Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. GA060792 Zavin V. Sinanian, Judge.
Thomas T. Ono, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.
KITCHING, J.
Herman De Los Rios appeals from the judgment entered following his conviction by jury on count 1 – first degree murder (Pen. Code, § 187) with personal discharge of a firearm causing death (Pen. Code, § 12022.53, subd. (d)). The court sentenced him to prison for 50 years to life. Appellant claims trial errors occurred. We affirm the judgment.
FACTUAL SUMMARY
1. People’s Evidence.
a. Background.
Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence, the sufficiency of which is undisputed, established that as of 2005, the decedent, Sunday Henig (Sunday) and appellant had lived together for about 13 years. Sunday owned a ticket business which she operated from her home, and appellant worked in the business. Sunday and appellant had a tumultuous relationship, arguing almost nightly. The two argued consistently from 2003 to 2005. Sunday kept an overnight bag ready so she and Eli Henig (Eli) her son, could leave for the night when the arguments became too heated. Sunday and Eli had ongoing plans to leave the house.
On one occasion, Sunday and appellant argued about another woman. Sunday indicated she was appalled, but happy about the other woman because that meant that appellant was leaving. Appellant replied he was not going anywhere, and he would leave the house over his dead body. On numerous occasions, Sunday asked appellant to leave, but he replied he was not leaving.
(1) The Testimony of Max Henig, Including Sunday’s Statements to Him.
Max Henig (Max), Sunday’s brother, testified at trial as follows. At one point, Sunday told him about a phone conversation which she had overheard. The conversation was between appellant and another woman. Max testified that “Sunday called me and told me that she was [awakened] one night late because the phone rang.” When Sunday answered the phone, she heard appellant on the phone telling a woman to get undressed, show her breasts to him, and take off her pants. Sunday told Max that it was a violent type of arrangement. Sunday was crying and very upset about the conversation.
According to Max, “After this happened” it seemed that the relationship between appellant and Sunday began deteriorating. Sunday confronted appellant about the call, and he denied it until she confronted him with a recording of it. After Sunday was killed, Max found Sunday’s notes reflecting almost verbatim the contents of the recording, which Max had heard. The notes were read into evidence.
In 2003, about the time of Eli’s graduation, Max approached Darren Dever and appellant while the two were conversing at lunch. Dever was an employee of Sunday’s business. Max overheard appellant say that appellant was not going anywhere. Dever said that Dever guessed that appellant would have to kill her. Appellant replied he guessed he would have to kill the bitch, “something quick and painless.” Max was dumbfounded, but did not want to tell Sunday and ruin the graduation, so he waited for another time to tell her. Appellant was always making threats about killing people, and Max did not think that appellant would really kill Sunday. Max later told Sunday about appellant’s threat, told her that she was in danger, and offered to help her get out of the house. Max did not report the threat to police because he did not think the threat was illegal.
Max also testified that in February 2005, Sunday visited him in Florida. While Sunday was there, Max learned about an aircraft that had been chartered through Raytheon. Max learned about this as follows. Sunday used Max’s computer to do her work and, while checking her business expenses on his computer, she became upset. Max asked Sunday what she was upset about, and she replied that appellant was spending money like crazy. She referred to a chartered plane and “pointed out to some charges on the billing.” Max denied knowledge that Sunday had a substance abuse problem.
At some point, Max and appellant discussed the issue of appellant leaving. Appellant said he knew his relationship with Sunday was over, and that Max and Sunday had been discussing how to get appellant to leave. Appellant, using profanity, indicated he was not going anywhere.
(2) The Testimony of J’Nell Laikin, Including Sunday’s Statements to Her.
J’Nell Laikin, Sunday’s sister, testified as follows. In the “early 2000’s,” Sunday had a conversation with Laikin about a phone conversation which Sunday overheard. The phone conversation which Sunday overheard was appellant speaking with another woman, and they were having possible sexual relations. Sunday called Laikin to talk with Laikin about the phone conversation. Laikin testified that “Somehow [Sunday’s] phone rang and she was exposed to what was going on between [appellant] and this other woman and blow by blow of this situation that was obviously a sexual one, and she was explaining this to me, and it . . . was very humiliating, sad, shocking situation.” Sunday was very upset about the situation.
Sunday and Laikin frequently talked about Sunday’s relationship with appellant, and about Sunday’s plans to leave. At some point, Laikin and Sunday unsuccessfully tried to open a safe in Sunday’s house in order to get the gun inside the safe and remove the gun from the house.
On March 10, 2005, Sunday called Laikin and indicated that Sunday had seen an open house in Burbank, and she loved the house and wanted to move there. Laikin was happy for Sunday because Sunday was now convinced that she could move forward with her life. After Sunday was killed, Laikin found Sunday’s notes which were a verbatim record of the sexual conversation which Sunday had overheard on her answering machine.
(3) The Testimony of David Esquibias, Including Sunday’s Statements to Him.
David Esquibias, an attorney, testified as follows. Esquibias represented Sunday in the probate of her father’s estate in Burbank. He spoke with Sunday at least a dozen times and, on some occasions, she mentioned her relationship with appellant. The conversations occurred between January 2002, when Sunday retained him, and March 2004, when he no longer represented her. There were also two conversations that occurred after March 2004. Sunday complained to Esquibias about her relationship with appellant.
