Filed 8/3/16 P. v. Andrade CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     SECOND APPELLATE DISTRICT
                                                  DIVISION TWO

THE PEOPLE,                                                          B262569

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA414814)
         v.

ARTHUR ANDREW ANDRADE, JR.,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County. George
G. Lomeli, Judge. Affirmed.


         Mark Yanis, 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, Joseph P. Lee and Jaime L.
Fuster, Deputy Attorneys General, for Plaintiff and Respondent.
       Defendant and appellant Arthur Andrew Andrade, Jr. (defendant) appeals from his
conviction for murder. He contends that the trial court erroneously read CALCRIM No.
852 to the jury, refused to give defendant’s proposed pinpoint instruction, and that the
judgment must be reversed due to the cumulative effect of the alleged errors. As we find
no merit to defendant’s contentions, we affirm the judgment.
                                    BACKGROUND
       Defendant was charged by indictment with the murder of his wife, Esperanza, in
violation of Penal Code section 187, subdivision (a),1 and with disobeying a domestic
relations court order, in violation of section 273.6, subdivision (a). The indictment also
alleged that defendant had personally used, and personally and intentionally discharged a
firearm, causing great bodily injury and death to Esperanza, within the meaning of
section 12022.53, subdivisions (b) and (c).
       Defendant pled no contest to the violation of court order, and a jury found
defendant guilty of the murder in the first degree, and found true the three firearm
allegations. On February 23, 2015, the trial court sentenced defendant to prison for 25
years to life, plus a consecutive term of 25 years to life due to the firearm enhancement
alleged under section 12022.53, subdivision (d). The court imposed additional
consecutive firearm enhancements of 10 years and 20 years, and stayed the terms
pursuant to section 654. Defendant was given 144 days of presentence custody credit and
was ordered to pay fines, fees, and restitution. Defendant filed a timely notice of appeal
from the judgment.
Prosecution evidence
       Esperanza was killed on March 16, 2013, while sitting in her car in the parking lot
of the Montebello restaurant where she worked, after defendant shot her six times in the
head while holding the gun about six to eight inches away. The shooting was captured on
the restaurant’s surveillance video and shown to the jury. Eyewitness Martha Quintanar
testified to having heard a gunshot and then observing a man she identified as defendant

1      All further statutory references in this Background section are to the Penal Code,
unless otherwise indicated.

                                              2
across the street, standing by a car. After the first gunshot and a pause, defendant then
fired into the car five or six times in rapid succession.
       Esperanza arrived at 8:00 a.m. to ride with another employee, Carlos Granados, to
the Santa Ana restaurant to cover a coworker’s shift. Granados testified that he was
carrying supplies to his truck, when he saw that his truck was blocked by an untended,
unfamiliar car with its engine running. Granados then heard a scream and gunshots, saw
defendant put something into his rear waistband, get into the running car, and speed off,
tires squealing. Another employee noted the license number of the car, which was later
traced to defendant’s friend Karla Santacruz (Santacruz), who had earlier exchanged cars
with defendant.
       Defendant’s photograph appeared on television news that evening, and defendant
turned himself in the next day. A forensic examination revealed that all of the casings
and fired bullets recovered from both the scene and the coroner came from defendant’s
legally owned .40-caliber Glock handgun. An examination of the gun revealed that it had
safety features which prevent accidental firing, and that each trigger pull would require
six and one-quarter pounds of pressure.
Defense evidence
       Testimony of family members
       Defendant’s sister, Shelly Melendez (Melendez), his mother Daisy Sarmiento
(Daisy), his uncle Vincent Sarmiento (Vincent),2 and extended family relative Luis
Carlos Valenzuela, all testified about defendant’s troubled relationship with Esperanza
and his emotional state during their many separations. Defendant suffered severe
depression for which he was prescribed medication. He did not eat or sleep well, was
anxious and shaky, had trouble focusing, cried uncontrollably at times, and often lay in

2       Melendez was the older of defendant’s two sisters. His younger sister was Daisy
Sarmiento, and their parents were Daisy Sarmiento and Arturo Sarmiento, Sr. Vincent
testified that defense counsel was his brother-in-law, married to his sister. Defendant’s
mother testified that she was defense counsel’s sister-in-law. As several family members
mentioned at trial shared the surname Sarmiento, we refer to them by first name,
intending no disrespect.

                                               3
bed in a fetal position. Sometimes his eyes would roll to the back of his head. Vincent
testified that defendant was obsessive about his love for Esperanza, about winning her
back, and about preventing their marriage from failing. Though concerned that defendant
was suicidal, he never heard defendant express any desire to hurt Esperanza. Melendez
testified that defendant seemed desperate to get Esperanza back.
      Daisy testified that defendant and Esperanza lived with her during their first year
of marriage. Daisy often heard their arguments, which included profanity, and
sometimes damage to the house, some of it caused by Esperanza. Esperanza sometimes
used profanities toward defendant in Daisy’s presence, often telling defendant to “shut
the fuck up,” and calling him a loser, fucking idiot, good for nothing, and dog. Esperanza
would often leave defendant and then return. Once, defendant arrived at Daisy’s house at
3:00 a.m., claiming that Esperanza sent him away because he had a toothache. After the
couple separated in late January 2013, defendant came to live with Daisy. On
Valentine’s Day 2013, Esperanza drove defendant to Daisy’s house. When they arrived,
defendant looked distraught, and Daisy saw torn flowers, a card, and $20 dollar bills
scattered on the back seat of the car. When defendant drew close to Esperanza, pleading
with her to save their marriage, she pushed him and said, among other things, “You get
out, you piece of shit.” On February 23, Daisy, Arturo, and Melendez met Esperanza and
defendant at a restaurant, where Esperanza told the family that she wanted to leave the
marriage and be left alone. Defendant pleaded with her, told her that the family was
going to give him the business and buy them a house. On February 25, defendant was
prescribed Xanax and the antidepressant Wellbutrin. Defendant remained anxious,
inconsolable, and did not sleep. A few days later defendant’s sister received a copy of a
protective order obtained by Esperanza, which Daisy gave to defendant. Daisy last saw
defendant on March 15, the day before the shooting.
      Defendant’s testimony
      Defendant, 31 years old at the time of trial, testified that Esperanza was a student,
five years younger, about 20 or 21 years old when they first met. At that time he was
attending the police academy, but failed to finish the program, and went to work at a law


