Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. C148594
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Defendant and appellant Danielle Ray Thomas appeals his conviction for second degree murder, in violation of Penal Code section 187, subdivision (a), after a jury rejected his voluntary manslaughter defense and found that when he strangled his wife to death with an electrical cord, he did so with malice, and not as a result of a sudden quarrel or in the heat of passion. Defendant contends: (1) the trial court committed prejudicial error by giving an incorrect response to a jury question regarding the degree of provocation required for manslaughter; (2) the trial court violated the prohibition against ex post facto laws by admitting evidence of a prior crime (a child abuse incident from 1999) as domestic violence propensity evidence, where the prior crime did not meet the statutory definition of domestic violence at the time of the 2003 homicide; (3) the trial court abused its discretion and violated his due process rights under the federal constitution by admitting evidence of the 1999 child abuse incident under Evidence Code 352; and, (4) the trial court abused its discretion and violated his rights to due process under the federal constitution by admitting evidence of the 1999 child abuse incident pursuant to sections 1101 and 1109 and instructing the jury that it could consider the incident in determining the existence of malice aforethought and defendant’s propensity to commit murder, respectively. Defendant’s contentions lack merit. Accordingly, we affirm.
Further statutory references are to the Evidence Code unless otherwise noted.
BACKGROUND
In the early hours of Sunday, August 24, 2003, defendant strangled his wife Bridghett to death with an electrical cord. Shortly after his arrest, defendant gave a Mirandized, tape-recorded statement to the police, which was subsequently admitted at trial as People’s Exhibit 30a and played to the jury.
Defendant told police he and Bridghett had been together for over twenty-five years, and had one daughter, Kimberley. Defendant’s relationship with Bridghett had deteriorated during the prior year after he started working nights. A few weeks before the murder, defendant and Bridghett counseled with their church pastor. Bridghett admitted she was having an affair with a man named Ron. Defendant and Bridghett decided they were going to stay together and try to work through their marital problems. On the day before the murder (Saturday), Bridghett went out about 9:35 a.m. without telling defendant where she was going, except to say that she was “gonna go where I can get some money.” According to defendant, his wife was addicted to Vicodin, and he had refused to give her money to buy it. Defendant attempted to contact his wife all day via her cell phone.
Later that morning Kimberley came over to do Bridghett’s hair. Her parents were not home, so she called defendant on his cell phone. Defendant told Kimberley that he was in Berkeley looking for her mother and would return home. After Kimberley and defendant met up they drove through Berkeley and Oakland looking for Bridghett’s car. As they were driving around, defendant gave Kimberley a phone number to call. Kimberley dialed the number and a man who identified himself as Ron answered. Kimberley told Ron that she was Bridghett’s daughter, that Bridghett was married, and asked what he was doing with her mother. Ron replied that he was “fucking” her mother. Kimberley told defendant this and defendant said, “See, I told you.” After Kimberley dropped defendant off at home she went to meet her fiancé, Christopher Nobela. She later returned to her parents’ apartment and stayed there until around 6 p.m. Bridghett did not call or return home during that time.
That Saturday evening defendant wrote two letters, one of which was addressed to Bridghett. It stated: “I just wanted another chance to make up for all the wrong I had done and we have done to each other. You know I was really trying to do that, and you know you could have given me another chance. I hope Ron, I [sic] really worth all of this, because I do and did love you, Bridghett Thomas, and [you] knew that.” The other letter, addressed to Kimberley and Christopher, stated: “I do love you and Chris also as well. Your mom has been cheating on me for a long time and I’m sick and tired of it. I’ve been going through a lot here lately. I want you to not hate me for taking your mom from you. Please forgive me for what I have done. My head and my heart hurt so very much. You and I know that your mom was wrong for what she had done today. I am not saying what I have done is right either, but me and your mom was wrong for putting you through this, I want you to be strong and not weak like me. Please, Chris, please take good care of my daughter, Chris. On my side of the family, I’m very, very sorry for all of this. On Bridghett’s side of the family, I’m very, very sorry for what has happened. Remember, Kimberley, no matter what I have done, I do love you.” Defendant said he wrote the letters because he planned to harm himself and never planned to kill his wife—“It just happened. Before I know, I was doin’ it.”
At around 11:30 p.m. on Saturday evening, defendant called Kimberley and Christopher at home. Christopher spoke with defendant during the call. Defendant told Christopher that he wanted Christopher to know he loved him. Defendant thanked Christopher for taking care of Kimberley and asked him to take care of her “no matter what happens.” Christopher thought this was strange because defendant had never talked to him like that before. Christopher thought defendant sounded sad and depressed.
Eventually, Bridghett came home at 12:30 a.m. Bridghett told defendant she did not feel like returning his calls. Defendant suspected Bridgett had been with Ron. Bridghett went upstairs to change, put on her nightgown and came downstairs. Defendant kept telling her she should have returned his calls, but Bridghett replied that she “didn’t feel like being bothered.” Defendant went upstairs, taking the electrical cord with him, and stood for a few minutes over the ironing board thinking about why Bridghett did not return his calls. He put the electrical cord on the ironing board and paced from room to room. Then he went back downstairs, taking the electrical cord with him. Bridghett was still sitting on the couch and kept dozing off. She fixed herself something to eat and sat on the couch watching TV as she ate.
