Filed 3/10/16 P. v. Tate CA2/4
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION FOUR


THE PEOPLE,                                                             B258141

         Plaintiff and Respondent,                                      (Los Angeles County
                                                                        Super. Ct. No. YA088017)
         v.

DEBBIE ANN TATE,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County,
Steven R. Van Sicklen, Judge. Affirmed.
         Lise M. Breakey, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and Analee
J. Brodie, Deputy Attorneys General, for Plaintiff and Respondent.
                                    INTRODUCTION

       Defendant Debbie Ann Tate appeals from the judgment entered following her
conviction by jury of one count of assault with a deadly weapon. She contends the trial
court erred in admitting evidence of two prior acts of misconduct. We conclude the trial
court erred in admitting one of the two prior acts, but the error was not prejudicial. We
therefore affirm.
                     FACTUAL AND PROCEDURAL HISTORY
       A.     Procedural Background
       The Los Angeles County District Attorney (the People) filed an information on
September 9, 2013 charging defendant with one count of assault with a deadly weapon, a
knife, upon her daughter, Demariya A.1 (Pen. Code, § 245, subd. (a)(1).) The
information further alleged defendant suffered a serious or violent prior felony conviction
within the meaning of Penal Code sections 667, subdivisions (a) through (j), and 1170.12,
subdivision (b).
       At the conclusion of trial, the jury convicted defendant on count one as charged.
Defendant waived jury trial on the prior conviction allegations and the court subsequently
found the allegations true. The court sentenced defendant to a total of 11 years in state
prison, consisting of a base term of three years on count one, doubled to six years
pursuant to Penal Code section 1170.12, subdivision (b), and an additional five years for
the prior conviction pursuant to Penal Code section 667, subdivision (a)(1), to run
consecutively to count one. Defendant timely appealed.
       B.     Prosecution Case
              1.     The Stabbing
       In July 2013, defendant lived with her 16-year-old daughter, Demariya.
Defendant’s 24-year-old son, Steven Rembert, had been staying with them for a few



       1
      The parties referred to Demariya (a minor) by her first name throughout the trial.
We adopt the same convention; no disrespect is intended.
                                             2
weeks. On July 28, 2013, defendant and Rembert got into an argument, which ended
with defendant stabbing Demariya.
      At trial, Demariya testified reluctantly for the People. On the morning on July 28,
2013, she was home with her mother and her brother, Rembert. Defendant and Rembert
were drinking beer together. According to Demariya, defendant became intoxicated and
began yelling at Rembert. Demariya was upset with defendant because defendant had
said “she wasn’t going to drink anymore.”
      When the argument began, Demariya was in her bedroom and defendant and
Rembert were in the living room. As Demariya entered the living room, she saw the two
yelling at each other and Rembert approaching defendant. Rembert then grabbed
defendant’s arms and pushed defendant to the ground.2 Demariya got “in between them”
and told them to “stop arguing.” Rembert moved her “out of the way” and he and
defendant continued verbally arguing. Defendant told Rembert to leave the house, so he
and Demariya went into Demariya’s bedroom and began to pack Rembert’s bags.
      At some point, defendant and Rembert began arguing again and defendant came
into the bedroom. Demariya told defendant and Rembert she did not like their drinking,
and “they wouldn’t have been arguing if they hadn’t been drinking.” Defendant left the
room and Rembert followed, still arguing. Demariya did not see where they went.
Rembert then reentered Demariya’s bedroom, followed by defendant, who looked angry.
Rembert and defendant were still arguing; then Rembert pushed defendant down and
“pinned her to the ground.” Rembert got on top of defendant with his hands pinning her
arms. Demariya unsuccessfully tried to get Rembert off defendant. Rembert eventually
got up while defendant was screaming. Defendant left and went into her bedroom.
When defendant returned a short time later, Demariya testified she saw tears on her
mother’s face, but did not see her hands. At this point, Demariya was between her
mother and brother, facing Rembert, with her back to defendant and the bedroom


      2
        According to her children, defendant is between four feet eleven inches and five
feet two inches tall. Rembert is six feet tall and weighs 200 pounds.