A few months after January 2002, Esquibias and Sunday were outside a courthouse. Sunday was visibly shaking. She eventually told Esquibias that she did not want to go home, her boyfriend was an alcoholic who recently had been involved in an auto accident, the two had argued about it, and she was afraid to go home. Esquibias talked to Sunday about outreach groups. He testified, “I also talked to her about trying to contact a shelter if she felt that she was unsafe at her house, and I had suggested to her that there are organizations that are available for battered women. And she asked me if I would help her look into this, . . .” Esquibias indicated he was a probate lawyer, not a family lawyer, he lacked experience in this type of matter, but he would call the county bar for her.
On another occasion, Esquibias and Sunday were leaving the courthouse. She was shaking and crying. Sunday told Esquibias that she was afraid to go home. Esquibias agreed to follow her home in his car for her safety. Upon arrival, Sunday introduced Esquibias to appellant and falsely said that Esquibias was there because of estate matters. Esquibias later asked if everything was all right, she said yes, and Esquibias left.
In September 2004, Sunday called Esquibias to say hello. During their conversation, Sunday indicated that things were still the same, appellant was still drinking, she was fearful, but she was making progress on being able to leave. A few months before Sunday died, Sunday called Esquibias and told him that he would be proud of her, she was finally realizing it was okay for her to leave, and she was going to do it and felt good about it. Esquibias did not recall if Sunday ever indicated to him that she had been physically abused, but she definitely had indicated that she had been emotionally abused.
b. Facts Concerning The Present Offense.
In 2005, Sunday and appellant lived in her Burbank home. Eli and his girlfriend also lived in the house. Appellant was very negative and angry.
About 10:30 p.m. on March 10, 2005, Eli came home and saw blood in the kitchen and hallway. On the morning of March 11, 2005, Eli saw the blood and looked for Sunday. Eli found appellant in a room with blood on his face. Eli went into a back office and found Sunday dead. Sunday had been shot and a .44-caliber revolver was on the floor. The gun had been kept in a safe in the back office.
About 8:20 a.m. on March 11, 2005, police went to the Burbank home and found appellant inside lying on a couch. Appellant had a grazing wound on his chin consistent with a gunshot wound. A blood trail led from the kitchen to the back office. The office’s door was open, keys were hanging from its doorknob, and bullet holes were in the ceiling. Inside the back office, police found Sunday dead, slumped to the right in a chair behind a desk. A gun was on the floor, and its hammer was cocked. Five expended casings were in the revolver.
A computer was on the desk, and the computer was on. Its cursor was on an address line, and someone had typed “[www.americanexperi.]” (capitalization omitted) on that line. The computer was last accessed at 6:34 p.m. on March 10, 2005. Billing documents were on the desk, including a Raytheon bill. Police recovered bloody clothing appellant was wearing, as well as bloody clothing which police found under some bedding in the master bedroom. Police also recovered a bottle of champagne, and the bottle had blood on it.
Raytheon Aircraft Charter Management invoices provided evidence that appellant chartered flights on February 12, 15, and 17, 2005. A February 20, 2005 invoice reflected a balance due of over $9,400. All of the flights were to or from Las Vegas, and multiple persons accompanied appellant on the last two trips.
About 8:30 a.m. on March 11, 2005, Burbank Paramedic Kenneth Anderson saw appellant lying on the couch with wounds to his chin and neck. Appellant answered basic identifying questions. Appellant was alert and oriented and, based on a standardized scale, was at the highest level of consciousness. Another paramedic asked appellant what had happened, and appellant indicated that he had shot his girlfriend, then himself.
On March 11, 2005, Burbank Police Detective Christopher Racina entered the ambulance with appellant as paramedics transported him to the hospital. Racina asked appellant what had happened, and Racina taped appellant’s statements. Appellant told Racina the following. Appellant and Sunday owned a ticket business, and they got into their old fight about billing. Appellant thought he loved Sunday. Sunday threatened him, saying he was a liar and thief. Appellant got the gun, which belonged to Sunday’s brother, from a safe in the house. Appellant shot Sunday twice, then used the same gun to shoot himself twice.
An autopsy revealed that Sunday died from multiple gunshot wounds. She was shot in the left cheek of her face, in her left ear, and in her vagina. Sunday was killed by bullets fired from the gun which was found on the floor. Appellant’s DNA matched the DNA in the blood found on the frame and trigger of the gun, and his blood was on the champagne bottle. Toxicology tests revealed Sunday’s blood contained methamphetamine and amphetamine.
Sallie Bobby met appellant around 2001, and they socialized. On February 15, 2005, Bobby, appellant, and others travelled for pleasure to Las Vegas by a private jet. On February 26, 2005, appellant, who was drinking, asked Bobby to marry him. About 1:00 p.m. on March 10, 2005, Bobby saw appellant in a restaurant with Dever, and appellant seemed strange and intense. Appellant asked Bobby if she wanted to go to a motel for a few hours. She declined and he became angry. About 6:30 p.m., appellant called Bobby and demanded that she meet him. Bobby replied that she could not. Bobby had never heard appellant as upset as he was that day.