Next, (defendant did not tell the police this, but testified to it at trial) he again asked Bridghett where she had been and if she was out with a man, to which Bridghett smiled and replied, “I wasn’t out with no woman.” Hurt by this comment, defendant came up behind her and put the electrical cord around her neck in a loop and pulled outwards to tighten the cord. Bridghett kept saying “No,” and she said, “No, Danny, no. No.” She was using both hands to try to loosen the cord and she was kicking and squirming to get away from defendant. Defendant pulled the cord tighter. Bridghett ended up on the ground with defendant on top of her. Defendant had to apply pressure for a few minutes before Bridghett stopped struggling. He picked up her hand but it was lifeless. He wrapped the electrical cord round her neck two or three more times and left it there.
Defendant then got in his car, went to get gas and returned home after a few minutes. Defendant started to cry at this point. He put more than ten over-the-counter sleeping pills in a small bottle of vodka and swallowed it. He also mixed Pine-Sol with water and drank that as well, because he was “tryin to end it.” Defendant left the house and drove off in his car. A short time later defendant crashed the car into a divider on the freeway. He left the car and walked along the freeway before climbing over the guardrail onto a ledge with about a 100 foot drop below. During this time, defendant called Kimberley and told her that he had strangled her mother. After the police arrived on the scene, they pulled defendant from the ledge and arrested him.
The jury was presented with opening statements on May 15, 2006. On June 7, 2006, the trial court gave concluding instructions to the jury and deliberations began. The jury was asked to decide whether defendant was guilty of any one of three offenses—murder in the first degree (Penal Code, §§ 187, subd. (a)); murder in the second degree (Penal Code, § 187, subd. (a)); or voluntary manslaughter (Penal Code, § 192, subd. (a)). The jury returned its verdicts on June 15, 2006. The jury found defendant not guilty of first degree murder. The jury found defendant guilty of second degree murder, and also found that in the commission of the offense defendant personally used a deadly and dangerous weapon, namely, an extension cord. On September 28, 2006, the trial court imposed a sentence of 15 years-to-life plus a one year enhancement for use of a deadly weapon for a total term of 16 years-to-life. Defendant filed a timely notice of appeal on October 3, 2006.
DISCUSSION
A. The Jury Question Regarding Manslaughter
(1)
The trial court instructed the jury on manslaughter with a modified version of CALCRIM 570 as follows: “A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed someone because of a sudden quarrel or in the heat of passion. [¶] The defendant killed someone because of a sudden quarrel or in the heat of passion if: [¶] 1. The defendant was provoked; [¶] 2. As a result of the provocation, the defendant acted rashly and under the influence of intense emotion that obscured (his/her) reasoning or judgment; [¶] AND [¶] 3. The provocation would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment. [¶] Heat of passion does not require anger, rage, or any specific emotion. It can be any violent or intense emotion that causes a person to act without due deliberation and reflection. [¶] In order for heat of passion to reduce a murder to voluntary manslaughter, the defendant must have acted under the direct and immediate influence of provocation as I have defined it. While no specific type of provocation is required, slight or remote provocation is not sufficient. Sufficient provocation may occur over a short or long period of time. The infidelity of a spouse may be considered in your determination as to whether or not there was a legally adequate provocation for voluntary manslaughter. It is not enough that the defendant simply was provoked. The defendant is not allowed to set up his own standard of conduct. You must decide whether the defendant was provoked and whether the provocation was sufficient. In deciding whether the provocation was sufficient, consider whether a person of average disposition would have been provoked and how such a person would react in the same situation knowing the same facts. [¶] If enough time passed between the provocation and the killing for a person of average disposition to “cool off” and regain his or her clear reasoning and judgment, then the killing is not reduced to voluntary manslaughter on this basis. [¶] In your evaluation of the defendant’s state of mind at the time of the killing, you may consider the defendant’s use and/or withdrawal from the drug diazepam (Valium) in determining any effect it might have had on the defendant’s reasoning or judgment, and whether or not the defendant killed as the result of a sudden quarrel or in the heat of passion. [¶] The People have the burden of proving beyond a reasonable doubt that the defendant did not kill as the result of a sudden quarrel or in the heat of passion. If the People have not met this burden, you must find the defendant not guilty of murder.” Defendant lodged no objection to this instruction as given. In fact, not only did defendant fail to object to CALCRIM 570, he requested and received modifications to the instruction (denoted in the italicized sections of the instruction above), which are akin to pinpoint instructions emphasizing his theory that he was provoked into committing the murder in the heat of passion.
On June 13, 2006, during the course of jury deliberations, the jury foreperson requested the following: “Explanation of jury instructions regarding the following: (1) If the jury decides that malice aforethought is proven, can provocation reduce murder to voluntary manslaughter or only to 2nd degree?; (2a) If the people have the burden of proof that the defendant did not kill as a result of a sudden quarrel or heat of passion, can we consider or decide this before deciding on malice aforethought?; (2b) Do the People have to prove there was not sufficient provocation; (3) Number 3 of Code 570 on page 34 says “caused an ordinary person of average disposition to act rashly and without due deliberation.” Does this mean an ordinary person would/could kill someone?”
