 Filed 11/6/17
                 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                        DIVISION FIVE


 THE PEOPLE,                            B270574

        Plaintiff and Respondent,       (Los Angeles County
                                        Super. Ct. No. KA109983)
        v.

 DANNY MICHAEL GARCIA,

        Defendant and Appellant.


      APPEAL from a judgment of the Superior Court of Los
 Angeles County, Bruce F. Marrs, Judge. Affirmed.
      Emily Lowther Brough, 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, Senior
 Assistant Attorney General, Scott A. Taryle, Supervising
 Deputy Attorney General, Tannaz Kouhpainezhad, Deputy
 Attorney General, for Plaintiff and Respondent.
                   _______________________
      People v. Cruz (2016) 2 Cal.App.5th 1178 (Cruz) held
that former CALJIC No. 2.50.01—which permits a juror to
draw an inference of a defendant’s disposition to commit a
sex offense based on proof of a charged crime by a
preponderance of the evidence—unconstitutionally lowers
the prosecution’s burden of proof and results in structural
error requiring reversal. We disagree with the reasoning in
Cruz. We hold that the former CALJIC No. 2.50.02, a
similarly worded pattern instruction on the use of charged
acts of domestic violence to prove a disposition to commit
domestic violence, does not lower the prosecution’s burden of
proof. Moreover, in this case the jurors were told seven
times that the burden of proof was on the prosecution to
prove guilt beyond a reasonable doubt, and no reasonable
juror would have concluded that a conviction could be based
on a preponderance of the evidence.

    PROCEDURAL HISTORY AND DEFENDANT’S
              CONTENTIONS

      Defendant and appellant Danny Michael Garcia was
charged with committing eight offenses against Amanda P.,
his girlfriend and the mother of his child. The jury found
defendant guilty of four of the eight charges: count 2—first
degree burglary with another person present (Pen. Code,
§ 459) 1; count 3—infliction of injury on a spouse, cohabitant,

     1Statutory references are to the Penal Code unless
otherwise indicated.



                               2
girlfriend, or child’s parent after a prior conviction (§ 273.5,
subd. (f)(1)); count 4—dissuading a witness from reporting a
crime (§ 136.1, subd. (b)(1)); and count 7—misdemeanor
violation of a domestic violence restraining order (§ 273.6,
subd. (a)). Defendant was found not guilty in count 8 of
robbery (§ 211), and the jury was unable to reach a verdict in
count 1, charging kidnapping (§ 207, subd. (a)), in count 5,
charging making a criminal threat (§ 422, subd. (a)), and in
count 6, charging false imprisonment (§ 236).2 The trial
court sentenced defendant to nine years four months in state
prison.
       Over defendant’s objection, the prosecution introduced
evidence of his prior uncharged acts of domestic violence
against Amanda. The trial court instructed the jury under
former CALJIC No. 2.50.02 that it was permitted to draw a
discretionary inference as to all counts that defendant had a
disposition to commit domestic violence if the jury first found
defendant had committed a charged or uncharged offense
involving domestic violence by a preponderance of the
evidence.
       Defendant’s appeal primarily challenges the
constitutionality and correctness of instructing that charged
offenses may be considered as evidence of propensity under
former CALJIC No. 2.50.02, and the propriety of admitting
the uncharged offenses. He contends: (1) the court

     2 The jury was divided 11-1 favoring not guilty in count
1. It was divided 9-3 favoring a guilty verdict in counts 5
and 6.



                               3
committed prejudicial error by instructing the jury to
consider charges that are not crimes of domestic violence in
determining whether defendant should be convicted of
cohabitant injury; (2) the court lowered the prosecution’s
burden of proof by incorrectly instructing that propensity
evidence of current domestic violence charges may be used if
the charges are found true by a preponderance of the
evidence; (3) the court abused its discretion by admitting
evidence of past domestic violence incidents and phone sex
recordings; and (4) the cumulative effect of these errors
requires reversal of all convictions. In a separate argument,
defendant contends the court’s failure to properly instruct
the jury on witness intimidation was prejudicial error.
      We hold that the jury was properly permitted to
consider the charges of burglary and dissuading a witness
when deciding whether to draw a discretionary inference
that he had a disposition to commit domestic violence,
because both of the charges qualify as domestic violence
offenses as defined under Evidence Code section 1109.
Former CALJIC No. 2.50.02 correctly stated the applicable
standard for a juror’s consideration of charged offenses for
this purpose as a preponderance of the evidence. The
instruction also clearly differentiated between the
preponderance of the evidence standard of proof for drawing
a discretionary inference of propensity and the beyond a
reasonable doubt standard that must be met before a
defendant may be convicted. The trial court did not err in
admitting evidence of past domestic violence incidents and




                              4
phone sex recordings. Having found no merit to these
contentions, we necessarily conclude that defendant was not
prejudiced by the cumulative effect of the alleged errors.
Finally, the trial court did not err in instructing the jury
that it must unanimously agree on the events that formed
the basis of the witness intimidation charge.

                          FACTS

The Relationship Between Defendant and Amanda P.
and Acts Occurring Before the Charged Offenses

      Amanda P. and defendant began dating in June 2012,
maintaining a relationship through June 20, 2015, the date
of the charged offenses. They have a son born in November
2014.
      On December 27, 2013, Amanda told defendant she
believed she was pregnant. Defendant denied being the
father. Defendant blocked the door as Amanda tried to
leave. Defendant hit Amanda in the lip, causing her to fall
to the floor and briefly lose consciousness. When Amanda
awoke her “lip was split in half.” Amanda called her mother
to pick her up. The police were called after her mother
arrived.
      Officer Maxwell Moya responded to the domestic
violence call. He described Amanda as scared, frustrated,
and having a split lip, which Amanda told the officer was
caused by defendant. She explained that an argument
started when she told defendant she was pregnant and



                             5
defendant punched her in the mouth. Defendant, who
admitted being under the influence of methamphetamine,
told Officer Moya that Amanda showed up with a split lip
and she attacked him by hitting him multiple times with a
closed fist and open hand. Defendant said he did not punch
Amanda. Officer Moya observed no injuries to defendant.
      As a result of the December 27 incident, defendant was
convicted on December 31, 2013, of inflicting corporal injury
in violation of section 273.5. A domestic violence restraining
order—People’s Exhibit No. 1—was issued on the date of
conviction, prohibiting defendant from coming within 100
yards of Amanda.
      Amanda was in the hospital in labor with her son on
November 17, 2014. She told a nurse that defendant was the
father, and provided defendant’s name to her. Defendant
arrived at the hospital drunk. He gave a false name, which
caused security to investigate. Defendant was arrested once
it was determined he was the subject of the restraining
order. The Department of Children and Family Services (the
Department) became involved as a result of the incident at
the hospital. 3 Four days earlier, defendant hit Amanda, and
a report was taken by the police. The police had responded
to incidents involving Amanda and defendant more than
seven times.

     3  The Department was also involved with Amanda’s
daughter as a result of a fight between Amanda and her
sister. Amanda was arrested and the Department took
custody of her daughter.



                              6
     Despite the restraining order, Amanda and defendant
remained in contact. Amanda loved defendant during this
time period, but by the time of trial she felt she had to “put
my foot down. My kids deserve the best and so do I.”

The Charged Offenses

     Amanda’s Testimony

      Defendant and Amanda were together at her
apartment on June 19, 2015, despite the existing restraining
order.4 Defendant left sometime during the night to get
drugs, returning the next morning. 5 Amanda allowed
defendant into the apartment. Defendant was under the
influence of drugs and looked like he had not slept. Amanda
told him to go home. Defendant refused. She told defendant
she would call the police if he did not leave. Defendant
grabbed her phone from her hand. He hit Amanda on the
right side of her jaw, knocking her to the floor. Defendant
punched Amanda’s face and body with closed fists as she
tried to push him off. He choked her, making it difficult to

     4 Amanda’s children were not living with her on June
20, having been taken from her custody after the incident at
the hospital.

     5  Amanda, who took medicine that sometimes affected
her memory, inconsistently described the order of events on
the day of the charged offenses. She also attributed some
lack of recollection to the beatings inflicted by defendant.



                               7
breathe. Defendant threatened to kill her. He hit her more
than ten times. Amanda tried to get her phone to call the
police, but defendant grabbed and threw the phone.
      After this round of violence, defendant and Amanda
went to a nearby swap meet. She did not want to go with
defendant, but he had her phone and would not give it back.
Defendant grabbed her by the arm as they were walking
down the stairs before letting go as they went to his car.
Amanda did not ask for help at the swap meet because she
was afraid defendant would hit her again. They were at the
swap meet for approximately 30 to 45 minutes.
      They returned to Amanda’s apartment where a second
physical altercation ensued. Amanda told defendant to
leave. She tried to get away, but defendant pulled her hair
and threw her to the floor. He slapped and hit her more
than five times. Amanda told him he had to leave or she
would call the police. 6
      Defendant left the apartment, but he returned and
knocked on the door. Amanda went to the window and told
defendant he could not come in. Defendant said he was not
going to leave. Amanda called defendant’s parents, put the
phone on speaker, and told them defendant had already hit
her twice. His parents told defendant he had to leave and
come home.
      Defendant entered the apartment through the front
window after tearing off the window screen. A third physical

     6 Amanda expressed uncertainty over whether she
regained her phone once back in the apartment.



                             8
altercation ensued. Once inside the apartment defendant
grabbed Amanda’s phone as she tried to fend him off. He
yelled and hit her more than once on the face, the last time
on the chin. Amanda told defendant it was over and he had
to leave. He refused, stating it was over when he said it was
over. Amanda walked toward the door and turned to look at
defendant. He hit her again, knocking her to the floor and
causing her to see “black for a couple of seconds.” Defendant
was gone when she got up.

     The 911 Call

      Amanda’s mother and father arrived at her apartment.
Amanda’s mother called 911. A recording of the 911 call was
played for the jury. Amanda took the phone from her
mother shortly after the 911 call began. While crying,
Amanda told the 911 operator it was an emergency and she
needed a police officer. She identified defendant by name.
She said it was domestic violence, explaining that defendant
broke her window and beat her up. Amanda said there was
supposed to be a restraining order in place, told the operator
defendant’s date of birth and description, and described the
car he was driving. Amanda said he “socked me in the head,
I got knots all over. I got a bloody nose, I got a busted lip.”
She said she could go to the hospital on her own. She
provided her name and was told an officer was being sent.




                               9
    The Responding Officer and Corroborating
Photos

      Officer Alan Pucciarelli responded to the 911 call. He
spoke with Amanda, who was crying and very distressed.
Officer Pucciarelli documented Amanda’s injuries with a
series of photographs, which he and Amanda identified at
trial. The photographs, which we have reviewed, depict
numerous bright red abrasions covering the center of
Amanda’s forehead, nose, and left cheek. The abrasions
reach into her hairline. There is a raised knot in the center
of her forehead. Amanda’s right ear is shown swollen and
covered in red abrasions. Scratches and abrasions, inflicted
when defendant choked Amanda, are clearly visible on her
neck. Other photos showed large red areas on Amanda’s
right shoulder, back, and arm. Officer Pucciarelli and
Amanda identified a photo of the damaged window screen
defendant had ripped from the window frame and another of
the window from which he entered. Officer Pucciarelli saw
defendant after he was detained. He observed no injuries to
defendant.

