Filed 4/4/16 P. v. Morales CA4/1

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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D069286

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. FVA801274)

MARLON ALBERTO MORALES,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Bernardino County,

Gregory S. Tavill, Judge. Affirmed.

         Arthur Martin, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

A. Natasha Cortina and Annie Featherman Fraser, Deputy Attorneys General, for

Plaintiff and Respondent.
         Marlon Alberto Morales admitted at trial that he fatally shot his wife, Yecenia

Morales (Yecenia),1 in the head while she was sleeping, but he claimed the handgun he

used in shooting her accidentally fired as he was pulling it out from under the pillow on

which she was sleeping. As discussed, post, the prosecution presented evidence under

Evidence Code2 sections 1101, subdivision (b) (hereafter section 1101(b)), 1109, and 352

of Morales's prior abuse of both Yecenia and his former girlfriend, Genevive Noriega.

Expert testimony, which Morales does not challenge, established that (1) to be fired, the

gun had to be cocked and the trigger pulled with five pounds of pressure; and (2) the tip

of the barrel of the gun was touching the skin on the side of Yecenia's head when it was

fired.

         A jury found Morales guilty of first degree murder (Pen. Code, § 187, subd. (a)),

and found to be true allegations that he personally and intentionally discharged a firearm

proximately causing death within the meaning of Penal Code section 12022.53,

subdivision (d), and that he personally and intentionally discharged a firearm within the

meaning of Penal Code section 12022.53, subdivision (c). The court sentenced Morales

to a total state prison term of 50 years to life.

         Morales appeals, contending (1) the court prejudicially abused its discretion and

violated his due process right to a fair trial by admitting under sections 1101(b), 1109,

1       Because Morales and his wife shared the same last name, we refer to his wife by
her first name. We also refer to others sharing the same last name in the same manner for
clarity and ease of reference.

2      All further statutory references are to the Evidence Code unless otherwise
specified.
                                                2
and 352 the testimony of seven witnesses showing he had committed uncharged prior

acts of domestic violence against Yecenia; (2) section 1109, as applied in this case,

violated his right to due process under the Fifth and Fourteenth Amendments; and (3) the

court prejudicially erred and violated his federal constitutional right to due process in

instructing the jury because the instructions it gave under CALCRIM Nos. 375 and 852

were "flawed under the facts of this case" in that the prior-bad-acts testimony of the seven

witnesses that was admitted under sections 1101(b), 1109, and 352 "described actions

that did not constitute 'abuse' or 'domestic violence' under the instructions provided to the

jury." We affirm the judgment.

                               FACTUAL BACKGROUND

        A. The People's Case

       1. Genevive Noriega's testimony (the admissibility of which Morales does not
challenge on appeal) regarding uncharged prior incidents of domestic violence

        Morales's former girlfriend, Genevive Noriega, testified about their on-and-off

relationship, including her moving in with Morales and having a baby with him. She

testified that Morales "had a lot of girls on the side," which was a "problem" for her, and

as a result they were "always breaking up, [and] getting back together." Morales was

jealous and controlling, and he would get mad if she left to go to the store or anywhere

else.

        Noriega indicated that the first time Morales was violent towards her occurred

after she found out he had been unfaithful and she tried to break up with him. Morales

grabbed her, pulled her into his apartment, and "tossed" her around and against the wall


                                              3
about five times. She suffered bruises on her face, and one of her shoes flew off.

Morales yelled at her to go into a room and Noriega ran crying into the room. Morales's

apartment was "weird" in that the door of that room could be locked from the outside but

not from the inside. Noriega testified Morales locked her into the room and, a couple of

minutes later, he entered the room and grabbed a shotgun from under his bed. As she

was crying, Morales began loading his shotgun and said, "Just get out of here before I

hurt you." Noriega ran out of the apartment with only one shoe on and drove to her

mother's home where she lived. Morales later apologized, they reconciled, and Noriega

moved out of her mother's home and began living with Morales at his request.

       Another time, when Noriega was pregnant, Morales became angry, grabbed her,

and was going to hit her, but he calmed down when she reminded him she was pregnant.

       Noriega also testified that when she was five months pregnant, she left Morales

and moved in with her parents. One day Morales chased her as she was driving away

from a party, followed her to her parents' home, pounded on the door, and told her father,

"I know she's here. Get her out here." Morales said he was going to "get" her. Morales

left when Noriega's father said he would call the police if Morales did not leave. Later,

Noriega again reconciled with Morales.

       Noriega also testified that, after she had the baby, Morales would get angry if she

did not have sex with him every other day, and he would punch walls and throw chairs.

