Filed 7/25/14 P. v. Rios CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


        IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                   FIFTH APPELLATE DISTRICT


THE PEOPLE,
                                                                                           F067418
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. F13900796)
                   v.

EDWARD CORCHADO RIOS, JR.,                                                               OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. W. Kent
Hamlin, Judge.

         Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Wanda
Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-


         *Before    Levy, Acting P.J., Poochigian, J. and Peña, J.
                                   INTRODUCTION
       Following a jury trial, defendant Edward Corchado Rios, Jr., was convicted of the
crimes of assault by means likely to produce great bodily injury, battery with serious
bodily injury, and possession of a controlled substance. The jury also found true certain
enhancements. Defendant was sentenced to nine years eight months in state prison. On
appeal, defendant contends the trial court violated his due process rights by permitting the
admission of two prior convictions related to domestic violence under Evidence Code
sections 352 and 1109. We affirm, finding the trial court did not err in permitting the
admission of defendant’s prior conviction evidence.
                              FACTUAL BACKGROUND
       Ashley Vera and defendant had an off-and-on-again dating relationship. On
January 19, 2013, defendant asked Vera for a ride to Fresno. She picked him up at his
home about 8:00 p.m.
       During the drive, defendant told Vera he wanted his house keys back. When she
asked him why, defendant replied, “Bitch, give me my house keys.” Because she was
driving, and defendant’s keys were on the same keyring as the car’s ignition key, Vera
indicated she would return the house keys when she stopped the car. Defendant then hit
her in the head with a soda cup. She asked him what he was doing and defendant
continued to hit her. Vera was not hurt by these blows. However, she turned the car
around and took defendant home.
       Once back at his residence, defendant grabbed Vera’s keys. A struggle over the
keys ensued, Vera believing defendant would not return her car keys. Defendant then bit
her hand and she let go of the keys. Vera yelled at defendant, asking, “what are you
doing? What’s wrong with you?” In response, defendant hit her in the face with a closed
fist. Blood was everywhere. When Vera said, “Oh my God, I think you just broke my
tooth or something,” defendant responded, “Bitch, you ain’t got no teeth.”
       Vera left defendant’s residence and went in search of her mother. Eventually
finding her mother at her grandmother’s house nearby, Vera was taken to the fire station.

                                             2.
There, Vera was treated by a firefighter; an ambulance and the police were called. Cal
Fire Apparatus Engineer Ryan Wallace treated Vera. She complained of pain in her jaw
and was holding her mouth area. Blood was present. Wallace could not discern whether
Vera’s jaw was broken, but he recommended she go to the hospital. Wallace asked Vera
how the injury had occurred and she stated her boyfriend “Eddie” hit her.
       Paramedic Jose Becerra responded to the fire station and also treated Vera that
evening. She told him her boyfriend punched her twice with a closed fist. She was
holding her jaw and complaining of pain. She reported a pain level of 8 on a scale of 1 to
10. After administering morphine for pain, Becerra and his partner transported Vera to a
hospital for treatment.
       Police officer Christopher Tsaris obtained a statement from Vera at the fire station.
She was obviously in pain and had difficulty speaking. Thereafter, the officer sought out
defendant. No one was present at defendant’s home. The following day, Officer Tsaris
returned to defendant’s house hoping to speak with him. Defendant was not home, but
the officer advised defendant’s father he wished to speak with defendant and asked he
make contact. Defendant did not initiate contact with Officer Tsaris however.
       Officer Tsaris returned to defendant’s home on January 25, and as he approached
the house he could hear people talking and could see into the home through a window in
the front door. Defendant was inside. He was subsequently arrested and transported to
the police station. During the booking process, a small baggie containing an off-white
crystal substance was found in defendant’s left front pants pocket. The substance was
later determined to be 0.2221 grams of methamphetamine.
       After reading defendant his Miranda (Miranda v. Arizona (1966) 384 U.S. 436)
warnings, Officer Tsaris took defendant’s statement. A video recording of the interview
was played for the jury. Defendant claimed Vera was at his home that evening uninvited.
Further, defendant claimed he was angry with her because she had taken a stereo or radio
out of a car parked at his home without his permission. Defendant indicated Vera was in
possession of a set of keys to his home and he had not given her the keys. He grabbed

