Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. SWF10000379. Mark E. Petersen, Judge.
Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Peter Quon and Theodore M. Cropley, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
King J.
I. INTRODUCTION
Defendant repeatedly sent his former girlfriend, Jane Doe, telephone text messages that frightened Doe and made her fear for her life and her safety. He was charged with stalking. (Pen. Code, § 646.9, subd. (a).) A jury found him guilty. He was sentenced to two years in prison.
On appeal, defendant contends: (1) the evidence is insufficient to support the conviction; (2) the court erred in allowing into evidence testimony of two prior acts—one in which defendant broke Doe’s ankle during a fight in 2004, and another in which he brandished a knife and used it to tap Doe’s son’s chest in 2009; and (3) the court erred in giving CALCRIM No. 852 regarding the jury’s use of evidence of the prior acts. We reject these arguments and affirm the judgment.
II. FACTUAL SUMMARY
Jane Doe and defendant began a boyfriend-girlfriend relationship in 2003. They initially lived together for approximately six months. In 2003 or 2004, they had, according to Doe, a “big fight” in which defendant “shoved [her] down on the ground and stomped on [her] ankle, ” which broke her ankle. Defendant took her to the hospital for treatment. He told her not to say that he caused her injury. Doe lied to the emergency room personnel, telling them that one of her boys accidentally stepped on her. She was afraid to tell the truth because she feared that defendant would do something worse than break her ankle. She did not report the fight to the police.
After the fight, she remained in the relationship with the defendant for some time before they broke up. Doe then moved to Fresno with her two children. Defendant talked to Doe by telephone and told her that “things would be different” and “better than it was before.” She remained in Fresno for a few months, then moved back with her children to live with defendant in Menifee. They lived together for almost one year.
In late 2005 or early 2006, Doe left defendant and moved into a house in Murrieta. Later, defendant moved into Doe’s home, where they lived together with Doe’s children for a few more months. Their relationship ended when they had another big fight and Doe moved to a different home in Murrieta.
Doe took with her some of defendant’s property—a pool table, a computer, and an autographed Pete Rose jersey, as compensation for an $18,000 debt defendant owed to her. She now considers these items her property and has not given them back to defendant.
Doe testified that throughout the years she knew him, defendant made comments to her that she understood as threats to her life. These included comments such as, if Doe “ever told anything, that [defendant] couldn’t control what would happen to [her].” She stated that she was “always in fear” of being hurt by defendant, of being stabbed or shot. Because of her fear of him, she had surveillance cameras installed around the outside of her house.
One day in January 2009, defendant came to Doe’s house. He spoke with Doe’s 20-year-old son outside. Defendant pulled out a knife and tapped Doe’s son’s chest with it. Doe watched the incident on her surveillance monitor. Although Doe called the police, she did not press charges because she was afraid of what might happen to her.
In January and February 2010, defendant contacted Doe more than 100 times, mostly through text messages to Doe’s telephone. Copies of some of defendant’s text messages were introduced at trial, including the following.
“‘SO I SAY UNTO U’ ‘THE LORDS ARMIES’ FINISH THEM PUT THEM INTO THE GROUND. NO ‘PRISONERS’ NO ‘MERCY’. ‘I HAVE HAD IT.[’] ‘FOR MY ‘FATHERS’ ‘SAKE’ LET’S DO THIS NOW.
“HOW WEAK BIG MOUTH. ‘I AM’ COMING FOR U. FOR U WILL SEE WHO THE ONE IS TO FEAR. CALL 911 I STAND AT THE DOOR AND KNOCK.”
“I AM THE LIVEN WORD U FOOL I DON’T READ IT I AM IT. GO GET ALL UR FIGHTERS. I AM COMING I FUCKEN MEAN IT UR DONE.”