On one occasion, when Noriega told Morales, who had friends over, to be quiet because

the baby was sleeping, Morales punched her in the nose, causing it to bleed.



                                             4
       On another occasion when Morales picked Noriega up from work, she was five

minutes late and Morales punched her in the face with a closed fist in the car, cutting her

lip. Another time, Morales "flipped out" because Noriega was putting on makeup, and he

threw her makeup down the hallway. As she was picking it up, Morales, who was

wearing cowboy boots, kicked her thighs three times.

       Noriega also testified that when she worked at a makeup counter in a mall,

Morales would not allow her to go to the mall for any reason other than to go to work.

After they broke up the final time, Noriega had lunch at Nordstroms. Morales found the

receipt and "flipped out." Noriega told Morales he was crazy, and then she told him to

get away from her. Morales tried to punch her and he broke her middle finger when she

covered her face with her hands. Noriega's father called the police. The parties

stipulated that on December 22, 1999, Morales was convicted of felony infliction of

corporal injury upon Noriega in violation of Penal Code section 273.5.

       2. Uncharged prior incidents of domestic violence against Yecenia

       a. Testimony Morales does not challenge on appeal

       The prosecution presented evidence that Morales had an abusive on-and-off

relationship with his wife, Yecenia. Yecenia's mother, Arcelli Jaime (Arcelli), testified

that Yecenia would live with her about once a month for a few days. On multiple

occasions, Arcelli noticed that Yecenia had bruising on her legs, thighs, and arms.

Arcelli testified that Yecenia had a black eye after Morales "beat her up really bad one

time." Yecenia's father photographed her black eye, and the photograph was admitted

into evidence.

                                             5
       Arcelli also testified that, in 2007, she and Yecenia's father confronted Morales

about his having hit Yecenia. Arcelli told Morales to never ever hit her daughter again.

Morales responded by threatening Arcelli and her whole family, and he said he would kill

them and "fuck your family up." Yecenia and her children moved out of the home she

shared with Morales the day her parents confronted him, and she lived with them until

Morales killed her. In March 2008 Yecenia filled out court documents to obtain a

restraining order against Morales. However, in early July of that year, Morales moved in

with Yecenia at her parents' house.

       Yecenia's aunt, Martha Quintero (Quintero), testified that a year before the

murder, Morales told her, in front of Yecenia, that he slept with a gun under his pillow.

Morales told Quintero he was going to use the gun.

       Morales and Yecenia's daughter, Destiny Jaime (Destiny), testified that, on one

occasion when Morales and Yecenia were arguing, Morales asked his son, Giovanni

Morales (Giovanni), to get a gun. She followed her half-brother, Giovanni, as he went

outside, retrieved a gun from the rose bushes, and gave it to Morales. Destiny saw

Morales point the gun at Yecenia while Morales and Yecenia were arguing. Destiny also

testified that, on different occasions, she saw holes punched in the walls after Morales

and Yecenia argued. On two different occasions she saw that Yecenia had a black eye.

       Johanna Cortez (Johanna), one of Yecenia's cousins, testified that, about four years

before Morales killed Yecenia, she (Johanna) was at the house with Yecenia and Morales

when she heard a lot of banging, yelling, and screaming from a room upstairs; she also

heard Yecenia yelling, "Stop. Stop." It lasted 15 to 20 minutes. Yecenia came out of the

                                             6
room shaking and crying, and she had red marks on her face and upper arms. As Johanna

headed downstairs, Morales approached her with a very angry face. Yecenia pushed

Johanna down the stairs to hurry her up and stood between Johanna and Morales.

Morales then pushed Yecenia out of the way by "ramm[ing]" her. Johanna testified that

she ran outside to a truck, Yecenia walked fast behind her, and Morales followed them.

Morales grabbed Yecenia by her neck, picked her up, and held her about four inches off

the ground as Yecenia was kicking her feet. Johanna got into the truck and closed the

door because she was scared. Morales put Yecenia down when a neighbor came by. A

friend of Morales came out of the house, told him to stop, and also told him the police

were coming. Yecenia got into the truck with Johanna. Johanna testified that Yecenia

was shaking and looked like she had "gotten through a really bad fight."