The parties discussed how to respond to the jury’s questions, and the following colloquy took place regarding the jury’s question about provocation:
“Court: They went on to ask: ‘Does this mean an ordinary person would or could kill someone?’ And we didn’t reach agreement on that. And the answer to me is ‘not necessarily’; but since we didn’t agree on it, my response was, it’s up to them to decide whether an ordinary person of average disposition would have been provoked and how such a person would react in the same situation, knowing the same facts. That’s straight out of 570. And again I refer them to 570. You would have me add something else, Mr. Elias? [defense counsel]
Mr. Elias [defense counsel]: Well, I think the court should add ‘not necessarily,’ because by giving the answer the court does, they are already ― it sounds as if they are already confused. It’s a simple answer, and the answer is ‘not necessarily.’ That’s the state of the law. You don’t have to have a person driven to homicidal rage and the average person driven to homicidal rage and [sic] says that person just has to act in the heat of passion, and the provocation----has to be such that the person acts rashly from deliberation and rather from judgment [sic]. And there is no indication that the person has to be driven to a homicidal rage, and I think the problem with just giving the answer that we give without saying ‘not necessarily’ is to confuse the jury.
Court: Ms. Madden? [prosecutor]
Ms. Madden [prosecutor]: I think that the answer that the court has formulated is neutral and it’s an accurate statement of the law.
Court: By telling them it’s up to them to decide whether an ordinary person of average disposition would have been provoked, and how such a person would react in the same situation, knowing the same facts, one can certainly infer what you just stated from that without getting specific about it.
Mr. Elias [defense counsel]: But one could infer that from the instructions, and they didn’t make that inference. Someone is confused up there, and I think we run the risk ―
Court: If they are, hopefully, we will get another question that’s more explicit on the subject. You have lodged your objection.”
The trial court sent the following response to the jury on question number (3): “It is for you to decide whether an ordinary person of average disposition would have been provoked and how such a person would react in the same situation knowing the same facts. See Instruction 570, pages 34-35.”
(2)
Defendant contends that the trial court’s response to jury question (3) above should have been “No.” According to defendant, the trial court’s actual response “improperly focus[ed] the jury on the reasonableness of [defendant’s] actions, rather than the nature of the provocation, [thereby] reinforc[ing] the jury’s erroneous belief that the test for manslaughter is whether a reasonable, ordinary person would have been driven to kill under similar circumstances.” Defendant asserts that the trial court’s “incorrect response to the jurors’ query on this crucial point constituted reversible error.” In developing his argument, defendant attacks the validity of CALCRIM 570 in general, because it purportedly suggests that “the provocation required to reduce murder to manslaughter is a provocation that might cause an ordinary person to kill.” He asserts the trial court made the same mistake because in its response to the jury question it too purportedly suggested that the provocation required for manslaughter is a provocation that would cause an ordinary person to kill.
Initially, appellant has waived any objection to the CALCRIM 570 by failing to object to it. Not only did defense counsel agree that the CALCRIM 570 instruction should be given, but as noted above counsel actually requested and obtained favorable modifications to the instruction reflecting defendant’s theory of the case. Moreover, defense took no substantial exception to the trial court’s response to the jury question, except to request that it be prefaced by “Not necessarily.” In short, the trial court’s response to the jury question referred the jury back to a more careful consideration of the CALCRIM 570 instruction which defendant himself requested in the first place. Under these circumstances, we conclude defendant may not claim error on appeal. (People v. Bolin (1998) 18 Cal.4th 297, 326 [waiver found where defense counsel agreed to giving of instruction and raised no objection]; People v. Jennings (1991) 53 Cal.3d 334, 374 [failure to object to improper information presented to jury forfeits claims on appeal]; see also People v. Vera (1997) 15 Cal.4th 269, 275-276 [as a general rule, appellate court will not consider claims of error that could have been ― but were not ― raised in the trial court]; People v. Viray (2005) 134 Cal.App.4th 1186, 1209 [where no objection is raised in trial court, evidentiary claim is waived even where defendant argued it affected his substantial rights].)
After trial, in his motion for new trial, defendant first claimed that the court’s response to the jury question actually misled the jury.
In any case, even if preserved for review, defendant’s claim of error is greatly exaggerated because it focuses exclusively on only one sentence in the modified two-page CALCRIM 570 instruction on manslaughter. But a jury instruction cannot be judged on the basis of one sentence plucked out of context: Rather, “the correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.” (People v. Young (2005) 34 Cal.4th 1149, 1202 [internal quotations and citations omitted]; People v. Smithey (1999) 20 Cal.4th 936, 963 [same].) Moreover if a jury instruction appears ambiguous, “we inquire whether there is a reasonable likelihood that the jury misunderstood and misapplied the instruction. [Citations.]” (People v. Young, supra, 34 Cal.4th at p. 1202.)
Defendant suggests the jury may have misunderstood the instruction to mean that the provocation required for manslaughter is provocation that would lead an ordinary person to kill. But the jury was clearly instructed that the provocation required to reduce murder to voluntary manslaughter is provocation that “would have caused an ordinary person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment.” The instruction further elaborated on the nature of the provocation required by stating: “While no specific type of provocation is required, slight or remote provocation is not sufficient. . . . [¶] It is not enough that the defendant simply was provoked. The defendant is not allowed to set up his own standard of conduct. You must decide whether the defendant was provoked and whether the provocation was sufficient. In deciding whether the provocation was sufficient, consider whether an ordinary person of average disposition would have been provoked and how such a person would react in the same situation knowing the same facts.” Allowing the jury to “consider . . . how [an ordinary person of average disposition] would react in the same situation knowing the same facts” in assessing the sufficiency of the provocation merely serves to inform the ultimate determination of whether such a person would act from passion rather than from judgment. It is not to say that the jury must find that an ordinary person of average disposition would react to any such provocation in the way defendant did in order to reach a verdict of manslaughter. And nothing in the language of the instruction would permit a jury to conclude determinatively that the provocation required for manslaughter equals the provocation which would cause an ordinary person to kill.