“UR A CHICKEN WITH A BIG MOUTH JUST LIKE U TOOK MY THINGS WHEN I WASN’T LOOKING JUST LIKE U TOOK OTHER PEOPLES WORD, AND U NEVER EVEN ASK MY SIDE, UR DONE [Doe], I HAVE HAD IT. SHUT U MOUTH AND DO IT NOW ONE MORE WORD LET ME HEAR ONE MORE WORD U WILL BE IN A CAGE.”
“I AM COMING FOR U, DON’T TELL ME WHAT TO DO, WHO SAID I WANT ANYTHING TO DO WITH U, I AM THE ONE WHO NEVER WANTED TO COME HOME REMEMBER. U HAVE ONE BIG PROBLAM COMING UR WAY. U WILL BE STANDING INFRONT OF HIM SOON I HAVE SOMETHING TO SHOW U.”
“... I AM GOING TO SHOCK U. AND NOW U WILL BE PUT IN THAT CAGE. I WARNNED U I FUCKEN WARRNED U!”
Following this text, Doe responded by texting: “I think it[’]s against the law to threaten someone[’]s life. You should stop.” Defendant continued:
“I TOLD U TO CALL 911 I DON’T’ CARE. UR GOING IN A CAGE I PROMISE. WHY WOULD I EVER HURT UR LIFE. U JUST NEED TO GO IN A CAGE SO WE WILL PUT U THEIR, AND TAKE EVERYTHING AWAY FROM U! GET READY UR LIFE IS ABOUT TO CHANGE I PROMISE U I WANT TO SEE UR FACE WHEN U FIND OUT WHO THE MAN REALLY IS. GET READY BITCH[.]”
“‘I AM ON THE FLY’ FOR I DIDN’T COME TO BRING PEACE! ‘I HAVE COME FOR WAR! BLITZ KRIEG777. (LIGHTNING WAR)’....”
“‘7 WOES TO THE WORLD.’ I AM COMING LIKE A THIEF IN THE NIGHT ‘SO SHALL IT BE’ THE KING WILL BE RESERECTED ON THE THIRD DAY! TO MY ENEMYS WERE U AT BRING IT I HAVE COME FOR U WERES MY COWARDS Hahahha I LOVED U RUN NOW JUST RUN!...”
“‘A BEAST APPROACHESS AS THEN, AS NOW. I WILL NOT BE DEFEATED. THE WAR GODS HAVE FORMED FOR WAR. I STAND WITH A READY SWORD BRING THE TRUE ‘KING’ HOME. WERE UR TREASURE IS. UR HEART WITH BE.’ LET’S GO FOR THE GOLD. WE CAN WIN! THE ALMIGHTY HAS CALLED MY TRUE NAME! 7 WOES ‘I AM COMING QUIECKLY’....”
“I STAND WITH A READY SWORD LOOK TO THE HEAVENS FOR THE WORLD MAY HAVE REJECTED ME. BUT ‘I AM’ TRULY HE WHO SENT ME! MY MASTER HAS CALLED FOR THE TRUTH. ‘SO SHALL IT BE.’ IT IS TIME WOE! TO THE WORLD HERE COMES ‘GIGANTO’ THE WAR GODS ‘MUNSTERs’ FILE IN ARE RANKS ‘SHARP TO THE HAIR LINE DOWN’!!!!!!!! SMASH THEM TO THE GROUND ‘FATHER’ BEHOLD UR ‘SON’....”
“... INFRONT OF THE WORLD I WOULD LIKE TO INTRODUCE MY CRAZY BAD ASS FRIEND ‘DAVID’ AND WE SHOULD ALL NO HE’ ‘RIGHT’ WOE TO THE WORLD ‘I AM’ COMING QUIECKLY! ‘I AM’ THE ALPHA AND THE OMEGA. FOR SURE IT IS ‘I’ ‘THE SON OF MAN’ WHO HAS COME TO REGAIN WHAT HAS BEEN LOST FOR SURE! WOE TO THE WORLD. WE PUSH FORWArD TO THE END! IT SHALL BE! THEY ASK FOR A WAR! WE SHALL STRIFEN THEM TO THE GROUND! FOR THE JEWS HERE COMES DADDY!...”