                                            3
doorway. Defendant was yelling and arguing with Rembert. Rembert then “attempted to
go for [defendant] again,” and Demariya told him to stop. Demariya recalled there was
“kind of a struggle” between defendant and Rembert, and she was “in the middle of them
. . . grabbing and stuff.” Rembert was “reaching over” Demariya’s head to grab
defendant and Demariya was “trying to push him away.” Demariya was using both
hands to try to restrain Rembert, to “keep him away from my mom.”
       At this point, Demariya felt a pain in the back of her left shoulder. She realized
defendant had “cut” her with a knife. Demariya did not see the knife or defendant’s
action to cut her.3 She started to bleed and the argument stopped as defendant and
Rembert tried to assist her. She estimated the entire argument and altercation lasted
about 40 minutes.
       Demariya called 911. She testified that she was “hysterical” and crying at the time
because she was in pain. The tape of the 911 call was played for the jury. During the
call, Demariya asked the 911 operator to “get an ambulance, my mom just stabbed me.”
Demariya, Rembert and defendant waited together for the ambulance and the sheriff’s
deputies, who arrived within minutes.
       The People impeached Demariya with her preliminary hearing testimony. At the
preliminary hearing, Demariya did not testify Rembert had pushed defendant to the
ground twice (once in the living room and then again in the bedroom), but only once, in
the living room. Demariya acknowledged that her memory was better at the time of the
preliminary hearing in August 2013 (about a month after the incident) than at trial in
January 2014, but insisted that Rembert had pushed defendant down twice. As for the
confrontation in the bedroom, she testified at the preliminary hearing that Rembert
pushed defendant, Demariya got in the middle, telling him to stop, and that was when
defendant cut her. When confronted with her prior testimony, Demariya clarified at trial


       3
          Demariya remembered defendant had been eating an apple in her bedroom
earlier that day; she presumed defendant had a knife, because it was defendant’s habit to
peel her apples with a knife.

                                             4
that she did not see Rembert hit defendant during the final “struggle” in the bedroom.
She also admitted that defendant was mad at her, as well as at Rembert.
              2.     Investigation and Arrest
       Los Angeles County Deputy Sheriff Christopher Quinones testified that he
responded to the 911 call on July 28, 2013. When he first encountered Demariya, she
was exiting the residence, bleeding and “obviously in pain.” Demariya told him “very
briefly that her mom had stabbed her.” Deputy Quinones and his partner detained
defendant and Rembert pending investigation.
       Deputy Quinones then interviewed Demariya in greater detail. At that point, she
was seated on the front porch of the residence and was “obviously upset or shaken or in
pain” and was crying. Demariya stated that defendant and Rembert had been involved in
an argument. Then, “for an unknown reason, the argument became very heated, and
[defendant] retrieved a kitchen knife from the kitchen and attacked” Demariya. Rembert
tried to take the knife away from defendant but was not able to do so until after Demariya
was stabbed. Demariya told the deputy that defendant had been “drinking heavily all
day” and that defendant was mad at Rembert and at Demariya “for an unknown reason.”
During this interview, Demariya did not claim that the stabbing was accidental or done in
self-defense.4 The interview ended after several minutes when the paramedics arrived
and began to treat her wound.
       Next, Deputy Quinones interviewed Rembert, who had been placed in the back of
a patrol car. Rembert stated that he and defendant were involved in an argument that
“began to get heated.” Defendant “had been drinking Colt 40 (sic) malt liquor” and was
drunk. At that point, “for an unknown reason, [defendant] turned her aggression towards


