the allegation that he used a knife in the murder
(§ 12022, subd. (b)(1)). The trial court sentenced him to state prison for 25 years
to life on the murder charge, plus an additional year for the knife enhancement.
The court imposed consecutive sentences of eight years for the kidnapping offense
and eight months for the criminal threat.
      Attacking the judgment of conviction on appeal, Maldonado contends that
the trial court erred by: (1) not explaining to the jury that provocation reducing
first to second degree murder need not meet the objective standard of provocation
required to reduce murder to manslaughter, and (2) instructing the jury that it could
consider uncharged acts of domestic violence against F.G. as tending to prove a
propensity to commit the charged murder. We conclude that defendant forfeited
his claim of instructional error regarding provocation, but in any event the
instructions were correct. We also reject the related claim that counsel was
ineffective for not requesting a pinpoint instruction. As for the instruction on
uncharged domestic violence, we conclude that although the trial court erred in
instructing the jury that domestic violence acts involving F.G. could be considered
in determining whether defendant had a propensity to commit murder, the error
was not prejudicial. Finally, Maldonado contends (and the Attorney General
concedes) that he is entitled to one additional day of custody credit. We agree,
order the judgment modified to so reflect, and otherwise affirm.




                                            2
                                 BACKGROUND
 I.      Evidence at Trial
      Because Maldonado does not challenge the sufficiency of the evidence to
support the convictions, we discuss the evidence adduced at trial only as necessary
to contested issues in this appeal. We review the record in the light most favorable
to the judgment, and “presume in support of the judgment the existence of every
fact the trier [of fact] could reasonably deduce from the evidence. [Citation.]”
(People v. Lewis (1990) 50 Cal.3d 262, 277.)


      A. Relationship between Maldonado and the Two Victims
      Maldonado and F.G. had a 23-year relationship during which they lived
together and had children together. They never married. F.G. described
Maldonado as jealous and aggressive. They broke up in March 2011 when
Maldonado left to be with another woman. 1
      Maldonado and Lucas came from the same town in Mexico and were
lifelong friends. Maldonado had introduced F.G. to Lucas 17 years earlier. For a
year before the charged offenses took place, the three of them worked together as a
cleaning crew at a medical facility. They all continued to work together after
Maldonado and F.G. broke up, until an incident at work (discussed further below)
two weeks before Lucas was killed, when F.G. quit and Maldonado‟s brother
Ramon filled in as the third member of the cleaning crew.




1
      The “other woman” was the sister of Lucas.

                                          3
      B. Uncharged Domestic Violence Acts
             1. Valentine’s Day 2009 Incident
      On the afternoon of February 14, 2009, Maldonado and F.G. had an
argument because she refused to sue her boss after cutting her finger at work, and
Maldonado accused her of cheating on him with her boss. F.G. left to go to a
wedding party without Maldonado.
      Maldonado showed up at the party drunk and angry. F.G. hailed a nearby
taxi so that she could leave with her children. Because the taxi arrived so quickly,
Maldonado said the taxi driver must be her lover who had been waiting for her
outside. F.G. and her children got into the taxi and went home. Later that evening,
Maldonado came home. F.G. locked herself in the bedroom with her three
children. Maldonado was screaming for her to come out, and threatening to kill
her. He hit the door with a baseball bat, leaving a hole in the door. F.G. jumped
out the window and ran to a neighbor‟s house to hide. Their daughter M. called
911 and told the police that her father was going crazy and was trying to kill her
mother.


             2. Choking Incident in Early March 2012
      After Maldonado and F.G. separated, Maldonado often harassed her at work,
pushing and grabbing her, accusing her of being unfaithful, and calling her a whore
and other names. During one shift at the medical facility in early March 2012,
Maldonado made it clear that he wanted to get back together and asked F.G. why
she stopped loving him. When she did not respond positively, he put both hands
around her neck and began to choke her, but quickly stopped. F.G. did not go back
to work there after this incident because she was afraid he would hurt her.



