Filed 10/30/14 P. v. McClish CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                         H038137
                                                                    (Santa Cruz County
         Plaintiff and Respondent,                                   Super. Ct. No. F16676)

         v.

MICHAEL PATRICK MCCLISH,

         Defendant and Appellant.



         In 2006, defendant Michael Patrick McClish was charged with killing his pregnant
paramour Joanna “Asha” Veil after Veil threatened to expose their extramarital affair.
Defendant was also charged with the killing of Veil’s fetus. Veil had stated her intention
to seek financial support from defendant for her unborn child, which she believed
defendant had fathered. A jury found defendant guilty of first degree murder for the
killing of Veil and second degree murder for the killing of her fetus. (Pen. Code, § 187,
subd. (a).)1 The jury found special circumstances of multiple murder. (§ 190.2,
subd. (a)(3).) The jury also found allegations that defendant used a deadly and dangerous
weapon to be true as to both counts. (§ 12022, subd. (b)(1).) The trial court sentenced




         1
        Subsequent undesignated statutory references are to the Penal Code unless
otherwise indicated.
defendant to life without the possibility of parole consecutive to 15 years to life
consecutive to one year in prison.
       On appeal, defendant claims the trial court erred by admitting testimony from a
third party witness who testified that defendant had threatened to kill her if she told
anyone she had had an affair with him. Defendant further claims the court erroneously
instructed the jury on the prosecution’s burden of proof as to motive. We conclude
defendant’s claims are without merit, and we will affirm the judgment.
                       I. FACTUAL AND PROCEDURAL BACKGROUND
   A. Facts of the Offense
       1. Overview
       In September 2006, defendant was a 37-year-old manager at the Ben Lomond
Market (the Market) in Ben Lomond. He also worked side jobs doing yard maintenance,
removing trees, and cutting firewood at various locations around town. He was married
to Melissa Vernali; the couple had three young children.
       Joanna “Asha” Veil, a 28-year-old cashier at the Market, had had an affair with
defendant and believed she was pregnant with his child. On September 9, 2006, she told
a friend she planned to confront defendant concerning his responsibility for the unborn
child. Veil disappeared soon afterward. Five days later, her dead body was found off the
side of a road several miles from the Market. The body had suffered blunt force trauma,
and a rope was tied tightly around her neck. Veil had been pregnant for about seven
months at the time of her death; the fetus did not survive. In May 2008, after nineteen
months of investigation, defendant was charged with two counts of murder.
       2. Defendant’s Wife Melissa Vernali
       In 1995, at age 16, Vernali began working in the floral department of the Market.
She met defendant when he was hired as the bakery manager, and they started dating
while she was a junior in high school. They married in 1998, and she bore children in
1998, 2000, and 2002. Vernali quit working at the Market around 1997.

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       Defendant drank alcohol daily until March 5, 2006, at which time he quit drinking
after a driving under the influence (DUI) conviction. After he quit drinking, defendant
was “completely different,” according to Vernali. He consistently informed Vernali of
his plans or whereabouts, and he answered his phone or called her back right away. On
dozens of occasions, Vernali told defendant she had a “one strike you’re out policy”
regarding their marriage. This meant that if she ever caught him cheating, she would take
the children and leave him the first time it happened.
       3. Defendant’s Affair With The Victim—Joanna “Asha” Veil
       In 2000, Veil moved to the United States from Poland. In 2004, she met Richard
Veil in New York, and they moved to Santa Cruz where they were married. In 2005,
Veil began working as a cashier at the Market, where she worked until the time of her
disappearance. Phone records showed 30 phone calls between Veil and defendant
between February 2006 and May 2006. As of September 2006, Veil was separated from
her husband, and she was about seven months pregnant.
       On September 7, Veil told a doula that she was not sure who fathered her unborn
child, but suspected it was her boss at the Market because she had had an affair with him
during her separation from Richard Veil. The doula testified that Veil described her boss
as married with three children of his own, and that Veil said his name was “Mike or Mark
or something.”
       Video footage from cameras at the Market showed that Veil was inside the Market
at various times between 7:18 p.m. and 7:36 p.m. on September 9, 2006. Her timecard
showed that she clocked out from her shift at 7:34 p.m. At 7:42 p.m., she called a friend
while sitting in her car in the Market parking lot. Veil told the friend she was waiting to
meet with defendant. She believed defendant was the father of her unborn child, and she
planned to confront defendant to tell him she wanted to keep the baby. She planned to
tell defendant she would obtain a paternity test, and if defendant was proven to be the
father, she would seek financial support from him. While on the phone with her friend,