                                            4
firm while attending college. The two married in March 2011, though defendant did not
feel ready. He thought they should both finish their degrees and become more financially
sound first, but Esperanza was insistent. Although Esperanza was an undocumented
immigrant, and believed marriage would help her become documented, defendant did not
think that this was her motive to marry early. He loved her, and thought she loved him.
       The couple lived at Daisy’s house, rent-free for about six to eight months, but
Esperanza was not happy there, and would periodically leave him and return. Esperanza
would call defendant a “a fucking loser,” and a “fucking idiot,” and tell him that his
family treated him “like a dog.” Esperanza would also use profanity in front of his
mother. Once Esperanza said that she wished his six-year-old daughter, who visited
occasionally, would be raped and killed. Defendant regretted that he tolerated such talk
without telling her to stop.
       Esperanza wanted more privacy, and complained that his family did not buy them
a house as they did for his sister when she married. Defendant then spoke to his father,
and Arturo partitioned his house and remodeled the kitchen to give them a two-bedroom
home to themselves. Defendant and Esperanza still had problems. Esperanza would
become upset and break things, such as windows, his laptop, the television, and his
statistics calculator, and once cut up his clothing and spare work boots because she was
angry that defendant woke her up to ask where to find his work jacket. When he woke
her, she said “You fucking asshole. You fucking woke me up.” Eventually, Esperanza
moved to Los Angeles.
       During a separation in September 2012, Esperanza went to a women’s retreat and
gave defendant an ultimatum to go to the men’s retreat or the marriage would end.
Defendant did as she asked, but Esperanza did not return to him, making him sad.
Defendant broke down, and his aunt took him to a hospital, where he was prescribed
medication. Defendant and Esperanza reunited in November 2012, and lived in her
apartment in Los Angeles until early January 2013, despite Esperanza continuing to be
angry, and occasionally “kick[ing] [him] out.” About once a week defendant slept in his



                                             5
car. One time, when his infected tooth kept him awake, she called him a “pussy,” told
him to quit whining, and then evicted him. He moved back to Orange County.
       In January Esperanza told defendant she was pregnant and happy, and that she had
a name picked out for the baby. In late January, however, Esperanza lost the baby and
blamed defendant. When she ignored his text messages asking whether she was okay,
she replied in Spanish: “Stupido, don’t pretend you fucking care or wanted it. What is
this, a game? You want it and then you don’t and then you do. D.T.E. You fucking
crazy. Go fuck yourself, asshole. I am not pregnant anymore. That is what you wanted.
Okay. Will be better when you stop playing that stupid fucking role of a caring guy when
a day ago you were worse than a fucking animal. At least dogs are loyal and show
affection. You died to me when my child died, and stop texting.” She also texted: “I
hate you. You are a bad, evil person”; “I will never forgive you. You understand? What
you made me feel and how you behaved towards me and your child is something I will
never forgive you for. I know you forget your promises, but you said you would leave
me alone, continue your life.”
       Defendant denied that he did not want the baby, or that he had wanted Esperanza
to terminate the pregnancy. Instead he claimed that the pregnancy surprised and stressed
him, but he was also happy and wanted Esperanza to move to Orange County. Over the
next few days defendant continued to text Esperanza, despite her requests to leave her
alone, because he wanted to know whether she had a miscarriage or an abortion. In their
back-and-forth text conversations during the last few days of January, Esperanza told
him, amid much profanity, that she would never return to him, would divorce him, would
call his family or the police if necessary, and that she hated him with all her heart.
Eventually, she texted that she had an abortion, adding, “Happy? Now go fuck yourself.”
Defendant did not believe her claim to have had an abortion, and replied, “I don’t think
you did. You are too religious.” 3 Defendant sent many other texts to Esperanza during
that time alternating between asking for a reconciliation and expressions of anger. For