                                          4
      C. Charged Crimes
      On the morning of March 22, 2012, F.G. went to work at her seamstress job.
As she walked from the bus stop to work, she saw Maldonado sitting in his car,
looking angry. He exited the car and walked with her to her work station. F.G.
received a call on her cell phone, and Maldonado grabbed the phone and answered
it in a high-pitched voice. F.G. took the phone back and saw that the call had come
from Lucas, whom she had texted earlier that morning about attending a funeral
wake for their mutual friend. Maldonado became extremely angry, called her a
whore, and said she and Lucas were going to pay for it. He insisted that she go
with him to find Lucas to ask why Lucas was calling her. 2 When they got to his
car, he took a metal baton from the trunk and said that now he would find out what
was going on. He tried to force F.G. into the car, pushing and shoving her and
scraping her with the baton. As they struggled, he took her cell phone and she left
and went back into her workplace.
      Maldonado came back to her workstation a few minutes later, after having
searched the text messages on her phone and found a message she had sent to
Lucas about the wake. He began asking her what was going on between her and
Lucas, and he threatened to kill both of them. He grabbed a small paring knife that
F.G. kept at her workstation, pointed it at her, and forced her to leave with him.
She got into his car, but after one block, when Maldonado stopped at a red light,
she jumped out and ran away. Maldonado tried to block her path with his car, then
parked and chased her on foot with a screwdriver in his hand. She jumped into a
car full of women she did not know and begged them to help her because she was


2
      F.G. maintained that she and Lucas were only co-workers and friends, and no
evidence at trial suggested they had a romantic relationship.

                                          5
about to get killed, and they sped away. She used one of the women‟s cell phones
to call M. and told her that Maldonado was trying to kill her.
      Maldonado arrived at F.G.‟s home soon afterwards and told M. that he had
seen F.G. with Lucas, and that they were not going to make a fool of him and were
going to pay. M. left to go to her mother‟s work to try to find her. Maldonado
arrived there separately and took M.‟s phone from her. He threatened to kill F.G.
and Lucas. M. called the police and told them that her father was trying to kill her
mother.
      The police met F.G. at her house and took her statement. After switching
her phone line to a different phone (since Maldonado had taken her cell phone),
she left and went to a cousin‟s home in San Bernardino to hide from Maldonado.
      That evening, F.G. ignored repeated phone calls from Maldonado. At 3:00
a.m. the next morning, she received a call but did not answer. When she saw that
the call had come from Lucas‟s phone, she called back, but instead of Lucas
answering, it was Maldonado, who said “Hello, my love.” She hung up, and he
then called and texted her repeatedly from his own phone, but she never answered.
In one text, he said he was going to find her. Another text from him read,
translated from Spanish, “Whoever may mock me or make fun of me would die.
And if you deceive me with other people, you know what awaits you because
sooner or later, I find out. And now you will be at the wake together the way you
had planned.”
      At approximately 10:00 a.m. on March 23, 2012, Maldonado telephoned M.
and told her he was in Rosarito, Mexico. He told her to tell her mother to answer
her phone, that she did not have to worry anymore and he was not going to do
anything to her, because he had gotten someone else out of the way. She asked



                                          6
him who, and he said it was Lucas. Laughing, he told her that even as Lucas was
bleeding, he said, “I am your friend. I will never betray you.”
      That morning, Lucas was found dead, covered in blood, lying on the floor
inside a locked utility room in the basement of the medical facility. Besides cuts,
bruises and abrasions, Lucas had sustained 11 stab wounds, some of them as deep
as six inches, four of them being potentially fatal wounds to the heart and lung.
      There appeared to have been a struggle in the hallway, in which one or more
persons were bleeding. A large amount of blood was spattered on the walls and
the floors down 50 to 60 feet of a hallway. There were smeared, bloody handprints
on the walls and two different sets of bloody shoe prints on the floor, one of which
did not match Lucas‟ shoes. From the smeared handprints and the blood found in a
mop bucket, it appeared someone had tried to clean up the crime scene. Blood
found on Lucas‟s hand had a mixture of DNA from Lucas as well as from another
person, and Maldonado could not be ruled out as that other contributor. In
addition, Maldonado‟s DNA was found on a sample taken from Lucas‟s shoe as
well as on a red-stained handle found near Lucas‟s body.
      Still photographs taken from video surveillance at the medical facility from
the night of March 22, 2012, showed the following. Lucas and Ramon arrived at
work at 7:05 p.m., and Maldonado arrived at 7:20 p.m. All three men were
working inside the facility. Shortly after midnight, Maldonado descended the
stairs into the basement with a vacuum cleaner. Lucas descended into the
basement a few minutes later. After Maldonado went up the stairs, he quickly
descended again at 12:05 a.m. Approximately 15 minutes later, at 12:20 a.m.,
Maldonado left the facility holding a red biohazard bag, no longer wearing the
jacket he had been wearing earlier. Lucas never left the building.



