Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Mateo County Super. Ct. No. SC59880A
Kline, P.J.
Robert Joseph Rodriguez (appellant) was convicted, following a jury trial, of attempted corporal injury on “Jane Doe”; violating the personal liberty of Jane Doe through violence, menace, fraud, or deceit; misdemeanor child endangerment; and making a criminal threat. On appeal, he contends reversal is required because (1) admission of evidence of uncharged acts of domestic violence, pursuant to Evidence Code section 1109, violated due process; (2) the trial court erred in admitting evidence of subsequent uncharged acts of domestic violence; and (3) the trial court erred in finding that violations of a no-contact order were instances of domestic violence per se. We shall affirm the judgment.
All further statutory references are to the Evidence Code unless otherwise indicated.
PROCEDURAL BACKGROUND
Appellant was charged by information with inflicting corporal injury on “Jane Doe” (Pen. Code, § 273.5, subd. (a)–count one); violating the personal liberty of Jane Doe through violence, menace, fraud, or deceit (Pen. Code, § 236–count two); making a criminal threat against Jane Doe (Pen. Code, § 422–count three); misdemeanor child endangerment (Pen. Code, § 273a, subd. (b)–count four); violating the personal liberty of two-year-old “John Doe” by violence, menace, fraud, or deceit (Pen. Code, § 236–count five); making a criminal threat against Jane Doe (Pen. Code, § 422–count six); and making a criminal threat against “Jane Doe II” (Pen. Code, § 422–count seven). The information also alleged seven prior convictions, including two serious felonies and six prior prison term convictions.
Counts one through five related to incidents occurring on October 1, 2005; counts six and seven related to incidents occurring on September 29, 2005. Count five was subsequently dismissed.
Following a jury trial, appellant was found guilty of the lesser charge of attempted corporal injury on Jane Doe (Pen. Code, §§ 664/273.5, subd. (a)) in count one; guilty of violating the personal liberty of Jane Doe in count two; not guilty of making a criminal threat against Jane Doe in count three; guilty of misdemeanor child endangerment in count four; not guilty of making a criminal threat against Jane Doe in count six; and guilty of making a criminal threat against Jane Doe II in count seven.
After appellant waived his right to a jury trial on his prior convictions, the trial court found appellant had been convicted of seven felony offenses, including two counts of robbery, each alleged as a serious felony prior, a strike prior, and a prison term prior. The court also found two additional prior prison term allegations true.
On December 28, 2006, the trial court sentenced appellant to a total of 10 years four months in prison.
On January 31, 2007, appellant filed a notice of appeal.
FACTUAL BACKGROUND
Events of September 29, 2005—Counts Six and Seven
Jane Doe testified that appellant is her boyfriend. They had been together four years at the time of trial and have a son together. In September 2005, she stopped living with appellant and went to live with her mother in Daly City because her son had to go to school. In addition, she and appellant were having problems.
On September 29, 2005, appellant came to the home in Daly City and started yelling that he wanted to talk to Jane and that he wanted her to return a chain necklace he had given her. She told her sister, “Jane Doe II” (Linda), to say she was not inside the house. Linda and appellant started exchanging words. Both were mad and “acting like little children.” Jane did not hear appellant threaten Linda. While appellant was outside the home, Linda called the police. The police responded but appellant had left the area.
Jane did not remember receiving a phone call earlier that same day in which appellant said, “ ‘I am going to kill you. Watch your back. I know where you stay.’ ” Nor did she remember telling a police officer (Officer Palaby) that appellant had made those statements.
Linda, Jane Doe’s younger sister, testified that on September 29, 2005, she was living at her mother’s house in Daly City. Jane was also living there at the time. Linda was at home when she heard someone outside calling Jane’s name. She looked out the window and saw appellant. She opened the window and told him Jane was not there because she knew that Jane did not want to see him. Appellant kept screaming that Jane was there and that Linda was lying; he was cursing, calling them “bitches.” He also said Jane had his chain and shouted for her to give it back. Linda showed appellant the phone and said that if he did not leave, she would “call the cops.” Appellant then ran up the stairs and banged on the gate. He then said in an aggressive voice, “I am going to get you bitches,” or something like that. Linda took appellant’s words as a threat on her life and was scared. Linda called the police and appellant left.