     Defendant’s Jail Phone Calls

       Defendant made three recorded phone calls to Amanda
from jail following his arrest. He made the calls using the
jail account of another inmate, rather than using his own
name and account. Recordings of the calls were played for
the jury.



                             10
      The first recorded call was made on July 2, 2015.
Defendant told Amanda he was not taking a deal. She
responded that they were making her go to court. Defendant
assured her that “they’re just scaring you. Babe, please,
babe. . . . Don’t show up.” Amanda explained that she had
a subpoena and if she did not appear in court, she faced time
and would permanently lose custody of her children.
Defendant told her that the case had nothing to do with the
children and they would not take them away. Defendant
said, “Please babe. Don’t show up babe, don’t show up,
please,” and that “[i]t wasn’t me babe. I’m sorry.” Amanda
and defendant each said they loved the other, but Amanda
repeatedly expressed concern over losing custody of her
children, and defendant repeated that they were just scaring
her. Defendant told her, “I can’t do all this time in here
babe,” “[i]t’s like nothing happened if you don’t show up,”
and “[i]t was the drugs babe.” Defendant offered to marry
Amanda and said they would release him if she did not show
up. Defendant told her they were trying to give him eight
years “[f]or some bullshit.” “[I]f you[] don’t show up my
attorney says they will dismiss all the cases.” “I wanta
change babe.”
      The second recorded call was made on July 4, 2015.
Amanda told defendant she was drunk. She said they would
take away her kids if she did not come to court. Defendant
assured her that they could not take the children, despite
her protests that lawyers told her a warrant would be issued
for her arrest if she did not show up. Defendant responded




                             11
that lawyers are professional liars and they were lying to
her.7
      The third call from jail was made on July 14, 2015.
Amanda began by telling defendant she was drunk at home,
lying in bed. He told her, “[D]on’t show up babe.” He said if
she did not show up they would let him go home. He begged
her not to come to court, promising, “I’ll change for reals [sic]
this time.” Defendant asked her to ignore the subpoena,
explaining, “you’re my only hope. And I think you don’t
want to press charges, alright?” Defendant told her they are
going to give him “a long time,” and “I can’t do this.”
Defendant continued, “You better not show up, if you really
loved me, eh. That’s what, that’s how [I will] know if you
really loved me or not, eh. And if not, then don’t even bother
writing me Amanda. Just let me go, alright?” She replied
that she loved him. Defendant continued to press Amanda
not to show up to court. He said he cared about the kids but
needed to be out to do his classes. His attorney said they
would drop the charges and then they would not do anything
to her. Defendant said he was going to help her get her
children back and they would have more kids. He was going
to go to classes and get a job.



     7  Amanda explained in her testimony that her concern
over losing the children was based on her experience of
losing custody after the incident at the hospital during the
birth of their son, when defendant came to the hospital
drunk and used a false name.



                               12
      Amanda admitted sending defendant love letters after
his arrest and telling him in phone conversations that she
loved him. By the time of trial she changed her mind
because defendant had shown no remorse or caring for her
children. “All he cared about was himself, what he was
doing. I seen him for who he is.” She began to realize
defendant was not completely honest with her. She was
scared of defendant because he “would beat me like I was a
guy.”




                            13
                       DISCUSSION

Issues Relating to Former CALJIC No. 2.50.028




     8 The trial court instructed the jury with the Spring
2013 revision of CALJIC No. 2.50.02. The instruction was
modified in 2016 and 2017, and now separately addresses
proof of charged and uncharged offenses offered to prove
disposition to commit domestic violence. As to charged
offenses, the modified version requires proof beyond a
reasonable doubt, while the preponderance of the evidence
standard is limited to uncharged offenses. The Judicial
Council’s Advisory Committee on Criminal Jury Instructions
in 2017 adopted separate instructions for charged and
uncharged offenses offered to prove disposition to commit
domestic violence. (CALCRIM Nos. 852A, 852B.) CALCRIM
No. 852A, applicable to uncharged offenses offered to prove a
propensity to commit domestic violence, uses a
preponderance of the evidence standard. CALCRIM No.
852B, applicable to charged offenses offered to prove a
propensity to commit domestic violence, requires proof
beyond a reasonable doubt.
      We do not consider the modifications made by CALJIC
and CALCRIM in response to Cruz as an indication the
committees concluded that Cruz was correctly decided.
Pattern jury instructions follow the law as stated in binding
precedent. The modifications made reflect nothing more
than the committees’ decisions to provide the law as stated
in Cruz for the guidance of trial courts because the courts
are bound to follow Cruz in the absence of contrary
authority.



                             14
       The trial court instructed the jury regarding the use of
evidence of charged and uncharged crimes as follows:
       “In determining whether defendant has been proved
guilty of [] any crime of domestic violence of which he [] is
charged, you should consider all relevant evidence, including
whether defendant committed any other domestic violence
crimes, whether charged or uncharged, about which evidence
has been received. The crimes charged in Counts 1–8, may
be considered by you in that regard. [¶] . . . [¶]
       “If you find by a preponderance of the evidence that the
defendant committed any such offense involving domestic
violence, you may, but are not required to, infer that the
defendant had a disposition to commit another other [sic]
offenses involving domestic violence. If you find that the
defendant had this disposition, you may, but are not
required to, infer that he [] was likely to commit and did
commit the crime or crimes of which he [] is accused.
       “However, even though you find by a preponderance of
the evidence that the defendant committed a prior crime or
crimes involving domestic violence, that is not sufficient by
itself to prove beyond a reasonable doubt that he []
committed the offenses you are determining. If you
determine an inference properly can be drawn from this
evidence, this inference is simply one item for you to
consider, along with all other evidence, in determining
whether the defendant has been proved guilty beyond a
reasonable doubt of the charged crime that you are
determining.




                              15
     “Unless you are otherwise instructed, you [] must not
consider this evidence for any other purpose.” (Italics
added.)

     Propensity Evidence

       Evidence of a person’s character or predisposition to
act in a certain way is generally inadmissible to prove that
the person acted in conformance with that character trait on
a given occasion. (Evid. Code, § 1101, subd. (a); People v.
Villatoro (2012) 54 Cal.4th 1152, 1159 (Villatoro).) “‘Such
evidence “is [deemed] objectionable, not because it has no
appreciable probative value, but because it has too much.”
. . . [Citations.]’ [Citations.]” (People v. Falsetta (1999) 21
Cal.4th 903, 915.) Evidence Code section 1109 permits proof
of a defendant’s character in the form of evidence of a
defendant’s commission “of other domestic violence.” (Evid.
Code, § 1109, subd. (a)(1).) Evidence Code section 1108 has
a similar provision regarding “evidence of the defendant’s
commission of another sexual offense or offenses.” (Evid.
Code, § 1108, subd. (a)(1).) “[Evidence Code] sections 1108
and 1109 can properly be read together as complementary
portions of the same statutory scheme. A bill analysis
prepared for those who voted to enact [Evidence Code]
section 1109, states that ‘[t]his section is modeled on the
recently enacted Evidence Code [section] 1108, which
accomplishes the same for evidence of other sexual offenses,
in sexual offense prosecutions.’ (Assem. Com. on Public




                              16
Safety, Analysis of Sen. Bill No. 1876 (1995–1996 Reg. Sess.)
June 25, 1996, at p. 3.)” (People v. Brown (2000) 77
Cal.App.4th 1324, 1333 (Brown I).)
      “‘[T]he legislative history of [Evidence Code section
1109] recognizes the special nature of domestic violence
crime, as follows: “The propensity inference is particularly
appropriate in the area of domestic violence because on-going
violence and abuse is the norm in domestic violence cases.
Not only is there a great likelihood that any one battering
episode is part of a larger scheme of dominance and control,
that scheme usually escalates in frequency and severity.
Without the propensity inference, the escalating nature of
domestic violence is likewise masked. If we fail to address
the very essence of domestic violence, we will continue to see
cases where perpetrators of this violence will beat their
intimate partners, even kill them, and go on to beat or kill the
next intimate partner. Since criminal prosecution is one of
the few factors which may interrupt the escalating pattern of
domestic violence, we must be willing to look at that pattern
during the criminal prosecution, or we will miss the
opportunity to address this problem at all.” (Assem. Com. []
on Public Safety[, Analysis of Sen. Bill No. 1876 (1995–1996
Reg. Sess.) [June 25, 1996, at] pp. 3–4.)’” (People v. Brown
(2011) 192 Cal.App.4th at 1222, 1235–1236 (Brown II).)
“[B]y enacting [Evidence Code] sections 1108 and 1109, the
obvious intention of the Legislature was to provide a
mechanism for allowing evidence of past sexual offenses or
acts of domestic violence to be used by a jury to prove that




                              17
the defendant committed the charged offense of the same
type; recidivist conduct the Legislature has determined is
probative because of its repetitive nature. Furthermore, it is
apparent that the Legislature considered the difficulties of
proof unique to the prosecution of these crimes when
compared with other crimes where propensity evidence may
be probative but has been historically prohibited.” (Brown I,
supra, 77 Cal.App.4th at pp. 1333–1334, fn. omitted.)
      Our courts have consistently interpreted Evidence
Code sections 1108 and 1109 to allow consideration of
evidence of uncharged offenses. (Villatoro, supra, 54 Cal.4th
at p. 1160.) In 2012, our Supreme Court held that Evidence
Code sections 1108 and 1109 permit consideration of charged
offenses to prove a defendant’s disposition as well. (Id. at
pp. 1161–1167.) In the context of uncharged offenses, the
jury must find that an offense was committed by a
preponderance of the evidence before it may be considered
for propensity. (People v. Carpenter (1997) 15 Cal.4th 312,
382, superseded by statute on another point as noted in
Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106, which
in turn was superseded by statute on another point as noted
in Maldonado v. Superior Court (2012) 53 Cal.4th 1112,
1119, fn. 5.) The Supreme Court has not yet addressed the
question of which standard the jury must apply before
considering a charged offense as propensity evidence.




                             18
     Standard of Review for Jury Instructions

       “We review a claim of instructional error de novo.
(People v. Ghebretensae (2013) 222 Cal.App.4th 741, 759.)
‘“‘[T]he correctness of jury instructions is to be determined
from the entire charge of the [trial] court, not from a
consideration of parts of an instruction or from a particular
instruction.’”’ (People v. Musselwhite (1998) 17 Cal.4th 1216,
1248.)” (People v. Fiore (2014) 227 Cal.App.4th 1362, 1378
(Fiore).) “‘If a jury instruction is ambiguous, we inquire
whether there is a reasonable likelihood that the jury
misunderstood and misapplied the instruction.’ (People v.
Smithey (1999) 20 Cal.4th 936, 963; see Estelle v. McGuire
(1991) 502 U.S. 62, 72 & fn. 4.)” (People v. Young (2005) 34
Cal.4th 1149, 1202.) “In particular, ‘“‘[t]he absence of an
essential element in one instruction may be supplied by
another or cured in light of the instructions as a whole.’
[Citation.]”’ (People v. Bolin (1998) 18 Cal.4th 297, 328.)
‘Jurors are presumed able to understand and correlate
instructions and are further presumed to have followed the
court’s instructions.’ (People v. Sanchez (2001) 26 Cal.4th
834, 852.)” (Fiore, supra, at p. 1378.)