“‘SO SHALL IT BE AS WRITTEN. FOR FEAR IS THE PATH TO THE DARKSIDE! FOR WE ALL KNOW WHO TO FEAR, ‘I AM’ READY OH ‘GODFATHER’ FOR IT IS U THAT HAS COME FOR ME, AND I SERVE THE ALMIGHTY GOD. IF THERE IS ONE TO BLAIM. FOR ‘I AM’ THE ONE TO BLAIM I SHALL BEAR ARMS TO THE CROSS. IT IS IN TRUTH. THE SON OF GOD IN WITCH IS ‘I’. THANK GOD WE HAVE ONE TO BLAIM....”
“‘SO SHALL IT BE’ THEY HAVE SAID ‘I AM’ CRAZY’ OH YES I LIKE THAT. THEY HAVE QUESTIONED MY NAME! NOT ANYMORE FOR ‘I AM’ WITH GREAT REBUKE.... THE MASTER OF WAR! I HAVE COME FOR THE COWARDS! THIS IS ‘I’ FOR SURE AM HE WHO SENT ME, LET’S PUT IT TO THE TEST....”
“‘SO SHALL IT BE’ ‘I STAND WITH A READY SWORD’, THE FLAIM IS STRONG AS EVER LIGHTNING STRONG ‘THE LORDS ARMIES’. FORM FOR ‘WAR’.... ‘I LOVE ALL OF U SO MUCH, SORRY I JUST CAN’T HELP MYSELF. WOW....”
Many of the messages ended with the phrase, “FOR NOW WE SEE IN A MIRROR, DIMLY, BUT THEN FACE TO FACE.” Other times defendant concluded with: “IN NOMENI PATRI ET FILI SPIRITUS SANCT.” He would sign the messages as “BLITZ KRIEG777, ” “CRIG, ” “KING OF KINGS, ” or “LORD OF LORDS.”
Doe responded to some of the messages by text, telling him to stop texting her. But defendant did not stop. According to Doe, “It just wasn’t stopping. The threats were getting a little more serious and I just can’t live like that anymore. I just can’t... sleep. I can’t get in my car without locking the doors. I got tired—just tired of it. The apparent religious connotations to some of the messages scared Doe because, according to her, defendant “believes that he is the son of God.”
Doe decided to go to the police “[b]ecause he said he was coming for me.” And if he got to her, she said, “[h]e would hurt me real bad.” Doe testified repeatedly that the messages “frightened” and “scared” her, and caused her to feel that defendant would hurt her, kill her, or take her somewhere where no one would find her.
Doe explained that she did not change her telephone number because doing so would be detrimental to her business as a massage therapist.
The defense presented two witnesses, a “family friend” of defendant and defendant’s grandmother. Both offered their opinions that Doe was not an honest person.
III. ANALYSIS
A. Sufficiency of the Evidence of Stalking
Defendant contends the evidence is insufficient to support the conviction for stalking. We reject the argument.
The crime of stalking is defined in Penal Code section 646.9, subdivision (a): “Any person who willfully, maliciously, and repeatedly follows or willfully and maliciously harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family is guilty of the crime of stalking....” The crime has three elements: “(1) following or harassing another person; (2) making a credible threat; and (3) intending to place the victim in reasonable fear for [his or] her safety.” (People v. Uecker (2009) 172 Cal.App.4th 583, 594.) Defendant’s argument is focused on the second and third elements: that he made a credible threat with the intent to place Doe in reasonable fear for her safety.
In considering defendant’s claim, we review the entire record in the light most favorable to the plaintiff and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. Johnson (1980) 26 Cal.3d 557, 576-578.) If the record contains substantial evidence, that is, evidence of reasonable, credible, and solid value such that a jury comprised of reasonable persons could have found the defendant guilty of the offense beyond a reasonable doubt, we affirm the judgment of conviction. (Ibid.; Jackson v. Virginia (1979) 443 U.S. 307, 319.)
