Filed 7/15/16
                          CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FIRST APPELLATE DISTRICT

                                     DIVISION TWO


THE PEOPLE,
        Plaintiff and Respondent,
                                                   A137355/A139872
v.
ADAM WADE DISA,                                    (Solano County
                                                   Super. Ct. No. VCR210260)
        Defendant and Appellant.


        Defendant Adam Wade Disa admitted to police that he killed his girlfriend by
putting her in a choke hold, but denied he meant to kill her. A jury found him guilty of
first degree murder (Pen. Code, § 187).
        Defendant contends there was insufficient evidence of premeditation and
deliberation, and the trial court erred in admitting evidence of defendant’s prior act of
domestic violence. We conclude the evidence of premeditation and deliberation—though
far from compelling—was sufficient to sustain the first degree murder conviction.
Absent error, we would affirm. However, we conclude that it was error to allow the jury
to hear extensive evidence of defendant’s past act of domestic violence, which involved
planning, hours of waiting, and a bloody knife attack on sleeping victims. Given the
relative weakness of the evidence of premeditation and deliberation in the current case,
we conclude there is a reasonable probability the improper admission of such vivid and
inflammatory evidence of defendant’s past conduct affected the verdict. Accordingly, we
reverse the first degree murder conviction. We need not reach defendant’s remaining
arguments.




                                              1
                  FACTUAL AND PROCEDURAL BACKGROUND
        Defendant and the victim, Katie Gillihan, worked together at Rasputin Music and
began dating in late 2009 or early 2010. In September 2010, defendant moved in with
Gillihan in her apartment in Benicia.
        Michelle Gonzales also worked at Rasputin and knew defendant and Gillihan.
Shortly before 2:00 p.m. on Friday, February 11, 2011, Gonzales went to check on
Gillihan because both defendant and Gillihan had missed two scheduled work shifts in a
row. Gonzales found the front door of Gillihan’s apartment unlocked and Gillihan in
bed, “like she was just sleeping.” Gonzales tried to wake her. Gillihan appeared very
still and straight with the sheets pulled up to her chin. There was dried blood under her
nose.
        Gillihan’s mother, Donna Gillihan (Donna), also arrived at Gillihan’s apartment
around this time. Gonzales told Donna she could not wake Gillihan up. Donna became
very upset and instructed Gonzales to call 911.
        Paramedics arrived at the apartment, and Gillihan was pronounced dead at 2:25
p.m. Her skin had cooled to the temperature of the room, and there were signs of
marbling, lividity, and late-stage rigor mortis, indications that she had been dead for
many hours.1
        Defendant was arrested the same day Gillihan’s body was discovered. In a
videotaped interview with Detectives Rose and Rouse of the Benicia Police Department,
he admitted he killed Gillihan using a choke hold.
        Defendant was charged with murder (Pen. Code, § 187, subd. (a); count 1) and
corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a); count 2). As to count 2,
the district attorney alleged defendant personally inflicted great bodily injury under
circumstances involving domestic violence. (Pen. Code, § 12022.7, subd. (e).) As to
both counts, it was alleged defendant had suffered two prior strike convictions (Pen.

        1
         A pathologist later conducted an autopsy on Gillihan and found no trauma or
injury and no evidence of natural disease. Toxicology analysis showed no alcohol,
prescribed medications, or illicit substances present.


                                             2
Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), which were also serious felony
convictions (Pen. Code, § 667, subd. (a)).
Defendant’s Interview
       At trial, the prosecution played defendant’s videotaped interview for the jury. In
the interview, which lasted about two hours, defendant told the officers Gillihan was his
girlfriend and they lived together, but he initially acted as though he was unaware of her
death. He claimed he did not know where she was because he had not been home.
       Defendant reported there were some trust issues in the relationship. He said, in the
previous three weeks, Gillihan had spent her days off with a friend, Marty Procaccio.2
Defendant suspected Gillihan was cheating on him with Procaccio, but she denied it. He
mentioned an incident involving Procaccio that occurred three weeks earlier. Defendant
came home and found Procaccio there. Defendant told Gillihan he needed to be informed
if there was going to be a man in the house, and Gillihan said Procaccio was just a friend.
Asked by the detectives how he felt about this, defendant responded, “I was seeing green.
Jealous. Um, suspicious, I guess but.”
       Defendant said Gillihan was sleeping when he left their apartment Thursday
morning, February 10, and he had been staying with his mother since then “to prevent
tension” because Gillihan “wants space.” Defendant texted Procaccio Thursday night
and again that day. He asked Procaccio, who he knew lived in Santa Clara, to check on
Gillihan in Benicia because Tuesday night she had been sick.3


       2
         At trial, Procaccio testified he was “really close friends” with Gillihan, and they
had been “off and on lovers.” In his videotaped interview, defendant talked about
Gillihan’s friend “Marty” without providing a last name, but Procaccio’s testimony
established he was the “Marty” to whom defendant was referring.
       3
         Procaccio confirmed he received messages from defendant stating that Gillihan
was sick. By text message, defendant told Procaccio to check on her. Around noon on
Friday, February 11, Procaccio asked defendant for Gillihan’s mother’s telephone
number. Procaccio then left Donna a message and eventually spoke with her. He asked
if she had heard from Gillihan in the past couple days and said he was on his way to
check on her. Donna told Procaccio there was no need for him to drive up to Benicia,
and she would check on Gillihan.


