Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County Nos. F07903293 & F07904634, James Oppliger, Judge.
Jerome P. Wallingford, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Leanne LeMon, for Plaintiff and Respondent.
OPINION
HILL, J.
INTRODUCTION
Appellant Dennis Rojas was charged and convicted of count I, attempting to dissuade a witness (Pen. Code, § 136.1, subd. (a)(2)); count II, corporal injury to a former cohabitant with a prior conviction (Pen. Code, § 273.5, subd. (e)); count III, criminal threats (Pen. Code, § 422); and count IV, misdemeanor contempt of court (Pen. Code, § 166, subd. (c)(1)), based upon a domestic disturbance when he beat his former girlfriend. He was sentenced to a third strike term of 25 years to life plus 10 years for two prior serious felony enhancements (Pen. Code, § 667, subd. (a)).
On appeal, he contends the court improperly admitted evidence of his prior domestic violence conviction pursuant to Evidence Code section 1109, that section 1109 violates his due process rights, the jury was improperly instructed on the consideration of propensity evidence, the unanimity instruction should have been given as to the criminal threats charge because he made multiple threats against the victim, and the reasonable doubt instruction violated due process. We will affirm.
All further statutory citations are to the Evidence Code unless otherwise indicated.
FACTS
Appellant and Loretta B. had been friends for many years, and they began dating at the end of 2003. In March 2006, they started to live together, but they broke up in September 2006 because of appellant’s violence toward her, and they no longer lived together. On October 13, 2006, the court issued a protective order involving a domestic violence incident between appellant and Loretta, and ordered appellant not to come within 100 yards of Loretta, and not to harass, threaten, batter, stop, or stalk her.
Around 7:00 p.m. on January 19, 2007, Loretta went to a party at a home near Shields and Blackstone Avenues in Fresno. There were about nine or 10 women there when she arrived. Appellant and four men arrived at the house between 10:00 p.m. and 11:00 p.m. Loretta did not know that appellant was going to be there.
Appellant smelled of alcohol and appeared intoxicated. Loretta tried to make small talk but he became verbally abusive toward her, acted jealous, accused her of cheating on him, and called her all kinds of names.
Around 12:30 a.m. on January 20, 2007, Loretta decided to leave and walked out of the house. Appellant followed Loretta, called her a bitch, and said he was going to kill her. One of appellant’s friends called out that they should get back in the house because the police would come.
The friend’s warning may have referred to the existence of the protective order against appellant.
Loretta told appellant to leave her alone. She crossed the street and tried to walk away from him. Appellant grabbed her hair and began hitting and kicking her. Appellant repeatedly punched her face with both open and closed fists, and Loretta put up her hands to protect herself. Loretta thought the people at the party saw appellant hit her, but they did not help because they were his friends.
Loretta ran down the street and headed towards a liquor store, but she briefly stopped to take off her high-heeled boots so she could run faster. She ran into the alley behind the liquor store, and appellant caught up with her. He called her a bitch and said he was going to kill her. Appellant repeatedly hit her with closed fists, and kicked and stomped her on the head, face, and hands. At some point, appellant grabbed her purse and scattered the contents and her cellphone on the street. Loretta tried to run but she tripped and fell to the ground, and he continued to kick her. Loretta was screaming and crying for help, and thought appellant was going to kill her.
Loretta managed to get up, she kicked appellant in the ankle, and she ran out of the alley and toward an office building that was next to a canal. She ran behind the office building but appellant caught her, and repeatedly punched her head, face, back, and side. Appellant said he was going to kill her and throw her into the canal.
Appellant stopped hitting Loretta, and she ran into the street, cried for help, and was almost hit by a car. Appellant ran right behind her and kept calling her a bitch. She ran back toward the office building and appellant followed her.
The dispatch
Around 12:30 a.m., Cristomo Luna was in his house on Glen Avenue when he heard screaming. He looked outside and saw a man hitting a woman. The man was holding a pair of boots and the woman was barefoot. The woman seemed to be following the man. The man did not want her to follow him and threw both boots at the woman. The woman fell down and the man punched the woman in the face. The man and woman kept walking and fighting. They crossed the street to the liquor store and went toward the trash cans. Luna could not see them, but he could hear the woman screaming and crying, and the sounds of someone being hit against the trash cans. Luna decided to call the police because the man was hitting the woman so much that he was afraid he would kill her.
At approximately 12:57 a.m., Fresno Police Officer Douglas Zavala responded to the dispatch, and saw appellant and Loretta walking on the sidewalk, side by side, about 100 yards away from the liquor store. He immediately noticed that Loretta had facial injuries, a bloody lip, and scrapes on her hands, legs, and knees. Loretta was scared, crying and very upset.