                                          7
      D.     Maldonado’s Testimony
      Maldonado admitted that he went to F.G.‟s workplace on March 22, 2012,
and while he was there he got angry upon realizing that Lucas had telephoned F.G.
and that she had Lucas‟s number stored in her cellphone under a fake name. He
also thought it was suspicious that F.G. had sent Lucas a text message earlier that
morning, between 3:00 and 4:00 a.m., about a funeral. He asked F.G. what was
going on between them and convinced her to come with him to find Lucas. She
got out of the car abruptly, and he tried to follow her on foot but lost sight of her.
When he went to look for F.G. at her home and then back at her workplace, he had
an alteration with M. during which he slapped her and accused her of conspiring
with her mother to keep secrets from him.
      Still angry, he went home and started drinking at around 11:00 a.m. He
drank approximately 10 beers in the afternoon before Ramon and Lucas showed up
at his house at around 6:00 p.m. that evening so that he could drive them to work.
Maldonado was still very angry, but he did not say anything to Lucas. When they
got to work, the others went inside, but Maldonado went to buy more beer. He
drank the beers, then returned to work, still feeling angry, but still did not confront
Lucas.
      The last place Maldonado had to clean that night was the basement. Shortly
after he went down there, Lucas came down as well. Maldonado then went back
upstairs to put the vacuum away, and then he returned to the basement to make
sure everything was in order. Maldonado asked Lucas to explain why he had
called F.G. Lucas called him a jerk, and questioned why Maldonado had a
problem with Lucas being with F.G. when they had broken up. Lucas also said it
should be fine for Lucas to be with Maldonado‟s wife, since Maldonado was with



                                           8
his sister. Lucas was laughing and smirked at him as he confirmed his relationship
with F.G.
       Furious, Maldonado attacked Lucas with a mop in his hand, but Lucas
grabbed the mob and hit him on the hand with the stick. They struggled and
punched each other with their fists, and then Lucas hit him in the head with an
aluminum pipe. Maldonado was bleeding and felt weak. He was afraid and angry
at the same time. They struggled over the metal pipe until Maldonado was able to
grab it and run to the kitchen with Lucas chasing him. Maldonado grabbed a knife
next to the stove and he and Lucas struggled for control of it. Maldonado was able
to keep control of it and he stabbed Lucas. Even after being stabbed, Lucas was
still trying to grab the knife and Maldonado feared for his life. Maldonado
continued to attack him with the knife until he fell to the floor. Maldonado was
scared and panicked. He may have tried to clean up afterwards, but he does not
remember. He does not remember locking Lucas‟s body in the supply closet and
does not recall what he did with the knife.
       He left with his brother, and although he was bleeding and in bad shape, he
had to drive because his brother cannot drive. Although he usually drove Lucas
home too, he does not remember if his brother asked where Lucas was. He got rid
of the biohazard bag, went home, and changed out of his bloody clothes and shoes
and threw them away. He then drove to Mexico, taking both F.G.‟s and Lucas‟s
cell phones with him. When he was arrested and returned to authorities in Los
Angeles, he needed stitches for an open head wound, and he had a scar at the time
of the trial.