Penal Code section 646.9 defines “credible threat” as “a verbal or written threat, including that performed through the use of an electronic communication device, or a threat implied by a pattern of conduct or a combination of verbal, written, or electronically communicated statements and conduct, made with the intent to place the person that is the target of the threat in reasonable fear for his or her safety or the safety of his or her family, and made with the apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for his or her safety or the safety of his or her family. It is not necessary to prove that the defendant had the intent to actually carry out the threat.” (Pen. Code, § 646.9, subd. (g).) “‘[E]lectronic communication device’” includes telephones and cellular telephones. (Id., subd. (h).)
“Intent... can be inferred from circumstantial evidence. [Citation.] Indeed, it is recognized that ‘[t]he element of intent is rarely susceptible of direct proof and must usually be inferred from all the facts and circumstances disclosed by the evidence.’ [Citations.]” (People v. Falck (1997) 52 Cal.App.4th 287, 299.) “[I]n determining whether a threat occurred, the entire factual context, including the surrounding events and the reaction of the listeners, must be considered.” (Id. at p. 298.)
On appeal, defendant characterizes his text messages to Doe as “annoying or bizarre behavior” that does not amount to a credible threat. We disagree. The 2004 fight in which defendant stomped on and broke Doe’s ankle indicates that he is capable of physically harming Doe. The 2009 act of brandishing a knife at Doe’s son indicates that he knows where Doe lives, will go to her house armed with a weapon, and may be willing to harm her or her children. He has made statements to Doe over the years that made her fear for her life and led her to install surveillance cameras on her property. It is in this preexisting context of fear that defendant sent her the text messages described above.
We need not repeat the messages here; this summary will suffice: Defendant is coming for Doe and she will see who the one is to fear; she should go ahead and call 911—he stands at the door and knocks; he is coming for her and she is done; she will be put in a cage; she has one big problem coming her way; he is going to shock her; he warned her; she must get ready because her life is about to change; he is coming like a thief in the night; she must run, just run; he has come for war with a ready sword; he is coming quickly; he is a master of war and has come for the cowards; he is the one to blame; and although he loves her, he is sorry, he just can’t help himself.
Although the threats are somewhat vague and incoherent, they indicate an urgency of action and imminence of impending danger to Doe. The use of language suggesting a religious righteousness for his actions and his dares to have Doe call 911 indicate a willingness to carry out the threats without regard to the law or consequences. Viewed in their entirety, the messages portray (accurately or inaccurately) an irrational or delusional individual who intends to harm, kidnap (i.e., put Doe in a cage), or kill Doe—or at least cause Doe to fear that he will do so. The evidence of prior fights with Doe and the recent knife-brandishing incident against her son outside her house indicate that defendant had the apparent ability to carry out the threat. Doe repeatedly testified that these messages caused her to be frightened and to fear for her life and safety. Based upon all the evidence presented, a jury could easily conclude that Doe’s fear was reasonable. Therefore, the evidence was sufficient to support the jury’s findings that defendant made a credible threat with the intent to place Doe in reasonable fear for her safety.
B. Admission of Evidence of Defendant’s Prior Conduct as Domestic Violence Propensity Evidence
Prior to trial, the People moved to allow the introduction of evidence of six instances of defendant’s prior conduct. The People relied on Evidence Code sections 1109 and 1101, subdivision (b). Defendant opposed the motion. After hearing argument and taking the matter under submission, the court stated that it “looked at all of these issues very carefully... and I find after weighing them, balancing them, looking at all the factors, the specifics that are involved, that certain of these should be admissible and that the People should be permitted to introduce them. And there’s a few that I believe should be inadmissible....” The court then granted the motion as to two instances: (1) the 2004 fight that resulted in Doe’s broken ankle, and (2) the January 2009 incident in which defendant used a knife to tap Doe’s son on the chest. In explaining its ruling, the court found the evidence admissible under Evidence Code section 1109 and not excluded by Evidence Code section 352. At trial, Doe testified to the two instances as summarized above.