Zavala placed appellant in handcuffs and had him sit on the curb. Appellant did not appear to have any injuries, and he seemed calm and relaxed. Loretta was standing next to appellant and she was still crying and upset. Appellant and Loretta were speaking in Spanish to each other. Zavala asked them what was going on. Either appellant or Loretta replied that Loretta got into a fight with some females. Zavala told them that witnesses called in the disturbance and said that it involved a man and a woman, and he wanted to know what actually happened. Zavala did not receive a response. Zavala testified he never told Loretta that she would be arrested if she did not tell the truth.
Loretta testified appellant stopped the assault about two or three minutes before the police arrived. Loretta testified that after he was handcuffed, appellant spoke to her in Spanish, told her to say that some girls jumped her, or he would send someone to hurt her. Loretta testified she decided to lie to the officer because she was afraid appellant would get out of jail and beat her again. Loretta testified she told the officer about the girls, but the officer advised her not to lie because there were witnesses who saw appellant beat her. Loretta claimed the officer also said that he knew appellant did it because he had bloody fists and knuckles, and the officer threatened to take her into custody if she lied. Loretta decided she wasn’t going to jail and said that appellant assaulted her.
Officer Peter Ressler arrived at the scene, observed appellant sitting on the curb in handcuffs, and believed he was trying to communicate with Loretta. Ressler escorted Loretta across the street so they could talk without appellant hearing them. Loretta was still crying and upset, and she was not sure whether she wanted to press charges against appellant. Loretta never told Ressler that she was involved in a fight with several females, and she did not mention any threats from appellant or that he threatened to kill her, or that she ran into the street and was almost hit by a car. Ressler testified he never told Loretta that he knew appellant beat her because his hands were bruised and bloody, and he never threatened Loretta with any consequences if she did not say that appellant hit her.
Officer Zavala found Loretta’s purse and cellphone behind the liquor store and returned the items to her. Ressler called for an ambulance at Loretta’s request and she was taken to the hospital. Loretta testified she suffered bruises and swelling on her face, palms, hands, arms, wrists, and back, two black eyes, scrapes on her knees, and lumps on her head. She was bleeding from her face, lip, and nose, and had a cracked tooth.
Ressler placed appellant in his patrol car and advised him of the warnings pursuant to Miranda v. Arizona (1966) 384 U.S. 436. Appellant repeatedly said he did not violate the restraining order, he had just been walking by the house, and Loretta was beaten by some girls. Appellant appeared under the influence because his eyes were bloodshot and watery, he smelled of alcohol, and he acted belligerent. Appellant was taken to jail around 2:00 a.m.
Appellant’s telephone calls to Loretta
After appellant was taken to jail, he placed several calls to Loretta on her cellphone, and she accepted all the calls even though a recorded message informed her that the calls were placed from the jail. Loretta was very angry at appellant but she accepted the calls to see what he had to say. The calls were tape-recorded, and the recordings and transcripts were introduced at trial.
As we will discuss in issue IV, post, the prosecution relied upon the telephone calls as evidence of appellant’s consciousness of guilt through his attempts to fabricate evidence and discourage someone from testifying.
Appellant made his first call at 3:11 a.m. on January 20, 2007, while Loretta was being treated at the hospital. Appellant repeatedly asked “What the fuck did you do,” and Loretta said she did nothing. Appellant said, “What the fuck am I in here for then,” and asked if he was going home. Loretta said he was being mean. Appellant replied, “I’m being mean (mocking tone)... I swear to God bitch watch...” Loretta hung up.
At 3:36 a.m., appellant again called her at the hospital, asked if she was going to court, and she said no. Loretta said it was the third time he asked if she was pressing charges and she kept saying no. Appellant spoke to her in Spanish and asked, “why did you tell them it was me,” and “why didn’t you say we went to the party” and “you got in a fight.” Loretta said no and appellant cursed her. Appellant said she better protect him: “When I get out though you need to be out my way though. You feel me?”
At 3:40 a.m., appellant called Loretta again, and asked why she was “hating on me,” which meant she was jealous. Loretta said she was not “hating” on him but she was going to go to court. Appellant said she better go because “it’s your best opportunity go to court... I mean well fuck you better go.”