                                              3
       About 30 or 40 minutes into the interview, Detective Rouse noted that defendant
had not asked why he was being questioned by the police and told him, “I think it’s cause
you know why you’re here.” At this point, defendant admitted he killed Gillihan. He
said he went home Tuesday night, February 8, and Gillihan “was adamant about
[defendant] leaving” the apartment, which left him “confused.” She “was texting
somebody that whole night,” and “she was angry because [defendant] was there.”
Defendant did not leave the apartment, and instead took a shower and went to sleep.
       Defendant described what happened early Wednesday morning, February 9, as
follows: “I think it was probably around 5:30 in the morning that um, she did, woken me
up. And um, she was telling me you need to get out. You need to leave. And um, I was
like why do I need to leave? And she was like so I can take, you know, in her words, a
fucking shower. And um, I was like, well I’m not going anywhere. And then that’s
when the insults started to happen. Like you’re fucking retarded um, what is it? Um,
you’re fucking stupid. Um, what else? She was, it was just like it wasn’t Katie. Like
I’m not used to Katie talking to me like that. And I guess she swung at me or something.
Oh, before that she said what she was gonna do is she was gonna give herself a black eye
and she was gonna tell everybody I like, you know, to have done it. And I mean it was
just like one thing after another. It was just like what’s this coming from? And I guess
she swung at me and I’m half asleep and after that it’s, all I remember is um, I guess I
had her in a choke hold and um. To be honest, man I thought she was sleeping because
while I went to um, you know, she was laying there and then um, I went to work. I came
back that same night and she, I guess she wasn’t sleeping.”
       Defendant further stated that he and Gillihan had an argument Tuesday night and
again Wednesday morning. She woke him up between 5:30 and 6:00 a.m. Wednesday by
turning up the television and holding her phone to his face while “it flashe[d]” or was
“buzzing.” After Gillihan told him she would give herself a black eye and tell everybody
he did it, defendant asked why she would do something like that. Defendant told the
officers, “I don’t really remember the explanation because after that, it’s just—we had
the—the incident.” He recalled that Gillihan said something like “ ‘You sicken me.’ ”


                                             4
       Defendant continued, “I just remember seeing rings going towards my face. And I
must have blocked it. And after I blocked it, that’s when the choke hold came.” He held
her in a choke hold “for about a minute or so. Maybe a little bit longer.” She was trying
to scratch his face, and he said, “I just held on until she—she—stopped trying to, you
know, induce any pain towards me. And then I let go.” Defendant said he felt Gillihan’s
body go limp, and then he kept her in the hold “[m]aybe 15 seconds” after she stopped
moving.
       Defendant described how he was feeling: “I was angry prior to the incident when
she was, you know, saying all these bad things. That’s what made me angry. But
afterwards, it was—I didn’t really feel anything afterwards. . . . I remember looking at her
and then I got the cigarettes. . . . I just felt a little relieved, I guess. Just like everything’s
pretty much, you know, when the fight’s over, you know, it’s like I’m calming down,
relaxing, I guess.” His “main emotion when she was throwing insults at [him] . . . was
anger.” It was “still anger” when he had her in the choke hold, but defendant denied that
he intended to kill her. He told the officers he thought he could “knock her out” or “put
her to sleep.” However, he knew keeping a person in a choke hold for more than a
minute could eventually cause death.
       Defendant called the hold he used on Gillihan a “figure four or something” and
demonstrated the hold. Detective Rose recognized the hold defendant demonstrated was
a “carotid restraint hold.” Defendant had been studying kung fu for over a year, but he
did not learn the hold in kung fu class.4 He stated, “Actually I learned this choke hold
from a[n] ex of mine. She put me in it.” He had “never really used it” himself, but when
he was in it, “it was pretty bad.” Defendant reported that he and Gillihan had never had
any physical confrontation before that day.
       After he released her from the hold, defendant laid Gillihan down. Then he went
into another room, smoked a couple of cigarettes, and went to sleep. Later Wednesday

       4
        This was corroborated by defendant’s kung fu teacher, who testified he did not
teach any type of choke hold. He knew what the carotid hold is, and never taught it to
defendant.


                                                 5
morning, he got up, ate some jambalaya that was on the stove from the night before, and
went to work without checking on her. After work, he went to kung fu class, and
returned home around 9:00 p.m. According to defendant, he only then realized Gillihan
was dead when he saw her lying in the same position he had left her. He did not call the
police because he was “on probation,”5 and he did not notify anyone else because, he
thought, “it’s over for me . . . .”
       Thursday, February 10, defendant packed food and clothes in a bag and went to
his sister’s house. He stated, “And then uh, pretty much, you know, [I] came to terms
with it’s probably time to say goodbye to everybody.” He took money from his bank
account, which he said was “for my family.”6 However, he did not talk about the money
with anyone, and he left no note.
       Defendant said he then tried to commit suicide by putting rat poison in his soda,
but it just made him vomit. He also went to a bridge and thought he would jump “to give
[himself] a watery grave.” He told the officers he had been feeling depressed for the
previous three weeks about his relationship with Gillihan, and he told her that he was
thinking of committing suicide.
Other Prosecution Evidence
       Jealousy
       Gonzales testified about a party at a coworker’s house, during which Gillihan sat
and talked with a male guest. Defendant “came over a couple of times and looked very
angry that she was having a conversation with him.” Gonzales testified there was a
“fuming quality” about the way defendant was watching them.
       Procaccio recounted three instances of defendant acting jealous. First, in 2010,
Gillihan was going to visit Procaccio at his house, and defendant sent him a message on
Facebook telling him, “you better behave yourself, bro.” Second, at a Halloween party at

       5
           In fact, defendant was on parole, not probation.
       6
       At defendant’s sister’s house in Vallejo in a room identified as defendant’s
bedroom, police found approximately $1,400 in cash, two bank withdrawal statements,
defendant’s California identification card, his ATM card, and his PIN.