       4
         At trial, Demariya did not deny making these statements to Deputy Quinones,
but claimed she “kind of lied” during the interview at the scene. Specifically, she
claimed she lied when she told the deputy that defendant was “mad at me too,”
“intentionally stabbed me” and that defendant “walked in the room and attacked me, and
my brother tried to stop her.” Instead, she claimed at trial that she did not really believe
defendant was mad at her and she knew defendant had stabbed her “on accident [sic].”
She explained that, at the time of the interview, she was upset and crying and in pain.
                                              5
Demariya, retrieved a kitchen knife, and then walked up to Demariya, who was in her
room, and attacked her with the knife.” According to Deputy Quinones, Rembert
“specifically, with hand motions, described that [defendant] had walked up to [Demariya]
and stabbed her with the knife,” demonstrating that defendant had lifted up the knife “in
an overhand grip and then struck the hand down as if she was puncturing the knife into an
object in front of her.” Rembert stated he then wrestled the knife away from defendant.
Rembert described the knife as a silver kitchen knife with a blue handle, and signed a
consent form allowing the deputies to enter the residence to retrieve the knife. He
identified the knife found in the residence as the one defendant used to stab Demariya.
       The People also presented testimony from three medical personnel witnesses.
Emergency medical technician Scott Engelmann treated Demariya at the scene. When he
arrived, Demariya was sitting outside the front door “in moderate to severe distress
hunched over crying.” She was holding her shoulder and bleeding. Demariya told him
she had been arguing with her mother and when Demariya attempted to leave, “her
mother had grabbed a butter knife from the kitchen and stabbed her.” A second
emergency medical technician, who rode in the ambulance with Demariya to the hospital,
testified Demariya told him “something along the lines [of] her mother went crazy and
took a butter knife and stabbed her.” Similarly, the emergency room physician who
treated Demariya on the night of the stabbing testified she stated she was “stabbed at
home by her mother.”
       Demariya was briefly treated at the hospital and released; the laceration did not
require stitches. She did not sustain any lasting injuries other than a small scar.
              3.     Prior Acts
       Over defendant’s objection, the court allowed evidence of two prior incidents
involving defendant. First, in July 2003, defendant was involved in an altercation with
her niece, Nicole Barton. In the instant trial, Barton was escorted to court by
investigators for the prosecution after failing to appear pursuant to her trial subpoena.
She testified that she did not recall any of the details of the 2003 incident. The
responding police officer, who interviewed Barton at the scene, testified to the statements

                                              6
she made at the time. Barton told him she had gotten into a dispute with defendant and
defendant approached Barton’s room holding “a pot and a knife.” Defendant told Barton
to “Come out here. I’ll fuck you up. I’ll cut you, bitch.” Defendant then ran toward
Barton with the pot “elevated above her head in a striking motion,” but was tackled by
other family members before reaching Barton.
       The People also offered evidence of an incident that occurred in September 2009.
Demariya, who was 12 years old at the time, testified that she was in the car with
defendant and defendant’s boyfriend, Albert Martin; Martin was driving. Martin and
defendant began arguing because he would not buy cigarettes for defendant. Martin
threw defendant out of the car. Defendant became angry and “tried to throw a pot” at
Martin. At trial, Demariya claimed she could not remember other details of the incident.
       Martin testified that he had been in a romantic relationship with defendant for
seven years. As he recalled the 2009 incident, he and defendant had a verbal argument
while driving home, but there was no physical contact. He stopped the car and let
defendant out. After they got out of the car, defendant threw a pot at him because he
“wouldn’t cooperate”; he “knocked it down” with his hand. He described the pot as a
plastic, six inch “chia pot.” He denied telling the police that defendant had struck him
while they were in the car or that the pot was heavy and ceramic.
       However, the responding officer, Jason Clark, testified that Martin reported at the
time that defendant “began hitting him” during their argument, and then picked up a
“heavy flowerpot, and attempted to throw it at him.” Officer Clark also testified that
while he was arresting defendant as a result of this incident, she told Martin “she was
going to get someone to take care of him.” According to the officer, defendant claimed
she never hit Martin, and while she did pick up a pot, she did not throw it.




                                             7
       C.      Defense Case
       Rembert testified for the defense.5 Before arriving at defendant’s house on the day
of the stabbing, he had shared a pint of Hennessy with a friend. He was intoxicated when
he arrived and then continued to drink beer at defendant’s house. He also saw defendant
drinking a beer.
       Rembert testified he and defendant began arguing about 30 minutes to an hour
after he arrived, because he had left wet clothes on the bathroom floor. According to
Rembert, defendant yelled at him to leave the house because he was being disrespectful.
He responded in an “angry manner,” and refused to leave. Defendant threatened to call
the police if Rembert did not leave.
       Rembert left the house for a few minutes and smoked some marijuana to calm
himself down. He returned to the house and started to argue with defendant again.
Rembert testified that he pushed defendant, “like a regular tap push,” to which defendant
responded by stating “don’t put your hands on me, bitch.” Rembert then “got mad,”
grabbed defendant, “pushed her down hard” and she fell.6 This occurred in the hallway
between the living room and the bedrooms. He advanced toward defendant and
Demariya grabbed him and held him back. He heard Demariya start to scream. Once he
realized that Demariya got “hit” with the knife, he stopped arguing and turned to focus on
helping his sister.
       Rembert denied seeing defendant holding a knife. He denied or claimed he could
not remember most of the statements attributed to him in the police report (based on his
interview at the scene with Deputy Quinones), including that he saw defendant walk up
to Demariya and stab her, and that he wrestled the knife away from defendant. He did
identify the knife showed to him by police as the one defendant used to stab Demariya.
He claimed that “it was an accident. My sister hopped in front and accidently got hit.”