On cross-examination, Linda said she yelled back at appellant, but did not remember threatening to get “some southerners to take care of him.” Appellant wore red, which means he could be affiliated with a gang, and she was afraid he might call a friend to retaliate against her.
Daly City Police Officer Norman Palaby testified that, on September 29, 2005, he responded to a call in Daly City, where he took statements from Jane and Linda Doe. Jane told him that she had terminated a three-year relationship with appellant approximately a month earlier because appellant “has been in and out of jail. The relationship was unstable. She’s been mistreated physically and verbally.” She said that, since the breakup, she had not seen appellant, but had daily phone contact with him. The reason for the calls was that he wanted to see her and get back together. He also accused her several times of being with another man.
Jane Doe told Officer Palaby that appellant had threatened her in a phone call at 1:00 p.m. that day. He had said, “ ‘I am going to kill you. Watch your back. I know where you stay.’ ” She thought he might have learned where she was staying from a friend of his that lived in Daly City. Jane told the officer that appellant then came to the house at 2:30 p.m. When he left, he screamed at Jane to “watch her back.” Jane said that, after appellant came to the house, both she and Linda were scared and fearful of him. Jane further said that appellant was a “ ‘tweak,’ ” a daily methamphetamine user, a Norteno gang member, and very violent.
Jane told Officer Palaby that she had not reported previous incidents to the police because she was afraid that appellant or his friends would do something to her. She also said she did not “ ‘think any man would treat a dog the way’ ” appellant treated her.
During the interview, Jane received two phone messages that Officer Palaby listened to. In the first, the person calling said, “ ‘Call, bitch. I love you. Why you keep doing this to me.’ ” In the second message, the person said, “ ‘You don’t fucking answer your phone. You disrespect me, ho. I will smash you.’ ”
Officer Palaby later attempted to reach appellant. Appellant left a message for the officer saying “he understood that his lady’s sister accused him of threatening her. He said it was just an exchange of words. He said the sister threatened to get gang members to kick his ass. [Appellant] said he was not on her property, and was just on the sidewalk. All he wanted was the necklace from [Jane].” He also said, “ ‘[t]hat’s all it was. The broad has a big mouth and is disrespectful. She threatened me, and I was just talking shit. I just disrespected her back.’ ”
Events of October 1, 2005—Counts One to Four
Jane Doe testified that, on October 1, 2005, appellant called her to get a key to their storage space. Appellant came over and Jane and her son (who was then two years old) got into a car with appellant and two of his friends. Jane was upset and angry, and she started crying because she had heard rumors that appellant had “messed around” with her best friend. They argued and she asked appellant to get out of the car with her because she did not want his friends to hear their conversation. They got out of the car on Junipero Serra by a movie theater and also near the storage place, and Jane put her son in his stroller. She did not plan to run to a parole office that was nearby and did not remember telling a police officer (Officer Hannon) that.
Appellant and Jane argued and she slapped him. Appellant tried to grab Jane around her waist to calm her down. He also grabbed her arm. He did not pull her hair, punch her in the face, or grab at her neck area. Jane herself grabbed the necklace she was wearing and threw it in appellant’s face. She did not run away from him because she was afraid, but instead moved away from him because she did not want to be near him.
As Jane left, appellant took her son with him. When asked if she said to witnesses that “he took my baby,” Jane said, “I am like, ‘Oh, that mother f-er took my son.’ But that’s okay. He could have—I mean, that’s okay if he can take my son. That’s his son. I was just mad because my son’s always with me.” The police later told her that appellant had left her son in the street. It was hard for her to believe because “he would never do that to his son.” Jane acknowledged seeing Timothy Murray (a witness) that day, but did not remember calling him “my hero.”
Jane still loved appellant and had forgiven him for cheating on her. After October 1, 2005, appellant was in jail for some time. Jane visited him in jail and eventually bailed him out. Jane denied making numerous statements to Officer Hannon on October 1, 2005 about her relationship with appellant and what he had said and done to her.
On cross-examination, Jane acknowledged that she was testifying because she was subpoenaed by the prosecution and felt forced to; she did not want to be there. She had previously invoked her Fifth Amendment right not to testify and incriminate herself, but she was given a grant of immunity and ordered to testify.