3      The parties stipulated that Esperanza had a miscarriage on January 23, 2013.


                                              6
example, he sent texts such as: “All I want is your happiness”; “I was stressed you did
the act” (meaning the abortion); “I feel horrible still;” “Screw you”; “I’m here if you feel
sad”; “I need answers. You are too impulsive”; “I hate you. We are divorcing. No way
back”; “I just want to help if you did or didn’t”; “You never include me”; and “What can
I do for you?”
       On January 29, Esperanza texted she would get a restraining order if he did not
leave her alone. Her other final texts included: “I hate you and will do everything in my
power to sabotage this marriage. . . . If you fucking dare to go anywhere near me, I am
calling the cops. I swear on this baby that wasn’t born”; and “I do hate you with all my
heart. I swear to god I hate you so much and don’t want to fucking see you ever again. I
am going to start dating and remaking my life. I suggest you do the same.” Defendant
replied: “If anything, you had a miscarriage.” Interspersed with additional insults and
profanity from Esperanza, defendant assured her that he loved her and would always love
her. Esperanza then changed her phone number.
       In February, defendant was distraught, felt like a failure and an idiot, and thought
he should have tried harder. On Valentine’s Day, in an effort to reconcile, he
optimistically went to Esperanza’s workplace with flowers, a card, and money. She was
annoyed and disgusted, insulted him, calling him a coward and pathetic. She ripped up
the flowers and threw down the card and money. The next day he felt worthless, like a
failure. A week later, defendant visited a psychiatric facility in Pasadena, but remained
depressed.
       Defendant testified that he loved Esperanza and had not given up, so on February
22 or 23, he went to Esperanza’s workplace again to see if they could fix things. He
asked her to go with him to talk to family at a restaurant in Orange County. On the way,
Esperanza began hitting him, causing him to swerve, and he was pulled over by the
Highway Patrol. The officers tested him for alcohol, then let him go. Later, at his
father’s house, defendant pleaded with Esperanza on his hands and knees. A few days
later, he was served with her restraining order. Defendant was severely depressed, did
not want to live, and felt “borderline suicidal.”


                                              7
       Defendant testified that during the summer of 2012, while separated from
Esperanza, he dated Santacruz without telling her that he was married. When Santacruz
found out that he was married, she broke off their relationship. In late February or early
March 2013, people were advising him to move on, so he reconnected with Santacruz,
but denied ever having sex with anyone during his marriage. A few days before the
shooting, while defendant was still feeling suicidal, he exchanged cars with Santacruz to
have her tires fixed and the oil changed. He had the loaded gun he purchased for the
police academy.
       The night of March 15, while defendant still had Santacruz’s car, he was
depressed, sad about the abortion or miscarriage, suicidal, and felt like a failure.
Defendant took Wellbutrin and Valium, and drank approximately eight beers to work up
the courage to kill himself. When he arrived at Esperanza’s workplace on the morning of
March 16, he knew he was in violation of the restraining order, that there were security
cameras, and that there would be other employees there. He wanted Esperanza to talk
him out of committing suicide, and took the gun to show her he was serious, that he
really wanted to kill himself. However, he put the gun in his waistband under his shirt,
and then parked where Esperanza could not see him. When she did see him, she rolled
down her car window and said, “What the fuck are you doing here?” He replied, “We
need to talk. What is going on?” Raising her voice, Esperanza reminded him of the
restraining order, and said, “Get the fuck out of here.” When defendant persisted, she
told him, “Back off. I met someone else,” and when defendant did not believe her,
Esperanza replied: “I only married you for my fucking papers, you fucking idiot. I never
fucking loved you”; “I wish you would fucking kill yourself, you fucking idiot . . . , you
don’t have the fucking balls.” Then, when defendant asked whether she had an abortion
or miscarriage, Esperanza replied, “It was an abortion, you fucking idiot. Don’t worry
about it. I was fucking someone else. Wasn’t even yours.”
       Esperanza’s statement that the baby was not his was “too much” for defendant.
Her infidelity made him angry, and “pushed [him] over the cliff” such that he “lost it,”
pulled out his gun, aimed it toward her, and shot her without thinking. He denied that he


                                              8
paused between the first shot and the remaining shots, and denied that he had intended to
kill her. Defendant claimed he sped away because he panicked, and once away, he drove
around looking for a place to kill himself. By the time he was booked into jail, however,
defendant no longer felt the desire to kill himself.
       During cross-examination defendant was asked to explain the action in the video
of the conversation at Esperanza’s car and then the shooting. Defendant walked directly
to Esperanza’s car and as Esperanza was rolling down her window, she told him to get
away, that there was a restraining order. Defendant explained that the video showed him
looking around throughout their entire conversation, because it embarrassed him to think
any nearby people would see Esperanza yelling at him. The video showed defendant
open Esperanza’s car door and wave his arms about, a gesture defendant explained as
asking Esperanza whether she wanted to talk inside the restaurant. The video then
showed Esperanza’s hands moving in an apparent effort to put on her seat belt, as
defendant continued to look about the area. Defendant looked around again as he moved
his hand toward his back waistband and pulled out his gun.
       Expert testimony
       Defendant called forensic psychologist, Scott Fraser, who testified about human
stress reaction patterns, which can be triggered when the body reacts chemically to
threats of physical danger, internal emotional distress, rejection, and hurtful words. Dr.
Fraser explained that this activates the nervous system and leads to physiological changes
which can result in an irrepressible automatic response, such as panic, freezing, flight, or
attack. In some cases, an alarm reaction pattern can lead to a “behavior cascade”; for
example, a frightened person might continue to attack an assailant who has ceased to be a
threat, as when officers fire many more shots than necessary. However, research has
shown that any pause during such a shooting would rarely happen. Dr. Fraser was asked
to assume that an emotionally vulnerable man had suffered a progression of hurtful words
over a period of two months, and when he asked his loved one whether she had a
miscarriage or an abortion, she replied, “I told you it was a fucking abortion. Don’t
worry about it. It wasn’t even fucking yours. I was fucking somebody else behind your