2. Defense Evidence.
In defense, appellant testified as follows. Appellant never assaulted Karen Grigsby, his ex-wife, and never threatened her after she said she would leave him. Appellant arranged one of the previously mentioned flights for a client, the other flights were for pleasure, and some of the passengers contributed to the cost.
Appellant denied participating in the sexual conversation with the other woman, and denied telling Dever that appellant would have to kill Sunday. Appellant never had been physically abusive towards Sunday. He was an alcoholic and she abused methamphetamine. The two argued frequently, but not about money. She told appellant to leave because of his drinking, but he did not.
On the date of the killing, appellant had been drinking. Between about 5:00 and 6:00 p.m., Sunday came home and the two discussed various aircraft charters that had been made with Raytheon and other companies. Appellant found a baggy of methamphetamine belonging to Sunday in a bedroom closet and flushed it down the toilet. Sunday asked about the Raytheon charges, and the two discussed the issue. Sunday asked what appellant did with her methamphetamine baggy and, using profanity, called him a liar and thief. Appellant denied he took the baggy.
Sunday asked appellant to open the safe so she could see if the baggy was inside, and the two were very angry. Appellant opened the safe, took out the gun, and placed it on the desk. Sunday searched the safe, but found no methamphetamine, and the two argued. Appellant shot Sunday, then himself. During cross-examination, appellant denied that he thought it was reasonable to shoot Sunday because he got into argument with her over methamphetamine. Raquel Barnas, appellant’s daughter, testified she had never seen appellant strike Sunday.
3. Rebuttal and Surrebuttal Evidence.
In rebuttal, Grigsby testified as follows. Grigsby was married to appellant from 1978 to 1995. Appellant and Grigsby argued about bills and money, and appellant was physically and emotionally abusive toward her. He struck her three to five times a year, and sometimes hit her when they argued about money. Grigsby tried to leave him, and appellant threatened to kill her and her family if she left. Appellant left Grigsby for Sunday. In surrebuttal, Barnas testified she lived with appellant and Grigsby for about nine years. Barnas saw them argue, but never saw appellant physically abuse Grigsby.
During cross-examination, Grigsby testified that she was not clear concerning the years because she had had a nervous breakdown after she finally got away from appellant, but it was between 1993 and 1994 that appellant left her for Sunday. Grigsby also testified that she was married to appellant for about 10 years.
CONTENTIONS
Appellant claims (1) his statements to police were involuntary and obtained in violation of his Fifth Amendment rights, (2) Sunday’s statements to Max and Laikin were excludable under Evidence Code section 352, and were inadmissible hearsay to which the spontaneous statement and state of mind hearsay exceptions did not apply, (3) evidence of his propensity for violence was inadmissible, and (4) the trial court’s instruction concerning prior acts of domestic violence was erroneous.
DISCUSSION
1. Appellant’s Statements Were Voluntary and No Fifth Amendment Violation Occurred.
a. Pertinent Facts.
Prior to trial, appellant moved to exclude statements he made to Racina, on the ground they were involuntary and obtained in violation of Miranda. During appellant’s direct examination of Racina at the admissibility hearing, Racina testified as follows.
Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602].
As to the present incident, Racina received a call that a possible murder had occurred. When Racina arrived at the location, paramedics and other officers were present. No one told Racina that appellant shot and murdered the decedent.
When Racina arrived at the house, he first saw three firefighters attending to appellant. Appellant appeared to be a victim and was lying on a couch in a corner of a room. Racina did not then talk with appellant. After Racina saw appellant, Racina saw Sunday. Racina observed the scene, but had no idea at the time concerning what had occurred.
Racina rode in the ambulance with appellant to the hospital. Racina had spoken to paramedics before he entered the ambulance, but only about whether Racina could join them in the ambulance. The paramedics did not tell Racina that they had interviewed appellant. Racina did not testify that the paramedics interviewed appellant.
After Racina entered the ambulance, he interviewed appellant and taped the interview. Racina denied that the reason he taped the interview was that he was trying to determine whether appellant had shot the decedent.
During appellant’s direct examination of Racina, he testified as follows concerning his conversation with appellant. Racina first asked appellant what had happened, and appellant replied that he had been fighting with his wife. Racina gave conflicting testimony on the issue of whether, when appellant said this, Racina considered appellant to be a suspect. Racina testified that he considered appellant to be someone whom Racina might want to question further, because Racina’s next question to appellant was whether he shot Sunday. Racina quickly asked appellant if he shot Sunday, because Racina thought appellant was going to die. Also, because Racina thought appellant was going to die, Racina did not advise appellant of his Miranda rights. Racina testified that when he asked appellant if he shot his wife, Racina did not then consider appellant to be a suspect. Racina viewed appellant as an involved person and a person of interest whom Racina would like to question.
Appellant asked Racina during direct examination whether his reason for not advising appellant of his Miranda rights was that Racina thought appellant was going to die, although Racina considered appellant to be a suspect. Racina replied yes, appellant may have been involved, and Racina had no idea who the suspect was at that time. Racina did not know what had happened and needed to conduct an investigation to find out.