At 9:04 a.m., appellant called Loretta and she was out of the hospital. Appellant said he was very sorry and he loved her. Loretta said she hadn’t been fooling around and he needed to let it go. Appellant said okay, and asked if she was going to court. Loretta said no. Appellant asked if she gave a statement at the hospital, and Loretta said someone else saw her and called the police. Appellant asked if she needed something, meaning money. Loretta testified the offer was unusual because she never asked him for money whereas he usually asked her for money. Appellant told her to come down to the jail to get some from him, but she did not do so.
At 9:19 a.m., appellant called again, said it was his fault, he was sorry, and to just forget about it. Appellant said he knew he “fucked up” when he saw her face. Loretta said someone else called the police so there were witnesses. Appellant again switched to Spanish, and asked if she said that he hit her. Loretta said the police knew he hit her. Appellant asked if she gave her apartment address and Loretta said yes. Appellant said the police would look for her and asked what she was going to do. Loretta said she would find a place in Madera because she did not need to be around this.
As the call continued, appellant told Loretta, “I’m going to say that I didn’t do anything and the case will be lost. If you don’t go the case will be dismissed, if you do go (unintelligible) you know how much they are going to give me right?” Loretta asked how much, and appellant said a lot. Appellant again spoke in Spanish and told Loretta to write to him but not to sign her name. Appellant said they were going to “look for you fiercely,” and “hopefully they don’t find you.” Appellant said: “I hope they won’t find you, don’t get there,” but she should say that she “got in a fight with those bitches.” Loretta said the police seemed to know what happened. Appellant asked who told the police about the restraining order. Loretta said she did not tell the police.
Appellant again told Loretta not to go to court, but asked what she would say if called. Loretta said she would say nothing happened because they would “put your ass away.” Appellant said he was sorry, he loved her, and he should have listened to the others when they said to get back into the house. Appellant said that it was “the worse I’ve done to you. I think that’s it. I don’t want to fucking hit you like that no more.” Loretta said she had never been beaten like that by anyone, and she didn’t know why she put up with him. Appellant repeatedly said he was sorry and he loved her.
At 3:57 p.m. on January 22, 2007, appellant was still in jail and called his nephew, Oscar, and said he got into a domestic violence case with Loretta and he “fucked her up.” Appellant spoke in Spanish, and asked Oscar to call her because his court date was coming up and they were going to look for her. Oscar placed a three-way call to Loretta.
Loretta accepted the call and spoke to Oscar, she could not hear appellant’s voice, and Oscar relayed appellant’s messages to her. Appellant wanted to know if she was alright, and whether they had called her for court. Loretta said she was not alright. Appellant told her not to go to court, they would look for her the entire month, she needed to hide, and she should hide at someone’s house.
Additional trial evidence
At trial, the parties stipulated that on October 13, 2006, the court issued a protective order in a domestic violence case for appellant not to come within 100 yards of Loretta, and not to harass, threaten, batter, stop, or stalk her, and the order was effective until 2009. The parties also stipulated that on October 13, 2006, appellant suffered a misdemeanor conviction for violating Penal Code section 273.5, subdivision (a), corporal injury to a former cohabitant, and Loretta was the victim.
As we will discuss post, the court held that appellant’s prior misdemeanor conviction for a domestic violence offense was admissible as propensity evidence pursuant to section 1109.
Loretta testified appellant hit her during the October 2006 incident, and the instant case marked the second time he hit her. She was impeached with her preliminary hearing testimony in this case, where she testified there was a prior domestic violence incident between them but it was not serious, and the instant case was the first time he “ever put hands on me.” Loretta clarified that “[a]ll the other times he hit me,” and this incident was “actually the first time he ever beat me like this.”
Loretta testified that she was initially afraid to testify against appellant and did not know what to do. She realized appellant could be put away for a long time but she did not care because of how badly he beat her. Loretta used to love appellant but no longer had any feelings for him, and she was afraid of him. As of trial, Loretta testified she had been clean of controlled substances for six months.
Loretta admitted she suffered a prior petty theft conviction in April 2004 (Pen. Code § 484, subd. (a).)
Appellant was convicted as charged of count I, attempting to dissuade a witness, count II, corporal injury to a former cohabitant with a prior conviction, count III, criminal threats, and count IV, misdemeanor contempt of court. The court found true the special allegations that he suffered two prior serious felony convictions (Pen. Code, § 667, subd. (a)); two prior strike convictions (Pen. Code, § 667, subds. (b)-(i)); and served three prior prison terms (Pen. Code, § 667.5, subd. (b)). He was sentenced to the third strike term of 25 years to life for count III, with two consecutive five year terms for the prior serious felony enhancements. The court stayed the third strike term for count II, and ordered the punishment for count I stricken.