     Offenses Involving Domestic Violence

      The jury was instructed that former CALJIC No.
2.50.02 applied to all eight counts charged against
defendant. Defendant argues that two of the charged




                             19
offenses—burglary and dissuading a witness—should not
have been included in the instruction, because those offenses
“plainly do not fall within the definition of ‘domestic violence’
or ‘abuse’ as set forth in Penal Code § 13700 and Family
Code § 6211.”
      Evidence Code section 1109 provides, in relevant part,
that “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.” (Evid. Code, § 1109,
subd. (a)(1), italics added.)
      Evidence Code section 1109 further states: “‘Domestic
violence’ has the meaning set forth in Section 13700 of the
Penal Code. Subject to a hearing conducted pursuant to
Section 352, which shall include consideration of any
corroboration and remoteness in time, ‘domestic violence’ has
the further meaning as set forth in Section 6211 of the
Family Code, if the act occurred no more than five years
before the charged offense.” (Evid. Code, § 1109, subd.
(d)(3).) Both statutes define “domestic violence” as “abuse”
committed against certain classes of people, including a
person with whom the suspect has cohabitated, had a child,
or had a dating relationship. (§ 13700, subd. (b); Fam. Code,
§ 6211, subds. (b)–(d).)




                               20
           Burglary in Count 2

      Under section 13700, subdivision (a), “‘Abuse’ means
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.” “Although the crime of burglary is not a
crime of domestic violence on its face, [a] trial court [may]
properly [find] that under the facts of the case, the burglary
was a qualifying offense allowing the People to seek to
present propensity evidence under section [Evidence Code
section] 1109.” (People v. James (2010) 191 Cal.App.4th 478,
484 (James) [burglary with the intent to commit domestic
violence falls within the definition of domestic violence in
section 13700].) Where the defendant burgles with the
intent to commit domestic violence, that “intent [] makes the
burglary an offense ‘involving domestic violence.’” (Ibid.)
The facts of this case indicate that defendant removed the
screen from Amanda’s window and entered her home with
the intent to commit domestic violence against her.
Defendant does not argue otherwise on appeal. The trial
court did not err in instructing the jury that it was permitted
to consider the burglary in count 2 as evidence of defendant’s
propensity to commit domestic violence under former
CALJIC No. 2.50.02.




                              21
            Dissuading a Witness in Count 4

      Under section 6211 of the Domestic Violence
Prevention Act (Fam. Code, § 6200 et seq.), neither proof of
physical violence nor the threat of imminent physical
violence is necessary to establish abuse. (§ 6203, subd. (b);
Phillips v. Campbell (2016) 2 Cal.App.5th 844, 853
(Phillips).) To the contrary, abuse includes “engag[ing] in
any behavior that has been or could be enjoined pursuant to
Section 6320.” (Fam. Code, § 6203, subd. (a)(4).) “Section
6320, subdivision (a) permits the court to enjoin a party from
‘harassing . . . or disturbing the peace of the other party. . . .’
[¶] ‘“[T]he plain meaning of the phrase ‘disturbing the peace
of the other party’ in section 6320 may be properly
understood as conduct that destroys the mental or emotional
calm of the other party. . . . Therefore, the plain meaning of
the phrase ‘disturbing the peace’ in section 6320 may
include, as abuse within the meaning of the [Domestic
Violence Prevention Act], a [defendant]’s alleged conduct in
destroying the mental or emotional calm of his [former
cohabitant, former girlfriend, or the mother of his child]. . . .”
[Citation.]’ (Burquet v. Brumbaugh (2014) 223 Cal.App.4th
1140, 1146.)” (Phillips, supra, at pp. 852–853.) Defendant
was convicted in count 4 of dissuading a witness from
reporting a crime (§ 136.1, subd. (b)(1)). The recorded jail
calls are replete with defendant’s threatening, pleading, and
cajoling statements in which he tried desperately to convince
Amanda not to attend court or to testify. Amanda was




                                22
clearly distressed by defendant’s attempts and torn between
her instinct to comply with him, and her fear of having her
children taken from her. Considering the strong evidence
that defendant “destroy[ed] [Amanda’s] mental or emotional
calm,” the trial court’s instruction that the jury could
consider the charge of dissuading a witness in count 4 as
evidence of defendant’s propensity to commit domestic
violence was not error.9

     Burden of Proof Arguments

      Defendant contends that the trial court committed
structural error by incorrectly instructing the jury on the
burden of proof required when considering whether other
charged offenses may be used to draw a discretionary
inference that defendant had a propensity to commit
domestic violence. He asserts that the correct standard of
proof is beyond a reasonable doubt—not a preponderance of
the evidence as stated in former CALJIC No. 2.50.02—and
that by incorrectly instructing the jury, the trial court
effectively lowered the burden of proof for conviction.



     9 Defendant appears to challenge the inclusion of the
dissuading a witness charge solely on the basis that he did
not threaten violence during the jail calls to Amanda. He
does not expressly contest that his actions during the attack
on her were not threatening or violent, nor could he do so
convincingly given the overwhelming evidence against him.



                             23
       Defendant relies primarily on Cruz, supra, 2
Cal.App.5th 1178, to support his contention. Cruz was
convicted of three counts of committing a lewd act against a
child under the age of 14 (§ 288, subd. (a)), and sentenced to
105 years to life in prison. (Cruz, supra, at p. 1180.) The
trial court instructed the jury that it could consider charged
and uncharged sexual offenses to draw the discretionary
inference that the defendant had a propensity to commit
sexual offenses. (Id. at pp. 1183–1184.) It gave a version of
CALJIC No. 2.50.01 that parallels the version of CALJIC
No. 2.50.02 given in the present case in all pertinent
respects. (Ibid.) The Cruz court held that it was error to
give CALJIC No. 2.50.01 because it believed that our
Supreme Court’s decision in Villatoro, supra, 54 Cal.4th
1152, “strongly implied” the correct standard for considering
other charged crimes in this context was beyond a
reasonable doubt (Cruz, supra, at p. 1186), and because the
instruction was a “hopeless muddle” (ibid.) that was too
complex for jurors to correctly understand or apply. The
Cruz court reasoned that the instruction “presented the jury
with a nearly impossible task of juggling competing
standards of proof during different phases of its
consideration of the same evidence.” (Id. at p. 1187.) It
concluded, “the ultimate effect is to lower the prosecution’s
burden of proving guilt beyond a reasonable doubt.” (Ibid.)
The Cruz court found the error to be structural, and reversed




                             24
the judgment. (Ibid.) We respectfully disagree with Cruz’s
reasoning and result. 10
       Echoing Justice Corrigan’s dissent in Villatoro, our
dissenting colleague essentially argues Cruz was correctly
decided and Villatoro was not. We offer a few preliminary
comments in response. First, under Auto Equity Sales, Inc.
v. Superior Court (1962) 57 Cal.2d 450, 455, we are bound by
the majority decision in Villatoro, not by the dissent (even if
we were to agree, which we have no occasion to address).
Second, the Legislature could have amended sections 1108
and 1109 to preclude use of charged offenses to prove
disposition by adopting Justice Corrigan’s reasoning, but it
has not done so. Third, Justice Corrigan’s (and the Cruz
court’s) concern over the risk that a jury might be confused
by the difference between proof by a preponderance of the
evidence to create an inference of disposition, and the
requirement of proof beyond a reasonable doubt to prove a
charged offense, is simply not present in this case—the jury
convicted on four counts, acquitted on one count, and was
unable to reach a verdict on three. Fourth, the dissent’s
contention that any error was structural requiring reversal
fails to mention that all seven justices in Villatoro agreed



     10  The former Attorney General did not file a petition
for review in Cruz, nor did she request depublication of the
opinion. In briefing and at oral argument in this case, the
Attorney General’s position was that Cruz was incorrectly
decided.



                              25
that any error was harmless under the People v. Watson
(1956) 46 Cal.2d 818, 834 standard of review.

         Burden of Proof for Charged Crimes as
Propensity Evidence

       We are unpersuaded that the Supreme Court intended
to imply other charged crimes evidence must be proved
beyond a reasonable doubt before it may be used to infer
propensity. In Villatoro, supra, 54 Cal.4th at page 1167, the
trial court instructed the jury it could draw the discretionary
“conclusion” that Villatoro was inclined to commit the
charged sex crimes if it “decided” he had committed other
charged sexual offenses. 11 The instruction specified this was
only one factor to consider and was insufficient to support a
guilty verdict alone. (Ibid.) The instruction concluded:
“‘The People must still prove each element of every charge
beyond a reasonable doubt and prove it beyond a reasonable
doubt before you may consider one charge as proof of another
charge.’” (Ibid., fn. omitted.)


     11 Villatoro involved the application of Evidence Code
section 1108 to charged and uncharged sex offenses. The
court referenced Evidence Code sections 1108 and 1109 in its
analysis. The court made clear its analysis applied to both
statutory provisions. (Villatoro, supra, 54 Cal.4th at pp.
1162–1163, fn. 5 [expressly disapproving People v.
Quintanilla (2005) 132 Cal.App.4th 572 (Quintanilla), which
held that Evidence Code section 1109 does not apply to
charged offenses].)



                              26
       Villatoro contended that other charged offenses could
not be considered as evidence of propensity to commit
charged crimes under Evidence Code section 1108. He also
challenged the propriety of instructing under a modified
version of CALCRIM No. 1191, which “failed to designate
clearly what standard of proof applied to the charged
offenses before the jury could draw a propensity inference
from them. [Villatoro] insist[ed] that without such guidance,
a juror could have used any standard of proof, or no standard
at all, to convict him based on even a minimal amount of
evidence supporting another sexual offense, thus depriving
him of the presumption of innocence.” (Villatoro, supra, 54
Cal.4th at p. 1167.)
       The Supreme Court rejected Villatoro’s argument that
charged offenses could not be considered to support an
inference of propensity. It held that the language of
Evidence Code section 1108 “does not distinguish between
charged or uncharged sexual offenses.” (Villatoro, supra, 54
Cal.4th at p. 1160.) The court emphasized that for purposes
of Evidence Code section 1108 there were few distinctions
between charged and uncharged offenses, noting that
“[w]hether an offense is charged or uncharged in the current
prosecution does not affect in any way its relevance as
propensity evidence.” (Id. at p. 1164.) The court recognized
that in contrast to evidence of uncharged offenses, charged
offenses may not be excludable under Evidence Code section
352. However, it concluded that the necessary constitutional
safeguards remained in place because trial courts may




                             27
“consider[] [Evidence Code] section 352 factors when
deciding whether to permit the jury to infer a defendant’s
propensity based on this evidence.” (Id. at p. 1163.)
      The Supreme Court likewise rejected Villatoro’s
argument that the failure to clearly instruct on the burden of
proof applied to the charged offenses for purposes of proving
propensity could lead the jury to convict him of another
charge upon proof less than beyond a reasonable doubt.
(Villatoro, supra, 54 Cal.4th at p. 1167.) Because the
reasonable doubt burden of proof was the only burden of
proof identified in the instruction—the final sentence of the
instruction informed the jury that the burden of proof for
both determinations was beyond a reasonable doubt—the
Supreme Court held there was no possibility that the jury
would apply a lower standard when reaching a verdict. (Id.
at p. 1168.) The court specifically declined to express a view
as to whether the instruction should be given in the future.
(Id. at p. 1169.)
      We do not interpret Villatoro as signaling that the
correct burden of proof when considering whether charged
offenses may be used to infer propensity is beyond a
reasonable doubt. The question of the burden of proof
applicable to charged offenses in that context was not before
the court. The court addressed only whether the
instruction’s statement of the burden of proof for
consideration of propensity evidence had the effect of
lowering the burden of proof for conviction. The court
logically held that because the only burden of proof