                                             3
Veil practiced what she was planning to say to defendant. At the end of the call, she said
she had to go because defendant had arrived.
       4. Defendant’s Whereabouts on the Evening of September 9, 2006
       Defendant’s time card showed that he clocked out of the Market at 5:43 p.m. on
September 9, 2006. Around 7 p.m., after eating dinner at home, defendant told Vernali
he needed to go back to the Market for some water. He stated: “I’ll be five minutes. I’ll
be right back.” At 7:19 p.m., after defendant did not immediately return home, Vernali
called him to say she was putting the children to bed. Defendant did not answer his
phone. Video footage taken from cameras at the Market showed defendant inside the
Market at various times from 7:27 p.m. to 7:34 p.m. Vernali called him again at 7:40 or
7:45 p.m., and again defendant did not answer. He immediately tried to call her back, but
the calls failed to complete.
       At 7:58 p.m., defendant called Vernali again, and they spoke for two minutes.
Defendant told her he had stopped at a nearby property on Glen Arbor Road to do some
yard work. It was dark, but defendant told Vernali the property had motion sensitive
lighting. The owner of the Glen Arbor property, who had hired defendant to do yard
maintenance, testified that there were no motion sensitive lights on the property. The
property owner also testified that the switches for outdoor lights were located inside a
locked house, and she believed defendant had finished working there in July 2006.
       Defendant called home at 8:48 p.m. to tell Vernali he was done working, and he
returned home at around 9:00 p.m.
       5. Veil’s Disappearance and the Discovery of Her Body
       Veil was scheduled to work on September 10 and 11, 2006, but she never arrived
at the Market. The human resources director was concerned because Veil had always
called in before missing work. But this time Veil never called, and she was not
answering her phone. The director filed a report of a missing person on September 11,
and the Market posted missing person flyers with Veil’s photograph.

                                             4
       On September 14, a neighbor who had seen the flyers was walking her dog on
Love Creek Road when she saw Veil’s body lying 10 to 12 feet down a hill off the side of
the road. It appeared the body had been dumped there. Veil’s body was dressed in khaki
pants and a maroon sweatshirt with the Market’s logo. Detectives found a yellow
polypropylene rope tied around Veil’s neck with a complex knot that looked “something
like a hangman’s [k]not.” There were several foxtails embedded in Veil’s sweatshirt and
socks, but there were no foxtail bushes in the immediate area. There was blood on Veil’s
hair and sweatshirt, and her face was bruised. The body was in a state of decay.
       The pathologist who performed the autopsy estimated that Veil had been dead for
five to seven days when her body was found. There was a three inch vertical fracture at
the base of Veil’s skull consistent with being struck by a heavy blunt instrument or
falling onto concrete. The pathologist opined that Veil’s death was caused by both the
blow to her head and the rope around her neck. The fetus died from a deprivation of
oxygen as a result of Veil’s death. Postmortem DNA tests showed that Richard Veil was
the biological father of the fetus.
       6. Defendant’s Affair With Coworker Brandi Johnson
       Brandi Johnson worked as a checker at the Market for about a year starting in June
2004. She met defendant at the Market and started an affair with him that lasted until
March 2006. Defendant frequently took her to various locations outdoors to have sex.
These included a turnout off Old County Road above Ben Lomond, a turnout off Love
Creek Road, and a cemetery in Felton. Defendant also introduced Johnson to his wife,
and the two women became friends. Johnson spent substantial time at defendant’s house,
and the couple took Johnson with them on a vacation to Disneyland. Defendant and
Johnson had sex during the Disneyland vacation.
       Johnson became acquainted with Veil at the Market. Johnson was aware that Veil
also spent time with defendant outside of work. In January 2006, when defendant’s wife
was out of town, defendant entertained both Johnson and Veil at his house. They drank