                                               6
Procaccio’s house in 2010, defendant got drunk and “there was a lot of jealous, pointing
and . . . staring and like evil looks that [defendant] would give to people who were talking
to [Gillihan].” The third incident occurred on January 19, three weeks before defendant
killed Gillihan. Procaccio was at Gillihan’s apartment, and defendant arrived home early.
Defendant and Gillihan went upstairs, and Procaccio could hear them arguing and heard
his name mentioned a few times.
       Prior Domestic Violence
       San Jose Police Officer Wendell Martin testified about defendant’s prior violent
conduct with an ex-girlfriend.7 At 3:30 a.m. on April 22, 2004, Martin was dispatched to
an apartment in San Jose. Christina Cepeda answered the door. In the living room,
defendant was passed out on the floor with severe lacerations on two fingers of his right
hand, and another man, Edward Estrella, was covered with blood. In the bedroom,
Martin observed “a lot of blood”—blood was splattered on the walls, closet, rug, and bed.
       Subsequently, defendant told Martin that he had been dating Cepeda since July
1999, and they had been living together over the prior year. Defendant had known
Estrella since 7th grade. Cepeda broke up with defendant on February 16, 2004, and
defendant believed it was because she was seeing Estrella behind his back. After they
broke up, Cepeda and defendant continued to share their apartment by alternating weeks
living there. At the time Martin was dispatched to the apartment, it was Cepeda’s week
to stay there. Defendant used his key to enter the apartment on April 21, 2004, while it
was empty. Around 3:00 p.m., Cepeda and Estrella came home, and he hid in the closet
for about half an hour until they left. Then he came out of the closet, but remained in the
apartment and watched television. Around 9:00 p.m., defendant hid in the closet again.
Cepeda and Estrella came home around 10:30 p.m. Defendant came out of the closet at

       7
         The trial court ruled evidence of this incident was admissible pursuant to
Evidence Code section 1109, subdivision (a)(1). Under this provision, when a defendant
is charged with an offense involving domestic violence, evidence of other acts of
domestic violence by the defendant is admissible for the purpose of showing a propensity
to commit such crimes. (People v. Brown (2011) 192 Cal.App.4th 1222, 1232–1233;
People v. Hoover (2000) 77 Cal.App.4th 1020, 1024.)


                                             7
3:30 a.m. and tried to stab Estrella and Cepeda. He stated that he felt betrayed by both of
them, and they broke his heart. After defendant stabbed Estrella a few times, the knife
slipped, and defendant injured his own hand.
       Defendant told Martin he bought the knife he used in the attack while he was still
living with Cepeda. He took the knife with him when it was his turn to use the
apartment, and had it with him when he hid in the closet. Defendant told Martin he had
thought about doing something in the previous week, and he kept going back and forth.
He wanted some sort of revenge. Martin asked defendant if he was trying to kill Cepeda
and Estrella. Defendant said he did not know if he wanted to kill them, but he “was
hoping someone would get hurt.”
       Carotid Restraint Hold
       The pathologist who conducted Gillihan’s autopsy testified that, with the “carotid
hold,” which he also referred to as the “carotid sleeper hold,” the person applying the
hold places the crook of his arm at the front of the neck of the victim and squeezes his
upper arm and forearm, pressing on the blood vessels of the neck, stopping the flow of
blood to the brain. When applied correctly, the carotid hold causes unconsciousness very
quickly and can render someone dead in a minute. Based on the autopsy and review of
defendant’s interview, the pathologist concluded the cause of Gillihan’s death was
“asphyxia due to manual strangulation with the carotid sleeper hold.”
       At police academy, Detective Rose received training on the carotid restraint hold
in defensive tactics training. He was taught the average person in the hold loses
consciousness within about 12 seconds, and the hold should never be applied for longer
than 30 seconds.
       Phone Records
       The last outgoing text message from Gillihan’s phone was sent to Procaccio on
Wednesday, February 9, at 5:16 a.m. Procaccio testified that he was texting with Gillihan
from about 4:00 to 5:15 a.m. Wednesday morning. Gillihan’s phone received no calls or
texts from defendant after Tuesday, February 8.
Verdict and Sentence


                                             8
        The jury found defendant guilty of first degree murder (count 1) and corporal
injury on a cohabitant (count 2), and found true the special allegation that he inflicted
great bodily injury under circumstances of domestic violence. In bifurcated proceedings,
the trial court found defendant had two prior strike convictions.
        Defendant was sentenced to state prison for 50 years to life based on a term of 25
years to life for count 1, doubled due to the prior strike conviction. For count 2, the court
imposed the upper term of four years, plus a five-year enhancement for great bodily
injury, and stayed the punishment pursuant to Penal Code section 654.
                                       DISCUSSION
I.      Sufficiency of Evidence of Premeditation and Deliberation
        Defendant contends the prosecution presented insufficient evidence of
premeditation and deliberation to support the first degree murder verdict. We disagree.
        “ ‘When a defendant challenges the sufficiency of the evidence, “ ‘[t]he court must
review the whole record in the light most favorable to the judgment below to determine
whether it discloses substantial evidence—that is, evidence which is reasonable, credible,
and of solid value—such that a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt.’ ” ’ [Citation.] ‘The standard of appellate review is the same
in cases in which the People rely primarily on circumstantial evidence.’ [Citation.]
‘Although a jury must acquit if it finds the evidence susceptible of a reasonable
interpretation favoring innocence, it is the jury rather than the reviewing court that
weighs the evidence, resolves conflicting inferences and determines whether the People
have established guilt beyond a reasonable doubt.’ [Citation.] ‘ “ ‘If the circumstances
reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the
circumstances might also reasonably be reconciled with a contrary finding does not
warrant a reversal of the judgment.’ ” ’ ” (People v. Casares (2016) 62 Cal.4th 808, 823–
824.)
        “ ‘A verdict of deliberate and premeditated first degree murder requires more than
a showing of intent to kill. ([Pen. Code,] § 189 [“willful, deliberate and premeditated
killing” as first degree murder].) “Deliberation” refers to careful weighing of