                             28
referenced in the instruction was beyond a reasonable doubt,
there was “no risk” that the jury would apply some other
unmentioned standard when reaching a verdict. (Villatoro,
supra, 54 Cal.4th at p. 1168.) At the same time, the court
expressly declined to approve the instruction for future use,
effectively reserving the question of the burden of proof
when considering charged offenses in the propensity context
for another day.
       We do not discern any reason why the burden of proof
applied to charged offenses when used for propensity
purposes should differ from that applied to uncharged
offenses. As with uncharged offenses, “[i]t is not the verdict
itself, but rather the jury’s factual finding that defendant
has committed a [charged] sex offense, that the jury relies on
to draw an inference of disposition or propensity.” (Villatoro,
supra, 54 Cal.4th at p. 1165.) Arguments that advocate a
higher burden of proof for charged offenses as evidence of
propensity appear to be rooted in concerns regarding the
“‘bootstrapping of verdicts’ [citation] and the possibility that
the jury may ‘simply conclude that because it found the
defendant guilty of one count, he must be guilty of the
others’ [citation], . . .” (Ibid.) But as the Villatoro court
stated when it held that charged offenses may be considered
under Evidence Code section 1108, these arguments “merely
identif[y] the general concern against allowing a jury to
consider propensity evidence in a criminal case.” (Ibid.)
This general concern applies equally to charged and
uncharged offenses—perhaps to an even greater extent to




                              29
uncharged offenses that would not otherwise be presented to
the jury—and provides no logical basis for requiring
different burdens of proof.
      The Legislature carefully considered the question of
when propensity evidence may be admitted, and determined
that strong public policy considerations favored allowing
such evidence in cases involving domestic violence. Just as
it did not differentiate between charged and uncharged
crimes for purposes of consideration as propensity evidence,
it did not differentiate between the two categories of offense
with respect to the burden of proof, or, in fact, designate a
burden of proof for evidence of other domestic violence
offenses generally. Where, as here, the legislature is silent,
“the burden of proof requires proof by a preponderance of the
evidence.” (Evid. Code, § 115.) The Legislature’s decision to
apply the default standard of proof to other domestic
violence offenses is consistent with the well-settled principle
that “‘evidentiary facts’” are governed by the preponderance
standard, while the reasonable doubt standard applies to the
ultimate determination of guilt. (People v. Medina (1995) 11
Cal.4th 694, 763; People v. Lisenba (1939) 14 Cal.2d 403,
430.) A defendant’s propensity to commit a crime is such an
evidentiary fact. (People v. Anderson (2012) 208 Cal.App.4th
851, 896–897.) When considered for this purpose, evidence
of charged crimes is collateral to the question of the
accused’s guilt or innocence and does not “‘bear directly on
any link in the chain of proof of any element of the crime.’
[Citation.]” (Ibid.) “There is [] no constitutional compulsion




                              30
that such collateral fact[s] be proved beyond a reasonable
doubt, nor does the presumption of the accused’s innocence
aid in the resolution of such fact[s].” (People v. Tewksbury
(1976) 15 Cal.3d 953, 965.)
      The important public policy concerns behind Evidence
Code section 1109 also lead us to believe the preponderance
of the evidence standard of proof for propensity evidence is
appropriate for both charged and uncharged offenses. “The
degree of burden of proof applied in a particular situation is
an expression of the degree of confidence society wishes to
require of the resolution of a question of fact. [Citation.]
The burden of proof thus serves to allocate the risk of error
between the parties, and varies in proportion to the gravity
of the consequences of an erroneous resolution. [Citations.]
Preponderance of the evidence results in the roughly equal
sharing of the risk of error. [Citation.] To impose any
higher burden of proof demonstrates a preference for one
side’s interests.” (In re Marriage of Peters (1997) 52
Cal.App.4th 1487, 1490.) In enacting Evidence Code section
1109, the Legislature acknowledged the seriousness of
domestic violence offenses, and the difficulty of proving such
crimes, which are secretive and often result in a credibility
contest between perpetrator and victim. (People v. Jennings
(2000) 81 Cal.App.4th 1301, 1311.) It corrected the
imbalance of power in favor of perpetrators by allowing the
jury to consider highly relevant propensity evidence. (Ibid.)
Application of the preponderance of the evidence standard is
consistent with the statute’s purpose.




                              31
       The dissent is troubled that Amanda’s testimony was
the sole source of the propensity evidence, and that the
crimes concerned differed in nature and occurred over the
course of a few hours. That concern is not relevant to the
issues defendant raises here. Evidence Code section 1109
does not limit propensity evidence to evidence provided by
third parties. (See People v. Gonzales (Oct. 24, 2017,
B276101) __Cal.App.5th__ (Gonzales) [holding that evidence
of uncharged crimes is not limited to evidence provided by
third parties under section 1108].) Villatoro held that the
definition of another sexual offense or offenses in Evidence
Code section 1108 “contains no limitation, temporal or
otherwise, to suggest that [it] covers only offenses other than
those for which defendant is currently on trial.” (Villatoro,
supra, 54 Cal.4th at p. 1161, italics added.) It follows that
the parallel language in Evidence Code section 1109 also
allows evidence of crimes that occurred within the same time
period to be used to demonstrate propensity. As for the
disparate nature of the crimes, the legislature clearly
defined evidence of another crime to encompass crimes of a
dissimilar nature but involving similar intent, as courts have
recognized. (See James, supra, 191 Cal.App.4th at p. 484
[holding that where the defendant burgles with intent to
commit domestic violence that “intent [] makes the burglary
an offense ‘involving domestic violence’” under section 1109];
People v. Story (2009) 45 Cal.4th 1282, 1291–1294 (Story)
[first degree felony murder with rape and burglary based on
entry with the intent to rape qualifies as a sexual offense




                              32
under section 1108]; People v. Pierce (2002) 104 Cal.App.4th
893, 898–899 [assault with intent to commit rape qualifies
as a sexual offense under section 1108]).
      The issues raised by the dissent are not without
redress. In Villatoro, the Supreme Court noted with
approval the Court of Appeal’s observation that “[although]
evidence of the charged offenses may not be excludable
under section 352 . . . nothing precludes a trial court from
considering section 352 factors when deciding whether to
permit the jury to infer a defendant’s propensity based on
this evidence . . . . ‘Even where a defendant is charged with
multiple sex offenses, they may be dissimilar enough, or so
remote or unconnected to each other, that the trial court
could apply the criteria of section 352 and determine that it
is not proper for the jury to consider one or more of the
charged offenses as evidence that the defendant likely
committed any of the other charged offenses.’” (Villatoro,
supra, 54 Cal.4th at p. 1163; accord, Story, supra, 45 Cal.4th
at pp. 1294–1295.) Thus, a defendant is safeguarded from
the use of charged crimes that are more prejudicial than
probative as propensity evidence under Evidence Code
section 352. In appropriate cases, the trial court may
instruct the jury that it is not to consider other charged
crimes evidence for propensity purposes.
      In the present case, defendant has not argued that the
propensity evidence was more prejudicial than probative
under Evidence Code section 352. Absent such a challenge,
we will not address the issue on appeal. (See Gonzales,




                              33
supra, __Cal.App.5th__ [declining to address whether
uncharged crimes evidence was properly admitted as
propensity evidence where defendant instead challenged the
propriety of instructing under CALCRIM No. 1191].)

           Burden of Proof for Conviction

      We also disagree with Cruz’s conclusion that the
application of two different standards of proof within a single
instruction creates confusion sufficient to lower the burden
of proof for conviction. In our opinion, the reasoning of our
Supreme Court in People v. Reliford (2003) 29 Cal.4th 1007
(Reliford), which held the 1999 revised version of CALJIC
No. 2.50.01 constitutional, resolves the issue because as in
Reliford, the instructions here clearly conveyed the proper
burden of proof for conviction to the jury. Moreover, the
jury’s divided resolution of the eight charged offenses in this
case belies the suggestion in Cruz that a jury would be
unable to understand the way the instruction operated. (See
People v. Ellison (2011) 196 Cal.App.4th 1342, 1353
[acquittal of three charges demonstrated that jury
understood the applicable burden of proof].)
      In Reliford, the defendant challenged a modified
version of the 1999 revised version of CALJIC No. 2.50.01,
which instructed on prior uncharged sexual offenses in
relevant part:

           “If you find that the defendant committed a
     prior sexual offense in 1991 involving S[.]B[.], you



                              34
      may, but are not required to, infer that the
      defendant had a disposition to commit the same
      or similar type sexual offenses. If you find that
      the defendant had this disposition, you may, but
      are not required to, infer that he was likely to
      commit and did commit the crime of which he is
      accused.

            “However, if you find by a preponderance of
      the evidence that the defendant committed a
      prior sexual offense in 1991 involving S[.]B[.],
      that is not sufficient by itself to prove beyond a
      reasonable doubt that he committed the charged
      crime. The weight and significance of the
      evidence, if any, are for you to decide.

           “You must not consider this evidence for
      any other purpose.”

 (Reliford, supra, 29 Cal.4th at p. 1012.)
       Reliford argued that the instruction was “‘likely to
mislead the jury concerning the supposedly limited purpose
for which they may consider the prior crimes evidence,’ and
[] the instruction is ‘likely to mislead the jury concerning . . .
the prosecution’s burden of proof.’” (Reliford, supra, 29
Cal.4th at p. 1012.) Our Supreme Court disagreed.
       The Reliford court reasoned, “the instruction nowhere
tells the jury it may rest a conviction solely on evidence of
prior offenses. Indeed, the instruction’s next sentence says
quite the opposite: ‘if you find by a preponderance of the
evidence that the defendant committed a prior sexual offense




                               35
. . . , that is not sufficient by itself to prove beyond a
reasonable doubt that he committed the charged crime.’ The
jury, of course, was instructed to consider the instructions
‘as a whole’ (CALJIC No. 1.01) . . . . [Citations.] Viewed in
this way, the instructions could not have been interpreted to
authorize a guilty verdict based solely on proof of uncharged
conduct. [Citations.]” (Reliford, supra, 29 Cal.4th at p.
1013.) “Nothing in the instructions authorized the jury to
use the preponderance-of-the-evidence standard for anything
other than the preliminary determination whether
defendant committed a prior sexual offense in 1991 involving
S.B. The instructions instead explained that, in all other
respects, the People had the burden of proving defendant
guilty ‘beyond a reasonable doubt.’ (CALJIC Nos. 2.61, 2.90;
see CALJIC No. 10.65.) . . . In addition, the jury was told
that circumstantial evidence could support a finding of guilt
of the charged offenses only if the proved circumstances
could not be reconciled with any other rational conclusion
(CALJIC No. 2.02)—which is merely another way of
restating the reasonable-doubt standard. (See People v.
Carpenter (1997) 15 Cal.4th 312, 383.) The jury thus would
have understood that a conviction that relied on inferences
to be drawn from defendant’s prior offense would have to be
proved beyond a reasonable doubt.” (Reliford, supra, 29
Cal.4th at p. 1016.)
         The Reliford court also “reject[ed] the . . . assertion
that the instruction, even if correct, is too ‘complicated’ for
jurors to apply.” (Reliford, supra, 29 Cal.4th at p. 1016.)