                                             3.
Vera’s keys and started to take his keys off her keyring. She then jumped on his back,
yelling at him. Defendant “shrugged” Vera off his back, swinging his elbow backwards.
Vera “jump[ed] back,” falling over a speaker box. Defendant did not believe he broke
Vera’s jaw and indicated all the teeth on her lower jaw were removed as a result of poor
hygiene. Defendant claimed Vera had been angry in part because he did not wish for
their relationship to be exclusive.
       Vera sustained a left subcondylar fracture as well as a right parasymphysis fracture
of her jaw. Some of her teeth were displaced as a result. The amount of force required to
cause this type of injury was likely to have occurred as the result of a direct intentional
force, such as a strike with a closed fist at close range. An open reduction internal
fixation of the right parasymphysis mandible and a closed reduction and maxillo
mandibular fixation were performed. Titanium plates were used and Vera’s jaw was
wired shut.1 She would have experienced postoperative surgical pain. Some patients
with such an injury can experience chronic pain or tooth loss due to nerve damage. Vera
testified she suffered swelling and pain and residual damaged to her teeth. She could not
eat solid food following surgery and was required to “eat food through a straw.” At the
time of trial, she still could not bite into solid food.
                                         DISCUSSION
       Defendant maintains the trial court violated his due process rights by permitting,
under Evidence Code sections 352 and 1109, the admission of two prior convictions
related to domestic violence. More particularly, he contends error was the result of the
admission of a 2004 prior conviction for false imprisonment (Pen. Code, § 236) and a
2009 misdemeanor conviction for corporal punishment or injury of a child (former Pen.
Code, § 273d, subd. (a)). Respondent asserts the trial court did not violate defendant’s
due process rights by admitting the evidence.



       1Surgery was   performed about two weeks after the date of the injury.


                                                4.
The Relevant Authority
         Evidence Code section 1109 provides that a “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.” Section 352 states a
“court in its discretion may exclude evidence if its probative value is substantially
outweighed by the probability that its admission will (a) necessitate undue consumption
of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of
misleading the jury.”
         “Domestic violence” is defined, for purposes of Evidence Code section 1109, as
having

         “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.” (Id., at subd. (d)(3).)
“Character evidence, sometimes described as evidence of a propensity or disposition to
engage in a type of conduct, is generally inadmissible to prove a person’s conduct on a
specified occasion. [Citations.]” (People v. Villatoro (2012) 54 Cal.4th 1152, 1159; see
Evid. Code, § 1101, subd. (a).) However, section 1109, which concerns domestic
violence, is a specific exception to the general rule. (People v. Villatoro, supra, at p.
1159; see People v. James (2010) 191 Cal.App.4th 478, 482.)
         The trial court’s discretion to exclude the propensity evidence under Evidence
Code section 352 saves section 1109 from a due process challenge. (People v. Brown
(2011) 192 Cal.App.4th 1222, 1233, fn. 14; People v. Johnson (2000) 77 Cal.App.4th
410, 418–420; cf. People v. Falsetta (1999) 21 Cal.4th 903, 917.)
         “‘When an objection to evidence is raised under Evidence Code section 352, the
trial court is required to weigh the evidence’s probative value against the dangers of
prejudice, confusion, and undue time consumption. Unless these dangers “substantially