On October 1, 2005, at approximately 6:26 p.m., Sonia Escobar was a front seat passenger in a car driven by her husband in the vicinity of Junipero Serra and Westlake when she saw a child in a stroller at the entrance to a parking lot. She also saw a woman and man arguing; the woman was screaming. Then the woman started running and the man ran after her through the parking lot. The child was left at the parking lot entrance. At one point, the man reached out and grabbed the woman by the hair. Escobar called 911.
On October 1, 2005, at 6:20 p.m., Timothy Murray was in a car on Junipero Serra in Daly City with his fiancée, Kathy Sanders. Sanders was driving and Murray was in the front passenger seat. He saw a child in a stroller in the street by itself, so he told Sanders to pull over. He then saw “a lady screaming hysterically” and saw a man “grabbing her, like forcing her to come with him, and she was refusing not to come [sic].” The woman looked very frightened. Murray then saw the man punch her in the left side of her face, using his left arm, at which point Murray jumped out of the car to help her. The woman screamed something like, “He is taking my baby.” Murray identified appellant at trial as the man he saw punch the woman.
When appellant saw Murray coming toward them, appellant said, “Follow me. Follow me,” and then ran down the street to the baby and took off with the baby in the stroller. The woman, who was hysterical, went and sat in the car with Sanders; she said the man was crazy and she was scared for her life. She also kept saying, “He is taking my baby.” The woman did not look angry; she looked frightened.
Kathy Sanders testified that, once inside their car, the young woman said that her boyfriend had taken her baby. She also said they were arguing after she had told him that she was going to leave. The woman seemed angry rather than scared, although she seemed scared for her baby.
Daly City Police Officer Michael Brennan testified that, on October 1, 2005, at about 6:20 p.m., he responded to a call of a male hitting a female. When he arrived at the scene, he saw a little boy standing in the eastbound lane of Westlake Avenue, between Niantic and Junipero Serra Boulevard. Officer Brennan ran into the street and scooped up the baby. A stroller was nearby in a driveway to a parking lot. When the officer learned where the boy’s mother was, he walked to a nearby parking lot and gave the boy back to his mother, who was crying.
Daly City Police Officer Scott Hannon took a videotaped statement of Jane Doe on October 1, 2005. At that time, Officer Hannon observed fresh injuries, including an abrasion above her right eye and on her cheek. She had three abrasions to her chest as well as a small laceration on her chest. In the statement, which was played for the jury, Jane said that she had recently left appellant because she was tired of his lifestyle and because “I can’t be having him mistreat me, you know, he spits in my face. He treats me like—he treats me like you wouldn’t treat a dog.” She said that appellant used drugs, in particular “crystal,” which made him “loony tune.”
Earlier that day, appellant had called Jane about getting the key to get into their storage space. Appellant and some friends picked her and her baby up in a car. Appellant said he was going to “kick her butt”; Jane started crying and appellant said he was just kidding. They started arguing and appellant had his friend drop them off by the parole office.
As appellant and Jane started walking, appellant, who was pushing the baby in a stroller, said “I’m going to beat your ass.” Appellant started calling Jane a “fucking bitch” and “ho.” She started running away and ran into the parole office where she said that her boyfriend had her baby. After she left the office, appellant chased her and grabbed her by the hair and dragged her. He had left the baby behind when he chased her. At that point “the black guy” (Timothy Murray) whom Jane described as a “hero,” intervened and appellant ran away.
Daly City Police Officer Peter Nelson also responded to the call on October 1, 2005. He found appellant in a nearby backyard hiding behind a shed. Officer Nelson placed appellant under arrest.
Daly City Police Sergeant Don Griggs transported appellant to the police station in his patrol vehicle. As he placed appellant into the vehicle, appellant said, “I only hit her one time. She wanted to take my kid away from me.” He seemed agitated and excited. As the vehicle passed Jane Doe, who was on the sidewalk, appellant screamed out the window something like, “Tell them I didn’t hit you.” Appellant also said, “I am not going back to prison.”