Defendant contends the court erred in allowing evidence of the two incidents to be admitted. We review this question under the abuse of discretion standard. (People v. Poplar (1999) 70 Cal.App.4th 1129, 1138.)
Initially, we observe that the parties have framed the issue regarding the admissibility of defendant’s prior conduct by reference to Evidence Code sections 1101 and 1109. Evidence Code, section 1101, subdivision (a), generally makes inadmissible evidence of prior conduct “when offered to prove [a person’s] conduct on a specified occasion.” Here, the fight that resulted in Doe’s broken ankle and the knife-brandishing incident were plainly relevant to the issues whether defendant had the apparent ability to carry out his threat and the reasonableness of Doe’s fear. (See Pen. Code, § 646.9, subd. (g).) Accordingly, the prosecutor argued that the jury could “consider those prior acts in determining whether or not (Ms. Doe)’s fear is reasonable and justified, and whether or not it is a credible threat.”
As explained above, the prior acts indicated that defendant knew where Doe lived and was capable of harming her. The text messages sent in this case are, in light of this history, more likely to evoke fear than the same text messages sent by someone who had never done such prior acts. In this way, the prior acts are admissible as evidence that tends to bear upon the reasonableness of Doe’s fear and the credibility of the threat. (See Evid. Code, §§ 210 [relevant evidence is evidence “having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action”], 351 [“Except as otherwise provided by statute, all relevant evidence is admissible.”].) Therefore, it does not appear to us that the prosecutor needed to obtain a ruling on the admissibility of the evidence under Evidence Code sections 1101 or 1109.
Because the evidence of defendant’s prior acts is admissible for the foregoing reasons, we arguably need not consider the admissibility of the evidence under Evidence Code section 1109. However, in addition to relying on the prior acts as evidence bearing on the reasonableness of Doe’s fear and the credibility of defendant’s threats, the prosecutor also argued to the jury that the defendant “is inclined to commit violent acts against an individual he has a relationship with. He is disposed to committing domestic violence, and you may consider that as a factor in deciding whether or not he committed this act of harassment, this stalking charge....” Because this argument is related to the use of CALCRIM No. 852 (discussed below), which is based upon Evidence Code section 1109, we consider its admissibility under that section.
Under Evidence Code section 1101, subdivision (a), evidence of a person’s prior conduct is generally inadmissible to prove the person’s conduct on a specified occasion. (People v. Lindberg (2008) 45 Cal.4th 1, 22.) However, Evidence Code section 1109, subdivision (a)(1), provides that (except in situations not relevant here) “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.” This statute permits the admission of a defendant’s other acts of domestic violence to show a propensity to commit such acts. (People v. Brown (2011) 192 Cal.App.4th 1222, 1233.) It is based upon a legislative determination that “policy considerations favoring the exclusion of evidence of uncharged domestic violence offenses are outweighed in criminal domestic violence cases by the policy considerations favoring the admission of such evidence.” (People v. Johnson (2000) 77 Cal.App.4th 410, 420.)
As this court previously noted, the domestic violence exception to Evidence Code section 1101 “‘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.’” (People v. Hoover (2000) 77 Cal.App.4th 1020, 1027-1028 [Fourth Dist., Div. Two], quoting Assem. Com. on Public Safety, Rep. on Sen. Bill No. 1876 (1995-1996 Reg. Sess.) June 25, 1996, pp. 3-4.)
Evidence Code section 1109 applies only “in a criminal action in which the defendant is accused of an offense involving domestic violence.” (Evid. Code, § 1109, subd. (a)(1); see People v. James (2010) 191 Cal.App.4th 478, 482.) Defendant contends the charged offense of stalking in this case is not an offense involving domestic violence. We disagree.