                                              5.
outweigh” probative value, the objection must be overruled. [Citation.]’” (People v.
Hart (1999) 20 Cal.4th 546, 606.) “The governing test … evaluates the risk of ‘undue’
prejudice, that is, ‘“evidence which uniquely tends to evoke an emotional bias against the
defendant as an individual and which has very little effect on the issues,”’ not the
prejudice ‘that naturally flows from relevant, highly probative evidence.’ [Citations.]”
(People v. Padilla (1995) 11 Cal.4th 891, 925, overruled on another ground in People v.
Hill (1998) 17 Cal.4th 800, 823, fn. 1.) A trial court enjoys broad discretion in assessing
probative value versus prejudicial effect, and its exercise of that discretion will not be
disturbed on appeal except on a showing the court exceeded the bounds of reason, all of
the circumstances being considered. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124–
1125; People v. Giminez (1975) 14 Cal.3d 68, 72.)
The Proceedings Below
       The People sought to use four of defendant’s prior convictions in accordance with
Evidence Code section 1109: (1) a 2009 misdemeanor conviction (former Pen. Code,
§ 273d, subd. (a)); (2) a 2004 felony conviction (id., § 236); (3) a 1999 misdemeanor
conviction (id., § 273.5, subd. (a)); and (4) a 1993 misdemeanor conviction (id., § 273.5,
subd. (a)).
       During pretrial proceedings concerning the motions in limine filed by both parties,
the court indicated, in relevant part, as follows:

       “Acts of basically a [Penal Code section] 236 against a spouse clearly
       would be an act of domestic violence. It would be appropriately considered
       by the jurors in evaluating the charges here, and it strikes me that the child
       abuse case would be as well. So my tentative with respect to those prior
       bad acts of the defendant … for purposes of [Evidence Code section] 1109
       … is as follows: The tentative would be that the People could introduce
       evidence of the 200[9] conviction for a misdemeanor crime of child abuse,
       specifically infliction of traumatic injury on a child as a misdemeanor.
       They could introduce evidence of the 2004 conviction for false
       imprisonment and could produce live witness testimony to confirm that the
       complaining witness or victim in that case was, in fact, in a relationship,
       spousal or otherwise, with the defendant. And certainly the jurors would be
       told they could only consider those pursuant to [Evidence Code section]
       1109, and they’d be free to consider or not consider those in evaluating

                                              6.
       whether the charged crimes here were committed.… The other crimes I
       think are sufficiently remote, and because of their nature, sufficiently
       prejudicial, that it would be appropriate to exclude them. So the tentative
       would be then to exclude the PC 69 from 2009, the PC [273.5] from ’[99]
       and PC [273.5] from ’93. Admittedly the 69 doesn’t carry the same
       prejudicial effect as the 273.5s, but it is somewhat remote in time, and it is
       certainly a crime of violence which does carry with it some potential
       prejudice. I think balancing all of these prior bad acts and the probative
       value of them that’s a fair compromise that allows the People to
       demonstrate some history of violence in a spousal setting and in a domestic
       setting without so—without piling on to the point where the jurors hear so
       much about prior incidents that they would be unable to fairly consider
       whether he committed the crimes charged here.”
Defense counsel expressed his concern the testimony anticipated with regard to the false
imprisonment conviction could involve “some explosive facts[;] … it’s an alleged kidnap
of the wife and kids, it was alleged attempted suicide, and alleged rape ….” The court
explained the People would be permitted to briefly call the witness to establish whether
defendant was her husband in 2004, and whether she was the complaining witness in the
case in which he was convicted of false imprisonment. Assuming she replied truthfully,
the specific factual allegations regarding rape and kidnapping would not be addressed.
       Next, defense counsel argued the “child abuse” conviction was substantially more
prejudicial than probative, and thus it was likely his client would be convicted “off prior
incidents alone” were the evidence to be admitted. A discussion ensued between the
court and the People about how the evidence would come before the jury as the People
did not intend to call the victim in that case. The trial court stated in pertinent part:

       “[I]f he abused his niece who lived in a home with him or was in a
       domestic setting with him, that would be an act of domestic violence that
       the jurors could appropriately consider. If he hit his niece in some other
       setting or struck some other child in some other setting, then it would be
       more prejudicial than probative. So I may have to—may have to back up
       on that … conviction.”
And,

       “… I think that the probative value depends upon it being a domestic
       incident, so she would have to be, you know, a child that he babysat for, or
       a child who lived in his home for some period of time while his brother was
       unavailable or something. There would have to be something that connects