San Mateo County Sheriff’s Deputy Ryan Johnson testified that, on August 17, 2006, he retrieved an outgoing letter written by appellant who was an inmate at the McGuire Correctional Facility. The envelope was addressed to Mrs. Cookie Rodriguez and sons, with an address in Daly City. In the letter, in which Jane Doe’s first name twice appeared, appellant referred to a restraining order that was on file and the need for the letter’s recipient “to work on having it removed.” He also explained how to get around the rules regarding visitation when there is a restraining order on file so that she could come and visit him. The letter also said that if a pastor came in and married them, the recipient would not have to testify against him. He also told the recipient she did not have to cooperate with the district attorneys “because they lie.” Deputy Johnson booked the letter into evidence after he ascertained that there was a valid no-contact order on file between appellant and Jane Doe.
Subsequent Uncharged Instances of Domestic Violence
April 19, 2006 Incident:
Jane Doe testified that, on April 19, 2006, at about 9:30 p.m., she got a ride home from her friends, Jessica and Jimmy Ornelas, after a church function. As her friends dropped Jane off, appellant came and opened the car door for her; he did not pull her out of the car. He wanted to tell her something and wondered why she had not answered her phone all day. There was a no-contact order in effect at that time.
Jessica Ornelas testified that, on the evening of April 19, 2006, she and her husband were driving Jane Doe home in their truck after Bible study. Just before the truck stopped near Jane’s house she saw appellant walking down the street. Her husband got out of the truck to open the door for Jane and appellant ran over. Appellant got mad and started cursing at Ornelas’s husband. Ornelas then saw appellant reach in and grab Jane by the arm. He pulled her out and started cussing. He sounded mad and mean. He was holding a belt in his hand. It also seemed like he had a knife and was talking about stabbing her husband. Ornelas told appellant to go away because she had her kids and appellant’s kids in the car. After about five minutes, appellant went away with Jane Doe. Ornelas called the police because appellant “seemed crazy” and she was worried about her friend.
The Ornelases’ two children were in the car, along with Jane Doe’s two children, one of whom is appellant’s son.
April 29, 2006 Incident:
On April 29, 2006, Jane Doe picked appellant up at the BART station because she did not have food at the house and she needed money for food and diapers. There was a no-contact order in effect then as well.
On the afternoon of April 29, 2006, Officer Hannon saw appellant, Jane Doe, and Jane’s child walking down the street in Daly City. This caught his attention because he knew there was a protective order in effect. The officer confirmed that the restraining order was still in effect and then, along with another officer, arrested appellant. Appellant said something to the effect of it was not his fault because he was just walking down the street and Jane Doe walked by.
June 30, 2006 Incident:
Jane Doe testified that, on one occasion—possibly June 30, 2006—she called the police because appellant was partying at her house with his friends and another girl. It is possible the police came to her house, but she knew she spoke to a police officer on the phone about the incident.
Daly City Police Officer Scott Hepler testified that, on the evening of June 30, 2006, he and Officer Heidi Galvez went to an apartment in Daly City in response to a call from a woman whose estranged ex-boyfriend was at her home; she was afraid of him and wanted him out. Neither the woman nor the ex-boyfriend was present at the apartment when the officers arrived. However, Officer Hepler found appellant hiding behind a stairwell “approximately 70 to 80 yards across the street.”
Daly City Police Officer Heidi Galvez testified that she spoke to Jane Doe on the telephone on the night of June 30, 2006. Jane said she believed her ex-boyfriend was residing in her apartment, and she wanted him out. She also said there was a domestic violence restraining order in place and appellant had been calling her cell phone making threats that he was going to hurt her because she had left him. He had said he would kill her if she called the police. Officer Galvez confirmed that there was an order in place that restrained appellant from personal, telephonic, or written contact with Jane Doe and her child.
Officer Galvez spoke with appellant after his arrest. He said he was aware of a domestic violence restraining order, but he believed it had been changed approximately a month earlier into a non-harassment order. He said he knew he could not see Jane Doe, but was unaware that he could not phone her or send her text messages.
July 1, 2006 Incident:
Jane Doe testified that she did not recall if she received a phone call from appellant on July 1, 2006—the day after his arrest in the June 30 incident—in which he said that he was going to get back at her. She also did not remember if she told Officer Galvez about the phone call.