       5
         At the time of trial, Rembert was in custody on an unrelated charge. The court
admonished the jury not to speculate regarding his inmate attire.
       6
         On redirect, after reviewing his preliminary hearing testimony, Rembert said that
he got on top of defendant after pushing her to the ground and grabbed her by the
shoulders.
                                            8
       Defendant did not testify at trial. In closing, her counsel argued that defendant
“did not intend to stab her daughter. She acted in self-defense. She was fighting off her
son who had thrown her to the ground. . . . She picked up that knife to end the attack by
her son. She didn’t mean to hit Demariya with the knife.”
                                      DISCUSSION
       Defendant argues the court erred in admitting her prior acts of misconduct in 2003
and 2009. She contends that these prior acts were admitted based on a purported pattern
of violence followed by a claim of self-defense, but in fact, there was no evidence that
defendant claimed self-defense after either incident. Thus, she argues there was no
basis to admit the prior acts and she was prejudiced as a result of their admission. We
agree with defendant that the 2009 incident was erroneously admitted, but we find the
error was harmless in light of the proper admission of the 2003 incident and the evidence
supporting the current charge.
       A.     Legal Principles
       As a general rule, evidence of a person’s character, including evidence of specific
instances of uncharged misconduct, is inadmissible to prove the conduct of that person on
a specific occasion. (§ 1101, subd. (a).)7 This type of evidence is sometimes referred to
as criminal disposition or propensity. (People v. Linkenauger (1995) 32 Cal.App.4th
1603, 1609.) The rule, however, is qualified by section 1101, subdivision (b) (section
1101(b)), which permits admission of evidence of uncharged misconduct when such
evidence is relevant to establish some fact other than the person’s character or
disposition, such as “motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake or accident.”
       Section 1109, subdivision (a) sets forth an exception to the rule regarding
propensity evidence for domestic violence cases. Thus, “evidence of the defendant’s
commission of other domestic violence” is admissible as character evidence tending to
prove the charged conduct, subject to section 352. (§ 1109, subd. (a).) The admissibility

       7
        All further statutory references are to the Evidence Code unless otherwise
indicated.
                                             9
of propensity evidence under section 1109 “reflects the legislative judgment that in
domestic violence cases, . . . similar prior offenses are ‘uniquely probative’ of guilt in a
later accusation,” given the “‘typically repetitive nature’ of domestic violence.” (People
v. Johnson (2010) 185 Cal.App.4th 520, 532.)
       Although evidence of prior acts may be admissible under section 1101(b) or
section 1109, that evidence may nevertheless be inadmissible under section 352 if it is
unduly prejudicial. A determination of inadmissibility under section 352 requires the
balancing of the probative value of the evidence against its potential prejudicial effect.
(People v. Ewoldt (1994) 7 Cal.4th 380, 404-405 (Ewoldt).) “Without doubt, evidence a
defendant committed an offense on a separate occasion is inherently prejudicial.
[Citations.] But Evidence Code section 352 requires the exclusion of evidence only when
its probative value is substantially outweighed by its prejudicial effect. ‘Evidence is
substantially more prejudicial than probative . . . [only] if, broadly stated, it poses an
intolerable “risk to the fairness of the proceedings or the reliability of the outcome”
[citation].’ [Citation.]” (People v. Quang Minh Tran (2011) 51 Cal.4th 1040, 1047.)
       We review a challenge to a trial court’s decision to admit prior misconduct
evidence for abuse of discretion. (See, e.g., People v. Kipp (1998) 18 Cal.4th 349, 369-
371.) “A court abuses its discretion when its ruling ‘falls outside the bounds of reason.’
[Citation.]” (Id. at p. 371.)
       B.      Factual Background
       Prior to trial, the People moved to admit evidence of three prior instances of
misconduct by defendant pursuant to section 1101(b).
       In addition to the incidents in 2003, in which defendant ran toward her niece
armed with a knife and pot, and 2009, in which defendant threw a pot at her boyfriend,
the People also sought to admit defendant’s 1994 conviction for assault with a deadly
weapon (Pen. Code § 245, subd. (a)(1)). According to the preliminary hearing testimony
of the victim, who was defendant’s neighbor, she and defendant got into an argument,
defendant began to yell and threaten her, and then defendant stabbed her in the chest and