                                               7.
       it to the domestic quality of this case in order to make it sufficiently
       probative, I would think. And again, I haven’t read [the People’s] case that
       provides they are cross admissible, but I’m sort of starting with the
       assumption that in that Dallas case, um, it was the child of his new
       girlfriend, and basically they allowed the domestic violence priors of his
       prior girlfriend to prove or as evidence of the current child abuse and—and
       there we’ve got a child in the residence with a spouse or girlfriend, and then
       we’ve got the prior incident with the girlfriend. And so logically then that
       has a higher level of probative value than simply a conviction for abusing a
       child, so—so I guess, like I say, at this point I would reserve on that.”
Shortly thereafter, the court commented specifically on defendant’s prior conviction
involving his niece: “I’ll wait for a further offer of proof as to how it is that you would
establish that this incident with the niece is sufficiently domestic in character to warrant
its introduction here, because I do think that’s an important element of its probative value
that I think need to have readily established in order to find that its probative value is not
substantially outweighed by its prejudicial effect.” Later, responding to an inquiry by the
People, the trial court stated, “[T]he jurors have to know or at least understand that this
incident occurred in a domestic setting, otherwise the probative value is insufficient ….”
The court concluded by stating that when it was clear the proper foundation could be lain
with regard to the domestic nature of the matter involving defendant’s niece, “then I think
we have sufficient probative value to warrant … admissibility.”
       During trial, and following the brief testimony of defendant’s ex-wife, the
following stipulations were read to the jury:2

              “[PROSECUTOR]: … The parties stipulate that the defendant … was
       previously convicted of a violation of Penal Code 236, false imprisonment
       by violence in Fresno Superior Court case number F04[904947-9] on
       October 28th, 2004. The parties stipulate that the violation of Penal Code
       section 236 occurred on or about April 3rd, 2004. [¶] … [¶]




       2For the purpose of proving a disposition to commit domestic violence or sexual offenses
under Evidence Code sections 1108 and 1109, the record of a conviction is admissible to prove
that defendant committed the prior offenses. (Evid. Code, § 452.5, subd. (b); People v. Wesson
(2006) 138 Cal.App.4th 959, 967–968; People v. Duran (2002) 97 Cal.App.4th 1448, 1461.)


                                              8.
              “… And the second stipulation: The parties stipulate that the
       defendant … previously was convicted of a [misdemeanor] violation of
       Penal Code [273d], infliction of a corporal injury to a child in Fresno
       Superior Court case number F09903293 on December 3rd, 2009. The
       parties stipulate that the violation of Penal Code section [273d] occurred on
       or about November 2nd, 2008. The parties further stipulate that the victim
       in F09903293, … was 11 at the time of the offense. The parties also
       stipulate that [the victim] was the defendant’s niece and that the defendant
       had care and supervision of [the victim] at the time of the offense.”
       After both sides had rested, the People addressed these prior convictions during
closing argument:

                “[PROSECUTOR:] What about the defendant’s history? Where does
       that fit in this case? You heard about some convictions that were stipulated
       to. And the instruction—it talks about proving beyond a reasonable doubt.
       A stipulation means you must assume that those facts are true. So it is
       truthfully proven to you the defendant has a conviction in 2004 for false
       imprisonment by violence on his ex-wife …. It is also proven to you that
       he has a conviction in 2009 for inflicting corporal injury on a child, his 11-
       year-old niece. Well, it means that whenever we listen to the defendant’s
       story, we have to remember who this defendant is. This is a defendant who
       has a propensity to commit domestic violence. He hurts people that are
       close to him. He—false imprisonment by violence means that just taking
       the—the general terms, his ex-wife wanted to leave a situation and he kept
       her against her will. He took away her freedom. And corporal injury to a
       child, infliction of injury to a child, means the defendant hit his 11-year-old
       niece and left an injury. Means that in situations where he’s in an argument
       or disagreement or discussion, what does he do? He lashes out and he hurts
       people. He hurts people that are closest to him. So when we listen to him
       and he’s talking about his defenses and talking about his—the
       reasonableness in his interview, we have to remember who he is.”
In rebuttal, the People briefly mentioned the prior convictions: “And when we look at his
history, this is a man who does that to people that are close to him. He did it to his ex-
wife, he did it to his niece, and now he did it to Ashley Vera.”
Our Analysis
       The Prior Domestic Violence Convictions
       Although the Supreme Court has not addressed the constitutionality of Evidence
Code section 1109, the Courts of Appeal have uniformly held that, under the reasoning of