Racina knew that appellant had been shot, but did not know that appellant had been shot twice in the head. Appellant was semiconscious, “coming in and out.” Racina had trouble understanding appellant since paramedics were attending to him.
During cross-examination by the prosecutor, Racina testified as follows. When Racina first saw appellant before he was transported, Racina was unable to speak with him because paramedics were attending to him. In the ambulance, Racina let the paramedics do what they needed to do and told them to let him know when he would have an opportunity to ask appellant questions. When Racina took out his tape recorder and interviewed appellant, Racina said on the recorder that he was at 538 South Parish “at a suspicious circumstance.” Racina did not say that he was at a murder scene or that appellant was Racina’s suspect in custody.
When Racina was talking with appellant in the ambulance, Racina was the only officer in the ambulance and he was wearing plain clothes. Appellant was not in handcuffs or otherwise restrained in the ambulance. Racina never drew his gun and never threatened appellant to make any statements to Racina. Appellant never indicated he wanted to stop speaking to Racina. Racina ended his conversation with appellant when Racina noticed that appellant began having difficulty speaking. Racina estimated that the interview inside the ambulance lasted at most 10 to 15 minutes. Racina regularly taped witness interviews, and taped the interview with appellant because Racina thought appellant was a witness who might die. When Racina interviewed appellant, Racina thought there were possibly other suspects.
During redirect examination, Racina testified that after appellant had indicated that he had argued with his wife, and after appellant became a person of interest to Racina, Racina would have detained appellant if he had tried to leave. Racina did not testify whether he told this to appellant.
Burbank Police Detective Peter Allen testified at the hearing as follows. Allen was assigned to investigate the present case and was called to the scene. Witnesses were interviewed and tape recorded. It was not unusual that appellant’s statement was taped. Allen learned that a gunshot residue test was conducted on the hands of Eli and his girlfriend, and their clothing was taken as possible evidence. This was done in an effort to determine whether Eli and his girlfriend were involved in this case. Allen learned of the gunshot residue test about an hour after he arrived at the scene.
After argument at the hearing, the court concluded that appellant’s statements were voluntary. Without deciding whether Racina interrogated appellant, the court ruled that no Miranda violation occurred because any interrogation of appellant by Racina was not custodial.
Racina testified at trial concerning appellant’s statements as indicated in the Factual Summary. Moreover, Racina also testified as follows. Racina indicated to appellant that Racina thought appellant might die and that appellant “need[ed] to tell us what happened.” Racina later told appellant, “You need to tell us what happened. Can you tell us what happened?” Appellant replied, “Can you give me a couple of minutes, please?” During cross-examination, appellant asked Racina whether he then stated that appellant might not have a couple minutes. Racina acknowledged that a transcript reflected that he made that statement but, listening to the supporting tape, Racina indicated it sounded like a paramedic and not Racina made the statement. Racina indicated that the sirens of the ambulance and a following police car were operating while the ambulance was en route to the hospital. After appellant asked for a couple of minutes, a paramedic told appellant “We’re going to the hospital code three right now. You are in great danger,” and “Your life could be done. Let this officer know what is going on.”
b. Analysis.
Appellant claims his statements were involuntary and obtained in violation of Miranda. We disagree.
“Under federal and California constitutional law, the prosecution must show voluntariness of a confession by a preponderance of the evidence. [Citations.] . . . [¶] In reviewing a finding of voluntariness we make an independent examination of the record and determine the ultimate issue independently as well. With respect to conflicting testimony, however, we accept the version favorable to the People to the extent it is supported by the record. [Citations.]” (In re Aven S. (1991) 1 Cal.App.4th 69, 75-76.) A statement is involuntary only if it is the product of police coercion. (People v. Mickey (1991) 54 Cal.3d 612, 647.)
“In considering a claim that a statement or confession is inadmissible because it was obtained in violation of a defendant’s rights under Miranda v. Arizona, supra, 384 U.S. 436, the scope of our review is well established. ‘We must accept the trial court’s resolution of disputed facts and inferences, and its evaluations of credibility, if they are substantially supported. [Citations.] However, we must independently determine from the undisputed facts, and those properly found by the trial court, whether the challenged statement was illegally obtained.’ [Citations.]” (People v. Bradford (1997) 14 Cal.4th 1005, 1032-1033.) Nonetheless, when making said independent determination, we give great weight to the considered conclusions of a trial court which has reviewed the same evidence. (People v. Whitson (1998) 17 Cal.4th 229, 248.)
We have set forth the pertinent facts and will not repeat them in detail here. In the present case, there was substantial evidence as follows. When Racina arrived at the scene, he did not know what had occurred. He learned nothing from paramedics about appellant’s involvement in the killing, and deferred to them as to when he could speak with appellant. When Racina initially spoke with appellant, Racina did not consider appellant to be a suspect. Appellant was not in handcuffs or otherwise retrained in the ambulance. Racina never threatened appellant to make a statement. Paramedics were taking appellant to a hospital, not the police station. Racina did not have his gun drawn, he was in plain clothes, and he was the only officer in the ambulance.