                                              9
back, you fucking idiot.” Dr. Fraser then opined that being insulted over a period of
months or years can lower the threshold for experiencing a human alarm reaction, but not
everyone would fight or kill in response to similar words. Such a person would be most
likely to do so if trapped or cornered by a dangerous and stronger force.
       Forensic psychiatrist Ronald Markman interviewed defendant on two occasions
and reviewed defendant’s medical records from 2012 and 2013, as well as family
interviews, the text messages, and the video of the shooting. Based on such review, it
was Dr. Markman’s opinion that defendant was suffering from a major depressive
disorder that impacted his self-esteem and his self-perception. He testified that severely
depressed people may display poor judgment and behavior that is impulsive and
unpredictable, and sometimes, but not always, such a person becomes suicidal. Dr.
Markham also diagnosed defendant with a personality disorder due to his impulsive and
self-destructive personality traits, as well as with an adjustment disorder with disturbance
of emotions and conduct. He explained that a disturbance of conduct referred to an
abnormal response to stress, such as killing someone. If defendant was suicidal, sleep-
deprived, and had self-medicated with alcohol and Valium at the time of the shooting,
this could have worsened his condition. The repetition of hostile, hurtful, or provocative
words during a period of time prior to the shooting could have made defendant somewhat
more emotionally susceptible to such words, but Dr. Markham thought that new or
different hurtful information would have had a more significant effect on defendant’s
behavior. Given defendant’s condition, Esperanza’s claim that she never loved him,
married him only for her immigration papers, and that she wished he would kill himself
but thought he lacked the “fucking balls,” could have been significantly hurtful if that
was the first time she had said them. Adding a claim to have had an abortion and to have
been “fucking somebody else behind [his] back,” if newly asserted or different from prior
hurtful statements, could have produced uncontrollable behavior. In Dr. Markham’s
opinion, pulling out the gun and firing multiple shots at Esperanza’s head was consistent
with the behavior of someone who was uncontrollably emotionally distressed.



                                             10
Rebuttal
       On February 23, 2013, Los Angeles County Deputy Sheriff Rene Perez contacted
a frightened-looking Esperanza outside her apartment in East Los Angeles, where
Esperanza agreed only to talk inside her locked apartment with the blinds closed.
Esperanza said she was afraid of her husband, and when his car was pulled over the night
before she had been afraid to alert the officer. She asked the deputy not to pursue the
matter, but accepted his offer of an emergency protective order to keep defendant away
from her.
       Esperanza’s cousin, Alejandra Chavez, testified that she knew defendant before he
and Esperanza started dating. Chavez recounted an incident in June 2012, when she,
Esperanza, and Esperanza’s sister Gabby (Chavez’s roommate) spent the day together for
Esperanza’s birthday. During lunch at a restaurant, defendant telephoned Esperanza
more than 10 times. He repeatedly called again on the drive back to Chavez’s home, and
Esperanza put the call on speaker. Defendant sounded upset, and Chavez heard him say,
“You need to go home. You need to go home.” Esperanza asked him to let her be with
her sister and cousin, and said that she would call him when they reached her cousin’s
home. Defendant replied, “I need you to get home because I’m hungry and you need to
come home and cook.” When Esperanza said she would come home “in a little bit,” he
called her “bitch” and “ghetto,” and said, “You need to do what I tell you,” and, “I’m
your husband and you’re my wife. And you need to come home now.” A few times he
called her “motherfucker,” said that he was better than she was, and told her, “If you
don’t want things to get worse, you need to come home with me now.” Chavez did not
hear Esperanza use any profanity while speaking to defendant during those calls, and in
general Chavez did not know Esperanza to use profanity, except occasionally when she
was really upset. Because Esperanza appeared to be upset and frightened, and did not
want to go home, she spent the night with her cousin and sister. The last time Chavez
saw Esperanza was the day before her death. Esperanza said she wanted a divorce, but
defendant did not, and would never let her have one, and that defendant had said he was
the only man she could be with.


                                            11
       Esperanza’s close friend and coworker Frida Laguna recounted a December 2012
incident after a Christmas gathering at work for employees and family members. Laguna
was driving to an Applebee’s restaurant with Esperanza in the seat behind her. First
Laguna stopped at her cousin’s house, where they saw defendant waiting in a car at the
corner. Esperanza remained in Laguna’s car and defendant did not get out of his car, but
when they continued on to Applebee’s, they saw defendant’s car following them.
Defendant drove erratically, tailgating Laguna’s car, moving to the front, then to the
back, and to the front again, going all around her car for about 15 minutes until they
approached the restaurant.
       At the restaurant, Esperanza seemed afraid to get out of the car, but Laguna did
not see defendant park and thought that he had left. Once inside, however, Esperanza
appeared flustered and afraid, and said that she could see defendant outside. Laguna
accompanied Esperanza outside to talk to defendant. Defendant was loud and aggressive,
telling Esperanza that she was a married woman, did not belong there drinking and doing
these things. He said, “You need to go home with me now,” and “We need to go. We
need to leave.” Esperanza did not go with him, and was crying as they went back inside,
where they stayed for about an hour. Esperanza appeared panicky and afraid to go home,
but hoped defendant might be less aggressive since relatives were visiting, and feared that
not going home might make him worse. Laguna walked her to the door, where defendant
grabbed her by the arm and pulled her inside.
       Laguna and Esperanza met for coffee in February 2013, when Esperanza was sad
and depressed about losing the baby, but pleased she had received her immigration
documents, and had plans to enroll in school. Esperanza said she wanted a divorce, but
defendant would never divorce her. She was afraid of defendant and did not want to be
alone, so Laguna was with her as much as possible, even over night at least twice. To
prevent defendant from contacting her, Esperanza changed her phone number and closed
her social media accounts.