       Martin Gonzalez, who also worked with Yecenia, saw Morales push Yecenia and

act violently towards her at a dancing hall in Los Serenos where office parties were held.

       b. Testimony of seven witnesses that Morales challenges on appeal

       i. Enrique Jaime

       Yecenia's brother, Enrique Jaime (Enrique), testified he stayed at Yecenia and

Morales's house. He heard Morales hit Yecenia, and he heard her loudly saying, "Let me

go" and "The kids are upstairs." Enrique testified it sounded like Morales was "having

her against the wall," because he heard the wall "thumping." Enrique testified this

happened "at least three times" when he was there. Enrique also testified he heard

Morales swearing at Yecenia, calling her a "bitch," and yelling at her to "shut up," to

"shut the fuck up" and "mind your own fucking business." The next day, Enrique would

                                             7
see red marks on Yecenia's neck, bruises on her arms, and swelling in her eyes from

crying. Enrique also testified he once he saw her with a black eye in 2008.

        ii. Joaquin Jaime, Jr.

        Yecenia's other brother, Joaquin Jaime, Jr. (Joaquin), testified that Morales once

called him because he was looking for Yecenia. Morales was very aggressive and upset.

Joaquin told Morales he did not know where Yecenia was, and Morales reacted by

aggressively saying, "Fucken [(sic)] Junior. I know that she's there. You're hiding her."

Morales also told Joaquin, "I'm going to go over there. I know she's there."

        iii. Jaime Jaime

        Yecenia's uncle, Jaime Jaime (Jaime), testified that, a few years before Yecenia's

death in 2008, he helped Yecenia move out of a house she shared with Morales in

Rancho Cucamonga. Morales took off his shirt and was walking around trying to

intimidate them. Jaime confronted Morales about his hurting Yecenia, and Morales

responded by saying said he could send friends over to hurt them.

        iv. Christine Cortez

        Christine Cortez (Christine), another one of Yecenia's cousins, testified that, at a

family barbeque in 2005, she saw Morales act violently towards Yecenia by grabbing her

by the arm and cursing at her. Morales was very upset and said, "Don't F'n leave me

alone. Don't leave me with these F'n people." Morales looked very mean when he said

this.




                                               8
       v. Rebecca Torres

       Yecenia was a medical assistant at a medical clinic. Rebecca Torres, a physician

who worked with Yecenia there from 2006 to 2008, testified that Morales came to the

clinic about five times and argued with Yecenia in the parking lot. Yecenia would return

to work upset and crying. Morales would call Yecenia at work and insist on speaking to

her. Morales once called the clinic and Torres told him Yecenia was busy with a patient.

Morales responded by loudly saying, "That's just not fucking right." Torres told Morales

he was not being respectful, and Morales hung up.

       vi. Mercedes Michelina

       Yecenia's supervisor, Mercedes Michelina (Michelina), testified that Morales

sometimes called Yecenia at work more than seven times a day. Michelina once

answered the phone and told Morales that Yecenia was in the restroom. Morales said,

"Don't cover [for] that bitch." Once, after an office luncheon that Yecenia and Michelina

attended, Morales waited in the parking lot for Yecenia to return. Morales was very

angry with Yecenia, who stayed in the parking lot with Morales. Yecenia was crying

when she returned to the office about 30 minutes later. Morales waited for her about

three hours until the clinic closed. Yecenia was nervous while Morales was waiting for

her there.

       vii. Olga Diaz

       Olga Diaz (Diaz) testified that she worked with Yecenia and was one of her

teachers when she was training to be a medical assistant. One day, Morales called

Yecenia at work and Yecenia turned on the speakerphone. Diaz testified she "heard them

                                            9
fighting." She also testified that Morales was "talking with [Yecenia] loudly," swearing,

and "asking her for money." Yecenia was responding "[n]ervously." Diaz also testified

she saw Yecenia at work with a black eye in May 2008.

       3. The murder

       On July 18, 2008, Morales and Yecenia lived in Bloomington with Yecenia's

parents, Giovanni, Destiny, and Yecenia's younger children, Michael and Nicholas. On

that date, Esmeralda Deleon (Deleon), Yecenia's nine-year-old cousin, was also there.

The children ate dinner and then played poker downstairs.

       Giovanni testified that Morales and Yecenia argued in the bedroom that evening.

Deleon also testified she heard Morales and Yecenia arguing that evening, and she heard

Morales say, "It's either you or your family."

       Yecenia's parents went into their bedroom, which was downstairs in their tri-level

home. Around midnight, Giovanni, Destiny, and Deleon went upstairs to go to sleep in

Destiny's room. Yecenia was in her room sleeping. Because Morales had argued with

Yecenia, he was in Destiny's room, sleeping on her bed. Destiny tried to wake him up.

She then went into her mother's room. Yecenia asked Destiny to stay with her, but

Destiny, wanting to go to sleep, went back to her own room where Morales was still

asleep in her bed. Destiny woke up Morales, and he went into his and Yecenia's room.