Even after appellant said he had argued with his wife, Racina did not consider appellant to be a suspect (although there was arguably conflicting evidence on this issue). Racina considered appellant to be a person of interest, and therefore had little motive to coerce statements from appellant. The reason Racina quickly asked appellant if he had shot Sunday was that Racina thought appellant was going to die. Racina testified that when Racina asked appellant if he shot his wife, Racina did not then consider appellant to be a suspect. Racina taped appellant’s statements without advising him of his Miranda rights because Racina was afraid appellant would die.
Although appellant indicated he wanted to delay the interview by a couple of minutes, he never said he did not want to be interviewed. Racina ended his conversation with appellant when Racina noticed that appellant had difficulty speaking. The interview was brief, lasting at most 10 to 15 minutes. Racina did not testify that he told appellant that he was in custody, under arrest, or not free to leave. We note Anderson testified that appellant was at the highest level of consciousness based on a standardized scale, and he answered basic identifying questions. It is true that Racina told appellant that he might die and “need[ed] to tell us what happened.” However, appellant presumably knew his life was in danger because he had shot himself with a .44-caliber gun. The record does not demonstrate that Racina was referring to anything else as a basis for appellant’s need to talk, or that Racina was being coercive.
We conclude the trial court correctly ruled that appellant’s statements to Racina were voluntary, and not custodial for purposes of Miranda. (Cf. People v. Bradford, supra, 14 Cal.4th 1005, 1032-1033; People v. Mosley (1999) 73 Cal.App.4th 1081, 1088-1091; In re Aven S., supra, 1 Cal.App.4th at pp. 75-76.)
Finally, even if appellant’s statements to Racina were involuntary and obtained in violation of Miranda, there is no need to reverse the judgment. There is no dispute that appellant shot and killed Sunday. The issue was to what extent, if any, appellant was mentally culpable.
Appellant and Sunday had a tumultuous relationship, during which appellant refused to leave. Appellant, using profanity, indicated to Max that appellant was not going anywhere. Significantly,appellant told Dever that appellant was not going anywhere,and appellant, referring to Sunday, said he guessed he would have to kill the bitch. Sunday turned to Esquibias for help, and indicated she feared appellant and wanted to find a shelter for battered women. Esquibias assisted Sunday and she eventually gained the courage to move.
As we discuss later, evidence of appellant’s prior acts of violence toward Sunday and Griggs was admissible propensity evidence to show he committed murder, and was admissible to show, inter alia, his motive and intent. Appellant shot Sunday five times. Bloody clothing was found under bedding, providing evidence of appellant’s consciousness of guilt.
Notwithstanding appellant’s suggestion to the contrary, appellant cites nothing in the record which demonstrates that appellant’s statements to Racina caused appellant to testify and, as indicated, appellant testified he shot Sunday. The jury reasonably could have concluded that appellant premeditatedly murdered Sunday during a business argument and reasonably could have viewed the defense evidence that appellant killed as a result of heat of passion and/or voluntary intoxication as weak and based largely on self-serving testimony. One of the issues raised by appellant’s heat of passion argument was whether any provocation from Sunday would have caused a reasonable person to act rashly. The jury heard appellant deny that he thought it was reasonable to shoot Sunday because he got into argument with her over methamphetamine.
“Malice is presumptively absent when a defendant kills ‘upon a sudden quarrel or heat of passion’ ([Pen. Code,] § 192, subd. (a)), provided that the provocation is sufficient to cause an ordinarily reasonable person to act rashly and without deliberation, and from passion rather than judgment.” (People v. Cruz (2008) 44 Cal.4th 636, 664, italics added.)
Even if appellant’s statements to Racina were involuntary and obtained in violation of Miranda with the result that the trial court erred by admitting them in evidence, there was independent overwhelming evidence of guilt; therefore, any such error was harmless beyond a reasonable doubt. (Cf. Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705].)
2. The Trial Court Did Not Err By Admitting in Evidence Sunday’s Statements to Max and Laikin.
a. Pertinent Facts.
Prior to trial, the People filed a pretrial motion proffering the following evidence. First, in about 2001, appellant inadvertently left on Sunday’s answering machine a recorded conversation during which appellant asked another woman to perform sexually-related acts. When Sunday heard the recording, she became angry, called her brother and sister (later identified as Max and Laikin, respectively) and told them about the recording. The prosecutor argued that Sunday’s statements described her state of mind, and her later conduct of wanting to leave appellant.
Second, in about February 2005, while Sunday was visiting Max in Florida, she made statements to Max while she was (1) viewing a computer screen displaying American Express account information and (2) pointing out suspicious charges on the account that were made by appellant. The statements pertained to appellant’s use of business funds to charter a private aircraft to fly his friends and himself to Las Vegas. Sunday was very upset. The prosecutor argued Sunday’s statements explained her later conduct when she confronted appellant prior to the murder.