                                  DISCUSSION
I.     Provocation Instructions

                                          9
      Maldonado contends that the trial court erred in not modifying CALCRIM
No. 522 to clarify that while an objective standard of provocation applies to reduce
murder to voluntary manslaughter, it does not apply to reduce first to second
degree murder. We disagree.
      As here relevant, the trial court instructed the jury with CALCRIM Nos.
520, 521, 522, and 570. CALCRIM No. 520 explained the requirement to find
malice aforethought for first and second degree murder. CALCRIM No. 521
explained the elements of first degree willful, deliberate and premeditated murder,
stating that “[a] decision to kill made rashly, impulsively, or without careful
consideration is not deliberate and premeditated.” CALCRIM No. 522 instructed
that provocation may reduce murder from the first to the second degree, stating
that if the jury concluded that Maldonado committed murder “but was provoked,
consider the provocation in deciding whether the crime was first or second degree
murder. Also, consider the provocation in deciding whether the defendant
committed murder or manslaughter.” CALCRIM No. 570 instructed as follows:
“A killing that would otherwise be murder is reduced to voluntary manslaughter if
the defendant killed someone because of a sudden quarrel or in the heat of passion.
[¶] The defendant killed someone because of a sudden quarrel or in the heat of
passion if: [¶] 1. The defendant was provoked; [¶] 2. As a result of the
provocation, the defendant acted rashly and under the influence of intense emotion
that obscured his/her reasoning or judgment; [¶] AND 3. The provocation would
have caused a person of average disposition to act rashly and without due
deliberation, that is, from passion rather than from judgment. [¶] Heat of passion
does not require anger, rage, or any specific emotion. It can be any violent or
intense emotion that causes a person to act without due deliberation and reflection.
[¶] In order for heat of passion to reduce a murder to voluntary manslaughter, the

                                          10
defendant must have acted under the direct and immediate influence of provocation
as I have defined it. While no specific type of provocation is required, slight or
remote provocation is not sufficient. Sufficient provocation may occur over a short
or long period of time. [¶] It is not enough that the defendant simply was
provoked. The defendant is not allowed to set up his own standard of conduct. In
deciding whether the provocation was sufficient, consider whether a person of
average disposition, in the same situation and knowing the same facts, would have
reacted from passion rather than from judgment. [¶] If enough time passed
between the provocation and the killing for an ordinary person of average
disposition to „cool off‟ and regain his clear reasoning and judgment, then the
killing is not reduced to voluntary manslaughter on this basis. [¶] The People
have the burden of proving beyond a reasonable doubt that the defendant did not
kill as the result of a sudden quarrel or in the heat of passion. If the People have
not met this burden, you must find the defendant not guilty of murder.”
      As we explained in People v. Jones (2014) 223 Cal.App.4th 995, 1000-1001
(Jones) provocation can reduce first degree murder to second degree murder, and
can reduce murder to manslaughter. “[A] subjective test applies to provocation as
a basis to reduce malice murder from the first to the second degree: it inquires
whether the defendant in fact committed the act because he was provoked. The
rationale is that provocation may negate the elements of premeditation,
deliberateness and willfulness that are required for that degree of the crime.
[Citation.] But more is required to reduce malice murder to voluntary
manslaughter. For that, an objective test also applies: the provocation must be so
great that, in the words of CALCRIM No. 570, it „would have caused a person of
average disposition to act rashly and without due deliberation, that is, from passion
rather than from judgment.‟” (Ibid.)