Morales was tired and irritated. Giovanni knocked on the door to give Morales his

pillow, and Morales did not open it right away. Morales then opened the door about 12

inches, and his forehead was sweating. Giovanni returned to Destiny's bedroom.



                                            10
       Giovanni and Destiny saw Morales start the engine of Yecenia's Expedition.

Morales then went back to the bedroom. Giovanni went into the hallway, saw Morales

holding Yecenia, and also saw blood on the handrail and staircase. Morales carried

Yecenia down the stairs, wrapped in a blanket with blood on it, and put her in the back

seat of the Expedition. Destiny saw blood in her mother's hair. There was a pillow in

front of the house with blood on it. Morales went back into the house and got one or two

pillows that he put in the backseat of the car. Giovanni testified that Morales went into

Destiny's bedroom, put on cologne, and looked in the mirror. Deleon testified that

Morales used napkins to clean the floor in the bedroom he shared with Yecenia, and he

walked back and forth between the bedroom and the bathroom across the hall while he

was cleaning the bedroom floor. Morales flushed the napkins down the toilet.

       Morales got into the Expedition and drove away. He returned five to 10 minutes

later. Morales went with the children to Arcelli's bedroom. Destiny was crying and

Giovanni was scared.

       At around 12:44 a.m. (July 19), shortly after Morales returned, Arcelli woke up,

went to the kitchen, and called 911. Arcelli testified that while she was on the phone, she

went to the car and saw Yecenia in the car on the floor. Yecenia was white and purple,

and she was wrapped in the sheets from her bed. As directed by the 911 dispatch

operator, Arcelli and her husband moved Yecenia out of the car and onto the ground.

Yecenia had no pulse. Bedding was found on the front seat of the car. Several

bloodstains were found at the base of the staircase or front walkway and on the stairs

going up to the upper level. A swipe blood stain was found on the banister. A contact

                                            11
blood stain was found on the mattress and bedpost. High energy impact spatter stains

were found on the wall and headboard. Morales had contact bloodstains on the front of

his shirt and pants, and bloodstains on his hands and palms. There was blood on the

barrel of the gun, which was consistent with back spatter and showed the gun was

relatively close when shot.

         Dr. Glenn Holt, a deputy medical examiner who worked for the San Bernardino

County Sheriff Coroner, testified that Yecenia died of a gunshot wound to her head, and

he opined that she was lying on her right side on the bed when she was shot. She had an

entrance wound on the left side of her head, and a partial exit wound on the right side of

her head. Dr. Glen Holt also testified there was unburned gun powder soot along the

margins of the entrance wound, some "fine gray material" on the skull "just below it,"

and a number of scalp tears in different directions caused by the "expanding gasses," all

of which was "consistent with a tight contact gunshot wound." The bullet was recovered

from the right side of Yecenia's head under the scalp. The medical examiner testified that

the tip of the barrel of the gun was touching the left side of Yecenia's head when it was

fired.

         A .25-caliber Baretta semiautomatic handgun with a magazine containing bullets

was collected from Morales. Morales had a spent .25-caliber casing in his right front

pocket.

         John Johnson, a firearm expert who retired from the San Bernardino County

Sheriff's Department as a criminalist, testified that he tested the Baretta handgun and



                                            12
determined that to be fired it had to be cocked and the trigger pulled with five pounds of

pressure.

       B. Defense Case

       Morales testified and admitted he was abusive towards Yecenia. He said the first

time he assaulted her was when they were married and she caught him "cheating again."

He admitted he was violent towards her "a lot" during their marriage.

       Morales also testified that he lost his temper and hit her in the face, giving her a

black eye, in March 2008 when Yecenia belittled him. That day, Yecenia and her and her

children moved out of their home in Rancho Cucamonga and moved in with her parents

in Bloomington. In June, however, Morales's home was being foreclosed on, and he

started staying with Yecenia at her parents' home.

       Morales further testified that July 18, 2008 was Yecenia's father's birthday.

Morales, who had hurt his arm, went upstairs to lie down while the family sang "Happy

Birthday" to Yecenia's father. Morales then went to Destiny's room because Yecenia was

studying in her room with the lights on. Morales fell asleep while watching a video with

his younger children. Later, Destiny, Giovanni, and Deleon came in and Destiny woke

him up because she wanted to go to bed. Morales then went back to Yecenia's room.