                              36
“This is not the first time jurors have been asked to apply a
different standard of proof to a predicate fact or finding in a
criminal trial. (E.g., CALJIC Nos. 2.50 [evidence of other
crimes under Evid. Code, § 1101], 4.43 [necessity defense],
4.60 [entrapment], 4.74 [statute of limitations], 6.24
[admissibility of coconspirator’s statements], 7.73 [failure to
file tax returns in prior years], 12.06 [lawful possession of
controlled substance].) As we do in each of those
circumstances, we will presume here that jurors can grasp
their duty—as stated in the instructions—to apply the
preponderance-of-the-evidence standard to the preliminary
fact identified in the instruction and to apply the reasonable-
doubt standard for all other determinations.” (Id. at
p. 1016.)
       The instruction given in the present case differs in only
a few respects from the instruction in Reliford, the primary
distinction being that here the jury was told that it could
consider whether defendant committed any other domestic
violence crimes, charged or uncharged—Reliford involved
only uncharged crimes. We see no reason to conclude that
the addition of charged offenses makes the instruction any
more difficult to understand or apply. The procedure for
determining whether an inference of propensity may be
drawn remains the same in either case. As in Reliford,
defendant’s jury was nowhere told that it could rest its
conviction on other crimes evidence, or that it could apply
the preponderance of the evidence standard for anything
other than determining whether defendant committed




                              37
another offense involving domestic violence for the purpose
of drawing a discretionary inference that defendant had a
propensity to commit such offenses. Every jury instruction
the trial court gave that mentioned a burden of proof to
establish defendant’s guilt advised the jury that a conviction
could only be based on proof beyond a reasonable doubt.
(See CALJIC No. 2.9012 [definition of proof beyond a
reasonable doubt]; CALJIC No. 2.01 [circumstantial
evidence]; CALJIC No. 4.21.1 [effect of voluntary
intoxication]; CALJIC No. 9.58 [reasonable belief of consent
to kidnapping]; CALJIC No. 9.35.01 [domestic violence with
a prior conviction]; CALJIC No. 17.01 [unanimity
requirement].) No jury instruction referenced conviction on
anything other than proof beyond a reasonable doubt. Read
as a whole, the charge to the jury was not susceptible to an
interpretation that defendant could be convicted on less than
proof beyond a reasonable doubt.
      Our resolution of this issue is not dependent on which
standard of proof is applied to charged offenses for
propensity purposes. As Reliford emphasized, it is not
uncommon for a jury to be instructed on multiple standards
of proof in the same case, even when the different standards
must be applied to the same evidence for the purpose of
making different determinations. In the event that we have
incorrectly identified preponderance of the evidence as the

     12  The trial court also instructed the jury on the
definition of proof beyond a reasonable doubt, in the
language of CALJIC No. 2.90, at the time of jury selection.



                             38
standard for propensity evidence, the inclusion of that
standard of proof in the instruction would not undermine our
conclusion that the burden of proof for conviction is clear.

           Trial Error Subject to Harmless Error
Analysis

       Assuming the trial court erred in instructing that the
burden of proof for charged crimes used as propensity
evidence was a preponderance of the evidence, such error is
trial error, subject to harmless error analysis. We reject
defendant’s contention that the error is structural, which
requires reversal per se. Given the strength of the evidence,
any assumed error is non-prejudicial.
       “In the nearly 50 years since Chapman was decided,
the high court repeatedly has emphasized that most errors
implicating a federal constitutional right, including most
instructional errors, are amenable to harmless error analysis
and that only a ‘very limited class of cases’ are subject to per
se reversal. [Citations.]” (People v. Aranda (2012) 55
Cal.4th 342, 363 (Aranda).) As explained by the United
States Supreme Court, “while there are some errors to which
Chapman does not apply, they are the exception and not the
rule. [(United States v. Hasting [(1983)] 461 U.S. [499,]
509.)] Accordingly, if the defendant had counsel and was
tried by an impartial adjudicator, there is a strong
presumption that any other errors that may have occurred
are subject to harmless-error analysis. The thrust of the
many constitutional rules governing the conduct of criminal



                              39
trials is to ensure that those trials lead to fair and correct
judgments. Where a reviewing court can find that the record
developed at trial establishes guilt beyond a reasonable
doubt, the interest in fairness has been satisfied and the
judgment should be affirmed. As we have repeatedly stated,
‘the Constitution entitles a criminal defendant to a fair trial,
not a perfect one.’ [(Delaware v. Van Arsdall [(1986)] 475
U.S. [673,] 681; United States v. Hasting[, supra,] at [pp.]
508–509.)]” (Rose v. Clark (1986) 478 U.S. 570, 578–579
(Rose).)
       Following the Court of Appeal in Cruz, defendant and
our dissenting colleague rely on the following statement in
Aranda, supra, 55 Cal.4th at page 365: “An instruction that
effectively lowers the prosecution’s burden of proving guilt
beyond a reasonable doubt is structural error because it
‘vitiates all the jury’s findings’ and its effect on the verdict is
‘necessarily unquantifiable and indeterminate.’ [Citations.]”
The two cases cited by Aranda for this proposition are
Sullivan v. Louisiana (1993) 508 U.S. 275, 279–282
(Sullivan), and Hedgpeth v. Pulido (2008) 555 U.S. 57, 61
(Hedgpeth). A careful examination of the holding in Aranda,
and the cases cited, indicates that the Cruz court’s cursory
citation to Aranda misapplied the one sentence on which it
relied.
       The issue in Aranda was whether the trial court’s
failure to provide a standard jury instruction on reasonable
doubt constituted structural error requiring reversal. As to
one charge, Aranda held the instructional deficiency “did not




                                40
constitute federal constitutional error” because of other
instructions referencing the requirement of proof beyond a
reasonable doubt, and as to “state law, we conclude that the
state law error was harmless.” (Aranda, supra, 55 Cal.4th
at p. 350.) As to a second charge, the other jury instructions
failed to specify that guilt beyond a reasonable doubt was
required, and “this omission constituted error under both
state law and the federal Constitution” but “the error, like
most instructional errors of federal constitutional dimension,
is amenable to harmless error analysis under Chapman v.
California (1967) 386 U.S. 18 (Chapman), and is not
reversible per se.” (Ibid.) The court held the error was
harmless beyond a reasonable doubt. (Ibid.)
      The Aranda court therefore applied harmless error
analysis to a case which involved an error potentially far
more egregious than any instructional error here,
considering that defendant’s jury was given the approved
standard instruction on reasonable doubt during voir dire
and prior to deliberations, and six other instructions
referenced the correct burden of proof. Under the reasoning
of Aranda, any purported error was amenable to harmless
error review, and as discussed below, error could not possibly
have been prejudicial.
      Our conclusion that Cruz read too much into Aranda is
bolstered by an examination of the two cases Aranda cited
on this point—Sullivan and Hedgpeth. Sullivan stands for
the unremarkable proposition that when the jury is provided
an instruction that understates the burden of proof, the




                             41
error is prejudicial per se. (Sullivan, supra, 508 U.S. at pp.
279–282.) There is no Sullivan error here; defendant’s jury
did not receive a deficient instruction on reasonable doubt.
Defendant does not dispute that the trial court correctly
instructed the jury with the approved definition of proof
beyond a reasonable doubt under CALJIC No. 2.90 both
prior to jury selection and at the conclusion of the case, or
that the court made repeated references to the correct
burden of proof throughout the charge to the jury. (See
People v. Crew (2003) 31 Cal.4th 822, 847–848 [rejecting
defendant’s argument that instructions lowered the burden
of proof, in part because jury was “repeatedly instructed” on
proper burden of proof].)
      Hedgpeth, the other case cited by the Aranda court,
provides no support for Cruz’s finding of structural error. In
a per curiam decision reversing the Ninth Circuit Court of
Appeals, the Hedgpeth court held that where a jury is
instructed on alternate theories of guilt, one of which is
invalid, the error is not structural requiring reversal.
(Hedgpeth, supra, 555 U.S. at p. 58.)
      The analysis in Rose, supra, 478 U.S. 570, a case cited
with approval in Aranda, is instructive. The issue in Rose
was “whether the harmless-error standard of Chapman v.
California 386 U.S. 18, applies to jury instructions that
violate the principles of Sandstrom v. Montana [(1979)] 442
U.S. 510 [(Sandstrom)], and Francis v. Franklin [(1985)] 471
U.S. 307.” (Id. at p. 572, fn. omitted.) The Sandstrom court
held that an instruction in a homicide prosecution that “‘the




                              42
law presumes that a person intends the ordinary
consequences of his voluntary acts,’ violates the Fourteenth
Amendment’s requirement that the State prove every
element of a criminal offense beyond a reasonable doubt.”
(Sandstrom, supra, at p. 512.) The Rose court held
Sandstrom error is trial error amenable to harmless error
analysis under Chapman. (Rose, supra, at p. 582.)
      As Rose explained, “the prosecution must prove ‘every
fact necessary to constitute the crime with which [the
defendant] is charged’ beyond a reasonable doubt.” (Rose,
supra, 478 U.S. at p. 580.) “When the verdict of guilty
reached in a case in which Sandstrom error was committed
is correct beyond a reasonable doubt, reversal of the
conviction does nothing to promote the interest that the rule
serves.” (Ibid.) Significantly, the Rose court observed that
“[n]o one doubts that the trial court properly could have
instructed the jury that it could infer malice from
respondent’s conduct. [(See Francis v. Franklin, supra, 471
U.S. at [pp.] 314–315; Ulster County Court v. Allen [(1979)]
442 U.S. 140, 157–163.)]” (Id. at p. 581.) The court
ultimately held “that Chapman’s harmless-error standard
applies in cases such as this one.” (Id. at p. 582, fn. omitted.)
      Rose compels the conclusion that any error in former
CALJIC No. 2.50.02 is subject to harmless error analysis.
The alleged error in the instant case is less egregious than
that in Sandstrom and Rose. The jury was not instructed to
presume the existence of an element of a charged offense.
Defendant’s jury was instructed that it was permitted to




                               43
draw an inference from defendant’s conduct—a proposition
that the Rose court emphasized “no one doubts.” The court
then expressly admonished that the inference alone was
insufficient to prove guilt and that a guilty verdict required
review of all the evidence.
       We address the issue of prejudice as to individual
counts, but before doing so, we have two observations. The
first is that the jury did not view former CALJIC No. 2.50.02
as directing a verdict. The jury found defendant not guilty
on one count and was unable to reach verdicts on three
others. (See Quintanilla, supra, 132 Cal.App.4th at p. 583.)
Second, the parties’ arguments to the jury completely
ignored former CALJIC No. 2.50.02 and lacked even a single
reference to the principle of disposition to commit domestic
violence. These two considerations, along with the strength
of the evidence as reviewed below, point to an absence of
prejudice.
       Defendant was convicted in count 2 of first degree
burglary with a person present. The burglary was premised
on defendant tearing off the window screen to Amanda’s
apartment and entering with the intent to commit theft or
domestic violence. The only theft issue in the case involved
the alleged taking of Amanda’s cell phone in a robbery, but
the jury acquitted defendant of the robbery charge. As a
result, the burglary conviction was based on entry to commit
domestic violence. The evidence relating to the burglary is
essentially uncontested. Amanda testified that she refused
to allow defendant to reenter the apartment. She told the




                              44
911 operator defendant had broken the screen and beat her
up. Officer Pucciarelli and Amanda identified photos of the
damaged window screen and the window. In the recorded
jail phone calls defendant not only failed to deny committing
the charged offenses, he assured Amanda that his conduct
was the result of drug use—something he would “change.”
Photographs dramatically illustrated the substantial beating
inflicted by defendant. Additional evidence of defendant’s
intent at the time of entry is found in the prior act of
domestic violence defendant committed against Amanda in
2013, including corroboration from Officer Moya, who saw
her split lip in 2013. On this record, the assumed trial error
is harmless beyond a reasonable doubt as to the burglary in
count 2.
       In count 3, defendant was convicted of infliction of
injury on a spouse, cohabitant, girlfriend, or child’s parent
after a prior conviction (§ 273.5, subd. (f)(1)). There is no
dispute defendant suffered the prior conviction, which was
proven by the record of conviction and Amanda’s testimony.
The evidence that defendant inflicted the requisite injury on
Amanda, his girlfriend and the mother of his child, was
overwhelming. In combination, Amanda’s testimony, the
photographs which graphically depict the results of the
beatings, the 911 call, Officer Pucciarelli’s testimony, and
the admissions made by defendant in the jail calls, establish
that any assumed error in giving former CALJIC No. 2.50.02
was harmless beyond a reasonable doubt.