“Domestic violence, ” as used in Evidence Code section 1109, is now defined by reference to two different statutes. Originally, the phrase was defined as having “the meaning set forth in Section 13700 of the Penal Code.” (Former Evid. Code, § 1109, subd. (d)(3); see Stats. 1998, ch. 707, § 1, p. 4707; see also People v. Dallas (2008) 165 Cal.App.4th 940, 954 [Fourth Dist., Div. Two] (Dallas).) Section 13700 of the Penal Code defines “domestic violence” to include “abuse committed against” a “cohabitant, former cohabitant, or person with whom the suspect... is having or has had a dating or engagement relationship.” (Pen. Code, § 13700, subd. (b).) “Abuse” is defined in Penal Code section 13700 as “intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another.” (Pen. Code, § 13700, subd. (a).)
In 2004, the Legislature expanded the type of conduct that constitutes domestic violence under Evidence Code section 1109 by adding the second definition of domestic violence: “Subject to a hearing conducted pursuant to [Evidence Code] 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); see Stats. 2004, ch. 823, § 6.5, pp. 4798-4799.)
Section 6211 of the Family Code provides: “‘Domestic violence’ is abuse perpetrated against any of the following persons: [¶]... [¶] (b) A cohabitant or former cohabitant.... [¶] (c) A person with whom the respondent is having or has had a dating or engagement relationship.” A “former cohabitant” includes children who formerly regularly resided in the household. (Fam. Code, § 6209; Dallas, supra, 165 Cal.App.4th at p. 954.) “Abuse, ” for purposes of this provision includes “[i]ntentionally or recklessly to cause or attempt to cause bodily injury, ” placing “a person in reasonable apprehension of imminent serious bodily injury to that person or to another, ” and engaging “in any behavior that has been or could be enjoined pursuant to [Family Code] Section 6320.” (Fam. Code, § 6203.) Behavior that may be enjoined under Family Code section 6320 includes “stalking, ” as well as attacking, threatening, battering, harassing, telephoning, and disturbing the peace of the other party. (Fam. Code, § 6320, subd. (a).)
Retracing these steps through the statutes, “stalking” is behavior that may be enjoined under Family Code section 6320; stalking therefore constitutes “abuse” under Family Code section 6203; abuse perpetrated against a former cohabitant or a person with whom the defendant has had a dating relationship is “domestic violence” under Family code section 6211; and domestic violence under Family Code section 6211 is domestic violence for purposes of Evidence Code section 1109. Because defendant was charged with stalking a former cohabitant and person with whom he had a dating relationship, he was “accused of an offense involving domestic violence” for purposes of Evidence Code section 1109. (See People v. Ogle (2010) 185 Cal.App.4th 1138, 1143-1144 (Ogle).)
When the Family Code definition of domestic violence is relied upon in applying Evidence Code section 1109, the definition is subject to “a hearing conducted pursuant to [Evidence Code] Section 352, which shall include consideration of any corroboration and remoteness in time” and the act must have “occurred no more than five years before the charged offense.” (Evid. Code, § 1109, subd. (d)(3).) As this court explained in Dallas, these qualifications “do not meaningfully limit the type of prosecution” because the charged offense will, by definition, occur within five years of the charged offense, and the prosecutor’s discretion to charge a defendant with an offense involving domestic violence is not subject to Evidence Code section 352. (Dallas, supra, 165 Cal.App.4th at p. 954.) These qualifications, therefore, do not affect our conclusion.
Defendant relies on People v. Zavala (2005) 130 Cal.App.4th 758 (Zavala), which held that “stalking is concomitantly not a crime of domestic violence (as defined by [Penal Code] section 13700)....” (Id. at pp. 770-771.) The Zavala court referred to only the first definition of domestic violence in Evidence Code section 1109—the definition that incorporates Penal Code section 13700. The People assert that Zavala was “wrongly decided, ” and rely on Ogle, supra, 185 Cal.App.4th 1138. According to the Ogle court, the Zavala court “overlook[ed]” the second definition under “Family Code section 6211, which defines domestic violence more broadly and includes stalking.” (Ogle, supra, at p. 1144.)