       Morales testified that Yecenia was asleep on his side of the bed, and under the

pillow she was sleeping on he had a gun he kept for personal safety. Morales also

testified that he reached under the pillow to pull the gun out and tried to nudge Yecenia

aside. He further testified that, as he was "pulling the gun from under the pillow,"

Yecenia "woke and she startled back," and "the next thing [he] rememb[ered] after that

                                             13
was hearing the gun go off." He looked at Yecenia and saw blood coming out of the side

of her head. Morales picked up the gun and spent shell casing and then put them in his

pocket. He picked Yecenia up and carried her out. He was going take her to the hospital

and put her in the back of the car with blankets and pillows. On his way to the hospital,

he called his mother and asked her to pick up Giovanni, because there had been an

accident and his wife had been shot.

       Morales testified that he then panicked, "turned back around and pulled back into

the driveway." He got out, ran back into the house, woke up his mother-in-law, and,

when he told her what happened, she called 911. He denied that he and Yecenia were

having an argument when the gun fired, and he testified that he did not shoot her on

purpose.

       Morales admitted he "cheated" on Noriega "a lot," and he would lose control and

hit her when she would get really upset and throw things. He admitted he was arrested

and pleaded guilty to a domestic violence charge after he broke Noriega's finger when he

tried to hit her and she attempted to block him with her hand. He also admitted he went

on to commit domestic violence against his wife, Yecenia, multiple times.

                                       DISCUSSION

      I. ADMISSION OF PRIOR BAD ACT TESTIMONY OF SEVEN WITNESSES

       Morales first contends the court prejudicially abused its discretion and violated his

due process right to a fair trial by admitting under sections 1101(b), 1109, and 352 the

testimony of seven witnesses showing he had committed uncharged prior acts of



                                            14
domestic violence against Yecenia. We reject this contention because any evidentiary

error was harmless under any standard of prejudice.

       A. Applicable Legal Principles

       1. Section 1101

       "Subdivision (a) of section 1101 prohibits admission of evidence of a person's

character, including evidence of character in the form of specific instances of uncharged

misconduct, to prove the conduct of that person on a specified occasion." (People v.

Ewoldt (1994) 7 Cal.4th 380, 393 (Ewoldt).) Thus, evidence of other crimes or bad acts

is generally inadmissible when it is offered to show a defendant had the criminal

disposition or propensity to commit a charged crime. (Ibid.)

       Section 1101(b) "clarifies, however, that this rule does not prohibit admission of

evidence of uncharged misconduct when such evidence is relevant to establish some fact

other than the person's character or disposition." (Ewoldt, supra, 7 Cal.4th at p. 393, fn.

omitted.) Specifically, section 1101(b) provides in part:

          "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."

       2. Sections 1109 and 352

       Section 1109 generally authorizes the admission of evidence of a defendant's

commission of other acts of domestic violence in a criminal action in which the defendant

is charged with an offense involving domestic violence. (People v. Poplar (1999) 70



                                             15
Cal.App.4th 1129, 1138.) Specifically, subdivision (a)(1) of section 1109 (hereafter

section 1109(a)(1)) provides (with exceptions not applicable here):

          "[I]n a criminal action in which the defendant is accused of an
          offense involving domestic violence, evidence of the defendant's
          commission of other domestic violence is not made inadmissible by
          Section 1101 if the evidence is not inadmissible pursuant to Section
          352."

       Thus, section 1109 creates an exception to the general rule, codified in subdivision

(a) of section 1101, precluding admission of uncharged misconduct to show that the

defendant had a propensity to commit crimes. (§ 1109(a)(1).)

       The term "domestic violence" is broadly defined for the purposes of section 1109

as "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." (Pen. Code, § 13700, subd. (b);

Evid. Code, § 1109, subd. (d)(3).) The term "abuse" is defined for purposes of section

1109 as "intentionally or recklessly causing or attempting to cause bodily injury, or

placing another person in reasonable apprehension of imminent serious bodily injury to

himself or herself, or another." (Pen. Code, § 13700, subd. (a).)

       Under section 352, evidence is properly excluded if its probative value is

"substantially outweighed" by the probability that its admission will necessitate undue

consumption of time or create a substantial danger of undue prejudice, of confusing the

issues, or of misleading the jury. (§ 352; People v. Cudjo (1993) 6 Cal.4th 585, 609.)

Thus, the trial court has discretion to exclude evidence of prior acts of domestic violence

if the probative value is substantially outweighed by the probability its admission would

                                            16
necessitate undue consumption of time or create a substantial danger of undue prejudice,

of confusing the issues, or of misleading the jury. (§§ 1109, subd. (a)(1), 352; Cudjo, at

p. 609.)