                                              9
considerations in forming a course of action; “premeditation” means thought over in
advance. [Citations.]’ [Citation.] ‘ “ ‘The true test is not the duration of time as much as
it is the extent of the reflection. Thoughts may follow each other with great rapidity and
cold, calculated judgment may be arrived at quickly. . . .’ ” ’ ” (People v. Casares, supra,
62 Cal.4th at p. 824.) To prove a killing was “ ‘deliberate and premeditated,’ ” it is “not
. . . necessary to prove the defendant maturely and meaningfully reflected upon the
gravity of his or her act.” (Pen. Code, § 189.)
       In People v. Anderson (1968) 70 Cal.2d 15, 26-27 (Anderson), the California
Supreme Court “identified three factors commonly present in cases of premeditated
murder: ‘(1) [F]acts about how and what defendant did prior to the actual killing which
show that the defendant was engaged in activity directed toward, and explicable as
intended to result in, the killing—what may be characterized as “planning” activity; (2)
facts about the defendant’s prior relationship and/or conduct with the victim from which
the jury could reasonably infer a “motive” to kill the victim, which inference of motive,
together with facts of type (1) or (3), would in turn support an inference that the killing
was the result of “a pre-existing reflection” and “careful thought and weighing of
considerations” rather than “mere unconsidered or rash impulse hastily executed”
[citation]; (3) facts about the nature of the killing from which the jury could infer that the
manner of killing was so particular and exacting that the defendant must have
intentionally killed according to a “preconceived design” to take his victim’s life in a
particular way for a “reason” which the jury can reasonably infer from facts of type (1) or
(2).’ ” (People v. Koontz (2002) 27 Cal.4th 1041, 1081.)
       Our high court has cautioned that Anderson “ ‘did not refashion the elements of
first degree murder or alter the substantive law of murder in any way.’ [Citation.] In
other words, the Anderson guidelines are descriptive, not normative. ‘The Anderson
factors, while helpful for purposes of review, are not a sine qua non to finding first degree
premeditated murder, nor are they exclusive.’ ” (People v. Koontz, supra, 27 Cal.4th at p.
1081.) Thus, the Anderson “factors need not be present in any particular combination to
find substantial evidence of premeditation and deliberation. [Citation.] However,


                                              10
‘[w]hen the record discloses evidence in all three categories, the verdict generally will be
sustained.’ ” (People v. Stitely (2005) 35 Cal.4th 514, 543.)
       Viewed in the light most favorable to the judgment, the evidence showed Gillihan
and defendant were dating and living together, but there were problems and trust issues in
their relationship. On Tuesday night, February 8, 2011, Gillihan was not happy to see
defendant and told him to leave the apartment, but he would not leave. Very early the
next morning, Gillihan texted with Procaccio for over an hour. Defendant was jealous of
Gillihan’s relationship with Procaccio, and he suspected she was cheating on him with
Procaccio. Around 5:30 that morning, defendant killed Gillihan by using a carotid
restraint hold, which he referred to as a “choke hold” and which he knew was “pretty
bad” from personal experience. Defendant recognized the hold he used could lead to
death. He kept Gillihan in the carotid restraint hold for 15 seconds after her body went
limp, and he laid her in the bed and covered her so that it appeared she was sleeping.
After killing Gillihan, defendant smoked two cigarettes, went back to sleep for a few
hours, and then went to work. There was no evidence of other physical injury to
Gillihan, nor was there any evidence of injury to defendant. At no point did defendant
call 911 or seek medical assistance for Gillihan.
       While not overwhelming, these facts are sufficient to support a verdict of
premeditated and deliberate first degree murder. “[P]lanning activity occurring over a
short period of time is sufficient to find premeditation.” (People v. Sanchez (1995) 12
Cal.4th 1, 34, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390,
421, fn. 22.) Here, as the Attorney General argues, evidence of planning may be inferred
from the fact defendant “deliberately continued to exert pressure on [Gillihan’s] neck
even after she went limp.” A rational jury could find that defendant “rapidly and coldly
formed the idea to kill” Gillihan after she stopped struggling and before he released her
from the carotid restraint hold. (People v. Brady (2010) 50 Cal.4th 547, 563
[“premeditation and deliberation can occur in a brief period of time” and “lack of
evidence of extensive planning does not negate a finding of premeditation”].)



                                             11
       As to motive, the evidence suggests defendant’s motive for killing Gillihan was
jealousy over Gillihan’s relationship with Procaccio, anger because she was trying to kick
him out his own house and was insulting him, and perhaps depression over the apparent
ending of their relationship.
       As to manner of killing, defendant used a carotid restraint hold, which can render a
victim unconscious within a few seconds and dead in a minute. This manner of killing
may be viewed as demonstrating “a calculated design to ensure death rather than an
unconsidered explosion of violence.”8 (People v. Horning (2004) 34 Cal.4th 871, 902-
03.)
       In addition, the jury could reasonably consider defendant’s conduct after the
killing in relation to the manner of killing. (People v. Perez (1992) 2 Cal.4th 1117, 1128
(Perez).) In Perez, after stabbing the victim, the defendant did not immediately flee the
scene and instead searched dressers and jewelry boxes and changed a bandage on his
bloody hand. Our high court observed the defendant’s conduct “would appear to be
inconsistent with a state of mind that would have produced a rash, impulsive killing.”
(Ibid.) Likewise in this case, a reasonable jury could take into account defendant’s calm
behavior after the killing—smoking cigarettes, sleeping, eating leftovers, going to
work—and find it inconsistent with a state of mind that would have produced a rash,
impulsive killing.9