                                             9.
People v. Falsetta, supra, 21 Cal.4th 903,3 it does not violate due process. (See, e.g.,
People v. Cabrera (2007) 152 Cal.App.4th 695, 703–704; People v. Rucker (2005) 126
Cal.App.4th 1107, 1120; People v. Price (2004) 120 Cal.App.4th 224, 239–241; People
v. Escobar (2000) 82 Cal.App.4th 1085, 1095–1096; People v. James (2000) 81
Cal.App.4th 1343, 1353; People v. Jennings (2000) 81 Cal.App.4th 1301, 1309–1313;
People v. Brown (2000) 77 Cal.App.4th 1324, 1335; People v. Hoover (2000) 77
Cal.App.4th 1020, 1027–1028; People v. Johnson (2000) 77 Cal.App.4th 410, 417–420.)
       Further, defendant’s constitutional challenge to Evidence Code section 1109 is
based in part on McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378. As explained in
People v. Holford (2012) 203 Cal.App.4th 155, however, defendant’s reliance on
McKinney is misplaced. McKinney was decided “before enactment of the federal rules
allowing evidence of uncharged sexual assaults and child molestation and the enactment
of section 1108 ….” (People v. Holford, supra, at p. 183, fn. 19.) “The application of
McKinney’s holding in the context of section 1108 evidence has been repeatedly rejected.
[Citations.] The Ninth Circuit and other federal courts have long since upheld the
constitutionality of the federal rules allowing sexual misconduct evidence to establish
propensity to commit such crimes. [Citations.]” (Ibid.)
       The admission of prior act evidence pursuant to Evidence Code section 1109 did
not violate defendant’s constitutional rights to due process where the court also
considered its exclusion pursuant to section 352. We now turn to that determination.




       3In  that case, the California Supreme Court considered the constitutionality of Evidence
Code section 1108 concerning prior sex crimes. It rejected the argument that the Legislature
may not constitutionally permit a jury to consider the defendant’s propensity to commit a
particular type of crime in deciding the defendant’s guilt of a current offense of the same type of
crime. “The admission of relevant evidence will not offend due process unless the evidence is so
prejudicial as to render the defendant’s trial fundamentally unfair. [Citations.]” (People v.
Falsetta, supra, 21 Cal.4th at p. 913.)


                                               10.
       Probative Value Versus Prejudice
       Defendant contends the admission of the prior acts evidence was more prejudicial
than probative, and the trial court’s evaluation was lacking.
       On appeal, a reviewing court applies an abuse of discretion standard when
evaluating whether a trial court erred in assessing whether the probative value of the
questioned evidence was substantially outweighed by the probability of undue prejudice.
Unless the trial court’s determination was arbitrary, capricious, or patently absurd, its
holding will be upheld. (People v. Thomas (2012) 53 Cal.4th 771, 806.)
       “[A]s the Supreme Court has repeatedly and recently reaffirmed, ‘when ruling on
a[n] [Evidence Code] section 352 motion, a trial court need not expressly weigh prejudice
against probative value, or even expressly state that it has done so. All that is required is
that the record demonstrates the trial court understood and fulfilled its responsibilities
under … section 352.’” (People v. Jennings, supra, 81 Cal.App.4th at p. 1315.)
       Here, the record demonstrates, as outlined more fully above, that the trial court
understood and properly discharged its responsibilities. The trial court advised the
parties of its tentative ruling on the issue following consideration of the competing
motions in limine, and it heard and considered the argument of counsel. It is clear the
court was attuned to its responsibilities and engaged in its consideration of the probative
value versus prejudicial effect of the prior act evidence. It did so carefully and
thoughtfully. We cannot agree with defendant that the court abused its discretion.
       The prior acts evidence was probative. The principal factor affecting the probative
value of an uncharged act is its similarity to the charged offense. (People v. Johnson
(2010) 185 Cal.App.4th 520, 531–532.) Similar acts of domestic violence are “uniquely
probative” of guilt in a later accusation because domestic violence is “typically
repetitive” in nature. (Id. at p. 532.) As the People argued below, defendant’s reaction
when angered by those with whom he enjoys a spousal/domestic or familial relationship
is to hurt them. The false imprisonment of his ex-wife is similar to the assault and battery
committed against Vera. In combination with the evidence of the charged offenses