                                            5
shots of Jagermeister chased with beer, and defendant drank whiskey. Johnson became
jealous because Veil was “being very touchy feely” with defendant—tickling him and
flirting with him while they were sitting on a couch. On other occasions, defendant told
Johnson he was “hanging out” and drinking beer with Veil. He said he was drinking beer
with her at the cemetery in March 2006 when he got his DUI.
       Defendant ended his relationship with Johnson in March 2006 when he became
aware of pictures showing them together. He told Johnson he could not continue seeing
her because he was worried his wife, Vernali, would discover their affair.
       Vernali testified that she suspected defendant was having an affair with Johnson.
But Vernali did not want to acknowledge it, so when defendant denied it to her, she
simply accepted his denials and did not press for the truth.
       7. Defendant’s Relationship With Coworker Angela Haslam
       Angela Haslam began working at the Market as a cashier when she was 18 years
old. In September 2006, she was working in receiving and stocking; defendant was her
supervisor. She spent time with defendant outside of work at various outdoor locations
where defendant did side jobs. They would “hang out and talk and drink.” Haslam was
acquainted with Veil because they both worked at the Market. In January 2006, Haslam
met defendant at the cemetery in Felton, where defendant was working a side job. Veil
arrived soon after. When Haslam left, Veil stayed behind. She was sitting on a bench
drinking beer while defendant was working.
       8. Defendant’s Conduct After Veil’s Disappearance
       On September 12, 2006, a police officer interviewed defendant concerning Veil’s
disappearance. The interview took place at the Market. Defendant claimed that, except
for work, he did not know Veil very well. He said he had worked on her vehicle and had
given her a ride home from work, but “there’s nothing else.” The officer stated that he
had spoken with Veil’s pregnancy counselor, and that the counselor knew the identity of
the baby’s father. Defendant responded: “I was an alcoholic. You know, when you

                                             6
drink sometimes things get cloudy.” When the officer sought clarification, defendant
stated: “Well, things happen when you are intoxicated.” The officer again sought
clarification, and defendant then denied that he had been intimate with Veil.
       After defendant got home from work that day, he informed his wife there was a
“rumor going around” that he was the father of Veil’s baby. Defendant asked Vernali
what she would do if the child was his “by some act of God.” Defendant reminded her of
his past problems with alcohol, including alcohol-induced blackouts, and he asked
whether she would “stand by him no matter what.” At the same time, defendant tried to
reassure Vernali that the baby was not his. In response, Vernali reiterated her policy of
“one strike you’re out” regarding marital infidelity.
       Defendant also told Vernali that the police had been interviewing managers at the
Market regarding Veil’s disappearance. Defendant then asked Vernali to lie about his
whereabouts on the night of September 9. He asked her to tell people that he had been
home splitting wood the entire evening. Defendant explained that he was not supposed to
be driving because of his DUI conviction, and he wanted to prevent his extended family
from discovering the conviction. Vernali testified that defendant had never asked her to
lie about his whereabouts on any other occasion.
       After work that day, defendant rinsed off his truck with a hose in the driveway of
his residence. Vernali thought it was unusual because defendant did not regularly wash
his truck. Defendant washed his truck again on September 13. He focused specifically
on the right front passenger’s side and the front bumper and hood area. Again, Vernali
thought it was “very odd” because “he wasn’t prone to washing it a whole lot to begin
with and the fact that he was rinsing it out twice in two days was not normal.” The next
day, defendant used a power washer to wash his truck. Again, defendant concentrated
primarily on the front of the truck, spraying the hood, the grill, and the front bumper.
Defendant also pulled all of his tools out and completely emptied his truck to wash it.



                                             7
       On the morning of September 13, 2006, defendant met with Angela Haslam and
told her police had questioned him about Veil’s disappearance. Defendant said he had
heard that Veil’s roommates had told police he had had a relationship with Veil. Haslam
testified that defendant “told me he doesn’t know why her roommates would be saying
that because, you know, he’s never hung out with her outside of work and there was
never you know, nothing was ever going on between them. And when I brought up the
cemetery, how we had all hung out in the cemetery—I said, well, what about the time
when we all hung out, you know. He said, well, I didn’t tell [the police] that.” Haslam
asked defendant if he wanted her to lie to the police, and defendant responded: “I’m not
asking you to lie but I’m just telling you that they don’t know that[,] and I don’t want
them to know that I was ever in a secluded area with her.”
       Defendant also spoke with Brandi Johnson on September 13, 2006, concerning
Veil’s disappearance. Defendant told Johnson to “remember when I had your back,
Brandi.” According to Johnson, defendant was referring to a past incident in which
someone had harassed and frightened her. In a stern tone of voice, defendant stated that
“you, me and Asha never drank together and we weren’t friends outside of work.”
Johnson knew that was false, but she responded affirmatively because she was afraid of
defendant.
       9. Forensic Evidence Connecting Defendant To The Crime
       Forensic examinations of defendant’s truck yielded several pieces of evidence
connecting him to the crime. Vegetation and foxtails found in the truck tested positive
for human blood. DNA extracted from the blood on one of the foxtails matched Veil’s
DNA at 13 loci. The chance of a random match with Veil’s DNA was estimated at a one
in 19 quadrillion for the Caucasian population. DNA extracted from blood on vegetation
found on the driver’s side floorboard matched Veil’s DNA at 15 loci. The chance of a
random match with Veil’s DNA was estimated at a one in 21 quintillion for the
Caucasian population. DNA extracted from blood on a foxtail near a gear shift also