Defendant, however, insists that the prosecutor so informed the jury during closing argument. Defendant points to the prosecutor’s first remarks on rebuttal about voluntary manslaughter: “Voluntary manslaughter includes that, one, defendant was provoked; as a result, defendant acted rashly and under the direct and immediate influence of intense emotion that obscured his reasoning or judgment. And that provocation is the same as an ordinary person would have been provoked and reacted in the same manner. [¶] So that’s the standard: Would an ordinary person, in the same situation and under the same amount or the same type of provocation, react in the same manner?”
We “also must consider the arguments of counsel in assessing the probable impact of the instruction on the jury.” (People v. Young, supra, 34 Cal.4th at p. 1202.) As a distillation of the standard for voluntary manslaughter, the italicized portion of the prosecutor’s remarks is wide of the mark. Patently, for voluntary manslaughter the question is not whether the provocation would cause the ordinary reasonable person to act as the defendant did in same the situation, but instead more generally whether the defendant was actually provoked to the extent that would cause an ordinary reasonable person to act rashly or without deliberation and judgment. (See, e.g., People v. Breverman (1998) 19 Cal.4th 142, 163 [issue is whether defendant’s “reason was actually obscured as the result of a strong passion aroused by a ‘provocation’ sufficient to cause an ‘ordinary [person] of average disposition . . . to act rashly or without due deliberation and reflection, and from this passion rather than from judgment.’ (Citations.)”.) In describing the “standard” as she did, the prosecutor may have conflated the subjective question of whether defendant acted out of passion with the objective issue of whether an ordinary reasonable person would have been provoked under the circumstances.
Nevertheless, the prosecutor did not mention this “standard” again in rebuttal or attempt to apply it to the evidence in the case. Indeed the prosecutor added that “what’s important and what the jury instruction emphasizes is that the defendant cannot set up his own standard. It is the ordinarily-reasonable person standard. . . . [¶] . . . [T]he provocation must be of a character and degree that will naturally excite and arouse the passion, and the assailant must act under the influence of that sudden quarrel or heat of passion. . . . [¶] . . . [¶] The question of manslaughter, therefore, at the time of the killing: Was the reason of the accused obscured or disturbed by passion that would cause an ordinarily reasonable person, with average disposition, to act rashly and without deliberation and reflection, and from passion rather than from judgment. [¶] In this situation, when you look at the evidence, the totality of the evidence, it is very clear that . . . voluntary manslaughter is not applicable. There is insufficient legal provocation under the objective test, that is, an inadequate basis for sudden quarrel. [¶] And there is overwhelming evidence proving that the defendant murdered Bridghett in the first degree.” Later in rebuttal on the subject of provocation, the prosecutor stated: “The factors that [defense counsel] talked about which he claims led to adequate provocation is [sic] absolutely preposterous. The facts that you have before you are that at some point [defendant] cheated. That relationship ended. According to him, he and his wife are trying to work it out. [¶] At some point he, again, suspected she was cheating on him. He never saw her with him, with Ron. He never walked into the room and saw them having sex. He heard something from his daughter, and that he had something in his own mind. [¶] Okay. They were supposed to go to the movies that day and she was gone, and she left and he called. She never returned the phone calls. [¶] . . . That’s adequate provocation? [¶] We even have on top of it the alleged comment she said when she came back, when she said, ‘Well, I was where I was, and that’s where I was.’ And she allegedly said later in the night, ‘Well, I wasn’t with a woman,’ when asked if she was with a man. [¶] That’s adequate legal provocation to do what he did? No. No. He doesn’t get to set up his own standard. You use the ordinarily reasonable person in the same situation, just like the instruction tells you . . . . You decide whether or not there was adequate provocation. Slight provocation is not enough. This was not sufficient provocation to justify what he did to his wife under any circumstances.”
As can be seen from the foregoing, the prosecutor devoted the bulk of rebuttal to addressing whether defendant acted under legally sufficient provocation, measured by the correct objective legal standard of the ordinary reasonable person. Even if the directive to the jury to consider whether the provocation would have caused an average person to act rashly implicitly invited the jury to consider whether an average person would act as defendant acted in this case, we see no prejudice because whether an average person would act as the defendant merely informs, but does not dictate, the determination of whether such a person would act from passion rather than from judgment. Added to that is the fact that the trial court specifically instructed the jury to “follow my instructions” if an attorney’s comments on the law conflicted with those instructions. (People v. Schmeck (2005) 37 Cal.4th 240, 286-287 [noting that instructions from the court carry more weight than comments of counsel because only the former are “definitive and binding statements of the law”].) In sum, we conclude there is no reasonable likelihood that the jury misunderstood or misapplied the voluntary manslaughter instruction in the manner suggested by defendant. (People v. Welch (1999) 20 Cal.4th 701, 766; People v. Samayoa (1997) 15 Cal.4th 795, 833.) We also reject defendant’s claim on federal constitutional grounds, since it does not appear beyond a reasonable doubt that the error complained of infected the entire trial. (Estelle v. McGuire (1991) 502 U.S. 62, 72.)