To say the Zavala court overlooked the second definition, or was wrongly decided, is probably unfair. Zavala was decided in June 2005, six months after the effective date of the amendment to Evidence Code section 1109 that incorporated the Family Code’s definition of domestic violence. (See Cal. Const., art. 4, § 8(c)(1) [statutes generally go into effect on January 1 of the year following enactment].) Although the Zavala opinion does not tell us when the trial took place in that case, it was almost certainly prior to the January 2005 effective date of the amendment. The broader, Family Code definition of domestic violence, therefore, was simply not incorporated into Evidence Code section 1109 at the time of trial in Zavala and therefore irrelevant to the Court of Appeal’s analysis; the court did not overlook what it did not need to see. For the same reason, Zavala was not wrongly decided; at most, it has been superseded in part by the 2004 amendment to the statute.
Regardless of the continuing validity of Zavala, there is no question that the second, broader definition of domestic violence was in effect at the time of trial in this case. Zavala, therefore, simply does not control the question here. Stalking, under the facts in this case, is a crime involving domestic violence. (See Ogle, supra, at p. 1144.)
Having determined that the charged act of stalking in this case is an offense involving domestic violence for purposes of Evidence Code section 1109, we turn to the question of whether the prior instances of defendant’s conduct admitted into evidence are acts of domestic violence.
The 2004 incident occurred during a “big fight” when defendant and Doe were living together. According to Doe, defendant “shoved [her] down on the ground and stomped on [her] ankle, ” breaking it. Because it can be reasonably inferred from this evidence that defendant intentionally caused bodily injury to Doe, a cohabitant, the act fits easily within the definition of domestic violence under Penal Code section 13700. Defendant does not appear to dispute this point.
The second incident, in which defendant tapped Doe’s son’s chest with a knife, is also an act of domestic violence for purposes of Evidence Code section 1109. As noted above, domestic violence for purposes of Family Code section 6211 (and therefore for purposes of Evidence Code section 1109) includes abuse committed against a child who formerly regularly resided in the defendant’s household. (Fam. Code, §§ 6209, 6211, subd. (b); Dallas, supra, 165 Cal.App.4th at p. 954.) During the periods of time when Doe lived with defendant, her children lived with him too. Doe’s son, therefore, was a former cohabitant of defendant. The 2009 incident with the knife can be considered “abuse” for purposes of Family Code section 6211 as either an act that placed the son “in reasonable apprehension of imminent serious bodily injury” (Fam. Code, § 6203, subd. (c)) or as behavior that could be enjoined under Family Code section 6320 as conduct that is “attacking, striking, ... threatening, ... battering, [or] harassing” (Fam. Code, § 6320, subd. (a)). Finally, the knife incident, which occurred in 2009, took place within five years of the charged offense and its admission into evidence was subjected to a hearing conducted pursuant to Evidence Code section 352. (Evid. Code, § 1109, subd. (d)(3).) It thus satisfies the requirements of admissibility under Evidence Code section 1109.
Defendant contends the admission of the prior incidents caused his “trial to become fundamentally unfair.” He argues that the two prior acts were “so dissimilar to the charged conduct that it had an improper and undue influence upon the jury.” We disagree.
In his opening brief, defendant includes a lengthy discussion of Evidence Code section 1101, subdivision (b). That statute allows evidence of prior acts “when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, ...) other than his or her disposition to commit such an act.” Although the People relied on this statute as an alternative ground for admission of defendant’s prior acts, the trial court based its ruling on Evidence Code section 1109 without mentioning Evidence Code section 1101, subdivision (b). We do not, therefore, consider the admissibility of the evidence under Evidence Code section 1101, subdivision (b).