                                              8
matched Veil’s DNA at 15 loci. Mitochondrial DNA from several hairs found in the
truck matched Veil’s maternal line. The chance of a random match with Veil’s maternal
line was estimated at one in 200. Defendant was ruled out as a source of the hair.
        Investigators also found in defendant’s truck small blue-green plastic particles
consistent with particles from a polyethylene tarpaulin. Microscopic examination of the
particles with several types of microscopes and instruments showed them to be
indistinguishable from particles found on Veil’s sweatshirt. Police seized several
tarpaulins from defendant’s property, but none matched the particles found on Veil.
        Investigators also compared defendant’s DNA to DNA found on the rope tied
around Veil’s neck. Defendant’s DNA matched the DNA found on a piece of masking
tape wrapped around the end of the rope. The prosecution’s expert opined that only one
in 123,000 persons from the general population could have contributed that DNA to the
tape.
   B. Procedural Background
        On September 3, 2010, the prosecution charged defendant by information with
two counts of murder. (§ 187, subd. (a).) Count One alleged the murder of Veil, and
Count Two alleged the murder of Veil’s fetus. As to both counts, the information alleged
the special circumstance that defendant committed multiple murders. (§ 190.2, subd.
(a)(3).) The information further alleged that defendant used a deadly and dangerous
weapon—a rope—in the commission of both murders. (§ 12022, subd. (b)(1).)
        On December 6, 2011, the jury found defendant guilty of first degree murder on
Count One. On Count Two, the jury found defendant not guilty of first degree murder,
but guilty of second degree murder. The jury found the special circumstance allegations
that defendant committed multiple murders to be true as to both counts. The jury further
found the allegations that defendant used a deadly or dangerous weapon to be true as to
both counts.



                                              9
       On March 29, 2012, the trial court sentenced defendant on Count One to life in
prison without the possibility of parole. On Count Two, the trial court imposed a
consecutive sentence of 15 years to life. And based on the deadly weapon enhancement
for Count One, the court imposed a consecutive sentence of one year. As to the deadly
weapon enhancement on Count Two, the court stayed a one-year sentence under section
654. The court ordered the sentences to run consecutive to a separate sentence defendant
was already serving for a prior, unrelated offense.

                                       II. DISCUSSION

   A. The Trial Court Did Not Err In Admitting Brandi Johnson’s Testimony
      Concerning Defendant’s Threats to Kill Her
       Defendant claims the court erred in admitting testimony by Brandi Johnson that
defendant had repeatedly threatened to kill her if she revealed their affair to anyone.
Defendant contends admission of the evidence violated Evidence Code sections 352
(section 352) and 1101 (section 1101). Alternatively, he contends that, even if the
evidence was admissible to show motive under subdivision (b) of section 1101, the court
erred by instructing the jury that it could consider the testimony as evidence of planning.
He argues that the errors were prejudicial under state law and further violated his federal
due process rights, thereby requiring reversal under both People v. Watson (1956)
46 Cal.2d 818 (Watson) and Chapman v. California (1967) 386 U.S. 18 (Chapman). The
Attorney General argues that the trial court acted within its discretion because the
evidence was probative of intent, motive, and planning under section 1101, subdivision
(b). The Attorney General further contends the evidence was not unduly prejudicial
under section 352.
       We conclude the trial court did not abuse its discretion by admitting the contested
testimony. We further conclude the court properly instructed the jury on the limited
purposes for which the evidence could be used.