                                          11
      We held in Jones that CALCRIM Nos. 520, 521, 522, and 570 correctly
state the law, and that absent a request for a pinpoint instruction regarding the
standard of provocation required to reduce first to second degree murder, the trial
court had no duty to make such a modification to the pattern instructions. (Id. at p.
1001.) Here, Maldonado made no request for a modification, and therefore, as in
Jones, the issue is forfeited.
      Even if the claim were not forfeited, we would reject it. As noted, in Jones
we held that the same instructions given in the instant case are correct and not
misleading: “They accurately inform the jury what is required for first degree
murder, and that if the defendant‟s action was in fact the result of provocation, that
level of crime was not committed. CALCRIM Nos. 521 and 522, taken together,
informed jurors that „provocation (the arousal of emotions) can give rise to a rash,
impulsive decision, and this in turn shows no premeditation and deliberation.‟
[Citation.] As the jury also was instructed [with CALCRIM No. 570], a reduction
of murder to voluntary manslaughter requires more. It is here, and only here, that
the jury is instructed that provocation alone is not enough for the reduction; the
provocation must be sufficient to cause a person of average disposition in the same
situation, knowing the same facts, to have reacted from passion rather than
judgment. [¶] There was no error in giving these instructions.” (Jones, supra, 223
Cal.App.4th at p. 1001.)
      Maldonado contends the prosecutor‟s argument led the jury to believe that
an objective standard of provocation applied to reduce murder from first to second
degree. The record is to the contrary. In his closing argument, the prosecutor did
not refer to the provocation. Rather, he argued that that the evidence demonstrated
a premeditated plan by Maldonado to kill Lucas. In her closing argument, defense
counsel primarily argued that Maldonado should be acquitted because he acted in

                                          12
self-defense, or that at most he should be convicted of voluntary manslaughter
based on imperfect self-defense. As a secondary line of argument, defense counsel
argued that the murder should be reduced to voluntary manslaughter based on
sudden quarrel or the heat of passion. Counsel argued that a rational person would
have become enraged upon hearing his best friend make fun of him while
admitting he was sleeping with the woman Maldonado loved. Counsel thus argued
that if the jury did not acquit Maldonado on a self-defense theory, it should find
him guilty of manslaughter, not murder.
      Defense counsel never argued that the jury should find Maldonado guilty of
second degree murder, as opposed to first degree, based on his subjective notion of
provocation. Rather, she argued more generally that there was no basis for finding
first degree murder because the evidence did not show a premeditated plan to kill
Lucas.
      In his rebuttal argument, the prosecutor made the comments that Maldonado
cites on appeal as evidence that the jury was misled into believing that the
objective standard of provocation applied to reduce first to second degree murder.
But these arguments were in response to defense counsel‟s argument concerning
voluntary manslaughter. The prosecutor argued that “this isn‟t sudden quarrel or
heat of passion. . . . There‟s no provocation here. He comes here and he tells you
about these statements that supposedly [Lucas] made. Ladies and gentlemen, when
you view all of the evidence, I want you to think about how unreasonable those
statements are. . . . [¶] When we talk about this adequate provocation, it‟s a
reasonable person standard. It‟s not, let‟s take this hot headed, jealous, angry
defendant and see what‟s reasonable for him. That‟s not the standard. The
standard is provocation that would have caused a person of average disposition to
act . . . rashly and without due deliberation. A person of average disposition would

                                          13
not, upon seeing a text message regarding a funeral, or one telephone call, surmise
that there is some kind of illicit affair going on. Especially between a childhood
friend and an ex-spouse or girlfriend. Ex. They hadn‟t been together for a year.
You also know this is how the defendant operates. He is jealous. He thinks [F.G.]
is cheating with everybody. You know this. This is just how he is. This isn‟t
about what would this defendant do. It‟s an average person. We know what this
person did . . . [a]nd we know what he did because of his jealousy.” The
prosecutor concluded: “The defendant is a jealous and angry person. Because his
ego is so great, it caused him to kill somebody. Nobody will make a fool of him.
So now he is not a fool, but he is a murderer. And you, ladies and gentlemen,
should find him guilty of first degree murder of Florentino.”
      In short, nothing in the argument of counsel reasonably might have misled
the jury in its consideration of the evidence of provocation in determining whether
defendant premeditated and deliberated the killing of Lucas.
      Finally, we reject Maldonado‟s claim that his attorney was ineffective for
not requesting a pinpoint instruction specifically explaining that the objective
standard of provocation did not apply to reduce murder from first to second degree.
Even had such an instruction been requested and given, it is not reasonably
probable that a different result would have been reached. (Strickland v.
Washington (1984) 466 U.S. 668, 697 (Strickland) [ “a court need not determine
whether counsel's performance was deficient before examining the prejudice
suffered by the defendant as a result of the alleged deficiencies.”].)
      Under the instructions as given (which, as we have noted, correctly stated
the law), defense counsel was free to argue that defendant‟s conduct in the events
leading up to the killing demonstrated that he did not deliberate or premeditate the
murder. Defense counsel argued that point, but it was not the first, or even second,