       8
         In closing argument, the prosecutor explained how the manner defendant killed
Gillihan could support a finding of deliberation: “[T]his is not a killing by shooting.
This is not a killing by knifing. Both of those acts would sometimes be instantaneous.
This is a murder by manual strangulation via the carotid hold which took over a minute.
What that means is that this type of murder is close and personal. . . . So while he was
holding her, he got to feel, he got to watch as she reached and tried to get out of that hold.
. . . Then he also got to watch and feel as she struggled to breathe. This is not an
instantaneous death. And finally he got to feel her go limp in his own arm and he
continued to hold her. Was he thinking about what he was doing in that minute[?] Of
course he was. One minute. That’s a very long time, and I’m sure time slows down even
more once she [loses] consciousness.”
       9
        Defendant counters that his actions after killing Gillihan indicated that he was in
shock and did not understand what he had just done. However, defendant does not defeat

                                             12
       Defendant argues his “extremely limited knowledge of the hold he used” did not
support a finding of premeditation and deliberation. But the fact that he incorrectly
referred to the carotid restraint hold as a “figure four” does not negate an inference of
premeditation and deliberation. Defendant asserts, “the notion that [he] would
understand the lethality of a 15-second period of unconsciousness in the carotid hold was
pure speculation.” We disagree. By his own admission, defendant knew the hold he used
was “pretty bad” and would eventually cause death. He also recognized that Gillihan
“[p]robably” could not breathe while she was struggling in the hold, but he chose to keep
her in a position where she probably could not breathe even after she stopped moving.
       People v. Rowland (1982) 134 Cal.App.3d 1, relied on by defendant, is
distinguishable. In Rowland, the defendant met the victim at a party and took her to his
apartment, which he shared with his girlfriend. The victim’s body was later discovered
on a dirt road; she had died from strangulation with an electrical cord. (Id. at pp. 6-8.)
The Court of Appeal found minimal evidence of planning and no evidence of motive, and
concluded the manner of killing—ligature strangulation—failed to show premeditation
and deliberation. (Id. at p. 9.) In contrast, here, there was ample evidence of motive,
and, further, there was significant additional evidence regarding the manner of killing
(defendant’s own statement that he kept Gillihan in a choke hold for 15 seconds after she
went limp) absent from Rowland.
       Finally, defendant asserts the prosecutor acknowledged Gillihan provoked
defendant by insulting him, threatening to give herself a black eye and say he did it,
telling him to get out of the house, and swinging at him. He argues the “conceded”
evidence of provocation could support, at most, a conviction of second degree murder.
This argument lacks merit. First, the prosecutor did not concede that Gillihan’s conduct


the sufficiency of the evidence merely by offering “competing inferences he wishes the
jury had drawn.” (People v. Casares, supra, 62 Cal.4th at p. 827; see People v. Albillar
(2010) 51 Cal.4th 47, 60 [“If the circumstances reasonably justify the trier of fact’s
findings, reversal of the judgment is not warranted simply because the circumstances
might also reasonably be reconciled with a contrary finding.”].)


                                             13
as described by defendant amounted to provocation. Second, defendant’s argument
suggests the jury was required to credit defendant’s version of events in its entirety
simply because the prosecutor assumed some of defendant’s statements were true in
making his closing argument. But the jury was free to disbelieve defendant’s self-serving
statements regarding what Gillihan did right before he killed her.10 (People v. Silva
(2001) 25 Cal.4th 345, 369 [“A rational trier of fact could disbelieve those portions of
defendant’s statements that were obviously self-serving . . .”].)
       Again, we acknowledge the evidence of premeditation and deliberation in this case
was not particularly strong, but “the relevant question on appeal is not whether we are
convinced beyond a reasonable doubt, but whether any rational trier of fact could have
been persuaded beyond a reasonable doubt that defendant premeditated the murder.”
(Perez, supra, 2 Cal.4th at p. 1127.) For the reasons we have discussed, we conclude the
evidence in this case was sufficient to sustain a finding of premeditation and deliberation.
II.    Evidence of Prior Domestic Violence
       Defendant contends the trial court abused its discretion under Evidence Code
section 352 by admitting evidence of his prior domestic violence under Evidence Code
section 1109.11 We conclude that some evidence of defendant’s past conduct was
admissible under section 1109, but the trial court abused its discretion in admitting
evidence of facts showing defendant lay in wait for his victims. This error was then
compounded by the ambiguity of the court’s evidentiary ruling, which resulted in the
prosecutor presenting extensive detail of defendant’s past conduct. The admission of this
evidence prejudiced defendant.




       10
         We note that the trial court at the sentencing hearing stated, “I thought that
[defendant’s] explanation for how this happened was absolutely preposterous, . . . that he
just woke up out of his sleep when he was being assaulted by this woman. This is—I
didn’t accept this for a minute, and the jury didn’t accept this for a minute.”
       11
            Further statutory references are to the Evidence Code unless otherwise noted.


                                              14
       A.      Background
       Before trial, the prosecutor moved to admit evidence of defendant’s past act of
domestic violence from 2004. He argued the evidence was admissible under section
1109, subdivision (a)(1), and was relevant to counter the defense that the killing was an
accident. Defense counsel argued the evidence should be excluded under section 352.
       The trial court determined the past conduct and present charged conduct qualified
as domestic violence under section 1109. The court then thoughtfully addressed the
section 352 issue: “I think the real concern here is whether the Court should find
pursuant to 352 that the . . . prejudicial effect outweighs any probative value, and I’m just
not prepared to do that. I have had an occasion to review the defendant’s statement at
this time where he claims that the current killing was either an accident or an incident that
arose over an argument that he was having with the victim when she became
disrespectful towards him. Evidence of prior domestic violence and a propensity to do
violence to a partner or former partner is extremely relevant. This incident is really not
that remote, and in fact, the defendant was still on parole for these offenses, the earlier
offenses, when he committed this newer offense, and he talks about that in his interview.
       “It appears to the Court that this is a case that’s not really one in which there’s
going to be . . . any significant issue as to who committed the acts which led to the death
of the victim but rather the circumstances under which these acts were committed and the
intent of the defendant in committing the acts, and therefore, I think . . . this prior incident
and evidence of this prior incident is extremely relevant. So under [section] 352, I’ll find
that the probative value does outweigh any prejudicial effect this evidence may have.
I’m going to allow this to come in under [section] 1109.”
       Defense counsel then asked whether there was a way “to sanitize it so it isn’t
highly prejudicial.” He was concerned that the prior incident of domestic violence
involved, first, lying in wait and, second, the use of weapon, which made the past conduct
“radically different” from the current case. The court indicated that it would consider the
issue later.