                                              10
arm with a kitchen knife. Defendant entered a plea of nolo contendere to the assault
charge.8
       At the initial hearing on the motion to admit the prior act evidence, the prosecutor
argued that all three incidents were relevant to defendant’s self-defense claim, as “she
offers this false claim each time.” The court asked whether there was a self-defense
claim in all three prior cases and the prosecutor confirmed that there was. The prosecutor
then corrected the record, stating there was no self-defense claim as to the 2003 incident.
The court stated it believed “these incidents would be helpful” to the jury “in determining
what [defendant’s] state of mind was,” but noted it was concerned that admitting all three
prior incidents would be “piling on” and increase the “tendency for a jury to convict”
based on defendant’s prior misconduct. The court then concluded that the 2009 incident,
in which defendant threw a pot at her boyfriend, was the “least similar,” as it did not
involve a knife, and the other two incidents were admissible as they were “similar and
there is a claim of self-defense in those as there is” in the instant case. Thus, the court
was inclined to allow the 1994 conviction and the 2003 incident, “because there were
claims of self-defense. That’s the claim here.”9
       The prosecutor also moved “for appellate purposes” to introduce all three
incidents (the 1994 conviction and the 2003 and 2009 altercations) under section 1109.
The court indicated it did not think section 1109 would apply.
       During further argument on the matter, defense counsel pointed out that the
proposed evidence regarding the 1994 conviction did not contain a claim of self-defense
by defendant. The court noted again that “one of the reasons I allowed” the prior
incidents was “because of an M.O.; start a fight, claim self-defense.” Without the self-
defense connection, “it gets now closer to just propensity.” The court turned again to the
2009 incident involving defendant’s boyfriend, which it had previously excluded, noting


       8
        This conviction is the basis for the prior strike allegations in the current case.
       9
        During the initial discussion on this issue, it appears the court remained unclear
whether the 2003 incident involved a claim of self-defense, even though the prosecutor
had already stated that it did not.
                                              11
that it “seems to be more in line with the theory of the People that [defendant] gets
involved in these altercations and then claims . . . she’s acting in self-defense.” The
prosecutor confirmed that was the theory he was raising. The court concluded “I think I
should just reverse myself and let [the 2009 incident] in and exclude the [1994
conviction],” because the 2009 incident was “closer [in time]. Otherwise, I agree with
[defense counsel]. We’re really talking now propensity.”
       The People presented testimony about the 2009 incident from Demariya, Martin,
and the responding police officer. Prior to presentation of the 2003 incident involving
defendant’s niece, the court heard further argument on its admissibility. The prosecutor
argued that “the repeated number of times Ms. Tate arms herself and goes to attack
somebody” was relevant to show her intent, whether or not she later claimed self-defense
in the prior incidents. The court noted that it excluded the 1994 conviction because of its
age and because there was no claim of self-defense. However, the 2003 incident was
factually “very similar” and admissible under section 1101(b) to show “motive, intent,
and state of mind,” even without a parallel claim of self-defense. The People called
Barton and the responding police officer to testify about the 2003 incident.
       At the close of trial, the prosecution requested a jury instruction reflecting the
admission of the 2009 incident involving defendant’s boyfriend as evidence of domestic
violence under section 1109. The court indicated that the 2009 incident was admitted
under both sections 1101 and 1109. Accordingly, the court instructed the jury that the
2003 and 2009 incidents could be considered as evidence of defendant’s intent
(CALCRIM No. 375) and the 2009 incident could also be used to show defendant’s
propensity to commit domestic violence (CALCRIM No. 852).
       C.     No Error in Admission of 2003 Incident
       Defendant contends the trial court erred in admitting evidence of the 2003 incident
under section 1101(b). We disagree.
       In Ewoldt, supra, 7 Cal.4th 380, our Supreme Court explained that the
admissibility of evidence pursuant to section 1101(b) depends on the degree of similarity
between the uncharged act and the charged offense: “The least degree of similarity