       "The prejudice which exclusion of evidence under Evidence Code section 352 is

designed to avoid is not the prejudice or damage to a defense that naturally flows from

relevant, highly probative evidence. '[All] evidence which tends to prove guilt is

prejudicial or damaging to the defendant's case. The stronger the evidence, the more it is

"prejudicial." The "prejudice" referred to in Evidence Code section 352 applies to

evidence which uniquely tends to evoke an emotional bias against the defendant as an

individual and which has very little effect on the issues. In applying section 352,

"prejudicial" is not synonymous with "damaging."'" (People v. Karis (1988) 46 Cal.3d

612, 638.)

       3. Standards of review and prejudice

       The admissibility of evidence of prior acts of domestic violence as propensity

evidence under sections 1109 and 352 "is subject to the sound discretion of the trial court,

which will not be disturbed on appeal absent a showing of an abuse of discretion."

(People v. Poplar, supra, 70 Cal.App.4th at p. 1138.) A trial court's rulings under section

1101 are also reviewed on appeal for an abuse of discretion. (People v. Lewis (2001) 25

Cal.4th 610, 637.)

       "[T]he court's exercise of discretion will not be disturbed on appeal except upon a

showing that it was exercised in an arbitrary, capricious or patently absurd manner that



                                            17
resulted in a manifest miscarriage of justice." (People v. Brown (2011) 192 Cal.App.4th

1222, 1233.)

       Error in admitting evidence of a defendant's prior acts of domestic violence as

propensity evidence under section 1109 is subject to the Watson3 standard of prejudice.

(See People v. Ogle (2010) 185 Cal.App.4th 1138, 1145 [any error in admitting

uncharged act of domestic violence was harmless under Watson].) Under the Watson

test, the trial court's judgment may be overturned on appeal only if the defendant shows

"it is reasonably probable that a result more favorable to the [defendant] would have been

reached in the absence of the error." (Watson, supra, 46 Cal.2d at p. 836.) Probability

under Watson "does not mean more likely than not, but merely a reasonable chance, more

than an abstract possibility." (People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888,

918 (Ghilotti).)

       B. Analysis

       In contending the court prejudicially abused its discretion and violated his due

process right to a fair trial by admitting under sections 1101(b), 1109, and 352 evidence

that he committed prior acts domestic violence against Yecenia, Morales challenges the

admissibility of "all or part" of the testimony given by the following seven prosecution

witnesses: (1) Enrique Jaime, (2) Joaquin Jaime, Jr., (3) Jaime Jaime, (4) Christine

Cortez, (5) Rebecca Torres, (6) Mercedes Michelina, and (7) Olga Diaz. The testimony

of these witnesses is summarized, ante, in the factual background.



3      People v. Watson (1956) 46 Cal.2d 818, 836.
                                            18
       Morales does not challenge the admissibility of the testimony (also summarized,

ante) of Genevive Noriega (his former girlfriend), Arcelli Jaime (Yecenia's mother),

Martha Quintero (Yecenia's aunt), Destiny Jaime (Morales and Yecenia's daughter),

Johanna Cortez (one of Yecenia's cousins), and Martin Gonzalez (one of Yecenia's

coworkers).

       We need not address Morales's many claims of evidentiary error concerning the

court 's admission of the seven witnesses' challenged testimony because, even if we were

to conclude the court erred by admitting that testimony, we would also conclude any such

error was harmless under the applicable Watson harmless error standard because Morales

has failed to show on the facts of this case that it is reasonably probable a result more

favorable to him would have been reached absent such error.4 Disregarding the

challenged testimony, we conclude the evidence supporting Morales's conviction of first

degree murder and the jury's true findings on the firearm enhancement allegations is so

overwhelming that Morales has not shown, and cannot show, a "reasonable chance"

(Ghilotti, supra, 27 Cal.4th at p. 918) he would have obtained a more favorable outcome

in the absence of the claimed errors. Morales admitted at trial that he shot and killed

Yecenia. Morales's son, Giovanni, testified that Morales and Yecenia had argued in the

bedroom during the evening before Morales shot her. One of Yecenia's cousins,

Esmeralda Deleon, also testified she heard Morales and Yecenia arguing that evening,



4     Although the Attorney General asserts Morales forfeited some of his claims of
evidentiary error, in the exercise of this court's discretion, we reach the merits of
Morales's claim that he suffered prejudice.
                                             19
and she heard Morales say, "It's either you or your family." Overwhelming evidence

refuted Morales's testimony that the gun somehow discharged accidentally. Morales

testified that he "hear[d] the gun go off" when he started to pull it out from under the

pillow on which Yecenia was sleeping. However, the unchallenged testimony of the

prosecution's firearm expert established that the gun in question, to be fired, first had to

be cocked, and then the trigger had to be pulled with five pounds of pressure. The

unchallenged testimony of the medical examiner established that the tip of the barrel of

the gun was touching the skin on the side of Yecenia's head when it was fired. The

prosecution's unchallenged evidence established that no pillow with a bullet hole in it was

found.