                                             11.
involving Vera, the prior acts evidence involving defendant’s ex-wife and his niece
tended to show he resorted to violence when angered by females in his life,
demonstrating the repetitive nature of domestic violence.
       In People v. Dallas (2008) 165 Cal.App.4th 940, the mother’s live-in boyfriend
perpetrated violence against her nine-month-old baby. The defendant had committed
previous acts of domestic violence against a former girlfriend as well as previous acts of
child abuse against the former girlfriend’s child. That evidence was admitted at trial.
(People v. Dallas, supra, at pp. 943-948.) On appeal, the defendant argued the offense
concerning child abuse was dissimilar to domestic violence. (Id at pp. 949-951.) The
appellate court held that a prosecution for child abuse pursuant to Penal Code section
273a, subdivision (a) constituted a “domestic violence” prosecution as the term is used in
Evidence Code section 1109. (People v. Dallas, at pp. 951-956.) Therefore, the
appellate court concluded the trial court did not err in admitting the evidence of prior acts
of domestic violence. (Id. at p. 957.) Similar to the holding in Dallas, we hold here that
the trial court did not err in admitting evidence of defendant’s prior act of child abuse
involving his 11-year-old niece while she was under his care and supervision.
Defendant’s 2009 conviction falls within the definition of Family Code section 6211,
subdivision (f) because defendant’s niece is a “person related by consanguinity or affinity
within the second degree.”
       Defendant also contends that evidence of his prior conviction for corporal injury to
a child is prejudicial because the offense was only a misdemeanor. However, Evidence
Code section 1109 expressly permits the admission of “evidence of the defendant’s
commission of other domestic violence.” (Id., subd. (a)(1), italics added.) It
encompasses both charged and uncharged acts of domestic violence. (See, e.g., People v.
Falsetta, supra, 21 Cal.4th at pp. 917-918; People v. Brown, supra, 77 Cal.App.4th at pp.
1332-1334.) Moreover, evidence of a prior act of domestic violence may be introduced
as propensity evidence even if the defendant was acquitted of criminal charges based
upon that incident. (See, e.g., People v. Mullens (2004) 119 Cal.App.4th 648, 665–668

                                             12.
[prior sexual offenses admissible under § 1108 even though resulted in acquittal, but trial
court erred in excluding evidence of acquittal itself].) Thus, the mere fact defendant’s
2009 prior conviction was a misdemeanor did not render it inadmissible under section
1109 or prejudicial under section 352.
       Additionally, the prior acts evidence was not unduly prejudicial. To be sure, the
probative value of prior domestic violence evidence must be balanced against its
inflammatory nature, if any, in determining its admissibility under Evidence Code section
352. (People v. Branch (2001) 91 Cal.App.4th 274, 282.) But here, the prior acts
evidence was no more inflammatory, and arguably less so, than the charged offense
evidence. Defendant’s ex-wife did no more than confirm she was in a relationship with
him at the time of the incident resulting in a conviction for false imprisonment. The
particulars regarding the incident that led to the conviction were never before the jury.4
Similarly, the particulars of the incident involving defendant’s 11-year-old niece leading
to his conviction in 2009 were never presented to the jury. By way of stipulation, the
jury learned defendant was “convicted of a violation of Penal Code [273d], infliction of a
corporal injury to a child ….” No reference whatsoever was made to the facts underlying
the conviction. (See, e.g., People v. Jones (2012) 54 Cal.4th 1, 50-51 [limited testimony
no more prejudicial or inflammatory than the charged offenses].)
       “‘The stronger the evidence, the more it is “prejudicial.” The “prejudice” referred
to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an
emotional bias against the defendant as an individual and which has very little effect on
the issues. In applying section 352, “prejudicial” is not synonymous with “damaging.”’”
(People v. Karis (1988) 46 Cal.3d 612, 638.) Here, as noted above, the evidence offered