B. The 1999 Domestic Abuse Incident
(1) Procedural History
Before trial the People filed a motion for the admissibility of uncharged acts, including an incident (“the 1999 incident”) involving defendant’s daughter Kimberley, who was 17 years old at the time. The People’s motion described the 1999 incident as follows: “On December 20, 1999, Kimberley Thomas was at her boyfriend’s house past her designated curfew. As a result, defendant came to the house and made her come home. Once at home, defendant took an extension cord and began to beat his daughter for an hour. He hit her all over her body and left numerous, visible welts with the cord and slapped her numerous times as well. During the course of the beating, defendant referred to his daughter as a ‘bitch’, ‘ho’ and a ‘slut’. Bridghett Thomas intervened and told defendant that the police may be called if he didn’t stop the beating. At that point, defendant ceased the beating and went to bed until the police arrived to investigate the incident. This case was not charged by the District Attorney’s office.” In their pretrial motion, the People argued that this incident was admissible as an incident of prior domestic violence pursuant to section 1109, subdivision (d)(3), as well as evidence of similar conduct pursuant to section 1101, subdivision (b).
The trial court heard argument on the People’s motion on May 4, 2006. The trial court rejected defense counsel’s argument that evidence of the 1999 incident should not be admissible under section 1109 on ex post facto grounds because section 1109’s definition of domestic violence was expanded subsequent to the 1999 incident. Rather, the trial court found that the 1999 incident was relevant to defendant’s propensity for domestic violence and not otherwise inadmissible under section 352, and so admitted it under section 1109. The court also admitted the evidence under section 1101, subdivision (b), ruling: “Under 1101(b), as to intent as it might go to express malice and common design, that this is the way discipline is carried out, the court will also allow that . . . .”
Section 1109 was amended, effective January 1, 2006, to expand the definition of “domestic violence” to include “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.” (See Historical and Statutory Notes, 29B Pt.3 West’s Ann. Evid. Code (1995 ed.) foll. § 1109, in 2007 pocket part; CALCRIM No. 852 [Bench Notes].) The effect of this was to bring child abuse within the scope of domestic violence for purposes of section 1109.
At trial the People called Oakland Police Officer Jason Scott to testify regarding the 1999 incident. Officer Scott stated he took a statement from Kimberley that evening in which she said she got in trouble by staying out at her boyfriend’s house past her curfew. After her father [defendant] took her home they got into an argument. Her father called her obscene names, then came into her bedroom, beat her with an extension cord, and slapped her. This went on for about an hour before her mother told defendant to stop. Officer Scott noticed bruises and welts on Kimberley’s leg. Kimberley was removed from the home into protective custody. At trial, Kimberley testified that she did not remember the incident.
(2) Ex Post Facto Claim
Defendant contends that the trial court violated the federal constitution’s prohibition on ex post facto laws because at the time of the charged offense (August 2003) abuse of a child was not included the definition of “domestic violence” for purposes of section 1109. (See fn. 3, ante.) Respondent states that this claim is foreclosed by People v. Fitch (1997) 55 Cal.App.4th 172 (Fitch), which rejected an ex post facto claims with respect to section 1108 (admissibility of prior sex offenses).
Relying on Collins v. Youngblood (1990) 497 U.S. 37, the Fitch court stated that the ex post facto clause prohibits three categories of statute: (1) “any statute which punishes as a crime an act previously committed, which was innocent when done; (2) which makes more burdensome the punishment for a crime, after its commission, or (3) which deprives one charged with [a] crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto.” (Fitch, supra, 55 Cal.App.4th at p. 185 [numerals added] [quoting Collins v. Youngblood, supra, 497 U.S. at p. 42].) The Fitch court noted that the Collins v. Youngblood formulation omitted a fourth category of ex post fact statutes found in “an earlier formulation, which included: ‘Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender.’ (Collins v . Youngblood, supra, 497 U.S. at p. 42.)” (Fitch, supra, 55 Cal.App.4th at p. 185.) However, the Fitch court noted that under high court precedent this fourth category of ex post facto laws was “not intended to prohibit the application of new evidentiary rules in trials for crimes committed before the changes. (Collins, supra, at p. 43, fn. 3.)” (Fitch, supra, 55 Cal.App.4th at pp. 185-186.) Accordingly, the Fitch court held that “[s]ince Evidence Code section 1108 does not alter the definition of a crime, increase punishment, or eliminate a defense, it does not violate the ex post facto clause. (Citations.)” (Fitch, supra, 55 Cal.App.4th at p. 186.)
Defendant, however, asserts that Fitch has been effectively overruled by Carmell v. Texas (2000) 529 U.S. 513 (Carmell). In that case, the high court held that an amendment to a Texas statute, which authorized conviction of certain sexual offenses on the victim’s testimony alone, when the previous statute had required corroborating evidence in addition to the victim’s testimony, violated the ex post facto clause when applied to an offense committed before the date of the amendment. (Id. at pp. 516, 552.)
It is true that Carmell firmly reinstated and endorsed the understanding that the fourth category of statute omitted by Fitch, supra, is indeed prohibited by the ex post facto law. (Carmell, supra, 529 U.S. at pp. 521-525.) Noting that “one of the principal interests” the ex post facto clause serves is “fundamental justice” (id. at p. 531), the high court stated that the fourth category “addresses this concern precisely. A law reducing the quantum of evidence required to convict an offender is as grossly unfair as, say, retrospectively eliminating an element of the offense . . . .” (Id. at p. 532.) Such laws, stated the high court, “subvert[] the presumption of innocence by . . . [r]educing the quantum of evidence necessary to meet the burden of proof . . . .” (Carmell, supra, 529 U.S. at pp. 532-533.)