                                          14
line of defense – acquittal based on self-defense, or a conviction of manslaughter
based on unreasonable self-defense, sudden quarrel, or heat of passion, were the
primary theories. Thus, a pinpoint instruction on provocation reducing the degree
of murder was of little significance in the defense approach to the case.
      Moreover, there was overwhelming evidence of premeditation and
deliberation. Maldonado repeatedly threatened to kill Lucas more than 12 hours
before actually doing so. After driving Lucas to work, he waited until the two of
them were alone in the basement at the end of their shift, outside the view of the
surveillance cameras, and then stabbed him 11 times, including four deep wounds
to the lungs and heart. (People v. Halvorsen (2007) 42 Cal.4th 379, 421–422
[location of gunshot wounds in head or neck were circumstances in support of
premeditation and deliberation finding].) He then attempted to cover up his crime
afterwards, hiding the body and trying to clean up the blood, disposing of the
murder weapon and his bloody clothes, and fleeing to Mexico. (See People v.
Famalaro (2011) 52 Cal.4th 1, 36 [jury could infer consciousness of guilt
consistent with a willful, premeditated murder from the defendant‟s attempts to
conceal evidence]; People v. Moon (2005) 37 Cal.4th 1, 28 [evidence of flight was
relevant to whether the defendant premeditated and deliberated].) Finally, the
morning after, he laughingly told his daughter that he had taken care of Lucas. In
light of this evidence, and the defense pursued at trial, it is not reasonably probable
that had a pinpoint instruction on provocation reducing the degree of murder been
given, a different result would have been reached. (Strickland, supra, 466 U.S. at
p. 698.)




                                          15
II.    Prior Uncharged Domestic Violence Instruction
       Maldonado contends the trial court erred by instructing the jurors, over a
defense objection, that they could consider evidence of prior uncharged domestic
violence incidents involving F.G. to conclude that Maldonado had a propensity to
commit the charged murder. 3 Although we agree that the court erred, the error was
not prejudicial.


       A.     Evidence Code Section 1109 and CALCRIM No. 852
       “Except as provided in . . . [Evidence Code] Sections 1102, 1103, 1108, and
1109, . . . evidence of specific instances of [defendant‟s] conduct . . . is
inadmissible when offered to prove his or her conduct on a specified occasion.”
(Evid. Code, § 1101, subd. (a).) With exceptions not applicable here, Evidence
Code section 1109 (section 1109) 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
Section 352.” (§ 1109, subd. (a)(1).) Section 1109 thus constitutes an exception to
the general rule excluding evidence of prior acts to show a propensity to commit a
later-charged offense. (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th
335, 405; People v. Brown (2000) 77 Cal.App.4th 1324, 1334, fn. 6.) “„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

3
       Although the defense objected to the court instructing the jury that it could find
from the evidence of prior domestic violence that Maldonado was likely to murder Lucas,
the defense did not object to the jury being instructed that it could find from the domestic
violence acts that Maldonado would be likely to commit kidnapping and threats against
F.G., as those two charged offenses were plainly domestic violence offenses.