Officer Galvez testified that she received a phone call from Jane Doe on July 1, 2006, in which Jane said appellant had been released from jail and was calling her saying he would get back at her. Jane said she was very concerned for her safety.
July 6, 2006 Incident:
Jane Doe testified that, on July 6, 2006, she called the police because appellant was at her apartment and she did not want him there. When she came home from work, appellant was not there, but she found a girl in her apartment. She called the police because she wanted the girl out of her house and she was angry; she wanted to them both to get into trouble.
Officer Galvez testified that, on July 6, 2006, Jane Doe played for her a voicemail message that appellant had left that day on her phone. In it, appellant said, “How can you do this to me? I am going to get you for this.” The officer then confirmed that the no-contact order, issued on October 3, 2005, was still in effect with no changes.
DISCUSSION
Each of appellant’s three contentions on appeal is related to the admission of evidence of uncharged acts of domestic violence, pursuant to section 1109.
Section 1109 provides in relevant part: “(a)(1) Except as provided in subdivision (e) or (f), 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. [¶] . . . [¶]
“(d)(3) ‘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.
“(e) Evidence of acts occurring more than 10 years before the charged offense is inadmissible under this section, unless the court determines that the admission of this evidence is in the interest of justice.”
I. Trial Court Background
Before trial began, the court and counsel discussed the prosecution’s motion in limine to introduce all of appellant’s violations of restraining orders, pursuant to section 1109. The court questioned whether evidence of a violation of a protective order that does not involve domestic violence was admissible under section 1109. Defense counsel argued that violations of restraining orders did not qualify as uncharged instances of domestic violence and further argued that section 1109 did not contemplate admission of subsequent acts of domestic violence. The prosecutor noted that most cases refer to prior instances of domestic violence, given that “it’s extremely unusual to have a new domestic violence happening prior to the felony trial after [the defendant is] arrested on felony domestic violence.”
The court decided that the subsequent acts were admissible, stating that it was “guided by the clear language of the statute. The Legislature clearly could have said prior incidents of domestic violence, and it did not. It used the word ‘other’ domestic violence, which to the court appears clear that that would involve evidence of domestic violence, which may have been committed after the offense which is at trial. [¶] . . . [¶] And, in fact, in dealing with the legislative history in regard to propensity, I don’t think that evidence of subsequent acts of domestic violence [is] any less reliable on the concerns the Legislature expressed under 1109 than prior acts.” After weighing probative value against undue prejudice under section 352, the court found admissible a prior instance of domestic violence and a subsequent incident involving violence (the April 19, 2006 incident).
The court later returned to the issue of the admissibility of evidence of appellant’s violation of the no-contact order where there was no violence, first noting that it “had originally determined that violation of [a] restraining order is not an act of domestic violence, per se.” However, the court stated that, after reviewing the relevant jury instructions, “I think you could argue that either way, because the jury instruction actually allows you to define for the jury domestic violence under the Family Code section 6211. And I think violation of a domestic violence restraining order is, clearly, an act of domestic violence under the broad definition of the Family Code.” The court further explained that it had “realized that there are alternative definitions of domestic violence that are allowed. The Evidence Code doesn’t define domestic violence under the Penal Code definition, per se,” and that, under broad definition in Family Code section 6211, domestic violence could be “any single act which might annoy someone who qualifies as [a member of] a protected class of people. So, clearly, violation of that protective order would fall within the spirit of that law.”
The court continued: “I think it would be naïve to think that a violation of a domestic violence restraining order was not a subsequent act of domestic violence. Otherwise, those orders have no value whatsoever, really. [¶] So I would admit, as other incidents of domestic violence[,] allegations of violation of [a] domestic violence restraining order.”
The court ultimately found that the uncharged instances of violation of the no-contact order were more probative than prejudicial.
In instructing the jury regarding the evidence of uncharged domestic violence, pursuant to CALCRIM No. 852, the court specified that the instruction applied to the violations of no-contact orders alleged to have occurred on April 19, 2006, April 29, 2006, June 30, 2006, July 1, 2006, and July 6, 2006, and that the jury could consider that evidence as it related to count one, which charged appellant with inflicting corporal injury on Jane Doe, pursuant to Penal Code section 273.5, subdivision (a).