                                             12
(between the uncharged act and the charged offense) is required in order to prove intent. .
. . ‘[T]he recurrence of a similar result . . . tends (increasingly with each instance) to
negative accident or inadvertence or self-defense or good faith or other innocent mental
state, and tends to establish (provisionally, at least, though not certainly) the presence of
the normal, i.e., criminal, intent accompanying such an act. . . .’ . . . In order to be
admissible to prove intent, the uncharged misconduct must be sufficiently similar to
support the inference that the defendant ‘“probably harbor[ed] the same intent in each
instance.”’” (Id. at p. 402, citations omitted; see also People v. Steele (2002) 27 Cal.4th
1230, 1244 [“the doctrine of chances teaches that the more often one does something, the
more likely that something was intended, . . . rather than accidental or spontaneous”].)
       With these principles in mind, we conclude the trial court did not abuse its
discretion by admitting evidence of the 2003 attempted attack on defendant’s niece as
relevant to defendant’s intent under section 1101(b). There was no dispute that defendant
stabbed Demariya. Rather, the key issue was whether defendant did so in self-defense
(and accidentally, to the extent her action in self-defense was directed at Rembert), as she
claimed. Evidence of a prior incident in which defendant attempted to attack a younger,
female relative with a knife in the course of an argument was probative on that issue.
(See Ewoldt, supra, 7 Cal.4th at p. 404.) As noted by the trial court, defendant’s conduct
during the 2003 incident was remarkably similar to the conduct charged here. In each
instance, there was evidence that defendant became angry during an argument and
attempted to attack a younger, female relative with a kitchen knife. Thus, the 2003
incident was relevant to the jury’s determination of whether defendant possessed the
requisite general criminal intent when she stabbed Demariya, and whether the stabbing
was the result of defendant’s reasonable belief that she needed to defend herself.
Therefore, the evidence of the 2003 incident was admissible under section 1101(b).
       Defendant asserts the entire focus of the People’s argument for admission (and the
trial court’s subsequent analysis) centered around defendant's purported pattern of violent
confrontation followed by a claim of self-defense. Because the 2003 incident did not
actually include a claim of self-defense, defendant argues that the remaining similarities

                                              13
between the two incidents were too weak and generic to support admission and were only
relevant to show defendant’s propensity for violence. We disagree. As discussed above,
defendant’s conduct during the incident in 2003 was similar in several aspects to her
conduct in the current case, even without any parallel claim of self-defense. Although the
prosecutor initially lumped all three prior acts into the purported “pattern of extremely
violent and assaultive conduct by the defendant followed by a claim of self-defense,” he
later conceded there was no self-defense claim after the 2003 incident and the trial court
ultimately admitted the incident based on the other similarities in defendant’s conduct.
       Moreover, the two incidents need not be “particularly distinctive” in order to
admit the prior incident under section 1101(b). Rather, they need only be “‘sufficiently
similar [to the charged offenses] to support the inference that the defendant “probably
harbored the same intent in each instance.”’” (People v. Lewis (2001) 25 Cal.4th 610,
636-637 [finding incidents that are “not particularly distinctive” sufficiently similar to
warrant admission and outweigh any prejudice].) “‘[W]hen the other crime evidence is
admitted solely for its relevance to the defendant’s intent, a distinctive similarity between
the two crimes is often unnecessary for the other crime to be relevant. Rather, if the other
crime sheds great light on the defendant’s intent at the time he committed that offense it
may lead to a logical inference of his intent at the time he committed the charged offense
if the circumstances of the two crimes are substantially similar even though not
distinctive.’ [Citation.]” (People v. Demetrulias (2006) 39 Cal.4th 1, 16-17.) Here, the
2003 incident easily meets this threshold.
       We also conclude the trial court properly weighed the probative value of the
evidence against its possible prejudicial effects, pursuant to the requirements of section
352. In addition to the similarity of the prior act to the current offense, the probative
value of evidence of uncharged misconduct also is strengthened when, as here, “its
source is independent of the evidence of the charged offense.” (Ewoldt, supra, 7 Cal. 4th
at p. 404.)
       On the other side, the factors affecting the prejudicial effect of an uncharged act
include whether the uncharged act resulted in a criminal conviction and whether the