Third, later in 2005, Sunday returned to Burbank, learned that appellant had chartered a plane to Las Vegas for a nonbusiness purpose with “Mustang Sallie,” and, very upset about the expenses, Sunday immediately discussed it with Max and Laikin. The prosecutor argued Sunday’s statements explained her conduct when she confronted appellant, and explained why appellant said Sunday called him a liar and thief. In the written motion, the prosecutor argued that Sunday’s 2001 statements to Max and Laikin, Sunday’s 2005 statement to Max, and her later 2005 statements to Max and Laikin fell within the Evidence Code section 1240 spontaneous statement hearsay exception.
At the admissibility hearing, appellant, in relevant part, disputed that the statements were spontaneous for purposes of the Evidence Code section 1240 spontaneous statement hearsay exception. The prosecutor argued that the above statements also fell within the Evidence Code section 1250 state of mind hearsay exception. The prosecutor proffered an additional statement as falling within that exception. That statement was a statements made by Sunday to her sister (later identified as Laikin) about the fact that Sunday had found a new house and had intended to move out of her current one. Appellant objected that none of the statements fell within the state of mind hearsay exception.
The court later stated, “With respect to the People’s motion to admit statements pursuant to Evidence Code section 1240 and 1250, the court has analyzed these as exceptions to the hearsay rule. Based upon the foundation that’s been provided to me with respect to the nature of these statements and 352 analysis, it appears to me that the statements are admissible and they are not prejudicial in any respect, they are probative of the theories being advanced by the People.”
At trial, appellant, during his opening statement, indicated that the relationship between appellant and Sunday was basically a good one, but appellant, without intent to kill or malice aforethought, shot Sunday in the heat of passion during an argument about her methamphetamine use, then shot himself.
Max testified at trial concerning, inter alia, Sunday’s statements to Max about appellant’s sexual phone conversation, and her statements to Max in Florida in 2005, as reflected in the Factual Summary. Laikin testified at trial concerning, inter alia, Sunday’s statements to her about appellant’s sexual conversation that occurred in the “early 2000’s” and about Sunday’s March 10, 2005 statements to her about Sunday moving out of her home, as reflected in the Factual Summary.
During jury argument, appellant conceded he shot and killed Sunday, but argued his voluntary intoxication and heat of passion could reduce first degree murder to second degree murder, murder to voluntary manslaughter, or murder to involuntary manslaughter.
b. Analysis.
(1) Sunday’s Statements to Max and Laikin About Appellant’s Sexual Conversation Were Admissible.
Evidence Code section 1240 states, “Evidence of a statement is not made inadmissible by the hearsay rule if the statement: [¶] (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [¶] (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception.” An appellate court applies the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence, including one that turns on whether a hearsay exception applies. (People v. Waidla (2000) 22 Cal.4th 690, 725.)
In the present case, the prosecutor’s motion indicated that appellant left the sexual conversation on Sunday’s answering machine in about 2001 and, when she heard the recording, she was angryabout it and told her brother and sister about it. Max testified about Sunday’s hearing the sexual conversation, her telling Max about it, and her being very upset about the sexual conversation. Max then testified that “[a]fter this happened” (italics added) it seemed the relationship between appellant and Sunday began deteriorating. That is, Max appeared to treat Sunday’s hearing the sexual conversation and her telling Max about it as contemporaneous. Max’s trial testimony on the issue reasonably may be construed as referring to a single incident during which Sunday heard the recording and, very upset about it, called Max to tell him about the recording.
Similarly, Laikin testified that “[Sunday’s] phone rang and she was exposed to what was going on between [appellant] and this other woman and blow by blow of this situation that was obviously a sexual one, and she was explaining this to me, and it . . . was [a] very humiliating, sad, shocking situation.” (Italics added.) Laikin also testified that Sunday was very upset about the situation. Again, Laikin’s trial testimony reasonably may be construed as referring to a single incident in the early 2000’s, during which Sunday heard the call and, very upset, told Laikin about it. The trial court did not abuse its discretion by ruling that the testimony of Max and Laikin concerning Sunday’s statements to them about the sexual call she overheard fell within the spontaneous statement hearsay exception.
In light of our conclusion, there is no need to decide whether the evidence of Sunday’s statements to Max and Laikin about the sexual call also fell within the state of mind hearsay exception of Evidence Code section 1250. Moreover, there is no dispute that the statements by appellant which Sunday overheard were admissible under the admissions hearsay exception, and any statements of the other woman during her conversation with appellant were admissible as part of that conversation (Evid. Code, § 356).
Evidence Code section 352 states, “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” A trial court enjoys broad discretion under Evidence Code section 352, in assessing whether probative value outweighs undue prejudice, confusion, or consumption of time. (People v. Brown (2000) 77 Cal.App.4th 1324, 1337.) A trial court need not expressly weigh prejudice against probative value, or even expressly state it has done so. All that is required is that the record demonstrates the trial court understood and fulfilled its responsibilities under Evidence Code section 352. (People v. Williams (1997) 16 Cal.4th 153, 213.) An appellate court applies the abuse of discretion standard of review to any ruling concerning Evidence Code section 352. (People v. Waidla, supra, 22 Cal.4th at pp. 717, 723-725.)