II. Alleged Violation of Appellant’s Due Process Rights
Appellant first contends the admission of evidence of uncharged acts of domestic violence violated due process.
We have previously rejected this argument. In People v. Brown (2000) 77 Cal.App.4th 1324, a panel of this Division rejected the defendant’s argument that section 1109 violates due process. As we then stated: “Brown’s arguments have been eclipsed by our Supreme Court’s recent decision in [People v.] Falsetta [(1999)] 21 Cal.4th 903 . . . . Falsetta upheld the constitutionality of section 1108, a provision that mirrors section 1109, except that it permits the admission of a defendant’s past sex crimes for the purpose of showing a propensity to commit offenses of the same type.” (People v. Brown, at p. 1332.) We held that “Falsetta’s pronouncement that ‘the trial court’s discretion to exclude propensity evidence under section 352 saves section 1108 from [a] defendant’s due process challenge’ is fully applicable to section 1109 as well. [Citation.]” (People v. Brown, at p. 1334.)
Numerous other Courts of Appeal have similarly rejected this due process argument. (See, e.g., People v. Escobar (2000) 82 Cal.App.4th 1085 [1st Dist., Div. 4]; People v. Hoover (2000) 77 Cal.App.4th 1020 [4th Dist.]; People v. Johnson (2000) 77 Cal.App.4th 410 [3d Dist.] (Johnson).)
Appellant’s due process argument cannot succeed.
III. Admission of Evidence of Subsequent Uncharged Acts of Domestic Violence
Appellant contends the trial court erred in admitting evidence of subsequent acts of domestic violence. We disagree.
Section 1109 expressly permits the admission of “evidence of the defendant’s commission of other domestic violence.” (Italics added.) Thus, by its own terms, section 1109 encompasses uncharged acts of domestic violence, with no limitation on whether such acts occurred before or after the charged offenses. (See, e.g., Ferguson v. Workers’ Comp. Appeals Bd. (1995) 33 Cal.App.4th 1613, 1618 [meaning of a statute “must, in the first instance, be sought in the language of the enactment itself”].)
The only time limitation mentioned in section 1109 is set forth in subdivision (e), which provides that “[e]vidence of acts occurring more than 10 years before the charged offense is inadmissible under this section, unless the court determines that the admission of this evidence is in the interest of justice.” The Legislature’s decision to set limits on the admissibility of uncharged acts of domestic violence occurring many years earlier is plainly irrelevant to the admissibility of evidence of subsequent acts.
The Fourth District Court of Appeal has rejected a nearly identical challenge to the admissibility of subsequent uncharged sexual offenses under section 1108 in People v. Medina (2003) 114 Cal.App.4th 897 (Medina). The court there similarly found that the language of section 1108, permitting admission of evidence of the “ ‘defendant’s commission of another sexual offense’ . . . strongly suggests that evidence of an uncharged sexual offense committed after the charged offense is within the scope of section 1108.” (Medina, at p. 902.) The court reasoned that “both prior and subsequent acts may constitute relevant evidence of a person’s character. Thus, interpreting Evidence Code section 1108 to allow for the admission of sexual offenses that occur after the charged offense is consistent with the statute’s purpose of allowing the admission of evidence showing ‘a propensity to commit [sex] crimes.’ (People v. Falsetta, supra, 21 Cal.4th at p. 907.)” (Medina, at p. 903.) We find the court’s reasoning and conclusion in Medina, with respect to the admissibility of subsequent acts evidence under section 1108, equally applicable to the admissibility of such evidence under section 1109.
Neither appellant nor respondent discussed or even cited this highly relevant opinion in the briefing in the present case.