         Morales does not challenge the voluminous body of evidence, apart from the

challenged testimony of the seven witnesses, establishing he had committed numerous

prior acts of domestic violence against Yecenia and Noriega. Morales admitted at trial

that he had committed domestic violence against them. Morales does not challenge the

admissibility of (1) Arcelli's testimony that Yecenia had a black eye after he "beat her up

really bad one time," and that he had threatened to kill her and her family and "fuck

[them] up" after she and Yecenia's father confronted Morales about his hitting Yecenia;

(2) Quintero's testimony that he told her he was going to use the gun he kept under the

pillow; (3) Destiny's testimony that she had seen him point the gun at Yecenia while he

and Yecenia were arguing; and (4) Johanna's testimony that she witnessed an incident

during which she heard she heard a lot of banging, yelling, and screaming from Yecenia's

room, including Yecenia's yelling, "Stop," then saw that Yecenia had red marks on her

                                              20
face and upper arms, and then watched as Morales picked Yecenia up by her neck and

held her about four inches off the ground as she was kicking her feet;

       Morales also does not challenge Noriega's testimony that (1) he was jealous and

"really controlling," and he would get mad if she left to go to the store or anywhere else;

(2) she suffered bruises when he grabbed her, pulled her into his apartment, and "tossed"

her around and against the wall about five times after she found out he had been

unfaithful and she tried to break up with him; (3) he grabbed a shotgun and began loading

it when she was crying, and then told her, "Just get out of here before I hurt you"; and (4)

he tried to punch her and broke her middle finger when she covered her face with her

hands. Stipulated evidence established that, as a result of this incident in which he broke

Noriega's finger, Morales was convicted of felony infliction of corporal injury upon her

(Pen, Code, § 273.5).

       In light of the foregoing compelling and unchallenged evidence showing Morales's

propensity to commit domestic violence and his guilt, we conclude the court's assumed

error in admitting the challenged testimony of the seven witnesses at issue here was

harmless even under the harmless error standard announced in Chapman v. California

(1967) 386 U.S. 18 (Chapman).5 The admission of the challenged section 1109

propensity evidence did not render Morales's trial fundamentally unfair.




5      Under the Chapman standard, a conviction need not be reversed if the People
show "beyond a reasonable doubt that the error complained of did not contribute to the
verdict obtained." (Chapman, supra, 386 U.S. at p. 24.)

                                             21
              II. CONSTITUTIONALITY OF SECTION 1109 AS APPLIED

       Morales next contends that, if "section 352 does not preclude section 1109 from

authorizing a defendant charged with murder to be tried based on his character," section

1109 "as applied in this case must violate due process under the Fifth and Fourteenth

Amendments to the United States Constitution."6 Specifically, he contends the

admission of the same challenged "prior bad act" testimony of the seven witnesses

discussed, ante, violated his federal constitutional right to due process because (1) it was

"legally untethered from the probative value for which it was supposedly admitted," (2)

the testimony "did not fall under the definitions of 'abuse' or 'domestic violence'," (3)

"[t]his meant the jury had a pile of cumulative evidence that was relevant only to make

[him] look like a terrible person," (4) the section 1109 propensity evidence "played a

significant role" at trial because the prosecutor "explicitly and successfully sought to

make the trial one that turned on [Morales's] bad character" and (5) the admission of that

evidence was "so unduly prejudicial that it renders [his] trial fundamentally unfair." He

further contends his conviction must be reversed under Chapman, supra, 386 U.S. 18,7



6      Although the California Supreme Court has not addressed the issue, the Court of
Appeal has consistently rejected facial federal and state constitutional due process
challenges regarding the admission of propensity evidence under section 1109. (See
People v. Johnson (2010) 185 Cal.App.4th 520, 528-529; People v. Williams (2008) 159
Cal.App.4th 141, 147; People v. Cabrera (2007) 152 Cal.App.4th 695, 703-704; People
v. Price (2004) 120 Cal.App.4th 224, 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.
Brown (2000) 77 Cal.App.4th 1324, 1331-1334; People v. Hoover (2000) 77 Cal.App.4th
1020, 1026-1027.)