The trial court explicitly considered whether to exclude the evidence under Evidence Code section 352. Under that section, evidence may be excluded if its probative value is substantially outweighed by the probability that its admission will unduly consume time or create a substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. (Evid. Code, § 352.) “The court enjoys broad discretion in making this determination, and the court’s exercise of discretion will not be disturbed on appeal except upon a showing that it was exercised in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.” (People v. Brown, supra, 192 Cal.App.4th at p. 1233.)
The evidence of the prior acts had substantial probative value. The history of the relationship between defendant and Doe and, in particular, the challenged prior acts are relevant to placing defendant’s text messages in context. If the messages had been sent by someone who had never done any act of violence or aggression, the messages might have been perceived as merely annoying or bizarre, as defendant asserts. Viewed in the context of a relationship that included physical violence and knife brandishing, the text messages can be reasonably seen as a serious and credible threat. The prior acts, therefore, are clearly probative to the issues regarding the harassing nature of the messages, the credibility of the threats, the reasonableness of Doe’s fear, and defendant’s intent.
The probative value of the evidence of the prior acts is not substantially outweighed by any undue prejudice to defendant. “‘The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.’ [Citations.] ‘Rather, the statute uses the word in its etymological sense of “prejudging” a person or cause on the basis of extraneous factors. [Citation.]’ [Citation.]” (People v. Zapien (1993) 4 Cal.4th 929, 958.) “In other words, evidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors’ emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose.” (Vorse v. Sarasy (1997) 53 Cal.App.4th 998, 1009.) There is no such likelihood here. The evidence regarding the two challenged incidents was given without unnecessary detail and did not likely evoke an emotional response from the jurors. Any possibility of prejudice did not outweigh the substantial probative value of the evidence. The court did not, therefore, abuse its discretion in admitting the evidence.
C. Trial Court’s Use of CALCRIM No. 852
Over defendant’s objection, the court instructed the jury with CALCRIM No. 825 as follows:
“The People presented evidence that the defendant committed domestic violence that was not charged in this case, specifically: an incident in 2004 where an injury of a broken ankle is alleged to have resulted and a January 2009 incident where a knife is alleged to have been placed to the chest of the son of the alleged victim.
“Domestic violence means abuse committed against an adult who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the defendant has had a child, or person who dated or is dating the defendant.
“Abuse means intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable fear of imminent serious bodily injury to himself or herself or to someone else.
“The term cohabitants means two unrelated persons living together for a substantial period of time, resulting in some permanency of the relationship. Factors that may determine whether people are cohabiting include, but are not limited to, (1) sexual relations between the parties while sharing the same residence, (2) sharing of income or expenses, (3) joint use or ownership of property, (4) the parties’ holding themselves out as husband and wife, (5) the parties’ registering as domestic partners, (6) the continuity of the relationship, and (7) the length of the relationship.
“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 Stalking, as 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 Stalking. The People must still prove the charge beyond a reasonable doubt.”
Defendant contends this instruction was improper because it applies to crimes of domestic violence, and the charge of stalking in this case is not such a crime. The challenge is to the legal adequacy of the instruction, which we determine independently. (People v. Cole (2004) 33 Cal.4th 1158, 1210; People v. Johnson (2009) 180 Cal.App.4th 702, 707.)
Defendant’s argument is based on Zavala, supra, 130 Cal.App.4th 758, which we discussed in the preceding section. As we explained, to the extent that Zavala holds that the crime of stalking does not involve domestic violence, the holding is based on a prior version of Evidence Code section 1109, which defined domestic violence by reference to Penal Code section 13700 only. Following the 2004 amendment to that statute, stalking may be a crime involving domestic violence for purposes of Evidence Code section 1109 if the elements of the broader Family Code definition of domestic violence are satisfied. (Ogle, supra, 185 Cal.App.4th at pp. 1143-1144.) As explained above, the evidence regarding the challenged prior acts in this case fall within the definition of domestic violence under the version of Evidence Code section 1109 in effect at the time of trial. We therefore reject defendant’s argument.
IV. DISPOSITION
The judgment is affirmed.
We concur: Ramirez P.J., Richli J.