                                              14
evidence of the uncharged act is stronger or more inflammatory than the evidence of the
charged offense. (Ewoldt, supra, 7 Cal.4th at pp. 404-405; People v. Balcom (1994) 7
Cal.4th 414, 427; People v. Falsetta (1999) 21 Cal.4th 903, 917.) While the 2003
incident did not result in a conviction, that fact is tempered by the consideration that
evidence of defendant’s confrontation with her niece in 2003 was no more inflammatory
(and was presented much more briefly) than the evidence regarding her confrontation
with her son and ultimate stabbing of her daughter. Moreover, any prejudice from the
admission of the 2003 incident was further mitigated by the court's instruction that the
evidence could only be considered for the limited purposes permissible under section
1101(b), including intent, mistake or accident, and self-defense. We presume the jurors
understood and followed this instruction. (People v. Harris (1994) 9 Cal.4th 407, 426.)
       Accordingly, the court’s conclusion that the probative value of the 2003 incident
outweighed the possibility of undue prejudice was not an abuse of discretion.
       D.     Trial Court Erred in Admitting 2009 Incident
       Unlike the 2003 incident, the court’s admission of the 2009 incident, in which
defendant threw a pot at her boyfriend, was based on the representation by the
prosecution that defendant made a claim of self-defense in the 2009 case. Because the
People failed to present any evidence of a self-defense claim in 2009, defendant contends
evidence of that incident should not have been admitted. We agree.
       The trial court admitted evidence of the 2009 incident under section 1101(b) as
relevant to defendant’s intent and also as evidence of prior domestic violence under
section 1109. It is clear, based on the discussions on the record, that the court concluded
the prior incident was admissible under section 1101(b) only because of the purported
pattern of claims of self-defense. Without that similarity, the court indicated it would
likely have excluded the evidence. We agree. As the trial court noted, the chief
similarity between the two incidents was defendant’s claim of self-defense. Unlike the
2003 incident, defendant’s precipitating conduct in 2009 of throwing a flower pot at her
boyfriend was not substantially similar to the instant assault. As no evidence was


                                             15
presented at trial of a self-defense claim in 2009, the incident lacked the requisite
similarity and should not have been admitted under section 1101(b).
       The Attorney General counters that the 2009 incident was nevertheless admissible
under section 1109 as evidence of prior domestic violence. Under section 1109, evidence
of a defendant’s prior domestic violence toward a romantic partner is admissible to show
her propensity to commit domestic violence upon her child. (See People v. Dallas (2008)
165 Cal.App.4th 940, 953.) Section 1109, subsection (d)(3) allows an expanded
definition of “domestic violence” under Family Code section 6211, which includes
violence against the child of a party, but specifies that the use of this definition must be
“[s]ubject to a hearing conducted pursuant to Section 352, which shall include
consideration of any corroboration and remoteness in time.”
       Here, there is no indication in the record that the trial court reweighed the
admissibility of the 2009 incident under section 1109 after the prosecution failed to
present evidence that defendant claimed self-defense against her boyfriend. The trial
court's initial section 352 analysis, used to admit the evidence under section 1101(b), was
based on an alleged self-defense claim that proved to be unsupported by the evidence at
trial. Thus, the absence of a “pattern” of self-defense claims undermined the court's
rationale for determining that the 2009 incident was sufficiently similar to the instant
offense to be admissible under section 352. (See People v. Johnson, supra, 185
Cal.App.4th at p. 532 [“Section 1109 was intended to make admissible a prior incident
‘similar in character to the charged domestic violence crime, and which was committed
against the victim of the charged crime or another similarly situated person.’
[Citation]”]; People v. Hollie (2010) 180 Cal.App.4th 1262, 1274 [“‘The principal factor
affecting the probative value of an uncharged act is its similarity to the charged
offense.’”].)
       On the other hand, it is possible that the trial court performed the requisite
balancing under section 352 as required by section 1109, and concluded that the 2009
incident was admissible as domestic violence evidence. However, there is nothing in the
record to indicate that this was done. The only discussion on the record on this issue