                                             10
       1. Brandi Johnson’s Testimony
       Brandi Johnson testified that, in the course of her affair with defendant, he told her
on several occasions “that if I [(Johnson)] ever said anything to anybody that my kids
wouldn’t have a mom and he also told me that he can kill me and nobody would find
me.” On further questioning, she added that “He just said that I can disappear, keep my
mouth shut.” Depending on his mood, defendant sometimes said it in an aggressive
manner, but sometimes he said it in a “lax kind of almost joking manner but he was not
joking.” Johnson testified that defendant said he wanted to keep the affair secret because
“his family was everything to him. He had always said that nobody or nothing would
come between him and his family and nobody would take his kids away from him.” Both
defendant and Vernali told Johnson that if Vernali ever discovered he had been
unfaithful, she would take the kids and leave him.
       The prosecution moved in limine to admit this testimony under section 1101,
subdivision (b) as evidence of defendant’s motive, plan, and intent. The prosecution
further argued that the evidence was not made inadmissible under section 352 because its
probative value was not substantially outweighed by the danger of undue prejudice.
Defendant opposed the motion on the grounds that the proffered testimony constituted
impermissible character evidence and presented a danger of prejudice, confusion, and
undue consumption of time under section 352.
       The trial court found the evidence to be “highly probative on the issues of the
defendant’s motive and intent” under section 1101, subdivision (b) and it granted the
prosecution’s motion in a written order. But when granting the motion, the court
proposed a limiting instruction based on CALCRIM No. 375. Defendant argued that the
jury should only be allowed to consider the testimony as evidence of motive. The
prosecution argued that the jury should also be allowed to consider the evidence with
respect to identity and intent, including defendant’s planning as evidence of
premeditation. The defense objected that instructing the jury that it could consider the

                                             11
testimony for purposes other than motive would be “bringing improper 1101 evidence in
through the backdoor.” The court ruled that the testimony could be considered for
purposes of establishing motive and a plan, and it gave a limiting instruction.
       Consistent with CALCRIM 375, the court instructed the jury as follows: “The
People presented evidence of other behavior by the defendant that was not charged in this
case, namely that the defendant threatened to kill Brandi Johnson if she revealed their
affair. You may consider this evidence only if the People have proved by a
preponderance of the evidence that the defendant in fact committed this uncharged act.
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 this uncharged act, you may, but are not required to, consider that evidence
for the limited purpose of deciding whether or not the defendant had a motive to commit
the offenses alleged in this case and/or the defendant had a plan to commit the offenses
alleged in this case. Do not conclude from this evidence that the defendant has a bad
character or is disposed to commit crime. If you conclude that the defendant committed
the uncharged act, that conclusion is only one factor to consider along with all of the
other evidence. It is not sufficient by itself to prove that the defendant is guilty of the
charged crimes or any lesser included offenses or that the special allegation has been
proved. The People must still prove each charge and each special allegation beyond a
reasonable doubt.”
       2. Legal Principles
       “ ‘Relevant evidence’ means evidence, including evidence relevant to the
credibility of a witness or hearsay declarant, having any tendency in reason to prove or
disprove any disputed fact that is of consequence to the determination of the action.”
(Evid. Code, § 210.) But a theory of relevance that depends on a defendant’s character

                                              12
traits or propensity to engage in certain conduct is generally impermissible. Under
section 1101, “evidence of a person’s character or a trait of his or her character (whether
in the form of an opinion, evidence of reputation, or evidence of specific instances of his
or her conduct) is inadmissible when offered to prove his or her conduct on a specified
occasion.” (Evid. Code, § 1101, subd. (a).) Instead, under subdivision (b) of section
1101, evidence of prior conduct is admissible “when relevant to prove some fact (such as
motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or
accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted
unlawful sexual act did not reasonably and in good faith believe that the victim
consented) other than his or her disposition to commit such an act.” “It is the
prosecutor’s burden at trial to prove a defendant’s prior misconduct by a preponderance
of the evidence.” (People v. Hawkins (2002) 98 Cal.App.4th 1428, 1444.)
       Under section 352, “The court in its discretion may exclude evidence if its
probative value is substantially outweighed by the probability that its admission will
(a) necessitate undue consumption of time or (b) create substantial danger of undue
prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.)
“When evidence of prior offenses is presented to a jury, there is inherent danger of
prejudice to an accused. Therefore, such evidence should be received with caution and
admitted only when its probative value outweighs its prejudicial effect.” (People v. Evers
(1992) 10 Cal.App.4th 588, 599.)
       3. Standard of Review
       “We review for abuse of discretion a trial court’s rulings on relevance and
admission or exclusion of evidence under Evidence Code sections 1101 and 352.”
(People v. Cole (2004) 33 Cal.4th 1158, 1195.) “A trial court has broad discretion in
determining whether to admit or exclude evidence objected to on the basis of section 352
[citation], and rulings under that section will not be overturned absent an abuse of that
discretion [citation]. ‘[T]he term judicial discretion “implies absence of arbitrary