We also note that the California Supreme Court has held that evidence of acts occurring subsequent to the crime charged is admissible under section 1101, subdivision (b), which, like section 1109, specifies no time period for admissibility. (See § 1101, subd. (b) [“Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact . . . other than his or her disposition to commit such an act”].) As our Supreme Court explained in People v. Griffin (1967) 66 Cal.2d 459, 464-465: “[T]he evidence of the subsequent crime was admissible because the similarities between the crimes made evidence of the later crime relevant to prove that [the victim’s] injuries were not accidental . . . . Under these circumstances, the evidence of the other crime is relevant even though it occurred after instead of before the crime charged, and the chronology of the crimes does not therefore affect the admissibility of the evidence of the subsequent crime. [Citations.]” (Accord, People v. Taylor (1986) 180 Cal.App.3d 622, 636 [it is not necessary that uncharged act occur prior to charged offense to be relevant, given that subdivision (b) of section 1101 “specifies no time period for admissibility”].)
In addition, we observe that the legislative history related to section 1109, set forth in Johnson, supra, 77 Cal.App.4th 410, does not support appellant’s argument. For example, the Legislature believed that “ ‘[t]he 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. . . . 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. Rep. on Public Safety (June 25, 1996) pp. 3-4 [(Assem. Com. Rep.)].)” (Johnson, at p. 419.)
Given the Legislature’s finding that “ ‘on-going violence and abuse is the norm in domestic violence cases’ ” (Johnson, supra, 77 Cal.App.4th at p. 419, quoting Assem. Com. Rep., supra, pp. 3-4), evidence of subsequent acts of domestic violence certainly are as effective as prior acts in demonstrating a “pattern of [domestic violence] during the criminal prosecution.” (Ibid.)
In sum, the trial court properly found that evidence of subsequent uncharged acts of domestic violence are admissible pursuant to section 1109. (See Medina, supra, 114 Cal.App.4th at p. 903.)
Appellant asserts that the subsequent uncharged acts were also inadmissible because none of them “involve any corporal injury to [Jane Doe].” As we shall discuss further in part IV., post, corporal injury is not required for an act to constitute domestic violence. (See § 1109, subd. (d)(3); see also Pen. Code, § 13700, subd. (a) [defining domestic violence as, inter alia, “placing another person in reasonable apprehension of imminent serious bodily injury”].) Moreover, evidence of appellant’s continuing harassment of Jane and his violation of the no-contact order, regardless of whether physical contact occurred, is certainly relevant to whether appellant had a propensity to commit domestic violence and whether the events of October 1, 2006 were part of an ongoing pattern of domestic violence.
IV. Violations of the No-Contact Order as Domestic Violence Per Se
Appellant contends that, even if subsequent acts of domestic violence are admissible under section 1109, the trial court erred in finding that violations of the no-contact order were instances of domestic violence per se. In particular, appellant asserts that the incidents of April 29, 2006 and July 6, 2006 did not involve “abuse,” and therefore were not admissible as subsequent acts of domestic violence.
The jury was instructed with CALCRIM No. 852, which stated in relevant part: “The People presented evidence that the defendant committed domestic violence that was not charged in this case, specifically five separate violations of no contact orders . . . . [¶] . . . [¶] Domestic violence means abuse committed against an adult who is a person with whom the defendant has a child. [¶] 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. . . .”
These definitions of “domestic violence” and “abuse” are taken from Penal Code section 13700, which, under subdivision (d)(3) of section 1109, defines the meaning of “domestic violence.” Section 1109, subdivision (d)(3), further provides that, “[s]ubject 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 . . . .” Under Family Code section 6211, “ ‘[d]omestic violence’ is abuse perpetrated against any of the following persons: [¶] . . . [¶] (d) A person with whom the respondent has had a child . . . . ”
Penal Code section 13700 provides in relevant part: “As used in this title:
Family Code section 6211 also expands the categories of persons against whom abuse constitutes domestic violence. (See Fam. Code, § 6211, subd. (f) [domestic violence is abuse perpetrated against, inter alia, “[a]ny other person related by consanguinity or affinity within the second degree”].)
Here, appellant does not argue that uncharged instances of violation of a no-contact order are never admissible under section 1109. Rather, he argues that the trial court in this case found admissible all of appellant’s violations of the no-contact order, without first determining whether each incident satisfied the definition of abuse set forth in Penal Code section 13700, subdivision (a), in particular whether in each incident, at a minimum, appellant placed Jane Doe “in reasonable apprehension of imminent serious bodily injury.”