                                            12
                                       DISCUSSION
I. CALCRIM No. 852
       A. Defendant’s contentions
       Defendant contends that the trial court erred in instructing the jury with
CALCRIM No. 852, and that the error violated his right to due process by negating his
heat of passion defense.4 The prosecutor requested the instruction after presenting
Laguna’s testimony regarding the drive to Applebee’s restaurant. After a lengthy
discussion about whether defendant’s driving during the incident came within the
definition of domestic violence, the trial court found that it did, and agreed to give the
instruction.
       Defendant bases his assertion of error on three grounds, which he states as
follows: “CALCRIM No. 852 prejudicially violated appellant’s right to due process [1]
by invading the province of the jury, [2] lowering the state’s burden of proof, and [3] by
improperly permitting the jury to infer from a single uncharged, relatively innocuous
driving incident that appellant was ‘likely to commit and did commit murder.’”
       B. Underlying legal principles
       CALCRIM No. 852 concerns the application of Evidence Code section 1109,
explaining the burden of proof and the correct use of propensity evidence, admitted under
authority of that statute. (See People v. Reyes (2008) 160 Cal.App.4th 246, 251-252.)
Evidence Code section 1109 provides that when a defendant is accused of an offense
involving domestic violence, evidence of the defendant’s commission of another
domestic violence offense may be admitted to show a propensity to commit such crimes,
so long as the evidence is not inadmissible under Evidence Code section 352. (See Evid.
Code, § 1109, subd. (a).)5 “‘Domestic violence’ has the meaning set forth in Section

4      “[A] a killing during a sudden quarrel or heat of passion, is not a defense but a
crime; more precisely, it is a lesser offense included in the crime of murder.” (People v.
Breverman (1998) 19 Cal.4th 142, 159, italics omitted; § 192, subd. (a).)
5     In relevant part, Evidence Code section 1109, subdivision (a)(1), reads: “[I]n a
criminal action in which the defendant is accused of an offense involving domestic

                                             13
13700 of the Penal Code.” (Evid. Code, § 1109, subd. (d)(3).) As relevant here, Penal
Code section 13700, defines domestic violence in subdivision (a), as abuse committed
against a spouse, and defines abuse in subdivision (b), 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.” As the
murder of a spouse is “‘the ultimate form of domestic violence,’” other uncharged acts of
domestic violence by the defendant may be admissible to show a propensity to commit
such a crime. (People v. Brown (2011) 192 Cal.App.4th 1222, 1232, 1237.)
       When requested, the trial court must give a limiting instruction regarding the
correct use of admissible propensity evidence. (People v. Falsetta (1999) 21 Cal.4th 903,
923-924.) CALCRIM No. 852 is a limiting instruction, as it explains the correct use of
propensity evidence which has been admitted under Evidence Code section 1109. (See
People v. Reyes, supra, 160 Cal.App.4th at pp. 251-252.) Thus, the trial court read
CALCRIM No. 852 in relevant part as follows:
              “The People presented evidence that the defendant committed
       domestic violence that was not charged in this case. Specifically, the
       manner in which he drove his car on -- in the December of 2012
       occurrence. Domestic violence means abuse committed against the 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. . . . If the People have not met his burden of proof, you
       must disregard this evidence entirely. If you decide that the defendant
       committed the uncharged domestic violence, you may, but are not required
       to, conclude from that evidence that the defendant was disposed or inclined
       to commit domestic violence, and based on that decision also conclude that
       the defendant was likely to commit murder as charged here. If you

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.” Evidence Code section 352 provides: “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.”

                                            14
       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 of
       murder. The People must still prove the charge beyond a reasonable doubt.”

       C. Province of the jury and burden of proof
       Defendant contends that the instruction invaded the province of the jury and
lessened the prosecution’s burden of proof. He asserts that the instruction “stated that if
the jury found the driving incident was true, that behavior constituted domestic violence.”
Defendant misstates the language of the instruction. We agree with respondent that the
jury was not instructed that the driving incident constituted domestic violence. A
statement that the People have presented evidence of a crime, does not direct the jury to
find that the crime existed. (Cf. People v. Williams (2008) 161 Cal.App.4th 705, 710.)
At most, there is an ambiguity, however, as defendant did not ask the trial court to clarify
the instruction, he did not preserve a challenge on that ground. (People v. Cole (2004) 33
Cal.4th 1158, 1211.)
       In any event, after giving the definition of domestic violence, the court instructed:
“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.”
Thus, contrary to defendant’s characterization of the instruction, the trial court did in fact
leave it to the jury to determine whether the driving incident was true and whether it
constituted domestic violence. Further, the instruction explained that if the jury found
that defendant committed the uncharged acts, it could, but was not required to conclude
defendant was disposed to commit domestic violence. This language comports with due
process, as it adequately clarifies the prosecution’s burden, the jury’s task as finders of
fact, and the correct use of propensity evidence. (See People v. Reyes, supra, 160
Cal.App.4th at pp. 251-252, relying on People v. Reliford (2003) 29 Cal.4th 1007, 1016
[construing substantially similar CALJIC instruction]; People v. Loy (2011) 52 Cal.4th
46, 72-75 [same]; People v. Falsetta, supra, 21 Cal.4th at pp. 915, 923-924 [same].)