7      See footnote 5, ante.
                                             22
because "the government cannot possibly prove the inflammatory, unconstitutional

evidence had no effect on the verdict."

       These contentions are unavailing. We have already concluded that any error in

admitting the challenged testimony of the seven witnesses at issue here was harmless

beyond a reasonable doubt under the harmless error standard announced in Chapman.

supra, 386 U.S. 18, and that admission of that section 1109 propensity evidence did not

render Morales's trial fundamentally unfair.

                          III. INSTRUCTIONAL ERROR CLAIM

       Last, Morales contends the court prejudicially erred and violated his federal

constitutional right to due process because the instructions it gave under CALCRIM Nos.

375 and 852 (discussed, post) failed to guide the jury on how to use the "bad character"

testimony of the same seven witnesses (discussed, ante) that the court admitted under

sections 1101(b), 1109, and 352. He asserts "[t]hese instructions were flawed because the

definition of 'domestic violence' did not cover the prior bad act character evidence

described by the seven witnesses," which showed he was a "mean, cruel, argumentative

person of bad character." He complains that, "[a]s a whole, these instructions told the

jury to consider the prior act bad character evidence, but provided no guidance on how to

do so." The Attorney General asserts Morales forfeited this claim of error because he

"did not object to the instructions as given or request clarifying language." We conclude

Morales forfeited this claim of instructional error.




                                               23
A. The Court's Instructions

1. CALCRIM No. 375

The court gave the following version of CALCRIM No. 375 to the jury:

   "The People presented evidence that the defendant previously
   committed the offense of Infliction of Corporal Injury in violation of
   Penal Code section 273.5[, subdivision] (a). The People also
   presented evidence of other acts of alleged domestic violence that
   were not charged in this case.

   "You may consider this evidence only if the People have proved by a
   preponderance of the evidence that the defendant committed the
   previous offense of Infliction of Corporal Injury and in fact
   committed the uncharged acts of alleged domestic violence. Proof
   by a preponderance of the evidence is a different burden of proof
   than 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, you must disregard this
   evidence entirely.

   "If you decide that the defendant committed the previous offense of
   Infliction of Corporal Injury and the alleged acts of domestic
   violence, you may, but are not required to, consider that evidence for
   the limited purpose of deciding whether or not:

   "The defendant acted with the intent to kill;

   "The defendant had a motive to commit the offense alleged in this
   case;

   "OR

   "The defendant's actions were the result of mistake or accident.

   "Except as may be permitted in Jury Instructions 316 [that a felony
   conviction can be used to evaluate credibility] and 852, do not
   consider this evidence for any other purpose.



                                     24
          "If you conclude that the defendant committed the previous offense
          of Infliction of Corporal Injury and the alleged acts of 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 crime charged in Count 1, or a lesser crime
          as to Count 1, or that the allegations have been proven. The People
          must still prove the charge and all allegations beyond a reasonable
          doubt."

       2. CALCRIM No. 852

       The court gave the following modified version of CALCRIM No. 852, which

instructed the jury regarding its consideration of the propensity evidence of Morales's

prior acts of domestic violence that the prosecution presented under section 1109:

          "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 spouse.

          "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

                                            25
          defendant was likely to commit and did commit the crime charged in
          this case or a lesser crime.

          "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. The People must still prove each
          charge and allegation beyond a reasonable doubt."

       B. Analysis

       Our Supreme Court has explained that, "'[g]enerally, a party may not complain on

appeal that an instruction correct in law and responsive to the evidence was too general

or incomplete unless the party has requested appropriate clarifying or amplifying

language.'" (People v. Guiuan (1998) 18 Cal.4th 558, 570 (Guiuan), italics added.)

       Here, Morales does not challenge the correctness of the instructions the court gave

under CALCRIM Nos. 375 and 852. Rather, he essentially complains that the

instructions were too general or incomplete, and that the court should have provided

clarifying instructions that would have given the jury additional guidance. Morales

acknowledges he did not object to the court's instructions and failed to request clarifying

instructions. Accordingly, we conclude Morales forfeited his claim of instructional error

because he did not request that the court give clarifying instructions. (People v. Valdez

(2004) 32 Cal.4th 73, 113 ["Defendant did not request the clarifying language he now

contends was crucial and may not now 'complain on appeal that an instruction correct in

law and responsive to the evidence was too general or incomplete.'"]; Guiuan, supra, 18

Cal.4th at p. 570.)




                                            26
                                  DISPOSITION

      The judgment is affirmed.




                                                NARES, J.

WE CONCUR:


BENKE, Acting P. J.


McINTYRE, J.




                                      27