                             45
      Defendant was convicted in count 4 of dissuading a
witness from reporting a crime (§ 136.1, subd. (b)(1)). The
recorded jail calls are replete with defendant’s threatening,
pleading, and cajoling statements in which he tried
desperately to convince Amanda not to attend court or
testify. Defendant did not suffer prejudice from former
CALJIC No. 2.50.02 in connection with count 4.
      Finally, in count 7 defendant was convicted of violation
of a domestic violence restraining order (§ 273.6, subd. (a)).
The existence of the restraining order is not disputed. The
overwhelming testimony outlined above demonstrates
defendant violated the restraining order by being in contact
with Amanda and inflicting injuries upon her. Nothing in
former CALJIC No. 2.50.02 affects the jury’s verdict in count
7. No prejudice exists.

     Admission of Prior Domestic Violence and Phone
Sex Evidence

       Defendant argues the trial court abused its discretion
under Evidence Code section 352 in overruling his objection
to prior acts of domestic violence between himself and
Amanda, and in refusing to redact portions of his recorded
calls from jail relating to phone sex.
       “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



                              46
jury.” (Evid. Code, § 352.) We review a trial court’s ruling to
exclude evidence under Evidence Code section 352 for abuse
of discretion. (People v. Fuiava (2012) 53 Cal.4th 622, 663
(Fuiava); People v. Hamilton (2009) 45 Cal.4th 863, 929–
930.) A court abuses its discretion with a ruling that falls
beyond the bounds of reason, or where the ruling is
arbitrary, capricious, or patently absurd. (Fuiava, supra, at
p. 663; People v. Carrington (2009) 47 Cal.4th 145, 195;
People v. Osband (1996) 13 Cal.4th 622, 666.)
      We see no abuse of discretion in the trial court’s
rulings. The nature of the relationship between defendant
and Amanda was relevant to the charges in the case. The
allegations of violation of the restraining order and
dissuading a witness were closely related to defendant’s
prior acts of domestic violence. Trial of the domestic violence
charge involved consideration of defendant’s drug usage,
which was connected to his prior violent acts, and which
defendant relied upon in arguing that he lacked the
necessary specific intent on several of the charges.
Amanda’s credibility was attacked by the defense, and
corroboration of her testimony with defendant’s prior violent
conduct tended to bolster her credibility. The violent
relationship between defendant and Amanda, typical of
many domestic violence cases, was relevant to the jury’s
understanding of Amanda’s attitude toward the action and
her feelings for defendant. Defendant’s prior violence also
assisted the jury in understanding the context of the
statements made in the recorded jail calls.




                              47
      The trial court could reasonably conclude that the
evidence of the prior acts of violence by defendant—
including the 2013 incident in which Amanda suffered a split
lip—was not so prejudicial as to be substantially outweighed
by its probative value. The prior conduct was benign in
comparison to what was depicted in the photographs of
Amanda’s injuries in the current case.
      Defendant’s brief, both in the statement of facts and
the argument, fails to set forth the actual content of what he
considers inadmissible “phone sex” in one of the recorded jail
calls. This alone is a sufficient basis to reject the contention.
In any event, defendant’s brief concedes the phone sex “had
‘very little effect on the issues.’” And although defendant
concludes that the evidence “could have only created undue
prejudice” against him, he fails to explain how this trivial
portion of the evidence affected the outcome of the trial. We
conclude there was no abuse of discretion, nor has defendant
carried his burden of establishing prejudice. (Cal. Const.,
art. VI, § 13; People v. Watson (1956) 46 Cal.2d 818, 836.)

Cumulative Error

     Defendant argues that the cumulative effect of the
errors relating to the instructions and introduction of
evidence requires reversal. “We have rejected his claim of
errors or, if error, of individual prejudice, and therefore he
could not have suffered cumulative prejudice.” (People v.
Tully (2012) 54 Cal.4th 952, 1020.)




                               48
Unanimity Instruction on the Witness Intimidation
Count

      Defendant argues the dissuading a witness charge in
count 4 was based on more than one act—his conduct on the
date of the charged offenses, and his statements in the
recorded jail phone calls. The trial court did not initially
give the unanimity instruction (CALJIC No. 17.01) on the
charge, although it was given as to other counts. Defendant
contends the failure to give CALJIC No. 17.01 was reversible
error.
      Defendant is correct that the trial court did not
initially instruct the jury on the requirement of unanimity
with CALJIC No. 17.01 as to count 4, although the
instruction was given as to counts 3 and 7.13 During
deliberations, the jury sent a written question to the trial
court, asking if count 4 addressed the “prison phone calls” or

     13  The court instructed the jury with CALJIC No. 17.01
as follows: “The defendant is accused of having committed
the crime of 273.5 in Count[s] 3 & 7. The prosecution has
introduced evidence for the purpose of showing that there is
more than one act or omission upon which a conviction on
Count[s] 3 & 7 may be based. Defendant may be found
guilty if the proof shows beyond a reasonable doubt that he []
committed any one or more of the acts or omissions.
However, in order to return a verdict of guilty to Count[s] 3
& 7, all jurors must agree that he [] committed the same act
or omission or acts or omissions. It is not necessary that the
particular act or omission agreed upon be stated in your
verdict.”



                             49
also the incident on June 20. The court answered the jury’s
question with the following response: “both but you all must
agree which (or both) to find defendant guilty.” A minute
order reflects that counsel were notified telephonically of the
question and they “approve[d] the response.”
      We reject the claim that the court’s failure to repeat
CALJIC No. 17.01 in its entirety as to count 4 was reversible
error. First, the issue is forfeited, as the record reflects there
was no objection to the court’s response, and in fact, counsel
approved the court’s answer. (See People v. Dykes (2009) 46
Cal.4th 731, 798 [defense counsel approved court’s response
to jury question]; People v. Hughes (2002) 27 Cal.4th 287,
402 [counsel’s agreement with the court’s response forfeits
the issue on appeal].) Second, the trial court’s response to a
jury question is reviewed for abuse of discretion. (People v.
Waidla (2000) 22 Cal.4th 690, 745–746.) Here, the jury had
already received the unanimity instruction as to other
counts, and nothing required the court to reread it in its
entirety as to count 4. The court’s answer was correct—the
jury was required to unanimously agree that defendant was
guilty of dissuading a witness either during the charged acts
on June 20, during the jail phone calls, or both. There was
no error.




                               50
                     DISPOSITION

     The judgment is affirmed.



            KRIEGLER, Acting P.J.



I concur:




            LANDIN, J.∗




     ∗ Judge of the Los Angeles Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.



                            51
The People v. Danny Garcia
B270574



BAKER, J., Dissenting




      Justice Corrigan warned there would be cases like this.
In a case of recent vintage, People v. Villatoro (2012) 54
Cal.4th 1152 (Villatoro), a majority of our Supreme Court
held a trial court properly instructed jurors they could
consider evidence a defendant committed one or more
charged sex crimes as evidence the defendant was
predisposed to commit additional charged sex crimes that
the prosecution was tasked with proving in the very same
criminal trial. (Id. at pp. 1164-1165.) Justice Corrigan
disagreed, explaining the court’s holding “sows the seeds for
confusion and unintended consequences.” (Id. at p. 1169
(conc. & dis. opn. of Corrigan, J.).) Justice Corrigan
specifically cautioned that confusion was inevitable if jurors
were told they should use the preponderance of the evidence
standard to decide whether a defendant committed one or
more charged crimes, so as to infer he or she had a
propensity to commit other similar charged crimes, but
simultaneously told to somehow evaluate whether the
defendant was guilty of all the charged crimes by using the
constitutionally required beyond a reasonable doubt
standard of proof. (Id. at p. 1181 (conc. & dis. opn. of
Corrigan, J.) [“If the same preponderance standard is
applied to charged offenses, . . . there is a serious risk of
confusion. Requiring the jury to apply two standards of
proof to evidence of the same crime would inevitably lead to
confusion and could potentially erode the presumption of
innocence”].)
      The jurors in this case were told precisely what Justice
Corrigan foresaw as inevitably confusing. And that is not
all. The trial court gave a propensity instruction at the
prosecution’s behest even though the charges and evidence
in this case were nowhere near as amenable to a propensity
inference as the charges and evidence in Villatoro. The
ultimate consequence was a hopelessly circular jury
instruction, along with an erosion of the presumption of
innocence and the beyond a reasonable doubt standard of
proof.
      The majority nevertheless affirms the judgment of
conviction. To arrive at that result, the majority expressly
disagrees with a recent Court of Appeal decision that—
correctly, in my view—holds a propensity instruction of the
type given in this case asks far too much of lay jurors and,
for practical purposes, lowers the standard of proof to
determine guilt in a criminal trial. (People v. Cruz (2016) 2
Cal.App.5th 1178, 1186 (Cruz).) The majority also does not
account for another Court of Appeal decision that helps to
highlight the problems with the trial court’s propensity
instruction when considering the evidence in this case—




                              2
particularly, the dissimilar nature of the various charges
and the jumbled chronology of the victim’s testimony.
(People v. Nicolas (2017) 8 Cal.App.5th 1165 (Nicolas).) And
furthermore, the majority mistakenly invokes a 30-year-old
United States Supreme Court case to cast aside our Supreme
Court’s direction just five years ago that “[a]n instruction
that effectively lowers the prosecution’s burden of proving
guilt beyond a reasonable doubt is structural error” that is
not subject to review for harmlessness. (People v. Aranda
(2012) 55 Cal.4th 342, 365 (Aranda).) For my part, I believe
reversal is required, and I write separately to further
explain these three areas of disagreement.