DISCUSSION
I. Admissibility of prior domestic violence evidence.
Appellant contends the court improperly permitted the prosecution to introduce evidence of his prior misdemeanor conviction for corporal injury to a former cohabitant, as propensity evidence under section 1109. Appellant argues the fact of the misdemeanor conviction was prejudicial because it resulted from a guilty plea he entered simply to dispose of the charge, and the admission of such evidence requires reversal of his convictions.
A. Background.
The prosecution filed a motion in limine to introduce evidence of appellant’s prior misdemeanor conviction for corporal injury to a former cohabitant (Pen. Code § 273.5, subd. (a)), which occurred in October 2006. The prosecution argued such evidence was admissible as propensity evidence in a domestic violence case under section 1109, and the probative value was extremely high because it involved the same victim and occurred shortly before the incident in this case.
The prosecution offered an alternate theory of admissibility under section 1101, subdivision (b), to prove motive, intent, and absence of mistake, appellant filed opposition, and the court found the prior conviction was inadmissible under that section.
Appellant filed opposition and argued the evidence was inadmissible under section 1109, and prejudicial under section 352, because the prior misdemeanor conviction was the result of a plea. Appellant cited the police report for the October 2006 incident, that Loretta said appellant kicked in the door to her apartment, grabbed her by the arms, hit her six times in the face, head, and shoulder, and kicked her in the legs.
Appellant asserted the charges were false, conceded he suffered a misdemeanor conviction, but argued the prior conviction had “questionable validity” and was prejudicial because “it is not unknown for in-custody defendants to enter into misdemeanor pleas at an early stage of the proceedings in order to obtain their release from custody.” Appellant also cited to Loretta’s testimony at the preliminary hearing in this case, that the prior incident was not serious and the instant case was the first time appellant “ever put hands” on her, as further indication of the prejudicial impact of such evidence.
During argument on the motion, defense counsel stated he represented appellant in the prior case, appellant was charged with a felony, and appellant accepted the prosecution’s offer to plead to a misdemeanor simply so he could get out of custody. Counsel argued the prior conviction was prejudicial since it was only a misdemeanor that resulted from a change-in-plea “rather than something which was decided after a contested hearing,” which “limits the probative value. There was never actually a hearing on it.” Defense counsel also argued that such evidence was prejudicial because it would involve undue consumption of time.
The court found the prior conviction was admissible because section 1109 specifically permitted propensity evidence of a prior domestic violence conviction in a domestic violence case. The court noted that propensity evidence was still subject to section 352, but such prejudice meant something “other than proof of propensity.” The court further noted the prior conviction was recent, it involved the same type of charge as in the instant case (Pen. Code § 273.5), and a misdemeanor was admissible for section 1109 purposes.
Defense counsel asked for the opportunity to introduce witnesses to refute the underlying allegations of the prior misdemeanor offense. The court asked for an offer of proof and defense counsel declined at that point. At the next day’s hearing, however, appellant stipulated to the existence of both his prior misdemeanor conviction and the protective order.
B. Analysis.
Appellant contends the court improperly admitted his prior misdemeanor conviction as propensity evidence under sections 1109 and 352. Evidence of other acts is generally inadmissible to prove the defendant’s propensity to commit the charged acts. (§ 1101, subd. (a).) However, the Legislature has created exceptions to this rule in cases involving sexual offenses (§ 1108) and domestic violence (§ 1109). (People v. Reyes (2008) 160 Cal.App.4th 246, 251 (Reyes).)
Section 1108, which allows admission of evidence of uncharged sexual offenses, and section 1109, allowing admission of evidence of uncharged domestic violence, are “virtually identical,” and cases which have interpreted section 1108 have been relied upon to resolve similar issues involving section 1109. (People v. Johnson (2000) 77 Cal.App.4th 410, 417 (Johnson); People v. Johnson (2008) 164 Cal.App.4th 731, 739; People v. Brown (2000) 77 Cal.App.4th 1324, 1333 (Brown).)
Section 1109 states that, subject to exceptions not applicable 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.” (§ 1109, subd. (a).) Evidence of acts occurring within 10 years of the charged offense is presumptively admissible; older instances are admissible if the court finds their admission to be in the interest of justice. (§ 1109, subd. (e).)