                                              15
       In sum, the instruction neither invaded the province of the jury nor lessened the
prosecution’s burden of proof. We thus reject defendant’s first two grounds for asserting
error in giving the instruction.
       D. The driving incident as domestic violence
       Defendant’s third ground for claiming error giving CALCRIM No. 852 is that it
improperly permitted the jury to infer “from a single uncharged, relatively innocuous
driving incident” that defendant was “‘likely to commit and did commit murder.’”
Defendant contends that this was an unconstitutional permissive inference which violated
his right to due process.
       On its face, CALCRIM No. 852 comports with due process, the law of conflicting
inferences, and the burden of proof. (People v. Johnson (2008) 164 Cal.App.4th 731,
739-740.) It correctly states the law. (People v. Reyes, supra, 160 Cal.App.4th at pp.
251-252.) Defendant contends, however, that we must look beyond the face of the
instruction to find “a relationship between the permissively inferred fact and the proven
fact on which it depends.” (People v. Mendoza (2000) 24 Cal.4th 130, 180.) Defendant
relies on County Court v. Allen (1979) 442 U.S. 140 (Ulster County), in which the United
States Supreme Court held that a permissive inference, one the jury is free to reject, is
constitutionally valid if “there is a ‘rational connection’ between the basic facts that the
prosecution proved and the ultimate fact presumed [or inferred], and the latter is ‘more
likely than not to flow from’ the former.” (Id. at p. 165, fn. omitted.) Defendant
contends that a single “relatively minor act at one end of the domestic violence spectrum
. . . fails the ‘more likely than not’ test under Ulster County.” He suggests that a rational
connection between the uncharged domestic violence and an inference of propensity to
commit domestic violence as serious as murder requires evidence of prior physical or
sexual violence or offenses similar to the charged offense.
       In Ulster County, the trial court had given a jury instruction based upon a New
York statute which provided that the presence of a firearm in an automobile was
presumptive evidence of its illegal possession by all occupants of the automobile. (Ulster
County, supra, 442 U.S. at pp. 142-143.) After the appellate court found the statute


                                              16
unconstitutional on its face, the Supreme Court reversed, found the statute valid on its
face, and considered the facts of the case to determine whether the statute was valid as
applied to the defendants. (Id. at pp.162-163.)
       Here, the trial court similarly applied a statute affecting the use of evidence by
instructing with CALCRIM No. 852, which applied Evidence Code section 1109 to
defendant by limiting and explaining the use of propensity evidence made admissible by
that section. It did so by defining domestic violence as incorporated into Evidence Code
section 1109 and Penal Code section 13700, and then by permitting the jury to decide
whether the offense occurred and whether it was or was not too insignificant to merit
consideration. Although defendant has couched the issue as one of instructional error, his
reliance on Ulster County and his arguments have led us to conclude that, as in Ulster
County, defendant’s claim is not truly one of instructional error, but is rather an as-
applied constitutional challenge to Evidence Code section 1109. An as-applied
constitutional challenge to a facially valid statute is one that requires an analysis of the
facts of the particular case to determine whether the statute has been applied to the
defendant in violation of a protected right. (In re Taylor (2015) 60 Cal.4th 1019, 1039.)
       Defendant did not expressly direct his challenge to Evidence Code section 1109,
and he does not argue here that the statute is unconstitutional on its face. Indeed, “the
constitutionality of section 1109 under the due process clauses of the federal and state
constitutions has now been settled.” (People v. Jennings (2000) 81 Cal.App.4th 1301,
1310.) Defendant does argue that it was prejudicial error to give the instruction under the
facts of this case, because the evidence itself was “weak” and had “negligible probative
value.” Defendant suggests that to support the inferences that defendant was disposed to
commit domestic violence and thus likely to commit murder, there must be evidence that
the abuse was repeated, that it consisted of conduct similar to the charged offense, or that
it was more violent, such as causing or attempting to cause physical injury. However, as
discussed, the instruction simply applied the statutory definition of domestic violence,
which does not require such facts, and may consist solely of placing “another person in
reasonable apprehension of imminent serious bodily injury to himself or herself, or


                                              17
another.” (Pen. Code, § 13700, subd. (a); Evid. Code § 1109.) Also, it may be a single
incident where no injury was attempted. (Cf. People v. James (2010) 191 Cal.App.4th
478, 483 [burglary, threats].) Thus, it is Evidence Code section 1109 that allows an
inference of propensity from what defendant considers a “relatively minor act at one end
of the domestic violence spectrum.” CALCRIM No. 852 merely explains the permissive
inference. Under the reasoning of Ulster County, it is the statutory permissive inference
which must be found constitutionally valid by determining whether “there is a ‘rational
connection’ between the basic facts that the prosecution proved and the ultimate fact
[inferred], and the latter is ‘more likely than not to flow from’ the former.” (Ulster
County, supra, 442 U.S. at p. 165, fn. omitted.)
       Evidence Code section 352 provides a safeguard from the unconstitutional
application of Evidence Code section 1109, in that its weighing process ensures that such
propensity evidence cannot be used in cases where its probative value would be
substantially outweighed by undue prejudice, confusion of issues, or misleading the jury.
(People v. Hoover (2000) 77 Cal.App.4th 1029, 1028-1029, citing People v. Falsetta,
supra, 21 Cal.4th at pp. 916-918.) “‘“This determination is entrusted to the sound
discretion of the trial judge who is in the best position to evaluate the evidence.
[Citation.]”’” (People v. Cabrera (2007) 152 Cal.App.4th 695, 704.) Defendant did not
object to the evidence in the trial court and does not contend on appeal that it was
inadmissible. As defendant failed to object to the evidence or to invoke Evidence Code
section 352, he has forfeited appellate review of any claim that the evidence harmed him
due to weak probative value. (People v. Valdez (2012) 55 Cal.4th 82, 138.) Further, as
an as-applied challenge is fact-specific, a failure to object on that ground also forfeits that
issue on appeal. (See People v. DeJesus (1995) 38 Cal.App.4th 1, 27.)
       Regardless, we reject defendant’s underlying premise that erratic driving and
tailgating near Laguna’s car was a “relatively innocuous driving incident” that would not
place a person in reasonable fear of imminent serious bodily injury. Recklessly driving a
vehicle close to another in an intimidating manner can result in a conviction of assault
with a deadly weapon (People v. Wright (2002) 100 Cal.App.4th 703, 705-706), which