In the present case, as early as his opening statement, appellant claimed he and Sunday had a basically good relationship, he conceded he shot Sunday, but he claimed he did so in the heat of passion during an argument caused by her alleged methamphetamine addiction. By the time of jury argument, appellant added that his argument with Sunday was the product of voluntary intoxication. However, the evidence of Sunday’s reaction to appellant’s sexual conversation with another woman, coupled with the resulting continuing deterioration of the relationship between appellant and Sunday, provided highly probative evidence negating the mitigating and/or defense evidence that theirs was a good relationship and the reason appellant shot Sunday was his heat of passion resulting from her alleged methamphetamine addiction.
The evidence of Sunday’s statements when reacting to the sexual conversation was not more inflammatory than the facts of the present offense. The incident, which occurred in about 2001, was not too remote in time (cf. People v. Ewoldt (1994) 7 Cal.4th 380, 405; People v. Zepeda (2001) 87 Cal.App.4th 1183, 1212), and usually any remoteness of evidence goes to weight, not admissibility. (People v. Archerd (1970) 3 Cal.3d 615, 639.) We note on the issue of remoteness that, as mentioned, there was evidence that, as a result of the sexual incident, the relationship between appellant and Sunday continued to deteriorate to the day she was killed. Moreover, this is not a case in which the challenged testimony was “cumulative regarding an issue that was not reasonably subject to dispute.” (People v. Ewoldt, supra, 7 Cal.4th at p. 406.) The evidence was relevant, as previously explained, to appellant’s intent, motive, and state of mind. The issue in this case was whether appellant was mentally culpable for the killing of Sunday and, if so, the extent of that culpability. The trial court did not abuse its discretion by not excluding the challenged testimony under Evidence Code section 352.
To the extent appellant argues the admission in evidence of the testimony challenged here or in the discussion below violated his rights to due process, he waived the issue by failing to object below on this ground. (Cf. People v. Benson (1990) 52 Cal.3d 754, 786-787, fn. 7; People v. Rogers (1978) 21 Cal.3d 542, 548.)
Finally, even if the trial court erred as urged by appellant, there is no need to reverse the judgment. In part one of our Discussion, we recited various evidence demonstrating that, apart from the evidence challenged there, there was overwhelming evidence of appellant’s guilt. For similar reasons, we conclude that, even if the testimony of Max and Laikin regarding Sunday’s statements about the recorded sexual call were inadmissible, there was still, apart from that testimony, overwhelming evidence of guilt. Max read to the jury Sunday’s notes about appellant’s sexual conversation. The jury heard appellant deny that the conversation occurred. The jury, by its verdict of first degree murder, necessarily rejected appellant’s self-serving testimony that Sunday’s alleged methamphetamine addiction caused him to shoot her, and necessarily rejected his arguments that, as a result of voluntary intoxication and/or heat of passion, he committed only involuntary manslaughter, voluntary manslaughter, or second degree murder. Any error in admitting into evidence the testimony challenged here was harmless. (Cf. People v. Watson (1956) 46 Cal.2d 818, 836; Chapman v. California, supra, 386 U.S. at p. 24 [17 L.Ed.2d 705].)
(2) Sunday’s Statements to Max in Florida Concerning Appellant’s Expenses Were Admissible.
Appellant claims that Sunday’s statements to Max about suspicious charges by appellant which she saw on Max’s computer was inadmissible hearsay that did not fall within the Evidence Code section 1240 spontaneous statement exception or the Evidence Code section 1250 state of mind hearsay exception, and that the statements were excludable under Evidence Code section 352. We disagree.
As mentioned, Max testified that in February 2005, “[Sunday] was visiting she used my computer . . . to do her work, and she was checking on expenses by using my computer, and she was upset about something. Of course, I was asking her what is she upset about, and she said that ‘Herman is spending money like crazy.’ ” The following then occurred: “Q. [By The Prosecutor:] And did she refer to a chartered plane? [¶] A. Yes, she pointed out to some charges on the billing.” (Italics added.)
Max’s trial testimony reasonably may be construed as referring to a single incident during which Sunday checked on expenses using Max’s computer, became upset at what she saw, told Max about it, and pointed out some of the charges at issue. We conclude the trial court did not abuse its discretion by ruling that Sunday’s statements fell within the spontaneous statement hearsay exception of Evidence Code section 1240.
In light of our conclusion, there is no need to decide whether the statements came within the state of mind hearsay exception of Evidence Code section 1250.
Moreover, Sunday’s February 2005 statement, when considered with the plane and billing materials on her desk and in appellant’s presence at the time he killed her, was highly probative evidence that appellant shot Sunday because of an argument about the plane and billing, and not as a result of appellant’s heat of passion and/or voluntary intoxication during an argument about Sunday’s alleged methamphetamine addiction. Sunday’s statements were not more inflammatory than the facts of the present offense, and her statements were recent. The trial court did not abuse its discretion by not excluding the challenged testimony under Evidence Code section 352. Moreover, even if the trial court erred, there was overwhelming evidence of guilt; therefore, the alleged error was harmless. (Cf. People v. Watson, supra, 46 Cal.2d at p. 836; Chapman v. California, supra, 386 U.S. at p. 24 [17 L.Ed.2d 705].)
We also note Sunday’s statements were admissible as contemporaneous statements under Evidence Code section 1241.