       4In  the event defendant’s ex-wife were to deny she was the victim in the incident giving
rise to defendant’s conviction in 2004, the People advised the court that potential impeachment
could be had in the form of her preliminary hearing testimony in that case concerning
kidnapping, rape, spousal abuse, and false imprisonment. However, impeachment evidence was
unnecessary.


                                              13.
in light of the prior bad acts was sanitized as to the particular facts involved and, thus, did
not evoke the emotional bias defendant contends it did.
        Moreover, there is no evidence the jury was confused. It was properly instructed
(further discussion, post) regarding Evidence Code section 1109 evidence. The jury was
properly instructed regarding the People’s burden to prove the charges beyond a
reasonable doubt. And defense counsel reminded the jurors of that burden during his
closing argument. Specifically, the court advised the jury it could (but was not required
to) conclude that evidence of the uncharged acts demonstrated in defendant a propensity
toward domestic violence and that section 1109 evidence could not be used, by itself, to
convict defendant. (E.g., People v. Falsetta, supra, 21 Cal.4th at p. 920 [cautionary
instruction concerning admission of uncharged sex offense evidence under § 1108 “will
help assure that the defendant will not be convicted of the charged offense merely
because the evidence of his other offenses indicates he is a ‘bad person’ with a criminal
disposition”].) We thus conclude that while there was the possibility of jury confusion
created by admission of the section 1109 evidence, this possibility was minimal, and
defendant cites to nothing in the record establishing this possibility was realized.
        Assuming arguendo the prior acts evidence was more prejudicial than probative,
any error in admitting the evidence would not rise to a due process violation. The Courts
of Appeal have repeatedly held it is precisely the trial court’s discretion to exclude
evidence under Evidence Code section 352 that saves section 1109 from a due process
challenge. (See, e.g., People v. Brown, supra, 77 Cal.App.4th at p. 1334.) An erroneous
exercise of discretion under section 352 generally does not rise to a problem of
constitutional magnitude. The “routine application of state evidentiary law does not
implicate [a] defendant’s constitutional rights.” (People v. Brown (2003) 31 Cal.4th 518,
545.)
        In this case, the trial court acted well within its discretion in admitting the
challenged evidence. Its determination was neither arbitrary, capricious, nor patently
absurd. Its determination did not exceed the bounds of reason. Since the evidence was

                                               14.
admitted for a permissible purpose and its exclusion was not compelled by Evidence
Code section 352, defendant’s due process rights were not violated. (See, e.g., Estelle v.
McGuire (1991) 502 U.S. 62, 70; People v. Falsetta, supra, 21 Cal.4th at pp. 912–913;
People v. Escobar, supra, 82 Cal.App.4th at pp. 1095–1096.)
       CALCRIM No. 852 & Closing Arguments
       At the People’s request, the jury was instructed as follows:

            “[THE COURT]: The People presented evidence that the defendant
       committed domestic violence that was not charged in this case.

             “Domestic violence includes abuse committed against a spouse,
       former spouse, niece or nephew. Abuse means intentionally or recklessly
       causing or attempting to cause bodily injury or placing another person in
       reasonable fear of imminent serious bodily injury to herself or to someone
       else.

               “You may consider this evidence only if the People have proved by
       a preponderance of the evidence that the defendant, in fact, committed the
       uncharged domestic violence. Proof by a preponderance of the evidence is
       a different burden of proof from proof beyond a reasonable doubt. A fact is
       proved by a preponderance of the evidence if you conclude that it is more
       likely than not that the fact is true.