                                            16
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.‟” (People v. Hoover (2000) 77 Cal.App.4th 1020,
1027–1028, quoting Assem. Com. on Public Safety, Rep. on Sen. Bill No. 1876
(1995–1996 Reg. Sess.) June 25, 1996, pp. 3-4.)
      The trial court ruled that the prior uncharged domestic violence incidents
were admissible under section 1109 to show that Maldonado had a predisposition
to murder Lucas. The court further ruled that this other crimes evidence was not
more prejudicial than probative under Evidence Code section 352. The court
therefore instructed the jury with CALCRIM No. 852, the pattern instruction
applying section 1109, as follows: “The People presented evidence that the
defendant committed domestic violence that was not charged in this case. [¶]
Domestic violence means abuse committed against an adult who is a 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. . . . [¶] 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 Murder, kidnapping, and
criminal threats, or the lesser included offenses, as charged here. If you conclude

                                          17
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 Murder, kidnapping, and criminal
threats, or the lesser included offenses. The People must still prove each charge
and allegation of every charge beyond a reasonable doubt.”
      The trial court thus instructed the jurors that if they determined that
Maldonado committed the prior uncharged domestic violence, they could conclude
that he was disposed to or inclined to commit domestic violence, and could also
conclude that he was likely to commit murder. However, for section 1109 to
apply, the murder must have constituted an “offense involving domestic violence,”
as that term is defined in the statute. (See People v. Johnson (2000) 77
Cal.App.4th 410, 420 [rejecting due process challenge to section 1109 in part
because “section 1109 is limited to prior acts of domestic violence in prosecutions
for domestic violence”].) Section 1109, subdivision (d)(3) provides that “domestic
violence” has the meaning set forth in section 13700 of the Penal Code, namely
“abuse committed against an adult or a minor who is a spouse, former spouse,
cohabitant, former cohabitant, or person with whom the suspect has had a child or
is having or has had a dating or engagement relationship.” (§ 13700, subd. (b).)
None of those categories applies to Lucas. 4
      Section 1109, subdivision (d)(3) additionally provides that subject to a
hearing conducted pursuant to section 352, “„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.” The class of persons protected
under Family Code section 6211 is slightly broader than the class protected by

4
      In the instruction given to the jury, domestic violence was defined as abuse
committed against an adult with whom the defendant has a child. Although Maldonado
and F.G. had a child together, Maldonado and Lucas clearly did not.
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Penal Code section 13700. (People v. Brown (2011) 192 Cal.App.4th 1222, 1234.)
For instance, it includes “[a]ny other person related by consanguinity or affinity
within the second degree.” (Fam. Code, § 6211, subd. (f).) “Consanguinity”
means a relation by blood, while “affinity” means relations by marriage. (Fam.
Code, § 6205.) However, even under the broader categories of persons
encompassed by Family Code section 6211, Lucas, the perceived boyfriend of
F.G., does not qualify as a domestic violence victim. (See Riehl v. Hauck (2014)
224 Cal.App.4th 695, 700 [stepfather‟s abusive acts against child‟s father outside
of the child‟s presence did not constitute “abuse” because father was not a
protected person under Family Code section 6211]; People v. Selga (2008) 162
Cal.App.4th 113 [striking a stay-away order issued to protect the current boyfriend
of a woman who was stalked by the defendant, her former boyfriend; even though
the defendant had threatened the current boyfriend, he did not qualify as a
protected person under Family Code section 6211].)
      Thus, although Lucas‟ killing was interconnected by motive with the
underlying domestic violence involving F.G., with whom Maldonado believed
Lucas was having an affair, the killing itself did not fall within the statutory
definition of domestic violence, and the permissive inference of propensity to
commit murder did not apply. Thus, we conclude that the trial court erred in
including murder among the offenses that the jury was permitted to find it likely
that Maldonado committed, by virtue of his past acts of domestic violence.