                                             13
determination, capricious disposition or whimsical thinking.” ’ [Citation.] ‘[D]iscretion
is abused whenever the court exceeds the bounds of reason, all of the circumstances
being considered.’ [Citation.]” (People v. Mullens (2004) 119 Cal.App.4th 648, 658.)
       4. Admission of the Testimony Did Not Constitute an Abuse of Discretion
       Evidence of prior bad acts may be relevant to prove motive and intent, and under
the express terms of section 1101, subdivision (b), such evidence is not prohibited if
offered for those purposes. (People v. Ewoldt (1994) 7 Cal.4th 380, 402, superseded by
statute on other grounds, as stated by People v. Britt (2002) 104 Cal.App.4th 500, 505;
People v. Kelley (1997) 52 Cal.App.4th 568, 579.) Evidence of motive is particularly
probative when the identity of the offender is in dispute: “Considerable latitude is
allowed in the reception of evidence on the question of motive. It is settled that evidence
having a direct tendency, in view of the surrounding circumstances, to prove motive on
the part of a person to commit the homicide, and thus to solve a doubt [. . .] as to the
identity of the slayer [. . .] is admissible, however discreditably it may reflect upon the
defendant, and even where it may show him guilty of other crimes.” (People v. Gonzales
(1948) 87 Cal.App.2d 867, 877-878.)
       Here, the identity of the killer was a central issue at trial. The prosecution
presented no eyewitnesses to the killing. Veil’s body was not discovered until several
days after her death, and it appeared the killer had moved her body from the original
location of the killing. Without direct evidence placing defendant at the time and place of
the killing, the prosecution had to rely on other evidence to establish the identity of the
killer. Johnson’s testimony was highly probative to the issue of identity because it
singled out defendant as having a subjectively compelling motive to kill Veil. Johnson
testified that defendant’s wife had threatened to take the couple’s children and leave him
if she discovered his infidelity. Vernali’s testimony corroborated this assertion.
Moreover, Veil’s pre-disappearance phone call to her friend showed that she intended to
seek a paternity test and financial support from defendant—demands that would have

                                              14
made it very difficult for defendant to continue hiding his infidelity from his wife. The
jury could reasonably infer that defendant’s desire to avoid familial dissolution was so
great that he was willing to kill his numerous paramours to avoid it—and therefore that
defendant was the unidentified killer. Accordingly, Johnson’s testimony was relevant
and probative as to motive, and was not prohibited under section 1101.
       As for the analysis under section 352, we agree with defendant that the evidence
presented some danger of prejudice. There is some possibility that the jury could have
perceived defendant as a “bad person” with a propensity for violence towards women.
Or jurors could have been emotionally influenced by their dislike for defendant. But the
trial court gave the jury a limiting instruction consistent with CALCRIM 375,
admonishing them not to consider the testimony for character purposes. Absent a
showing to the contrary, we presume the jury followed the court’s instructions.
Furthermore, prejudicial evidence is admissible under section 352 unless “its probative
value is substantially outweighed by the probability that its admission will [. . .] create
substantial danger of undue prejudice.” (Evid. Code, § 352.) (Italics added.) Given the
highly probative nature of the testimony as to motive and identity, we conclude that the
danger of undue prejudice did not substantially outweigh its probative value.
       Defendant argues that Johnson’s testimony was cumulative under section 352
because Vernali’s testimony alone was sufficient to establish that defendant was
motivated by a fear of familial dissolution. But Vernali simply testified about what she
told defendant she would do if she caught him in an act of infidelity; she never testified
about defendant’s own subjective state of mind—i.e., that he actually believed her.
Moreover, Vernali never testified that defendant was so motivated by the threat of her
departure that he was willing to kill to avoid it. Johnson’s testimony stood alone on this
point, and it was therefore not cumulative. Defendant nonetheless contends that he never
killed or assaulted Johnson, and that she continued with their affair notwithstanding his
threats. But Johnson never threatened to expose their affair, and defendant ended the