                                I
      Evidence of a person’s character, i.e., evidence that a
person is predisposed to act in a certain way, is generally
inadmissible to prove the person acted in conformity with
that character trait on a given occasion. (Evid. Code, § 1101,
subd. (a); Villatoro, supra, 54 Cal.4th at p. 1159.) Evidence
Code section 1109, however, is one of the few exceptions the
Legislature has made to the general ban on character
evidence. The statute provides that “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
[Evidence Code] Section 1101 if the evidence is not
inadmissible pursuant to [Evidence Code] Section 352.”
(Evid. Code, § 1109, subd. (a)(1).) In other words, “evidence




                              3
of a prior act of domestic violence is admissible to prove the
defendant had a propensity to commit domestic violence
when the defendant is charged with an offense involving
domestic violence. The trial court has discretion to exclude
the evidence if its probative value is outweighed by a danger
of undue prejudice or confusing the jury, or would result in
an undue consumption of time.” (People v. Rucker (2005) 126
Cal.App.4th 1107, 1114.)
      Prior to 2012, California criminal cases that confronted
questions concerning the admission of propensity evidence
most often involved evidence of other uncharged acts by a
defendant, meaning acts that did not serve as the basis for
the criminal charges in the prosecution at issue. (See, e.g.,
People v. Reliford (2003) 29 Cal.4th 1007, 1013-1014
(Reliford); People v. Anderson (2012) 207 Cal.App.4th 1440,
1484-1485 (Anderson); People v. Reyes (2008) 160
Cal.App.4th 246, 250-253 (Reyes); see also Villatoro, supra,
54 Cal.4th at p. 1160.) Many of these cases, like the Reliford
and Anderson cases, were decided under Evidence Code
section 1108, which permits introduction of propensity
evidence in sex offense prosecutions in the same way
Evidence Code section 1109 does in domestic violence
prosecutions.
      The rule these cases settled on is that the prosecution
need only prove the defendant committed other uncharged
acts by a preponderance of the evidence to permit the jury to
consider those uncharged acts when deciding whether the
defendant had been proven guilty of the charged offenses




                              4
beyond a reasonable doubt. (See, e.g., Reliford, supra, 29
Cal.4th at p. 1016 [rejecting argument that the
preponderance standard for other uncharged acts lowered
the prosecution’s burden of proof as to the charged crimes
because “jurors can grasp their duty—as stated in the
instructions—to apply the preponderance-of-the-evidence
standard to the preliminary fact identified in the instruction
and to apply the reasonable-doubt standard for all other
determinations”]; Anderson, supra, 207 Cal.App.4th at
p. 1484 [noting the United States Supreme Court has
adopted the preponderance standard for proof of uncharged
bad acts]; Reyes, supra, 160 Cal.App.4th at pp. 250, 253
[rejecting argument that instruction on use of uncharged
acts of domestic violence impermissibly lowered the
prosecution’s burden to prove the charged offenses].)
      In 2012, however, our Supreme Court decided
Villatoro, supra, 54 Cal.4th 1152. The question presented in
that case was whether Evidence Code section 1108 permits
juries to consider not only uncharged sexual offenses as
evidence of guilt, but whether juries may also “consider the
defendant’s charged sexual offenses as evidence of his
propensity to commit the other charged sexual offenses.”
(Id. at p. 1156.) Specifically, the defendant was charged
with raping five women on separate occasions between 2005
and 2008, and the question was whether the trial court
appropriately instructed the jury that it could “use evidence
of [the] defendant’s guilt of [any] one of the charged sexual




                              5
offenses as evidence of his propensity to commit the other
charged sexual offenses.” (Id. at pp. 1156, 1158.)
      The Villatoro court held Evidence Code section 1108
does authorize juries to “draw an inference of propensity
from other charged offenses” and the trial judge properly
instructed the jury it could do just that. (Villatoro, supra, 54
Cal.4th at pp. 1164-1166, 1168; Cruz, supra, 2 Cal.App.5th
at p. 1185 [“[O]ur Supreme Court held that it . . . allows
evidence of sexual offenses charged in the current
prosecution to be used to show a propensity to commit other
charged offenses in the same case”].) But key to the Court’s
holding in Villatoro was the specific wording of the jury
instruction given by the trial judge in that case. 14 The


     14 The instruction provided: “‘The People presented
evidence that the defendant committed the crime of rape as
alleged in counts 2, 4, 7, 9, 12 and 15 and the crime of
sodomy as alleged in count 14. These crimes are defined for
you in the instructions for these crimes. [¶] If you decide
that the defendant committed one of these charged offenses,
you may, but are not required to, conclude from that
evidence that the defendant was disposed or inclined to
commit the other charged crimes of rape or sodomy, and
based on that decision also conclude that the defendant was
likely to and did commit the other offenses of rape and
sodomy charged. If you conclude that the defendant
committed a charged offense, that conclusion is only one
factor to consider along with all the other evidence. It is not




                               6
instruction informed the jury “all offenses must be proven
beyond a reasonable doubt, even those used to draw an
inference of propensity,” such that there was “no risk the
jury would apply an impermissibly low standard of proof.”
(Villatoro, supra, at pp. 1167-1168.)
       In response to the Villatoro decision, the CALJIC
committee revised its pattern instruction numbers 2.50.01
and 2.50.02, which concern the admission of propensity
evidence under sections 1108 and 1109, respectively. Before
Villatoro, both instructions made reference only to the
potential to use uncharged acts as propensity evidence;
shortly after Villatoro, language was included in each of the
instructions in an attempt (unsuccessful, in my view) to
marry the standard for consideration of uncharged other acts
and Villatoro’s holding permitting consideration of other
charged crimes. (CALJIC Nos. 2.50.01, 2.50.02 (Spring 2013
ed.) [citing Villatoro in the comment to the pattern
instructions].)
       The trial court in this case instructed the jury with
CALJIC No. 2.50.02 as it existed at the time (it has recently
been revised again in light of Cruz, as noted by the majority

sufficient by itself to prove the defendant is guilty of another
charged offense. The People must still prove each element of
every charge beyond a reasonable doubt and prove it beyond
a reasonable doubt before you may consider one charge as
proof of another charge.’” (Villatoro, supra, 54 Cal.4th at
p. 1167.)




                               7
and post). This was the instruction given to the jury, with
emphasis on the portions that are relevant to the issues
presented in this appeal:
           “In determining whether defendant has been
     proved guilty of the any [sic] crime of domestic
     violence of which he she [sic] is charged, you
     should consider all relevant evidence, including
     whether defendant committed any other domestic
     violence crimes, whether charged or uncharged,
     about which evidence has been received. The
     crimes charged in Counts 1–8, may be considered
     by you in that regard.

           “‘Domestic violence’ means abuse committed
     against an adult or a fully emancipated minor
     who is a spouse, former spouse, cohabitant,
     former cohabitant, or person with whom the
     defendant has had a child or is having or has had
     a dating or engagement relationship.

           [¶] . . . [¶]

           “‘Abuse’ means 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.




                              8
           “If you find by a preponderance of the
     evidence that the defendant committed any such
     offense involving domestic violence, you may, but
     are not required to, infer that the defendant had a
     disposition to commit another other [sic] offenses
     involving domestic violence. If you find that the
     defendant had this disposition, you may, but are
     not required to, infer that he she [sic] was likely to
     commit and did commit the crime or crimes of
     which he she [sic] is accused.

            “However, even though you find by a
     preponderance of the evidence that the defendant
     committed a prior crime or crimes involving
     domestic violence, that is not sufficient by itself to
     prove beyond a reasonable doubt that
     he . . . committed the offenses you are determining.
     If you determine an inference properly can be
     drawn from this evidence, this inference is simply
     one item for you to consider, along with all other
     evidence, in determining whether the defendant
     has been proved guilty beyond a reasonable doubt
     of the charged crime that you are determining.”

      Thus, as worded, the first paragraph instructed the
jury that all of the crimes charged against defendant were
“domestic violence crimes.” That is because the instruction
defined “other domestic violence crimes, whether charged or




                               9
uncharged” to include each and every count of the
information against defendant. Of course, this meant the
instruction would permit the jury to use its findings on any
individual count (e.g., dissuading a witness) as reason to
convict defendant on any of the other counts (e.g., disobeying
a domestic relations court order). The fourth paragraph of
the instruction, as quoted above, explained the conditions
under which the jury could do this. That is, paragraph four
told the jury it could rely on its findings on one or more of
the counts to influence its verdict on other counts (i.e., it
could conclude defendant “was likely to commit and did
commit” the charged crimes) if it found one or more of the
counts proven by a preponderance of the evidence and used
that finding to infer defendant had a disposition to commit
the other offenses. At the same time, the final paragraph of
the instruction cautioned the jury that if it found by a
preponderance of the evidence that defendant committed “a
prior crime or crimes involving domestic violence,” that
would not be sufficient by itself to prove beyond a reasonable
doubt that defendant “committed the offenses you are
determining.”
      The Cruz decision holds that giving this sort of
instruction is error. In Cruz, supra, 2 Cal.App.5th 1178, the
defendant was charged with three counts of committing a
lewd act against a child under age 14. (Id. at pp. 1180-1181.)
The trial judge instructed the jury with the CALJIC-modeled
sex crimes propensity instruction that is in all material
respects identical to the domestic violence propensity




                             10
instruction in this case. (Id. at pp. 1183-1184 [reciting the
instruction given].)
       Unlike the jury instruction given by the trial judge in
Villatoro (but like the instruction here), the instruction in
Cruz stated “the preponderance [of the evidence] standard
applied to the determination of whether Cruz committed
charged and uncharged offenses for the purpose of deciding
whether he had a propensity to commit sexual offenses.”
(Cruz, supra, 2 Cal.App.5th at p. 1185.) As Cruz explains,
this was problematic: “In effect, the instruction . . . told the
jury it should first consider whether the offenses charged in
counts 1, 2, and 3 had been established by a preponderance
of the evidence, while holding its ultimate decision on the
same offenses in suspension. Then the jury was required to
decide whether the preponderance finding showed a
propensity, and whether this propensity, in combination
with the other evidence, proved those offenses a second time,
this time beyond a reasonable doubt. [¶] We conclude the
court was incorrect to instruct the jury in this way. Villatoro
did not expressly hold that currently charged offenses must
be proved beyond a reasonable doubt before they can be used
to show a propensity under Evidence Code section 1108, but
it strongly implied that rule. . . . [¶] A robot or a computer
program could be imagined capable of finding charged
offenses true by a preponderance of the evidence, and then
finding that this meant the defendant had a propensity to
commit such offenses, while still saving for later a decision
about whether, in light of all the evidence, the same offenses




                              11
have been proven beyond a reasonable doubt. A very
fastidious lawyer or judge might even be able to do it. But it
is not reasonable to expect it of lay jurors. We believe that,
for practical purposes, the instruction lowered the standard
of proof for the determination of guilt.” (Id. at pp. 1185-
1186.)
      The Cruz analysis, which largely parallels Justice
Corrigan’s earlier observation in Villatoro, should control
here.15 As in Cruz, the instruction the trial court gave told


     15 Perhaps the most revealing sentence in the majority’s
opinion is this: “Echoing Justice Corrigan’s dissent in
Villatoro, our dissenting colleague essentially argues Cruz
was correctly decided and Villatoro was not.” (Maj. Opn. at
p. 25.) That misses the point entirely. Justice Corrigan’s
opinion is significant here not because of the points on which
it disagreed with the holding of Villatoro, but because it
understood Villatoro “sow[ed] the seeds for confusion” in
future cases if a jury received a propensity instruction
concerning charged offenses that did not incorporate the
beyond a reasonable doubt language that saved the
instruction in Villatoro and instead incorporated
preponderance of the evidence language used for other
uncharged acts. (Villatoro, supra, 54 Cal.4th at pp. 1169,
1181 (conc. & dis. opn. of Corrigan, J.).) The majority
opinion does not recognize the distinction and, indeed, is
founded on the notion that a charged offense is no different
from an uncharged offense for purposes of crafting a




                              12
the jury it should first consider whether all the charged
offenses had been established by a preponderance of the
evidence, then decide whether that preponderance finding
demonstrated a propensity, and then consider whether this
propensity, in combination with the other evidence, proved
the same offenses again beyond a reasonable doubt. That
“presented the jury with a nearly impossible task of juggling
competing standards of proof during different phases of its
consideration of the same evidence” and “the ultimate effect
[was] to lower the prosecution’s burden of proving guilt
beyond a reasonable doubt.” (Cruz, supra, 2 Cal.App.5th at
p. 1187.)