                                              15
       After trial started and outside the presence of the jury, the parties revisited the
issue. The prosecutor stated he intended to present the responding police officer’s
testimony recounting what defendant told him “regarding why he did what he did and
exactly what he did” in connection with the 2004 incident. The prosecutor said the
testimony would “address the defense of accident” and was relevant to intent and motive.
The trial court rejected any suggestion the evidence was admissible to show a common
scheme or premeditation and deliberation in the present case, stating: “I don’t see the
similarity in these offenses frankly. One is a stabbing with a knife and lying in wait.
That’s not at all what we have here.” The court further observed, “The acts are totally
different.”
       The court reaffirmed its ruling that defendant’s past conduct was admissible under
section 1109. The court then addressed the prosecutor as follows: “I don’t want you
dwelling on the specifics of this earlier offense. You’re going to be allowed to bring this
offense in simply to show, if it does, um, the defendant’s propensity to commit domestic
violence, so I’m going to allow this. But as I’m going to warn you right now,
[prosecutor], that I do not want you delving into each specific detail of this prior incident
or emphasizing issues here that have nothing to do with this trial, such as the lying in
wait. I will let you bring in the fact that the defendant admitted that—if he did, that he
came into the apartment when the victim was not home, waited until she and her new
partner were asleep and came out and attacked them. I’ll let you admit that. But we’re
not going into the details of this, and you’re not to argue at any time that the lying in wait
on this earlier occasion is somehow evidence of his guilt in this matter because it’s not.
It’s the . . . violence that he did that shows his propensity in this manner.”
       As described above, Officer Martin testified that defendant waited over 12 hours
in his former girlfriend’s apartment—including more than six hours spent hiding in a
closet—and then attacked her and her new partner in the middle of the night with a knife
he had brought to the apartment and kept with him while he waited in the closet. The
attack left Estrella covered in blood and the bedroom spattered with blood. Defendant



                                              16
told Martin he had thought about doing something in the previous week, he kept going
back and forth, and he wanted some sort of revenge.
       B.     Applicable Legal Principles
       Character or propensity evidence, including evidence of a person’s prior conduct,
is generally inadmissible to prove the person’s conduct on a specified occasion. (§ 1101,
subd. (a); People v. Villatoro (2012) 54 Cal.4th 1152, 1159.) However, “[t]he
Legislature has . . . created specific exceptions to the rule against admitting character
evidence in cases involving sexual offenses (§ 1108, subd. (a)), and domestic violence,
elder or dependent abuse, or child abuse (§ 1109, subd. (a)(1)–(3)).”12 (People v.
Villatoro, at p. 1159.)
       “[B]oth sections 1108 and 1109 limit the admissibility of evidence of prior
misconduct if its probative value is substantially outweighed by its prejudicial effect.
(§§ 352; 1108, subd. (a); 1109, subd. (a).) The specific retention of the power to exclude
evidence under section 352, found in both sections 1108 and 1109, provides ‘a realistic
safeguard that ensures that the presumption of innocence and other characteristics of due
process are not weakened by an unfair use of evidence of past acts.’ ” (People v. Brown
(2000) 77 Cal.App.4th 1324, 1334.)
       Thus, even relevant evidence of past domestic violence may be excluded when 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.” (§ 352.) “ ‘Evidence is
substantially more prejudicial than probative . . . [citation] [only] if, broadly stated, it


       12
          The provision at issue in this case, section 1109, subdivision (a)(1), generally
provides, “in a criminal action in which the defendant is accused of an offense involving
domestic violence, evidence of the defendant’s commission of other domestic violence is
not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to
Section 352.” Similarly, section 1108, subdivision (a), provides, “In a criminal action in
which the defendant is accused of a sexual offense, evidence of the defendant’s
commission of another sexual offense or offenses is not made inadmissible by Section
1101, if the evidence is not inadmissible pursuant to Section 352.”


                                               17
poses an intolerable “risk to the fairness of the proceedings or the reliability of the
outcome” [citation].’ [Citation.] ‘ “The prejudice which . . . Evidence Code section 352
is designed to avoid is not the prejudice or damage to a defense that naturally flows from
relevant, highly probative evidence.” [Citations.] “Rather, the statute uses the word in its
etymological sense of ‘prejudging’ a person or cause on the basis of extraneous
factors.” ’ [Citations.]” (People v. Eubanks (2011) 53 Cal.4th 110, 144.)
       In the analogous context of evidence of a defendant’s prior sex offenses governed
by section 1108, our Supreme Court has explained how trial courts should evaluate such
evidence under section 352: “By reason of section 1108, trial courts may no longer deem
‘propensity’ evidence unduly prejudicial per se, but must engage in a careful weighing
process under section 352. Rather than admit or exclude every sex offense a defendant
commits, trial judges must consider such factors as its nature, relevance, and possible
remoteness, the degree of certainty of its commission and the likelihood of confusing,
misleading, or distracting the jurors from their main inquiry, its similarity to the charged
offense, its likely prejudicial impact on the jurors, the burden on the defendant in
defending against the uncharged offense, and the availability of less prejudicial
alternatives to its outright admission, such as admitting some but not all of the
defendant’s other sex offenses, or excluding irrelevant though inflammatory details
surrounding the offense.” (People v. Falsetta (1999) 21 Cal.4th 903, 916–917
(Falsetta).)
       We review the trial court’s ruling on the admissibility of evidence for abuse of
discretion. (People v. Johnson (2010) 185 Cal.App.4th. 520, 531.)
       C.      Analysis
       Here, the trial court determined that, in light of defendant’s statements to police
suggesting the killing was an “an accident or an incident that arose over an argument,”
the “[e]vidence of prior domestic violence and a propensity to do violence to a partner or
former partner is extremely relevant.” After weighing the probative value against the
potential prejudice, the court allowed the evidence to come in under section 1109.