                                              18
does not require an intent to apply physical force or even a subjective awareness of the
risk. (People v. Aznavoleh (2012) 210 Cal.App.4th 1181, 1186-1187.) The application
of physical force need only be reasonably foreseeable under an objective standard. (Id. at
p. 1189.) The driving described here by Laguna was not merely reckless driving, rather
defendant intentionally drove in an aggressive and intimidating manner for 15 minutes,
coming close to the car occupied by Esperanza and her friends, and alternating between
tailgating and blocking the car. An imminent collision and resulting bodily injury were
reasonably foreseeable and caused Esperanza to be afraid. Such circumstances strongly
suggest that Esperanza and her friends were at risk of imminent serious bodily injury and
that Esperanza was in reasonable apprehension of that risk; thus, if defendant had made
the appropriate objection in the trial court, it is unlikely that the objection would have
been sustained, or that we would find that to be an abuse of discretion.6
       E. No prejudice
       As CALCRIM No. 852 correctly stated the law and substantial evidence supported
it, the trial court did not err in reading it to the jury. (See People v. Falsetta, supra, 21
Cal.4th at p. 923.) We also conclude that defendant suffered no prejudice from the
instruction. If there were error in giving a propensity instruction it is reviewed for
prejudice under the standard of People v. Watson (1956) 46 Cal.2d 818, 837, which asks
whether it is reasonably probable that the defendant would have obtained a more
favorable result absent the error. (People v. Villatoro (2012) 54 Cal.4th 1152, 1182; see
Cal. Const., art. VI, § 13.) Under the Watson test, it is defendant’s burden to demonstrate
prejudice by establishing “a reasonable probability that error affected the trial’s result.”
(See People v. Hernandez (2011) 51 Cal.4th 733, 746.)
       Arguing that a more favorable result would have been likely without the
instruction, defendant reasons as follows: the propensity evidence was so weak that but
for the instruction, the jury would have been less inclined to view him as a person likely

6      As we have found no error, we do not reach defendant’s claim that the trial court
violated its duty of absolute impartiality in giving the instruction. In any event, in his
reply brief defendant denied any claim of judicial bias.

                                               19
to commit premeditated murder, which in turn would have lessened the very damaging
impact of the video recording of the shooting. Defendant’s logic fails, because
CALCRIM No. 852 is a limiting instruction, and thus inured to defendant’s benefit. (See
People v. Reyes, supra, 160 Cal.App.4th at p. 252.) Without the instruction, the jury
would have heard the evidence, but would not have been told: the uncharged domestic
violence must be disregarded unless proven by a preponderance of the evidence, or that
the jury was not required to conclude that defendant was disposed to commit domestic
violence or likely to commit murder, or that any such conclusion was insufficient by
itself to prove the defendant guilty of murder, but only one factor to consider along with
all the other evidence, or that the People were still required to prove the charge beyond a
reasonable doubt.
       We conclude that if the jury had been given a free rein to use the propensity
evidence in any manner it might think appropriate, it is not reasonably probable that
defendant would have obtained a more favorable result. Indeed, for the same reason, if
we were to apply the stricter constitutional standard of Chapman v. California (1967) 386
U.S. 18, 24, we would conclude beyond a reasonable doubt that the alleged error was
harmless.
II. Pinpoint instruction
       A. Underlying legal principles
       Defendant contends that the trial court erred in refusing his requested pinpoint
instruction. “A criminal defendant is entitled, on request, to instructions that pinpoint the
theory of the defense case. [Citations.]” (People v. Gutierrez (2002) 28 Cal.4th 1083,
1142.) “The court may, however, ‘properly refuse an instruction offered by the defendant
if it incorrectly states the law, is argumentative, duplicative, or potentially confusing
[citation], or if it is not supported by substantial evidence [citation].’ [Citation.] (People
v. Burney (2009) 47 Cal.4th 203, 246.)
       In this case, the pinpoint instruction was similar to CALCRIM No. 570, which the
trial court read without modification and in relevant part as follows:



                                              20
              “In order for heat of passion to reduce a murder to voluntary
       manslaughter, the defendant must have acted under the direct and
       immediate influence of provocation as I have defined it. While no specific
       type of provocation is required, slight or remote provocation is not
       sufficient. Sufficient provocation may occur over a short or long period of
       time. It is not enough that the defendant simply was provoked. The
       defendant is not allowed to set up his own standard of conduct. You must
       decide whether the defendant was provoked and whether the provocation
       was sufficient. In deciding whether the provocation was sufficient,
       consider whether a person of average disposition, in the same situation and
       knowing the same facts, would have reacted from passion rather than from
       judgment.”