      B.     Lack of Prejudice
      Although the trial court erred in instructing the jury that prior uncharged
domestic violence could be used as evidence of Maldonado‟s propensity to murder
Lucas, the error was harmless, under either federal harmless error review pursuant

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to Chapman v. California (1967) 386 U.S. 18, 24, which requires proof of
harmlessness beyond a reasonable doubt, or under the standard of People v.
Watson (1956) 46 Cal.2d 818, 836, requiring reversal only if it “it is reasonably
probable that a result more favorable to the appealing party would have been
reached in the absence of the error.”
      First, the prior domestic violence incidents were relevant to show
Maldonado‟s motive to murder Lucas, and thus were properly admitted for that
purpose under Evidence Code section 1101, subdivision (b). (§ 1101, subd. (b)
[“Nothing in this section prohibits the admission of evidence that a person
committed a crime, civil wrong, or other act when relevant to prove some fact
(such as motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake or accident, . . . .) other than his or her disposition to commit
such an act.” italics added].) Indeed, the trial court expressly found that even if the
prior uncharged acts were not admissible under section 1109 as evidence of
Maldonado‟s propensity to commit the murder offense, they were admissible under
section 1101, subdivision (b) as to his motive to kill Lucas. Without any objection
from the defense, the jury was instructed that it could consider the uncharged acts
on the issue of Maldonado‟s motive to commit murder and the other two offenses.
      These prior acts tended to show that Maldonado believed that F.G. was
unfaithful and did not take it well when she spurned him, even after he had left her
for another woman. In the 2009 incident, after Maldonado accused F.G. of having
an affair with a random taxi driver, he threatened to kill her and knocked a hole in
her bedroom door with a metal bat as he tried to get to her. In the second incident
in early March 2012, when F.G. rebuffed Maldonado‟s advances and efforts to
reconcile with her, he choked her. These incidents supported the prosecution‟s
theory that Maldonado‟s extreme and irrational jealousy motivated him to kill

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Lucas, whom he believed had begun a romantic relationship with F.G. Regardless
of the error in including murder among the offices listed in CALCRIM No. 852,
the jury could properly consider the uncharged offense evidence of motive for the
purpose of determining whether defendant acted willfully, deliberately and with
premeditation, driven by his jealousy.
      Second, Maldonado admitted that he stabbed Lucas to death. Given this
admission, jurors did not need to resort to inferences that Maldonado had a
propensity to commit homicide. Maldonado‟s admission that he killed Lucas
makes it a moot point whether he was disposed to or likely to kill Lucas.
      Third, nothing in the instruction at issue authorized the jury to find
Maldonado guilty of murder based solely on his propensity to commit crimes of
domestic violence and murder. Rather, the instruction provided that a propensity
based on the prior domestic violence was only one factor to consider along with all
the other evidence, and it was not sufficient by itself to prove that Maldonado was
guilty. The instruction reminded the jury that the People bore the burden to prove
each charge beyond a reasonable doubt. We presume the jury followed the court‟s
instructions. (People v. Holt (1997) 15 Cal.4th 619, 662.) No reasonable juror
would have believed that the requirements of the crime of first degree murder
could be satisfied solely by evidence of the uncharged offenses against F.G.
      Fourth, as already discussed, the evidence that Maldonado committed
premeditated murder was overwhelming. Thus, considered under either the
Chapman or Watson standard, Maldonado was not prejudiced by the erroneous
instruction regarding the permissible inferences from the evidence of uncharged
domestic violence.




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III.   Custody Credits
       Maldonado argues, and the Attorney General concedes, that he is entitled to
one additional day of presentence custody credit. The trial court credited him with
606 days in actual custody, apparently relying on the Probation Report which lists
the date of arrest as March 24, 2012. However, the trial record and body of the
probation record show that he was arrested on March 23, 2012. A defendant is
entitled to custody credits both for the day of arrest and the day of sentencing and
all days in between. (People v. Browning (1991) 233 Cal.App.3d 1410, 1412.)
Because the time from March 23, 2012 to and including November 19, 2013
amounts to 607 days total, Maldonado is entitled to 607 days of custody credit,
rather than 606.
                                   DISPOSITION
             The judgment is modified to give Maldonado credit for an additional
day of presentence custody, for a total of 607 days. The trial court is directed to
amend the abstract of judgment accordingly and to forward a copy thereof to the
Department of Corrections and Rehabilitation. As modified, the judgment is
affirmed.
             NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS


                                               WILLHITE, J.
             We concur:


             EPSTEIN, P. J.


             COLLINS, J.



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