                                              18
       Initially, we reject defendant’s argument that the trial court was required to
exclude the evidence of the prior incident of domestic violence in its entirety. There is no
question that defendant’s prior convictions for assault against his former girlfriend and
her new partner qualified under section 1109 as prior incidents of domestic violence.
Section 1109 permits the admission of a defendant’s other acts of domestic violence for
the purpose of showing a propensity to commit such crimes. (People v. Hoover, supra,
77 Cal.App.4th at p. 1027 [“the use of character evidence in domestic violence cases is
more justified than in a murder case or a forgery case”].) As the trial court observed, the
issue in this case was not who killed Gillihan, but rather “the circumstances under which”
she was killed “and the intent of the defendant in committing the acts” that led to her
death. In different contexts, it has been said that a defendant is not entitled to a false aura
of veracity. (People v. Humiston (1993) 20 Cal.App.4th 460, 474–475 [defendant’s
testimony at suppression hearing may be used for impeachment purposes if trial
testimony is inconsistent with prior testimony]; People v. Castro (1986) 186 Cal.App.3d
1211, 1217 [defendant’s prior convictions may be admissible for purposes of
impeachment].) Similarly in this case, defendant was not entitled to a false aura of
veracity in respect to his claim that Gillihan’s death was an accident or the result of
provocation. (Cf. People v. Cordova (2015) 62 Cal.4th 104, 134 [prior sex offenses
relevant to rebut defense theory that the defendant’s sperm entered the victim’s body by
innocent means].) Accordingly, we see no abuse of discretion in either the trial court’s
finding that defendant’s “propensity to do violence to a partner or former partner [was]
extremely relevant,” or its concomitant ruling that defendant’s past conduct was
admissible to some extent to show propensity to commit domestic violence.
       This does not end the matter, however. The weighing process of section 352
requires the trial court to consider “the availability of less prejudicial alternatives” such
as “excluding irrelevant though inflammatory details surrounding the offense.” (Falsetta,
supra, 21 Cal.4th at p. 917.) The trial court acknowledged the prior incident involved
“totally different” acts, including lying in wait and the use of a knife. Defense counsel
asked that the court to “sanitize” the evidence to avoid prejudice. Later, the court


                                              19
properly determined the prior incident was admissible to show propensity to commit
domestic violence under section 1109, but the facts of the prior incident were not
admissible to show premeditation and deliberation in the current case. This was an
important distinction. The court did not want the prosecutor to “dwell[] on the specifics
of this earlier offense” or “delv[e] into each specific detail of this prior incident.” The
court further instructed the prosecutor not to argue “the lying in wait on this earlier
occasion is somehow evidence of his guilt in this matter because it’s not.” The court’s
statements indicate it was well aware of the risk the jury might improperly use the
domestic violence evidence to “infer” planning and premeditation in the current case.
       But when the trial court finally drew the line as to what could be admitted, it
allowed evidence that was at odds with its previously expressed concerns as to the
prejudicial nature of the evidence. The trial court undercut its own ruling limiting the
scope of the evidence by stating that the prosecutor would be able to “bring in the fact
that the defendant admitted . . . that he came into the apartment when the victim was not
home, waited until she and her new partner were asleep and came out and attacked
them.” Although the prosecutor would not be allowed to argue that lying in wait was
evidence of guilt, the court’s order did not preclude him from putting on evidence that
defendant “waited” until the victims were asleep, and then came out and attacked them.
In other words, the prosecutor could bring in the evidence of lying in wait, but not make
the argument. Given the serious risk the jury would improperly use the specific facts of
defendant’s past conduct to find premeditation and deliberation in the current matter, it
was incumbent upon the trial court to exclude evidence of defendant’s extensive planning
and waiting in the prior incident.13 We thus conclude the trial court abused its discretion


       13
          As we have explained, however, it was not an abuse of discretion to admit some
evidence of defendant’s prior domestic violence. The trial court reasonably found the
prior act of domestic violence highly relevant to defendant’s claims of accident, self-
defense, and provocation. The evidence at trial showed that defendant was jealous and
suspected Gillihan was cheating on him with Proccacio, that Gillihan did not want
defendant staying in her apartment, and that Gillihan wanted to break up with defendant.
In light of this evidence, it would not have been an abuse of discretion if the trial court