       B. Verbal provocation
       Defendant’s requested pinpoint instruction included the following language: “No
specific type of provocation is required to generate the passion necessary to constitute
heat of passion, and verbal provocation may be sufficient.”
       Defendant first contends that without the additional language in his proposed
pinpoint instruction, CALCRIM No. 570 created an ambiguity by qualifying the phrase,
“no specific type of provocation is required,” with the words, “slight or remote
provocation is not sufficient.” On the contrary, by omitting the slight or remote
qualification, defendant’s proposed instruction would have created confusion by
suggesting that any verbal provocation would be sufficient. The trial court properly
refuses a pinpoint instruction that is potentially confusing. (People v. Burney, supra, 47
Cal.4th at p. 246.)
       Defendant also contends that the trial court erred in finding the verbal provocation
language in his pinpoint instruction to be unnecessary and cumulative. As CALCRIM
No. 570 made it abundantly clear to the jury that “no specific type of provocation is
required,” there was no need to specify any type of provocation. Where nothing
precludes the jury from finding that words alone can be sufficient provocation, it is not
error to refuse to give such a special instruction, as it would be duplicative. (People v.
Gutierrez, supra, 28 Cal.4th at pp. 1144-1145.) Further, the refusal to give an instruction



                                             21
which duplicates the standard jury instruction on the point is harmless. (Ibid.) We find
no error.
       C. Honest but mistaken belief
       The pinpoint instruction also included the following language: “The honest but
mistaken belief in the existence of an event that, if true, would ordinarily provoke a
reasonable man, may constitute provocation of such a nature to arouse heat of passion.”
The court found the “mistaken belief” language irrelevant, as the jury would not be
instructed that a provocative event must be true. As the trial court did not instruct the
jury that the provocative event could be true or false, it was unnecessary to explain that
the disclosure must have been believed if false. (Cf. People v. Gutierrez, supra, 28
Cal.4th at pp. 1144-1145.)
       Defendant contends that his belief was relevant because jurors might not have
understood that an honest but mistaken belief can amount to sufficient provocation. This
mistaken belief theory, which defendant calls the “‘honest but false belief’ rule,”
incorrectly states the law. “The provocation which incites the defendant to homicidal
conduct in the heat of passion [may] be . . . conduct reasonably believed by the defendant
to have been engaged in by the victim. [Citations.]” (People v. Lee (1999) 20 Cal.4th 47,
59, italics added.) And “[a] sudden disclosure of an event, where the event is recognized
by the law as adequate, may be the equivalent of the event itself, even if the disclosure is
untrue. (State v. Yanz (1901) 74 Conn. 177.) [W]here there is a reasonable belief in the
information disclosed, the provocation is adequate. (People v. Logan (1917) 175 Cal. 45,
49.)” (People v. Brooks (1986) 185 Cal.App.3d 687, 693-695.) It follows that if a
defendant is mistaken regarding the provocative event, his belief must be reasonable.
However, defendant cites no authority using the word “honest” in relation to defendant’s
belief, and we have found none.7 The only other subjective mental state required for heat



7       An honest belief is the subjective mental state required for voluntary manslaughter
based upon imperfect self-defense, which is committed with the honest but unreasonable
belief that killing is necessary to defend against imminent peril. (See People v. Elmore

                                             22
of passion is that defendant act under the actual influence of a strong passion which can
be any violent, intense, high-wrought or enthusiastic emotion other than revenge.
(People v. Millbrook (2014) 222 Cal.App.4th 1122, 1139.) Defendant’s “‘honest but
false belief’ rule” would have injected a new subjective component into the law of
voluntary manslaughter based on heat of passion.
       Moreover, we observe that the mistaken belief language was not supported by
substantial evidence. Defendant did not testify that he believed any of Esperanza’s
hurtful statements. Indeed, defendant testified that he did not believe Esperanza when
she claimed in their exchange of text messages to have had an abortion. Defendant
testified that he believed Esperanza loved him when they married, and did not think her
motive to marry was to obtain her immigration documents. Defendant did not testify that
he believed her claim of infidelity. As defendant has pointed to no evidence of any
belief, whether honest, mistaken, reasonable, or unreasonable, the mistaken belief
language was properly rejected. (See People v. Burney, supra, 47 Cal.4th at p. 246.)
       Finally, nothing in the instructions they were given precluded the jury from
finding that Esperanza’s disclosure that she had an abortion or had become pregnant by
another man, whether true or untrue, amounted to provocation “‘sufficient to arouse the
passions of the ordinarily reasonable man.’ [Citation.]” (People v. Steele (2002) 27
Cal.4th at 1230, 1252-1253.) Thus, the omission of any instruction regarding defendant’s
belief was harmless. (Cf. People v. Gutierrez, supra, 28 Cal.4th at pp. 1143-1145.)
III. Cumulative error
       Defendant’s final contention is that the cumulative effect of the asserted errors
requires reversal. “As we have found no substantial error in any respect, this claim must
be rejected.” (People v. Butler (2009) 46 Cal.4th 847, 885.)




(2014) 59 Cal.4th 121, 134.) Defendant appears to conflate the two theories of voluntary
manslaughter.

                                             23
                                  DISPOSITION
      The judgment is affirmed.
      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.



                                           ____________________________, J.
                                           CHAVEZ

We concur:



__________________________, Acting P. J.
ASHMANN-GERST



__________________________, J.
HOFFSTADT




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