We agree with appellant that the evidence regarding the April 29, 2006 incident, in which appellant and Jane were discovered walking down the street together, and the July 6, 2006 incident, in which Jane reported that she was angry because appellant was in her apartment, does not demonstrate that appellant’s actions on those two dates evoked any fear in Jane, reasonable or otherwise, of imminent serious bodily injury. (Compare People v. Rucker (2005) 126 Cal.App.4th 1107, 1118-1119 [rejecting defendant’s contention that no domestic violence occurred because victim was not afraid where victim had “testified that he was scared when [the defendant] pointed the gun”].)
We also note, however, that the abuse described in section 6211 of the Family Code is defined in Family Code section 6203 as, inter alia, engaging “in any behavior that has been or could be enjoined pursuant to Section 6320 [which authorizes court to issue ex parte order enjoining one person from contacting another person].” (Fam. Code, § 6203, subd. (d).) We presume that this is what the trial court was referring to when it said that it had “realized that . . . [t]he Evidence Code doesn’t define domestic violence under the Penal Code definition, per se,” and that “violation of a domestic violence restraining order is, clearly, an act of domestic violence under the broad definition under the Family Code.” Thus, since section 1109 permits the court in its discretion to utilize the definition of domestic violence in Family Code section 6211, the definition of abuse in Family Code section 6203 could arguably apply to appellant’s violation of the no-contact orders, and make evidence of those violations admissible regardless of whether Jane was placed in reasonable fear for her safety. On the other hand, section 1109 does not specifically refer to Family Code section 6203 when setting forth the meaning of domestic violence. Nor does the relevant jury instruction, CALCRIM No. 852, include violation of a no-contact order in its definition of abuse. Because we find harmless any error in admitting the two incidents in question (see text, post), we need not decide whether, under section 1109, subdivision (d), the definition of abuse set forth in Family Code section 6203, subdivision (d), can apply to the admissibility of evidence of uncharged acts of domestic violence.
Nonetheless, we conclude that any error in admitting evidence of the two incidents in question was harmless. Appellant claims we must assess error under the federal constitutional standard of Chapman v. California (1967) 386 U.S. 18, 24. (But see People v. Marks (2003) 31 Cal.4th 197, 226 [“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 of [People v. Watson (1956) 46 Cal.2d 818, 836 (Watson)]”; People v. Harris (1998) 60 Cal.App.4th 727, 741 [applying Watson standard of error to the erroneous admission of evidence of prior sexual offense under section 1108].)
Even assuming the federal constitutional standard of error is applicable here, appellant cannot show prejudice. That is because the evidence of the two incidents in question did not add a great deal beyond that which was shown by the properly admitted evidence. Indeed, in the April 29, 2006 incident, Jane Doe testified that she had asked appellant to meet her to give her money for food and diapers. This evidence does not particularly support the theory that appellant was harassing Jane, but instead shows him in a relatively positive light. Moreover, as to the July 6, 2006 incident, the evidence that Jane Doe told police she was angry with appellant, with no showing of fear on her part, cannot have done very much to bolster the case against appellant. Given the force of the other three incidents, in which Jane expressed fear of appellant or there was evidence of violence, as well as the eyewitness evidence regarding appellant’s assault of Jane in the parking lot on October 1, 2005, we find the error in admitting the two additional uncharged incidents to be harmless beyond a reasonable doubt. (See Chapman v. California, supra, 386 U.S. at p. 24.)
The jury was specifically instructed that the evidence of the uncharged instances of domestic violence were admitted solely with respect to count one, corporal injury on a cohabitant. We also observe that the jury convicted appellant in count one of the lesser offense of attempted corporal injury on Jane Doe.
DISPOSITION
The judgment is affirmed.
We concur: Haerle, J., Richman, J.
“(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.
“(b) ‘Domestic violence’ means abuse committed against an adult or a minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship. . . . ”
In light of our conclusion that the trial court did not err in admitting evidence of subsequent acts of domestic violence and that any error in admitting the April 29, 2006 and July 6, 2006 instances of appellant’s violation of the no-contact order was harmless, we need not address respondent’s argument, apparently first raised on appeal, that the violations of the no-contact orders were admissible pursuant to section 1101 “as circumstantial evidence of his intent in the charged crimes.”