                                              20
in allowing the prosecutor to adduce evidence that defendant entered his former
girlfriend’s apartment when the victims were not home, that he lay in wait for many
hours (some of the time hidden in a closet), and that the attack occurred when the victims
were asleep. This evidence was highly inflammatory and was not specifically relevant to
the purpose for which the past incident of domestic violence was admitted, that is, to
show a propensity to do violence to a partner or former partner.
       The trial court’s error was compounded by its ambiguous ruling on the limitations
on the evidence. As we have described, the prosecutor took advantage of the ambiguity,
eliciting many details of the offense from Officer Martin, almost all without objection
from defense counsel. Thus, the jury learned that defendant thought about doing
something to his former girlfriend and her new boyfriend the previous week and “kept
going back and forth” on the idea, that he brought a knife to the apartment and used it,
and that the attack left Estrella covered in blood and Cepeda’s bedroom spattered with
blood. It is apparent that the trial court believed the prosecutor overstepped the bounds of
its evidentiary ruling. In a discussion outside the presence of the jury after Martin’s
testimony was concluded, the trial court chastised the prosecutor: “You know, when you
were going into this testimony, I told you [you] were not to go into the details of how
long this went on, the hiding, I mean, this—the details of the incident itself. The fact that
it occurred is one thing, and you’ve gotten all of that in. But then you turned right around
and tried to bring in the fact, you know, he took the knife in with him, all of this, I guess

had limited the evidence to the facts of defendant’s prior act of domestic under section
1109 such as the victims Cepeda and Estrella were defendant’s former girlfriend and her
new partner, defendant thought they had cheated on him before Cepeda broke up with
him, defendant attacked them in Cepeda’s bedroom, defendant wanted to hurt them, and
he thought they had betrayed him and broken his heart. (Cf. People v. Cordova, supra,
62 Cal.4th at pp. 133–134 [prior sex offenses were admissible under section 1108 where
they “bore the following commonality”: they were sex offenses committed late at night
inside a home against young children]; People v. Johnson, supra, 185 Cal.App.4th at pp.
532–533 [acts of domestic violence that occurred more than 10 years earlier were
admissible, despite contrary presumption of section 1109, subdivision (e), where
“common factors” in past conduct strongly suggested the defendant had a problem with
anger management when he felt rejected or challenged by an intimate partner].)


                                              21
to show premeditation in that incident. . . . [Y]ou’re trying to . . .show some kind of
similar pattern of which the Court feels there is none. I thought I made it clear to you
when you brought that up.” (Italics added.) Once again, the trial court correctly
recognized the great risk that the jury would misuse this evidence. Unfortunately, its
ruling admitting the evidence was contradictory and less than clear.
        We further conclude the trial court’s error prejudiced defendant. The jury in this
case had to decide whether defendant was guilty of first degree murder where the
evidence of premeditation—principally, the continued use of a carotid restraint hold for
15 seconds after Gillihan’s body went limp—paled in comparison to the evidence
defendant previously brought a knife to his former girlfriend’s apartment, hid in a closet
and lay in wait for hours, and then attacked his former girlfriend and her new boyfriend
in the middle of the night in their bed, leaving the new boyfriend and the bedroom
covered in blood. We recognize that the jury received limited-use instructions on the
prior domestic violence evidence and that the prosecutor did not argue in closing that the
prior incident showed planning or premeditation in this case. But the trial was short (the
witness testimony took only three days), Martin’s testimony regarding the prior incident
was vivid, and the evidence of premeditation and deliberation in the killing of Gillihan
was underwhelming. The limited use instruction could not erase the image of defendant
hiding in a closet with a knife waiting for the moment to attack his former girlfriend and
her boyfriend, and a jury would not need closing argument to remember it. The evidence
at trial supported, but did not compel, a finding of first degree premeditated murder.
Under these circumstances, it is reasonably probable the result would have been more
favorable to defendant had the jury not heard this extensive, inflammatory evidence of
defendant’s prior incident of domestic violence. (People v. Partida (2005) 37 Cal.4th
428, 439 [“state law error in admitting evidence is subject to the traditional Watson
test”].)14


        14
         Defendant also argues the prosecutor committed misconduct by violating the
court’s earlier ruling, and that defense counsel was ineffective in failing to object. In

                                             22
III.   The Prosecutor’s Closing Argument
       Defendant argues the prosecutor misstated the law in his closing argument.
Because we have concluded the conviction for murder must be reversed, we need not
address this issue. For guidance on retrial, we make two observations.
       First, for heat-of-passion voluntary manslaughter, “[t]he provocative conduct by
the victim may be physical or verbal.” (People v. Lee (1999) 20 Cal.4th 47, 59, italics
added.) Thus, it would be incorrect for a prosecutor to argue that verbal conduct can
never amount to provocation. Second, “to reduce murder to manslaughter, provocation
must be such as would ‘render an ordinary person of average disposition “liable to act
rashly or without due deliberation and reflection, and from this passion rather than from
judgment,” ’ ” but it need not “be such as would move an ordinary person to kill.”
(People v. Trinh (2014) 59 Cal.4th 216, 232–233.) Thus, it would be improper to argue
that the test for provocation is whether an ordinary person of average disposition would
act in the same way defendant acted in this case.
                                      DISPOSITION
       The judgment as to count 1 is reversed. The remainder of the judgment is
affirmed.




light of our holding regarding the trial court’s ruling on the evidence, we need not address
these arguments.
       During the pendency of this appeal, defendant’s appellate counsel filed a petition
for habeas corpus relief in this court. The petition is also based on trial counsel’s alleged
ineffectiveness on this and other grounds. We have denied the habeas petition (A142412)
by separate order filed this day.


                                             23
                                       _________________________
                                       Miller, J.


We concur:


_________________________
Richman, Acting P.J.


_________________________
Stewart, J.




A137355/A139872, People v. Disa




                                  24
Trial Court: Superior Court of Solano County


Trial Judge: Hon. Peter B. Foor


Attorneys for Defendant and Appellant
under appointments by the Court of Appeal        Jonathan Soglin
                                                 Tara Mulay



Attorneys for Plaintiff and Respondent           Kamala D. Harris
                                                 Attorney General
                                                 Dane R. Gillette
                                                 Chief Assistant Attorney General
                                                 Gerald A. Engler
                                                 Senior Assistant Attorney General
                                                 Jeffrey M. Laurence
                                                 Supervising Deputy Attorney General
                                                 Aileen Bunney
                                                 Deputy Attorney General




A137355/A139872, People v. Disa


                                            25