Nevertheless, the high court restricted this fourth category of ex post facto statute to those “sufficiency of the evidence . . . rules lowering the quantum of evidence required to convict.” (Carmell, supra, 529 U.S. at pp. 546-547.) The high court stated: “We do not mean to say that every rule that has an effect on whether a defendant can be convicted implicates the Ex Post Facto Clause. Ordinary rules of evidence, for example, do not violate the Clause. (Citation). Rules of that nature are ordinarily evenhanded, in the sense that they may benefit either the State or the defendant in any given case. More crucially, such rules, by simply permitting evidence to be admitted at trial, do not at all subvert the presumption of innocence, because they do not concern whether the admissible evidence is sufficient to overcome the presumption. Therefore, to the extent one may consider changes to such laws as “unfair” or “unjust,” they do not implicate the same kind of unfairness implicated by changes in rules setting forth a sufficiency of the evidence standard. Moreover, while the principle of unfairness helps explain and shape the Clause’s scope, it is not a doctrine unto itself, invalidating laws under the Ex Post Facto Clause by its own force. (Citation.)” (Id. at p. 533, fn. 23.) Moreover, the high court specifically distinguished between a “sufficiency of the evidence rule” and a rule governing the admissibility of evidence: “Nor do [evidence admissibility] rules necessarily affect, let alone subvert, the presumption of innocence. The issue of the admissibility of evidence is simply different from the question whether the properly admitted evidence is sufficient to convict the defendant. Evidence admissibility rules do not go to the general issue of guilt, nor to whether a conviction, as a matter of law, may be sustained. Prosecutors may satisfy all the requirements of any number [evidence admissibility] rules, but this says absolutely nothing about whether they have introduced a quantum of evidence sufficient to convict the offender. Sufficiency of the evidence rules (by definition) do just that—they inform us whether the evidence introduced is sufficient to convict as a matter of law (which is not to say the jury must convict, but only that, as a matter of law, the case may be submitted to the jury and the jury may convict).” (Carmell, supra, 529 U.S. at pp. 546-547.)
The statutory amendment to section 1109 defendant complains of expanded the meaning of domestic violence to include that set forth in Family Code section 6211. Before the amendment, child abuse did not constitute “domestic violence” for purposes of section 1109. After the amendment, the definition of “domestic violence” expanded to include “abuse perpetrated against . . . [a] child of a party.” (Family Code, § 6211, subd. (e).) The amendment, however, governs the admissibility of evidence—it is not a sufficiency of the evidence rule. It does not run afoul of the prohibition on ex post facto laws because, unlike the rule change at issue in Carmell, supra, it does not reduce the quantum of evidence necessary to meet the prosecution’s burden of proof. (Carmell, supra, 529 U.S. at pp. 532-533.) Nor does the amendment to section 1109 “inform us whether the evidence introduced is sufficient to convict as a matter of law” as the amendment to the Texas statute did in Carmell, supra. Under the amended statute in Carmell, supra, a jury could convict on the uncorroborated testimony of the victim, whereas under the previous statute the uncorroborated testimony of the victim entitled a defendant to a judgment of acquittal. (Carmell, supra, 529 U.S. at p. 547.) Here by contrast, the amendment to section 1109 merely expanded the types of domestic violence subject to its provisions to include acts of abuse against a child of the defendant. And after the amendment (as before), section 1109 evidence is insufficient by itself to convict defendant on the charged offense: Rather, if found by the jury to be true prior act of domestic violence “is only one factor to consider along with all the other evidence” and “[t]he People must still prove each element of every charge beyond a reasonable doubt.” (CALCRIM 852.) In sum, defendant suffered no ex post facto violation.
(3) Admissibility of 1999 Incident Under Section 352
Defendant further contends the trial court abused its discretion under section 352 by admitting evidence of the 1999 incident of domestic violence pursuant to section 1109. Admissibility under section 352 is a prerequisite to the introduction of evidence of prior incidents of domestic violence. (People v. Escobar (2000) 82 Cal.App.4th 1085, 1096 (Escobar).) Under section 352, the trial court must balance the probative value of the evidence against its prejudicial impact. On appeal, we may not reverse the trial court’s ruling under section 352 unless the court abused its discretion. (People v. Hart (1999) 20 Cal.4th 546, 606.) We will not disturb the ruling “except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.” (People v. Jordan (1986) 42 Cal.3d 308, 316.)
On one side of the section 352 balance sheet is probative value. Evidence has probative value when it is relevant to the issues before the jury—that is, 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 by People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) Here, defendant’s prior act of beating his daughter Kimberley with an extension cord was relevant to the issues of malice, deliberation and planning. If the jury believed defendant beat Kimberley in this manner, then it could (but was not obliged to) infer this was defendant’s chosen method of meting out punishment to the women in the household who incurred his displeasure. Thus, evidence of the 1999 incident was sufficiently probative to the issues of the case.
On the other side of the section 352 balance sheet is prejudice. Relevant factors in determining the prejudice resulting from admission of prior acts of domestic violence include whether the prior acts were more inflammatory than the charged act, whether the jury might confuse the prior acts with the charged act, such as by seeking to punish defendant for the prior acts, and whether the prior acts were too remote. (See People v. Poplar (1999) 70 Cal.App.4th 1129, 1139, (Poplar); People v. Harris (1998) 60 Cal.App.4th 727, 737-741.) Here, although the prior act of domestic violence involved the rather severe physical disciplining of curfew-violating teenager, it was much less inflammatory than the charged act of premeditated murder by strangulation. There was no danger of the jury confusing the prior act with the charged act, and the testimony on the incident was brief. No physical evidence concerning the 1999 incident was presented to the jury. Indeed, Kimberley testified she did not recall it. The 1999 incident happened about four years before the charged offense and was not too remote. Finally, whereas defendant was not prosecuted for the 1999 incident, it is unthinkable the jury would convict him of murder in order to punish him for reprimanding his daughter, however severely he did so. In sum, the prejudicial effect of the 1999 incident was minimal. Accordingly, we conclude that the trial court did not abuse its discretion under section 352 by finding that the probative value of the 1999 incident of domestic violence was not “substantially outweighed” by any prejudicial effect. (§ 352 [italics added].)