                                              15
affair when exposure loomed. None of defendant’s arguments diminishes the probative
value of Johnson’s testimony. Accordingly, we conclude the trial court did not abuse its
discretion by admitting the evidence under section 1101, subdivision (b) and section 352.
       5.     The Jury was Properly Instructed on Johnson’s Testimony
       Defendant also contends that the court erred by instructing the jury that it could
consider Johnson’s testimony as evidence of planning by defendant. The Attorney
General argues that the jury was properly instructed because the evidence was relevant
and probative to show planning and premeditation.
       To prove first degree murder, the prosecution had to prove the killing was
premeditated beyond a reasonable doubt. “An intentional killing is premeditated and
deliberate if it occurred as the result of preexisting thought and reflection rather than
unconsidered or rash impulse.” (People v. Stitely (2005) 35 Cal.4th 514, 543.) “A
verdict of deliberate and premeditated first degree murder requires more than a showing
of intent to kill. [Citation.] ‘Deliberation’ refers to careful weighing of considerations in
forming a course of action; ‘premeditation’ means thought over in advance. [Citations.]
‘The process of premeditation does not require any extended period of time. “The true
test is not the duration of time as much as it is the extent of the reflection. Thoughts may
follow each other with great rapidity and cold, calculated judgment may be arrived at
quickly. . . .” [Citations.]’ ” (People v. Koontz (2002) 27 Cal.4th 1041, 1080.) Evidence
of “planning activity” is relevant to show premeditation. (People v. Anderson (1968)
70 Cal.2d 15, 26-27.) Planning activity consists of facts about how and what the
defendant did before the killing that show the defendant was engaged in activity directed
toward, and intended to result in, the killing. (Ibid.)
       Evidence of a prior bad act is not inadmissible under section 1101, subdivision (b)
if the evidence is relevant to establish the existence of a common plan or scheme that
defendant utilized in the instant offense. (People v. Ewoldt, supra, 7 Cal.4th at p. 394.)
In contrast to prior bad acts offered to show intent, prior acts must have a higher degree

                                              16
of similarity to the instant offense when offered to show the existence of a common plan.
“[I]n establishing a common design or plan, evidence of uncharged misconduct must
demonstrate ‘not merely a similarity in the results, but such a concurrence of common
features that the various acts are naturally to be explained as caused by a general plan of
which they are the individual manifestations.’ ” (Id. at p. 402 [quoting 2 Wigmore,
Evidence (Chadbourn rev. ed. 1979) § 302, p. 249].)
       The Attorney General argues that defendant’s threats to Johnson show a high
degree of similarity to his conduct in the killing of Veil because he threatened that
Johnson would “disappear” and “nobody would find [her].” Similarly, Veil’s body was
dumped in a remote location hidden from view. But this theory of similarity departs
somewhat from the traditional “common plan” theory set forth above. The prior bad act
here is the making of the threat; but there is no evidence that defendant made similar
threats to Veil. Rather, the Attorney General’s contention is that the content of the threat
to Johnson shows defendant had a preexisting plan to kill and hide the body of any
paramour who exposed him—a plan he carried out when Veil threatened to expose his
infidelity. Under this theory, the threat to Johnson would be evidence of premeditation in
the murder of Veil because it would show the defendant considered his course of action
well in advance of the crime. (See People v. Lang (1989) 49 Cal.3d 991, 1015
[defendant’s prior threat could reasonably be interpreted to mean he had a preexisting
intent to kill anyone who interfered with him or thwarted his plans or desires].) But this
argument runs dangerously close to a theory of relevance made impermissible under
subdivision (a) of section 1101—that defendant had a propensity or predisposition
towards such conduct. Thus, while the Attorney General’s argument establishes the
probative value of the testimony as to planning and premeditation, admission of the
evidence for that purpose increased the danger that the jury might employ it improperly.
However, the trial court properly instructed the jury not to consider the testimony as
“evidence that the defendant has a bad character or is disposed to commit crime.” Given

                                             17
this limiting instruction, we conclude that the trial court did not err by instructing the jury
that it could consider Johnson’s testimony as evidence of planning by defendant.
       Even were we to assume that the trial court’s instruction was erroneous, defendant
cannot show he was prejudiced by the asserted error. For the reasons set forth above, the
court properly admitted the testimony for the purpose of showing motive, and the court
properly instructed the jury that it could not consider the testimony for character
purposes. The asserted error here concerns only the instruction allowing the jury to
consider the testimony as evidence of planning. To establish prejudice under Watson,
defendant must show a reasonable probability of a more favorable outcome in the
absence of this instruction—in other words, that the jury would have decided differently
if they had not been given the contested instruction on planning, even though jurors were
allowed to consider the evidence for purposes of establishing motive.
       Defendant cannot establish a reasonable probability of a more favorable outcome
under these circumstances. The evidence against him was strong. In addition to
establishing motive, the prosecution presented abundant circumstantial evidence of his
guilt. Video showed him at the Market with Veil just prior to her disappearance. His
conduct immediately after her disappearance—washing his truck multiple times, and
prompting three witnesses to lie for him—showed consciousness of guilt even before
police discovered that Veil had been murdered. Furthermore, forensic evidence showed
Veil’s blood and hair was in defendant’s truck, and his DNA was found on the masking
tape wrapped around the end of the rope that was used to murder Veil. Defendant
contends there was some danger of contamination in the DNA analyses, but the jury was
unlikely to rule out several separate DNA matches on this basis. None of this evidence
would have been any less forceful if the jury had been instructed that it could only
consider Johnson’s testimony for purposes of motive but not planning.
       Defendant argues that the asserted error was so unfair that it constituted a violation
of his federal due process rights, thereby requiring harmless error analysis under