                                              16
following testimony regarding the 2009 incident concerned whether defendant’s prior
domestic violence upon a boyfriend could be used to show her propensity to commit
domestic violence upon her child. While the trial court “‘need not expressly weigh
prejudice against probative value—or even expressly state that he has done so
[citation],’” the record must at least “‘affirmatively demonstrate that the court did so.’
[Citation.]” (People v. Hollie, supra, 180 Cal.App.4th at p. 1275.) In the absence of any
evidence suggesting that the court, armed with the accurate facts of the 2009 incident,
performed its duty to balance probative value and prejudice, we conclude that its
admission of the 2009 incident under section 1109 was error.10
       E.     Error Was Harmless
       Although we conclude that the evidence of the 2009 incident was erroneously
admitted, we find the error was harmless. We review a court’s erroneous admission of
prior misconduct evidence under the standard of People v. Watson (1956) 46 Cal.2d 818,
836, requiring reversal only if there is a reasonable probability that the defendant would
have obtained a more favorable result absent the error. (See, e.g., People v. Malone
(1988) 47 Cal.3d 1, 22.)
       Under the circumstances of this case, we conclude a different result was not
reasonably probable absent the admission of the 2009 incident involving defendant’s
boyfriend. In particular, the jury would still have been able to consider evidence of the
properly-admitted 2003 incident involving defendant’s niece as relevant to defendant’s
intent and self-defense claim. And the 2009 incident, in which defendant threw a pot at
her boyfriend with no resulting injury, was less inflammatory than either the 2003
incident or the current charge, both of which involved defendant’s use of a knife against
much younger victims. Moreover, Martin, the victim in the 2009 incident, significantly
downplayed the attack at trial.


       10
         Defendant appears to suggest on appeal that the trial court was obligated by the
language in 1109, subsection (d)(3) to expressly consider the factors of corroboration and
remoteness during its analysis under section 352. We need not decide this issue in light
of our conclusion that incident was erroneously admitted.
                                             17
       In addition, the evidence for the current charge that defendant stabbed her
daughter during an argument was undisputed, while the evidence in support of
defendant’s self-defense claim was weak. Neither Demariya nor Rembert mentioned any
facts suggesting self-defense or an accidental stabbing in their initial statements
following the incident. Instead, both consistently claimed that defendant approached
Demariya and then stabbed her. And even under the version of events offered by
Demariya at trial—the account most favorable to defendant—the evidence suggested that
defendant left the room where she was arguing with Rembert, retrieved a knife from
another room, and returned armed with the knife. As such, it is not reasonably likely that
the jury would have credited defendant’s claim of self-defense if the 2009 incident had
been excluded.
       Defendant contends the prejudicial effect of the admission of the 2009 incident
was heightened by the prosecutor’s comment during closing argument that the jury could
use the 2009 incident “to say, gosh, what are the chances that she’s going to be claiming
self-defense here, especially given the fact that she told the officer that she was acting in
self-defense on that case.” This argument by the prosecutor undisputedly misstated the
evidence.11 However, the prosecutor made no further reference to the purported 2009
self-defense claim,12 and the jury was properly instructed to regard the remarks of
counsel as argument, not evidence. The evidence presented at trial regarding the incident
clearly contained no mention of self-defense. Under these circumstances and in light of
the strength of the remaining evidence, discussed above, we conclude that the single
misstatement by the prosecutor did not tip the balance into prejudicial error.13

       11
          We note that defendant did not object to this statement at trial and does not raise
a claim of prosecutorial misconduct on appeal.
       12
          We reject defendant’s claim that the prosecutor also improperly argued that the
2003 incident could be used for propensity as unsupported by the record. The prosecutor
merely stated that the 2003 evidence was relevant to evaluate defendant’s current self-
defense claim, which was appropriate pursuant to section 1101(b), as discussed above.
       13
          For the same reasons, we reject defendant’s contention that the admission of
these prior acts rose to the level of a due process violation of his constitutional rights.
(See, e.g., People v. Falsetta, supra, 21 Cal.4th 903.)
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                            DISPOSITION
      Affirmed.
             NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                             COLLINS, J.

We concur:



WILLHITE, Acting P. J.


MANELLA, J.




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