Accordingly, we also reject defendant’s related claim that the trial court violated his federal constitutional rights to due process by admitting evidence of the 1999 incident pursuant to section 1109. “Our Supreme Court has held that due process is not offended when the trial court determines the probative value of the propensity evidence outweighs its prejudicial effect, and properly instructs the jury on the presumption of innocence and the prosecution’s burden of proof. [Citations.]” (People v. James (2000) 81 Cal.App.4th 1343, 1353.)
(4) Claims of Instructional Error Regarding the 1999 Incident
Defendant also contends that the trial court erroneously instructed the jury on evidence of uncharged domestic violence, in violation of his rights to due process. Defendant asserts the trial court violated the due process clause by instructing the jury that it could consider the 1999 incident in determining whether defendant killed Bridghett with malice.
The trial court instructed the jury on uncharged domestic violence by means of two standard CALRCRIM instructions. Regarding evidence of uncharged domestic violence admitted pursuant to section 1109, the trial court instructed the jury with modified CALCRIM No. 852, as follows: “The People presented evidence that the defendant committed domestic violence that was not charged in this case. Domestic violence means abuse committed against a child of 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. 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 murder in violation of Penal Code section 187(a), 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 murder as charged in Penal Code, section 187(a). The People must still prove each element of every charge beyond a reasonable doubt. Do not consider this evidence for any other purpose.”
Additionally, the trial court instructed the jury with a modified CALCRIM No. 375 regarding evidence of the uncharged offense to prove intent and common plan or scheme under section 1101, as follows: “The People presented evidence that the defendant committed an uncharged act of domestic violence that was not charged in this case. You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the offense. Proof by a preponderance of the evidence is a different burden of proof than 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, you must disregard this evidence entirely. If you decide that the defendant committed the offense, you may, but are not required to, consider that evidence for the limited purpose of determining the existence of any specific intent or malice aforethought, a necessary element of the crime charged; or a characteristic method, plan, or scheme in the commission of criminal acts similar to the method, plan, or scheme used in the commission of the offense in this case which would further tend to show the existence of the mental state of malice aforethought which is a necessary element of the crime charged. Do not consider this evidence for any other purpose. If you conclude that the defendant committed the uncharged offense, 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 murder as charged in count one. The People must still prove each element of the charge beyond a reasonable doubt.”
(a) Section 1109 Instruction
With respect to the section 1109 instruction, defendant asserts it violates his due process rights because it permits an inference that the “defendant has a propensity to act with a particular mental state such as malice or premeditation.” In the first place, California appellate courts have uniformly rejected challenges to section 1109 on due process grounds. (People v. Hoover (2000) 77 Cal.App.4th 1020, 1025-1029; People v. Escobar (2000) 82 Cal.App.4th 1085, 1095-1096; People v. James, supra, 81 Cal.App.4th 1343, 1353; People v. Jennings (2000) 81 Cal.App.4th 1301, 1309-1310; People v. Brown (2000) 77 Cal.App.4th 1324, 1331-1334; People v. Johnson (2000) 77 Cal.App.4th 410, 416-419.) All these cases relied on People v. Falsetta (1999) 21 Cal.4th 903, in which the Supreme Court concluded that a similar statute, Evidence Code section 1108, did not violate due process because the trial court’s discretion to exclude evidence under Evidence Code section 352 provides a procedural safeguard against prejudice. (Id. at p. 917.) Admission of evidence of prior acts of domestic violence under section 1109 is similarly subject to the limitations of section 352. (§ 1109, subd. (a).) Thus, the whole weight of current legal authority is against the idea that the admission of evidence pursuant to section 1109 is violative of due process.
We have already concluded the trial court did not abuse its discretion in its section 352 determination. (See ante, Part B(3).)