               “If the People have not met this burden of proof, you must disregard
       this evidence entirely.

              “If you decide that the defendant committed the uncharged domestic
       violence, you may, but are not required to conclude from that evidence that
       the defendant was disposed or inclined to commit domestic violence, and
       based on that decision also conclude that the defendant was likely to
       commit and did commit the crimes charged here. If you conclude that the
       defendant committed the uncharged domestic violence, that conclusion is
       only one factor to consider along with all the other evidence. It is not
       sufficient by itself to prove that the defendant is guilty of the crimes
       charged or the lesser offenses to those crimes. The People must still prove
       each charge beyond a reasonable doubt.

              “Do not consider this evidence for any other purpose.”
       Challenges to the constitutionality of CALCRIM No. 852 and its predecessor have
been rejected. (People v. Johnson (2008) 164 Cal.App.4th 731, 738-740 [CALCRIM
No. 852 constitutional]; see People v. Reyes (2008) 160 Cal.App.4th 246, 251 [CALJIC


                                            15.
No. 2.50.02 constitutional].) Despite defendant’s assertion, we conclude CALCRIM
No. 852 did not encourage the jury to use the prior crimes evidence to convict defendant
of the charged crimes. The record simply does not support this assertion.
       Defendant also complains the prosecutor’s comments during closing argument
“encouraged the jury to use the prior crimes evidence to show [defendant]’s propensity to
commit the charged crimes.”
       The prosecutor’s comments, excerpted in their entirety above, were brief. Other
than stating the fact of the prior convictions, the prosecutor simply argued that when
defendant was faced with a situation wherein he was angry with an individual close to
him, defendant’s response was to “lash[] out” and hurt those people. Like defendant’s
assertion that CALCRIM No. 852 encouraged the jury to convict him of the charged
offenses based upon the prior acts, the record does not support this contention. Rather,
the prosecutor’s comments were a fair comment upon the evidence and nothing more.
(See, e.g., People v. Dykes (2009) 46 Cal.4th 731, 768.)
       In sum, the prior act evidence, either cumulatively or in isolation, was not
prejudicial. The trial court was well within the bounds of its discretion in concluding the
evidence’s probative value was not “substantially outweighed by the probability that its
admission [would have] (a) necessitate[d] undue consumption of time or (b) create[d]
substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
(Evid. Code, § 352.)
       Finally, even were we to assume evidentiary error, whether assessed under the
federal5 or state6 constitutional standard of review, any error was harmless.7 This was


       5Chapman    v. California (1967) 386 U.S. 18, 24.
       6People   v. Watson (1956) 46 Cal.2d 818, 836.
       7In People v. Marks (2003) 31 Cal.4th 197, 227, the California Supreme Court held that
“application of ordinary rules of evidence like Evidence Code section 352 does not implicate the
federal Constitution, and thus we review allegations of error under the ‘reasonable probability’
standard” articulated in Watson.


                                               16.
not a close case. Vera’s testimony was corroborated by the testimony of the firefighter
and paramedic who treated her, the board-certified maxillofacial surgeon who performed
the corrective surgery, and the officers assigned to investigate the incident. More
particularly, Vera told Engineer Wallace, Paramedic Becerra, Officer Tsaris, and
Detective Martha Rodriguez that defendant caused her injuries. A number of exhibits
admitted into evidence depicted Vera and the injuries she sustained on the date of the
incident with defendant. Additional photographs depicted Vera’s injuries shortly after
the incident, but before corrective surgery. Surgeon Brian Woo testified the force
required to cause the fractures to the jaw sustained by Vera were “[m]ore likely” caused
by a direct blow or “punch” to the jaw rather than an indirect blow, such as defendant’s
elbow making contact during a shrugging motion. In light of this evidence, any error was
harmless beyond a reasonable doubt and it was not reasonably probable defendant would
have received a more favorable result had the evidence been excluded.
                                     DISPOSITION
       The judgment is affirmed.




                                            17.