Section 1109 reflects a legislative policy determination that the use of propensity evidence is particularly appropriate in domestic violence cases because of the inherent probative value of such evidence in domestic violence prosecutions. (Brown, supra, 77 Cal.App.4th at pp. 1333-1334; People v. Hoover (2000) 77 Cal.App.4th 1020, 1027-1028 (Hoover); Johnson, supra, 77 Cal.App.4th at p. 419.) “‘[E]vidence of other acts is important in domestic violence cases because of the typically repetitive nature of domestic violence crimes, and because of the acute difficulties of proof associated with frequently uncooperative victims and third-party witnesses... who may fear retaliation from the abuser and do not wish to become involved.’ [Citation.]” (Brown, supra, 77 Cal.App.4th at p. 1333.)
As defined by section 1109 and related statutes, prior acts of domestic violence include abuse committed against an adult who is a cohabitant or former cohabitant of the suspect, and includes violations of Penal Code section 273.5, corporal injury to a cohabitant or former cohabitant. (People v. Dallas (2008) 165 Cal.App.4th 940, 952-953.) In the instant case, appellant was charged in count II with felony corporal injury to a former cohabitant with a prior conviction, in violation of Penal Code section 273.5, subdivision (e). The prosecution sought to introduce his prior misdemeanor conviction for violation of the same offense – corporal injury to a former cohabitant, in violation of Penal Code section 273.5, subdivision (a). Thus, appellant’s prior misdemeanor conviction was admissible as propensity evidence in this domestic violence case under section 1109.
To protect the defendant's due process rights, however, evidence admissible under section 1109 is subject to exclusion under section 352. (Hoover, supra, 77 Cal.App.4th at pp. 1028-1029; People v. Escobar (2000) 82 Cal.App.4th 1085, 1096 (Escobar).) That is, the evidence may not be admitted if its probative value is substantially outweighed by the probability that it will consume an undue amount of time or create a substantial danger of undue prejudice, confusion of issues, or misleading the jury. (Hoover, supra, 77 Cal.App.4th at pp. 1028-1029.) A trial court's determination under section 352 is reviewed for abuse of discretion. (Hoover, supra, 77 Cal.App.4th at p. 1029; People v. Jenkins (2000) 22 Cal.4th 900, 1008.)
Evidence has probative value when it is relevant to the issues before the jury, i.e., when it has any tendency in reason to prove or disprove a disputed fact in issue. (People v. Padilla (1995) 11 Cal.4th 891, 925, overruled on another point in People v Hill (1998) 17 Cal.4th 800, 823, fn. 1.) “The ‘prejudice’ referred to in... section 352 applies to evidence which uniquely tends to evoke an emotional bias against 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. Yu (1983) 143 Cal.App.3d 358, 377; People v. Bolin (1998) 18 Cal.4th 297, 320.)
Appellant contends that evidence of his prior conviction for corporal injury on a cohabitant was prejudicial under section 352 because the offense was only a misdemeanor. However, section 1109 expressly permits the admission of “evidence of the defendant’s commission of other domestic violence.” (§ 1109, subd. (a)(1), italics added.) It encompasses both charged and uncharged acts of domestic violence. (See, e.g., People v. Falsetta (1999) 21 Cal.4th 903, 917-918 (Falsetta) [section 1108]; Brown, supra, 77 Cal.App.4th at pp. 1332-1334 [section 1109]; People v. Garcia (2001) 89 Cal.App.4th 1321, 1331-1332 [section 1109].) In addition, there is no limitation on whether the other acts occurred before or after the offense for which the defendant is on trial. (See, e.g., People v. Medina (2003) 114 Cal.App.4th 897, 902-903 [section 1108].) 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 [prior sexual acts admissible under section 1108 even though resulted in acquittal, but trial court erred in excluding evidence of the acquittal itself].) Thus, the mere fact that appellant’s prior conviction was a misdemeanor did not render it inadmissible under section 1109 or prejudicial under section 352.
Appellant further contends the evidence was prejudicial simply because he entered a plea to the misdemeanor offense and there are “doubts about the accuracy of the prior adjudication.” Appellant has not raised any constitutional challenges to the validity of his plea but reasserts the arguments he made before the trial court, when he opposed introduction of the prior conviction because of its “questionable validity”, simply because “it is not unknown for in-custody defendants to enter into misdemeanor pleas at an early stage of the proceedings in order to obtain their release from custody.”