                              II
      Even putting aside the problem with the propensity
instruction given as illuminated by Cruz, the instruction
suffers from an additional weakness—one that appears
when focusing on the evidence and charges in this case as
contrasted with the evidence and charges at issue in other
cases where a propensity instruction was given.




propensity instruction. As the Cruz court understood,
however, the distinction makes all the difference. Use of
charged offenses to show propensity is what can introduce
(absent the features of the instruction in Villatoro)
confusing, competing standards of proof that effectively
lower the prosecution’s burden to prove guilt.




                             13
       In Villatoro, our Supreme Court approved the use of a
propensity instruction in a case where there were five
alleged rapes, of five different victims, at five different times.
(Villatoro, supra, 54 Cal.4th at pp. 1156-1158.) In Cruz, the
trial judge gave a propensity instruction (albeit a defective
one, for reasons already recounted) in a case where there
were three child sex offenses involving separate conduct,
against separate victims, on separate dates. (Cruz, supra, 2
Cal.App.5th at pp. 1181-1182.) Here, however, the offenses
charged against defendant were not predicated on acts that
are fully distinct, both factually and temporally.
       The eight crimes charged against defendant were
considered crimes of domestic violence, and were included in
the trial court’s propensity instruction, based on what was
essentially a continuous course of conduct by defendant as
described by victim Amanda during her trial testimony. The
problem, however, is that Amanda’s testimony (even if
believed in its entirety) concerned alleged criminal acts that
occurred over the course of mere hours within a single day,
and her recounting of the alleged criminal acts was
chronologically jumbled to the point that the order in which
defendant committed the acts alleged was unclear. The
Attorney General forthrightly acknowledges the problem,
conceding that “Amanda was unable to remember the exact
order of the incidents [that served as the basis for the
charged crimes] because they occurred on the same day and
[defendant] went back and forth to her apartment.” Indeed,
the manner in which Amanda testified at trial compels the




                               14
Attorney General to disclaim that his attempt to even recite
the facts of this case is “based on what appears to be the
most accurate order based upon Amanda’s disjointed
testimony.”
      The logical principle that permits admission of
propensity evidence—encapsulated in the text of Evidence
Code section 1109 itself—is that a jury may draw an
inference a defendant is prone to commit a charged crime
from other incidents of a sufficiently similar nature. (Evid.
Code, § 1109, subd. (a)(1) [“[I]n a criminal action in which
the defendant is accused of an offense involving domestic
violence, evidence of the defendant’s commission of other
domestic violence is not made inadmissible . . .”].)
Considering Amanda’s testimony in this case, there really
was no “other” domestic violence.16 Unlike Villatoro where
there were five discrete rapes such that a jury could
conclude, for instance, that the defendant had a propensity


     16  In fact, because the jury had no reliable basis to
determine in which order the alleged criminal acts by
defendant occurred, the jury could not possibly have followed
the propensity instruction’s admonition that a finding “by a
preponderance of the evidence that the defendant committed
a prior crime or crimes involving domestic violence . . . is not
sufficient by itself to prove beyond a reasonable doubt that
he . . . committed the offenses you are determining.” The
jury had no way to determine which of the crimes were
“prior.”




                              15
to commit a charged rape against victim N.G. in June 2006
because he raped another victim R.I. in May 2005 (Villatoro,
supra, 54 Cal.4th at pp. 1156-1157), the jury in this case had
no reliable basis to distinguish among the alleged criminal
acts and instead was left with an inseparable tangle. Giving
a propensity instruction under these circumstances
permitted the jury to draw what, in effect, were self-
reinforcing, circular inferences—allowing the jury to infer,
for instance, that defendant was prone to disobeying a court
order and beating Amanda based on the same evidence the
jury would have to use to conclude he disobeyed a court
order and beat her.
      That is not the only problem on the specific facts of this
case. Again unlike Villatoro, and even Cruz, the eight
charges against defendant are not all similar in a way that
the sex offenses in those cases very much were. (Villatoro,
supra, 54 Cal.4th at p. 1158 [five counts of rape]; Cruz,
supra, 2 Cal.App.5th at p. 1180 [three counts of committing
a lewd act against a child].) Under the statutory definition
of “domestic violence” (Evid. Code, § 1109, subd. (d)(3)), or at
least the trial court’s broad application of that definition, the
propensity instruction in this case swept so broadly as to
include every charge against defendant within its ambit—
from burglary to injuring a cohabitant, robbery to disobeying
a domestic relations court order.
      While there is good reason to believe that a defendant
who commits sex crimes or core domestic violence offenses
may be disposed to commit similar crimes, that good reason




                               16
is absent when some of the charges are as disparate as they
are here. Only on the most aggressive application of
propensity principles would a factfinder be justified in
concluding that defendant’s commission of a burglary, for
instance, makes him particularly prone to dissuading a
witness. That sort of aggressive application, however, is
exactly what the trial court’s propensity instruction
permitted despite being inconsistent with the public policy
and fundamental fairness reasons why courts have long
recognized the danger of permitting juries to consider
propensity evidence. (See People v. Falsetta (1999) 21
Cal.4th 903, 913 [observing that the rule excluding criminal
propensity evidence is nearly three centuries old].) The
instruction at issue permitted the jury to use the
prosecution’s decision to charge defendant with multiple
crimes to infer defendant had a propensity to commit crimes
generally, and to use that sort of inference for all seasons
when deciding whether to find him guilty.
       The Nicolas case, while not factually similar in all
respects, helps to highlight these fact-specific problems with
the trial court’s propensity instruction. In Nicolas, the trial
court gave the jury a propensity instruction that permitted
using uncharged acts (sending text messages before a car
collision resulting in death) to infer propensity if proven by a
preponderance of the evidence, even though the text
messages “‘were a continuous back-and-forth conversation
leading up to [the] time of the collision . . . [and] were an
indivisible part of the offense itself.’” (Nicolas, supra, 8




                              17
Cal.App.5th at p. 1178.) Analogously, the course of conduct
defendant engaged in, as described by Amanda, was such
that the evidence at trial constituted an indistinguishable
whole supporting all the charges, many of which bore little
elemental similarity. The consequence was an unwieldy and
erroneous jury instruction that, as in Nicolas, undercut the
burden of proof and the presumption of innocence on each of
the charged offenses. (Id. at pp. 1181-1182.)

                                III
       Hedging its bets, the majority opinion holds that even
if it was error to give the propensity instruction at issue, the
error was harmless. I believe I must take our Supreme
Court at its word, and that means I must conclude the
instructional error here is not amenable to harmlessness
review and is instead reversible per se.
       Our Supreme Court in Aranda articulated the
pertinent rule as follows: “An instruction that effectively
lowers the prosecution’s burden of proving guilt beyond a
reasonable doubt is structural error” and reversible per se. 17
(Aranda, supra, 55 Cal.4th at p. 365.) The courts in Cruz
and Nicolas had no difficulty applying this rule to conclude


     17Our Supreme Court’s use of the word “effectively”
indicates the rule applies beyond those circumstances in
which a trial court gives a defective reasonable doubt
instruction (see, e.g., Sullivan v. Louisiana (1993) 508 U.S.
275).




                               18
the errors there—like the error here, in my view—required
reversal without any effort to attempt an analysis of
prejudice. (Nicolas, supra, 8 Cal.App.5th at pp. 1181-1182
[“Here, the trial court gave what the Attorney General
concedes was an erroneous and unnecessary jury instruction.
. . . [¶] [U]nder the rule announced by our Supreme Court in
Aranda . . . and appropriately applied by the Court of Appeal
in Cruz . . . , we find that the trial court’s erroneous jury
instruction concerning ‘uncharged offenses’ constitutes
structural error and is reversible per se”]; Cruz, supra, 2
Cal.App.5th at p. 1187.)
        There is no basis to disregard the unqualified language
of Aranda by resort to a case that had long been on the books
when Aranda was decided: Rose v. Clark (1986) 478 U.S. 570
(Rose). As an initial matter, I doubt that Rose is
“instructive.” Rose holds that a jury instruction that
misallocates the burden of proof as to a single element of a
charged crime can be amenable to harmlessness review (id.
at pp. 579-580), but that is of course different from an
instructional error that effectively lowers the burden of proof
entirely. (Aranda, supra, 55 Cal.4th at p. 365 [citing
Hedgpeth v. Pulido (2008) 555 U.S. 57 for the proposition
that harmless-error analysis applies to instructional errors
so long as the error does not categorically vitiate all the
jury’s findings].) In that circumstance, which is the case
here, reliably assessing whether the jury would have
properly found defendant guilty on the proof presented is
prohibitively difficult, and a harmlessness inquiry runs the




                              19
risk of degenerating into a usurpation of the role of a jury in
a criminal trial. 18 (See Kotteakos v. United States (1946) 328
U.S. 750, 763 [“[I]t is not the appellate court’s function to
determine guilt or innocence. . . . Nor is it to speculate upon
probable reconviction and decide according to how the
speculation comes out”].) But my doubts aside, there is no
direct conflict between Rose and Aranda, and settled stare
decisis principles require this court to follow Aranda and
leave to our Supreme Court the task of announcing it
overlooked the implications of Rose when writing Aranda, if
that is in fact what occurred. (See People v. Superior Court
(Williams) (1992) 8 Cal.App.4th 688, 702-703 [“‘[W]e are . . .
bound by [decisions of] the California Supreme Court . . .


     18 For example, it is immaterial that “the jurors were
told seven times that the burden of proof was on the
prosecution to prove guilt beyond a reasonable doubt . . . .”
(Maj. Opn. at p. 2.) While a court may properly conclude
that a jury is likely to have followed a more specific
instruction over a more general instruction, a court can only
guess what burden of proof a jury applied simply by counting
the number of references in a jury instruction packet and
concluding the jury probably was swayed by those that are
more numerous. When an error seriously threatens the
beyond a reasonable doubt standard that is fundamental to
the fairness of criminal trials, reviewing courts should
require parties and trial courts to get it exactly right, not
mostly right.




                              20
unless the United States Supreme Court has decided the
question differently’”], emphasis added.)

                                IV
       Fortunately, the impact of today’s decision is limited.
As the majority recognizes, both the CALCRIM and CALJIC
committees have revised their pattern jury instructions
concerning the use of charged offenses to prove propensity. I
submit that even those who are inclined to agree with the
views espoused by the majority would see these clarifying
revisions as a step in the right direction. The recent
revisions also largely if not entirely eliminate the issue of
statewide importance this case would otherwise present.
Nevertheless, the impact on this defendant remains, and I
respectfully dissent from the affirmance of the judgment. As
the revised pattern instructions help illustrate, the confusion
generated by the earlier version of the propensity instruction
at issue in this case was “entirely avoidable” (Villatoro,
supra, 54 Cal.4th at p. 1181 (conc. & dis. opn. of Corrigan,
J.)), and I see no reason to hold this instruction up as a
model to which prosecutors and trial courts should aspire.




                         BAKER, J.




                              21