                                              18
Chapman. We disagree. Even assuming the instruction was erroneous, it would not have
“so infused the trial with unfairness as to deny due process of law.” (Estelle v. McGuire
(1991) 502 U.S. 62, 75.) But even under Chapman, the evidence against defendant was
so strong that we would conclude any error was harmless beyond a reasonable doubt.
Accordingly, we conclude defendant’s claim lacks merit.
   B. The Trial Court Properly Instructed the Jury on Motive
       Defendant contends the trial court erred by instructing the jury that the prosecution
was not required to prove motive. Defendant argues that motive was an “intermediate
fact” essential to a finding of guilt, and that the instruction thereby lowered the
prosecution’s burden of proof to something less than guilt beyond a reasonable doubt.
Finding no legal authority to support this claim, we conclude the trial court properly
instructed the jury.
       The trial court instructed the jury consistent with CALCRIM No. 370 as follows:
“The People are not required to prove that the defendant had a motive to commit any of
the crimes charged. In reaching your verdict you may, however, consider whether the
defendant had a motive. Having a motive may be a factor tending to show that the
defendant was guilty. Not having a motive may be a factor tending to show that the
defendant is not guilty.”
       It is well established that motive is not an element of the offense of murder, and
therefore that the prosecution has no burden to prove motive. The California Supreme
Court has stated that “evidence of motive is not required to establish intent to kill. . . .”
(People v. Smith (2005) 37 Cal.4th 733, 741.) And it has said that “motive is not an
element. [. . .] Motive describes the reason a person chooses to commit a crime. The
reason, however, is different from a required mental state such as intent or malice.”
(People v. Hillhouse (2002) 27 Cal.4th 469, 504.)
       Defendant contends: “When an intermediate circumstantial fact, such as motive,
is essential to an inference of guilt beyond a reasonable doubt, then, as a matter of logic

                                              19
as well as law, the subsidiary fact itself must be proved beyond a reasonable doubt.”
Defendant bases his argument on People v. Anderson (2001) 25 Cal.4th 543 (Anderson)
and People v. Wright (1990) 52 Cal.3d 367 (disapproved on another ground by People v.
Williams (2010) 49 Cal.4th 405). These cases concerned the proper consideration of
circumstantial evidence. In Anderson, the court considered CALJIC 2.01, by which a
trial court may instruct the jury that “each fact which is essential to complete a set of
circumstances necessary to establish the defendant’s guilt must be proved beyond a
reasonable doubt. In other words, before an inference essential to establish guilt may be
found to have been proved beyond a reasonable doubt, each fact or circumstance on
which the inference necessarily rests must be proved beyond a reasonable doubt.” But
defendant presents no authority for the proposition that motive is a “fact which is
essential to complete a set of circumstances necessary to establish the defendant’s guilt.”
Nor does defendant present any argument based on the facts of this case establishing that
motive was an essential fact in proving his guilt. While evidence of defendant’s motive
may have persuaded the jury that he was more likely to be guilty, nothing about the
circumstances of the offense rendered the fact of motive logically necessary to prove
defendant’s guilt.
       Furthermore, the court properly instructed the jury consistent with CALCRIM
No. 224—the CALCRIM counterpart to CALJIC 2.01—as follows: “Before you may
rely on circumstantial evidence to conclude that a fact necessary to find the defendant
guilty has been proved you must be convinced that People have proved each fact essential
to that conclusion beyond a reasonable doubt.”
       We conclude the trial court properly instructed the jury with CALCRIM No. 370
and CALCRIM No. 224. (People v. Howard (2008) 42 Cal.4th 1000, 1024 [instruction
based on CALCRIM No. 370 did not lessen the prosecution’s burden of proof].)
Defendant’s claim is without merit.



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                            DISPOSITION
The judgment is affirmed.




                                21
                      _______________________________
                      Márquez, J.




WE CONCUR:




____________________________________________
 Bamattre-Manoukian, Acting P. J.




______________________________
 Grover, J.