As we have already noted, however, section 1109 permits the introduction of both charged and uncharged offenses, and due process is not offended simply because the prior act of domestic violence involved a misdemeanor plea, if the evidence is otherwise not prejudicial under section 352. (Hoover, supra, 77 Cal.App.4th at pp. 1028-1029.) Moreover, appellant sought to introduce evidence to undermine to probative value of the prior misdemeanor conviction and explain the underlying circumstances of the plea. The court was willing to consider an offer of proof on the matter, and such evidence may have been admissible at trial. (See, e.g., People v. Jennings (2000) 81 Cal.App.4th 1301, 1315 (Jennings) [defendant introduced evidence to explain why he entered a misdemeanor plea admitted as section 1109 propensity evidence].) At the next hearing, however, appellant indicated he would stipulate to the existence of both the protective order and the prior misdemeanor conviction, and he never made the offer of proof to support his averments as to the nature and circumstances under which he entered his plea. Having made that tactical decision, appellant has accordingly waived any contentions on that basis.
Appellant also contends the section 1109 evidence was prejudicial based upon Loretta’s testimony at the preliminary hearing in this case, in which she offered the qualified explanation that the prior offense was not serious. The evidence of the prior act of domestic violence was extremely probative given Loretta’s admission that she was extremely reluctant to testify against appellant. Her characterization of the incident was not determinative on the question of admissibility, but such evidence was properly admitted to impeach her trial testimony.
We cannot say the court abused its discretion in finding the section 1109 evidence admissible under section 352. The prior misdemeanor offense occurred barely three months before the incident in this case and it involved the same victim. “Particularly in view of the fact that the subject evidence involved defendant's history of similar conduct against the same victim, the evidence was not unduly inflammatory. The subject evidence was also not remote; its presentation was not confusing or time-consuming. Instead, the evidence was highly relevant and probative of the issues in this case. [Citations.]” (Hoover, supra, 77 Cal.App.4th at p. 1029; see also People v. Rucker (2005) 126 Cal.App.4th 1107, 1119 (Rucker).) Moreover, based upon appellant’s insistence of stipulating to the prior misdemeanor conviction, the jury herein only heard the mere fact that appellant suffered the prior conviction and did not hear any of the underlying circumstances, such that the stipulation itself was no more inflammatory than the charged offense in this case. (See, e.g., People v. Williams (2008) 159 Cal.App.4th 141, 147.)
Finally, even if the trial court abused its discretion and erroneously admitted evidence of the prior misdemeanor conviction, any error is not prejudicial. (Brown, supra, 77 Cal.App.4th at p. 1337; People v. Watson (1956) 46 Cal.2d 818, 856.) The evidence of the prior act of domestic violence was limited to the stipulation. In contrast, Loretta testified at length about appellant’s conduct the night of the assault, how he repeatedly followed her, punched and kicked her, and threatened to kill her and throw her into the canal. In addition, appellant admitted he beat Loretta during the multiple calls from the jail, as he tried to dissuade her from going to court. It is not reasonably probable that a result more favorable to appellant would have resulted if the evidence had been excluded.
II. Section 1109 and due process.
Appellant next contends the admission of propensity evidence under section 1109 violates his constitutional right to due process of law. As appellant acknowledges, the identical argument has been repeatedly rejected as meritless. (Falsetta, supra, 21 Cal.4th at pp. 917-918 [section 1108]; People v. Cabrera (2007) 152 Cal.App.4th 695, 703-704 (Cabrera) [section 1109]; Rucker, supra, 126 Cal.App.4th at p. 1120 [section 1109]; see also Escobar, supra, 82 Cal.App.4th at pp. 1095-1096 [section 1109] and cases cited within.)
Respondent argues appellant waived review of his due process claim because he did not raise the issue before the trial court. However, appellant’s constitutional issue has not been waived since it involves a pure question of law based upon undisputed facts. (People v. Hines (1997) 15 Cal.4th 997, 1061; People v. Valladoli (1996) 13 Cal.4th 590, 606.)
“[A]dmission of propensity evidence is not unfair so long as the trial court is required to balance the probative value of the evidence against its prejudicial impact under … section 352.” (Cabrera, supra, 152 Cal.App.4th at p. 704.) “In short, the constitutionality of section 1109 under the due process clauses of the federal and state constitutions has now been settled.” (Jennings, supra, 81 Cal.App.4th at p. 1310.) Appellant contends Falsetta was wrongly decided, but we are bound by the California Supreme Court’s ruling in that case. (Rucker, supra, 126 Cal.App.4th at p. 1120; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Moreover, “[w]e agree with the rule of these recent cases and, accordingly, reject appellant’s due process claim.” (Escobar, supra, 82 Cal.App.4th at p. 1096.)
III. Section 1109 Instruction.
Appellant contends the jury received conflicting instructions on how to evaluate the section 1109 prior domestic violence evidence, and the conflicting instructions undermined the prosecution’s burden of proof of the charged offenses.