Further, defendant’s due process contention appears to rest on the premise that murder is somehow not a crime of domestic violence. He complains that section 1109 evidence does not permit an inference as to any particular mental state, in this case malice or premeditation. But for murder the People had to prove the element of malice aforethought. And where, like the circumstances presented here, murder is also a crime of domestic violence, the People may use the prior act of domestic violence to prove the elements of murder. Evidence Code section 1109 defines “domestic violence” by reference to Penal Code section 13700, to mean “abuse committed against an adult . . . who is a spouse. . . .” (Pen.Code, § 13700, subd. (b); Evid.Code, § 1109, subd. (d).) It also defines “domestic violence” by reference to Family Code section 6211 to mean “abuse perpetrated against . . . [a] child of a party.” (Family Code, § 6211, subd. (e); Evid.Code, § 1109, subd. (d).) In cases such as People v. Escobar, supra, 82 Cal.App.4th 1085, 1094-1097, and People v. Poplar, supra, 70 Cal.App.4th 1129, 1138-1139, courts upheld admission of prior incidents of domestic violence under Evidence Code section 1109 to show propensity to commit first degree murder and rape, respectively. (See also People v. Johnson, supra, 77 Cal.App.4th at p. 416 [no due process violation where prosecutor permitted to use evidence of prior acts of domestic violence to show a propensity to commit first degree murder].) Indeed, the Poplar court reasoned: “The definition of domestic violence/abuse . . . encompasses the definition of rape. . . . Defendant was charged with an offense involving domestic violence, that is, rape . . . [R]ape is a higher level of domestic violence, a similar act of control.” (Poplar, supra, 70 Cal.App.4th at p. 1139.) Like the murder charge in Escobar and the rape charge in Poplar, the murder charged in this case is a more serious — indeed, perhaps the ultimate — form of domestic violence compared to the 1999 incident in which defendant beat his daughter with the extension cord. Because the victim in this case was defendant’s wife, murder properly is considered to be a domestic violence offense within the meaning of Penal Code section 13700, subdivision (a). Accordingly, pursuant to Evidence Code section 1109, subdivision (a)(1), evidence of defendant’s commission of another domestic violence offense in 1999 against his daughter Kimberley was admissible to prove the murder of his wife Bridghett. It follows that the jury’s consideration of this propensity evidence may go to any or all of the elements of murder, including malice or premeditation. Accordingly, there are no grounds for error on this point.
The trial court instructed the jury on malice aforethought with CALCRIM 520, as follows: “There are two kinds of malice aforethought, express malice and implied malice. Proof of either is sufficient to establish the state of mind required for murder. The defendant acted with express malice if he unlawfully intended to kill. The defendant acted with implied malice if: 1. He intentionally committed an act; 2. The natural consequences of the act were dangerous to human life; 3. At the time he acted, he knew his act was dangerous to human life; AND 4 He deliberately acted with conscious disregard for human life. Malice aforethought does not require hatred or ill will toward the victim. It is a mental state that must be formed before the act that causes death is committed. It does not require deliberation or the passage of any particular period of time.”
(b) Section 1101 Instruction
Defendant also claims the trial court erred by instructing the jury that it could consider evidence of the 1999 incident for “the limited purpose of determining the existence of any specific intent or malice aforethought . . . or a characteristic method, plan, or scheme in the commission of criminal acts similar to the method, plan, or scheme used in the commission of the offense in this case which would further tend to show the existence of the mental state of malice aforethought which is a necessary element of the crime charged.” This claim is effectively redundant because we have already concluded that, pursuant to section 1109, the jury properly could consider the 1999 incident as propensity evidence going to any or all of the elements of murder, including malice or premeditation. In any case, we discern no error in the trial court also instructing the jury on the 1999 incident pursuant to section 1101.
Evidence Code section 1101, subdivision (b) renders admissible evidence of prior acts in three general categories: identity, common plan or design, and intent. The least degree of similarity between the uncharged act and the charged offense is required to prove intent. The greatest degree of similarity is required to prove identity. Somewhere in between falls evidence of a common plan or design. (People v. Ewoldt (1994) 7 Cal.4th 380, 402-403.) Here, the trial court instructed the jury it could consider the 1999 incident of domestic violence for evidence of intent as well as common plan or design. On appeal, a trial court’s section 1101 ruling is reviewed for abuse of discretion. (People v. Lewis (2001) 25 Cal.4th 610, 637.)
Defendant contends the 1999 incident was not similar enough to the murder such that “similar intent can be inferred from similar conduct.” Essentially, he asserts that the intent involved in the excessive disciplining of a teenager in 1999 bears no relationship to the malice aforethought or specific intent to kill required for murder, thereby precluding any inference between the two. We disagree.
“ ‘The least degree of similarity is required to establish relevance on the issue of intent. [Citation.] For this purpose, the uncharged crimes need only be sufficiently similar [to the charged offenses] to support the inference that the defendant “probably harbored the same intent in each instance.” ’ (Citations.)” (People v. Lewis, supra, 25 Cal.4th at p. 636.) In this case we have two incidents of domestic violence perpetrated by defendant, one against his daughter and one against his wife; in both incidents defendant utilized an extension cord to inflict, in the one case, severe physical punishment upon Kimberley, and in the other, deadly punishment upon his wife; in both instances defendant administered punishment against the females in his household who incurred his wrath, in the one instance by violating the curfew imposed by defendant, and in the other by having an extra-marital affair. Viewed in this way, the 1999 incident is sufficiently similar to the murder of Bridghett to support the inference that defendant deliberately set out to inflict pain and punishment in both cases.
Moreover, the jury correctly was instructed that the 1999 incident could be considered as evidence of common scheme or plan, as well as intent. Evidence establishing a design or plan must show a concurrence of common features that the various acts are naturally to be explained as caused by a general plan. (People v. Ewoldt, supra, 7 Cal.4th at pp. 393-394.) And “[u]nlike evidence of uncharged acts used to prove identity, the plan need not be unusual or distinctive; it need only exist to support the inference that the defendant employed that plan in committing the charged offense.” (Id. at p. 403.) As we described above, there were sufficient similarities between the two incidents from which the trial court could rationally conclude they were both part and parcel of a common scheme or plan, in particular due to defendant’s use of an extension cord to discipline and punish the females in the household who incurred his displeasure. In sum, the trial court did not err in instructing the jury it could consider the 1999 incident under section 1101 as evidence of intent, as well as common scheme or plan.
DISPOSITION
The judgment is affirmed.
We concur: Pollak, Acting P. J., Siggins, J.