Respondent again argues appellant waived review of this instructional issue because he failed to raise it before the trial court. However, appellant’s claim of instructional error is subject to review to the extent it affects his substantial rights. (People v. Prieto (2003) 30 Cal.4th 226, 247.)
A. Background.
Appellant’s claim of instructional error is based upon the following circumstances. As set forth ante, the parties stipulated to both the existence of the protective order and appellant’s prior misdemeanor conviction. Prior to the first stipulation about the protective order, the court advised the jury that “a stipulation is an agreement of the parties to the action.” The court did not repeat that advisement when the stipulation was read about the prior conviction.
During the instructional phase, the court gave Judicial Council of California Criminal Jury Instructions (2007), CALCRIM No. 222 (CALCRIM) as to the definition of evidence, which included the following language:
“During this trial you were told that the People and the defense agreed or stipulated to certain facts. This means that they both accepted those facts because there was no dispute about those facts. You must accept them as true.” (Italics added)
The court also gave CALCRIM No. 852, as to the consideration of the section 1109 evidence of prior acts of domestic violence, which stated:
“The People have presented evidence that the defendant committed domestic violence that was not charged in this case. A conviction for Penal Code Section 273.5 in 2006 which was declared to be a misdemeanor. 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 it is more likely true than not 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 crime charged in count 2 including [sic] an injury on a former cohabitant that resulted in a traumatic condition 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 inflicting an injury on a former cohabitant that resulted in a traumatic condition. The People must still prove each and every element of each charge beyond a reasonable doubt.
“Do not consider … this evidence for any other purpose othr than the limited purpose for which I’ve just mentioned.” (Italics added)
B. Analysis.
Appellant claims that CALCRIM No. 852 should not have been given because it defined the applicable burden of proof for the section 1109 evidence as being by a preponderance of the evidence, whereas the parties had already stipulated to the existence of the prior misdemeanor conviction and the court instructed the jury that it must accept that stipulated fact as true. Appellant argues that given the circumstances of the stipulation, the italicized language in the instructions was unnecessary and confusing, and the jurors probably believed CALCRIM No. 852’s “preponderance of the evidence” language applied to the burden of proof necessary to convict appellant of the charged offenses.
We first note that CALCRIM No. 852 correctly states the law on the limited purpose for which the jury may consider prior acts of domestic violence admissible as section 1109 evidence. It makes clear the prosecution’s burden of proving such prior acts is by a preponderance of the evidence, and the instruction satisfies constitutional due process requirements. (People v. Reliford (2003) 29 Cal.4th 1007, 1009, 1012-1016 (Reliford); Reyes, supra, 160 Cal.App.4th at pp. 251-253; People v. Pescador (2004) 119 Cal.App.4th 252, 261-262; People v. Johnson, supra, 164 Cal.App.4th at p. 739; Brown, supra, 77 Cal.App.4th at pp. 1335-1337.) Moreover, CALCRIM No. 852 does not nullify or negate the “‘beyond a reasonable doubt’” instruction, and there is nothing in CALCRIM No. 852 which authorizes the jury to use the preponderance of the evidence standard for anything other than the preliminary determination of whether the defendant committed a prior act of domestic violence. (Reliford, supra, 29 Cal.4th at p. 1016; People v. Johnson, supra, 164 Cal.App.4th at pp. 739-740.)
Appellant contends the stipulation rendered the “preponderance of the evidence” language in CALCRIM No. 852 as extraneous, such that the jury would have likely applied that lesser standard to the prosecution’s burden of proving the charged offenses. Appellant clearly stipulated to the fact of the prior conviction to avoid having the jury hear any evidence as to the underlying circumstances of the October 2006 incident. However, appellant sought to undermine the impact of the section 1109 evidence by challenging whether there was any physical force or actual domestic violence involved in the prior incident. As explained ante, Loretta was impeached by her preliminary hearing testimony in this case, that the October 2006 incident was not serious, and the instant case was the first time appellant “ever put hands on me.”
To the extent appellant sought to characterize the prior incident itself as insignificant and not involving an act of domestic violence, CALCRIM No. 852 was necessary because it explained “that if the jury finds the defendant committed the uncharged acts, it may but is not required to conclude defendant was disposed to or inclined to commit domestic violence and may also conclude that the defendant was likely to commit and did commit the crimes charged in this case.” (Reyes, supra, 160 Cal.App.4th at p. 252, italics in original.) We further note the prosecutor used his closing argument to reaffirm that the People had the burden of proving the elements of the charged offenses beyond a reasonable doubt. CALCRIM No. 852 was properly given and did not undermine the prosecution’s burden of proving the charged offenses beyond a reasonable doubt.
IV. Count III and the unanimity instruction.
Appellant contends the court had a sua sponte duty to give a unanimity instruction as to count III, criminal threats, because there were multiple threats the jury could have relied upon to find him guilty of that offense, based upon the evidence of appellant’s threats during the actual assault, and his threats during the numerous telephone calls he placed from jail.
The California Constitution guarantees the right to a unanimous jury in criminal cases. (People v. Jones (1990) 51 Cal.3d 294, 321; Cal. Const., art I, § 16.) “Additionally, the jury must agree unanimously the defendant is guilty of a specific crime. [Citation.] Therefore, cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. [Citations.]” (People v. Russo (2001) 25 Cal.4th 1124, 1132, italics in original.)
There is no duty to instruct on unanimity if the prosecutor elected the specific act relied upon to prove the charge. (People v. Salvato (1991) 234 Cal.App.3d 872, 880.) To be effective, however, the election by the prosecutor and the jury's concomitant duties must be communicated clearly to the jury. (People v. Melhado (1998) 60 Cal.App.4th 1529, 1535-1536.) In the absence of an election, the court has a sua sponte duty to instruct on unanimity. (Id. at p. 1534.)
In the instant case, appellant was charged in count III with committing criminal threats against Loretta on January 20, 2007, which was the date of the assault. While there was evidence that appellant threatened Loretta during both the assault and the telephone calls from jail, the prosecutor clearly made an election in closing argument that count III was based upon appellant’s threats on the night of the assault, when they were standing by the canal bank.
“[Appellant] told her I’m going to … kill you. I’m going to throw you in the canal. Clearly a threat to unlawfully kill or unlawfully cause great bodily injury to [her]. He made the threat to Loretta.… He told you he did that during that last assault that was right near the Herndon Canal. He intended the statement be understood as a threat, why else would he say it. He said it during the time that she was, he was hitting her, kicking her. He said it right when they were right next to the canal. The canal, just yards away from their location. The threat was so clear, immediate, unconditional and specific that it communicated to Loretta … a serious intention and the immediate prospect that the threat would be carried out.”
The prosecutor repeatedly stressed that count III was based upon appellant’s threats to kill Loretta and throw her into the canal as he was beating her and they were standing close to the canal.
Appellant concedes, as he must, that the prosecutor made these comments during closing argument, but insists the prosecutor’s argument did not amount to an election on count III because “[a]lthough the prosecutor did not argue that the threats made during the phone calls violated [Penal Code] section 422, she likewise did not exclude them as possible violations of that section.” Appellant’s argument is refuted by the entirety of the prosecutor’s closing argument, when she addressed the evidence in support of count II, corporal injury to a former cohabitant, based upon appellant’s physical assault upon Loretta as she left the party and tried to run away from him. In the course of discussing that charge, the prosecutor cited appellant’s telephone calls from the jail as evidence that he was trying to fabricate evidence or discourage someone from testifying, and cited to the jury instruction which stated that such evidence was relevant to show his consciousness of guilt on the corporal injury charge.
We thus conclude the prosecutor clearly elected the evidence in support of count III, distinguished the telephone calls as evidence which was relevant to establish appellant’s consciousness of guilt, and the court did not have a sua sponte duty to give the unanimity instruction.
V. Reasonable Doubt Instruction.
Appellant’s final issue is a challenge to CALCRIM No. 220, the reasonable doubt instruction. He argues the instruction failed to properly define the presumption of innocence and the prosecution’s burden of proof, and points to particular phrases within the instruction which purportedly negate the presumption of innocence.
Appellant’s general and specific challenges to CALCRIM No. 220 have been considered and rejected in numerous decisions. (People v. Garelick (2008) 161 Cal.App.4th 1107, 1117-1119; People v. Stone (2008) 160 Cal.App.4th 323, 331-332; People v. Campos (2007) 156 Cal.App.4th 1228, 1237-1238; People v. Guerrero (2007) 155 Cal.App.4th 1264, 1267-1269; People v. Flores (2007) 153 Cal.App.4th 1088, 1091-1093; People v. Hernandez Rios (2007) 151 Cal.App.4th 1154, 1156-1157; People v. Westbrooks (2007) 151 Cal.App.4th 1500, 1505-1510; Lisenbee v. Henry (9th Cir. 1999) 166 F.3d 997, 999-1000.) We agree with the analysis and conclusions of these cases.
DISPOSITION
The judgment is affirmed.
WE CONCUR: LEVY, Acting P.J., KANE, J.