(3) Any Statements by Sunday After She Returned to Burbank that Appellant Chartered a Plane for A Nonbusiness Purpose Were Admissible.
Appellant claims that proffered statements that Sunday made later in 2005 to Max and Laikin from Burbank immediately after she had discovered that appellant had chartered a plane to Las Vegas for a nonbusiness purpose, and while Sunday was upset about the discovery, were inadmissible hearsay that did not fall within the Evidence Code section 1240 spontaneous statement exception or the Evidence Code section 1250 state of mind hearsay exception, and were excludable under Evidence Code section 352. We disagree.
First, although the prosecutor proffered such statements to determine their admissibility, appellant has failed to demonstrate from the record that the statements were admitted in evidence. The burden is on appellant to demonstrate error from the record; it will not be presumed. (In re Kathy P. (1979) 25 Cal.3d 91, 102; People v. Garcia (1987) 195 Cal.App.3d 191, 198.) Second, even if such statements were admitted in evidence, we conclude they were admissible for essentially the same reasons as Sunday’s statements to Max in Florida about suspicious charges by appellant which she saw on Max’s computer.
(4) Sunday’s Statements to Laikin About Sunday Wanting to Move to a New House Were Admissible.
Appellant claims that proffered statements by Sunday to Laikin that Sunday found a new house and intended to move out of her old one were inadmissible hearsay that did not fall within the Evidence Code section 1250 state of mind hearsay exception, and that the statements were excludable under Evidence Code section 352. We disagree.
Laikin testified that on March 10, 2005, Sunday called Laikin and indicated that Sunday had seen an open house in Burbank, and she loved the house and wanted to move there. These statements fell within the state of mind hearsay exception of Evidence Code section 1250, since they expressed Sunday’s love for the new house and her desire to move from her current home to the new house. These expressions were highly probative of conduct, namely, that she had begun moving and/or had communicated her intent to move to appellant (who lived with Sunday and who would have seen any actions by her to implement her intent to move), and that this contributed to the reasons he killed her. The trial court did not abuse its discretion by ruling that the challenged statements fell within the hearsay exception provided by Evidence Code section 1250, or by not excluding such statements under Evidence Code section 352, and any such error was not prejudicial. (Cf. People v. Watson, supra, 46 Cal.2d at p. 836; Chapman v. California, supra, 386 U.S. at p. 24 [17 L.Ed.2d 705].)
That section states, “(a) Subject to Section 1252, evidence of a statement of the declarant’s then existing state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) is not made inadmissible by the hearsay rule when: [¶] (1) The evidence is offered to prove the declarant’s state of mind, emotion, or physical sensation at that time or at any other time when it is itself an issue in the action; or [¶] (2) The evidence is offered to prove or explain acts or conduct of the declarant. [¶] (b) This section does not make admissible evidence of a statement of memory or belief to prove the fact remembered or believed.”
3. The Trial Court Properly Admitted Evidence of Appellant’s Prior Domestic Violence Acts.
a. Pertinent Facts.
The People filed a pretrial motion proffering, under Evidence Code sections 1101, subdivision (b) and 1109, evidence of prior acts of domestic violence committed by appellant. In particular, the People proffered that in May 2004, Sunday, crying, told Esquibias that she was afraid to go home because appellant had been physically and emotionally abusive towards her, and she was afraid to leave appellant because she was afraid he would hurt her. On another occasion, Sunday, again crying, told Esquibias that she wanted to get out of her relationship with appellant, but was afraid he would physically hurt her and Eli if she did. Months later, she again complained that she was having problems with appellant and feared he would hurt her. About six months before she was killed, Sunday told Esquibias that Sunday told appellant that she wanted to end their relationship and wanted him to leave.
The People also proffered the following evidence of appellant’s domestic violence towards Grigsby. Appellant was married to Grigsby just before he met Sunday. During the 13-year marriage between appellant and Grigsby, he had been mentally and physically abusive towards her, and he was very controlling. He struck Grigsby about three to four times per year, and had threatened to kill her and her family if she ever called the police. Grigsby repeatedly attempted to leave appellant, but he told her that if he could not find her, he would get her family.
At the admissibility hearing, appellant, who filed no opposition to the People’s motion, argued as to Esquibias’s proposed testimony that it presented only Sunday’s complaints to Esquibias that appellant was abusive, and did not present evidence of actual acts of domestic violence. Appellant argued that the proffered evidence of acts towards Grigsby were remote as a matter of law under Evidence Code section 1109, subdivision (e), because the acts were more than 10 years old, and were excludable under Evidence Code section 352. Respondent conceded the proffered acts of appellant towards Grigsby were more than 10 years old, but argued the trial court still had authority to admit them in evidence. Appellant later argued, as to the proffered evidence concerning Esquibias and Grigsby that Evidence Code section 1101, subdivision (b) was inapplicable, and the proffered evidence was remote and excludable under Evidence Code section 352.
The trial court ruled that the proffered evidence of acts towards Grigsby was inadmissible as part of the People’s case-in-chief because the evidence was too remote, it would not be in the interest of justice to receive it, and it should be excluded under Evidence Code section 352. However, the court indicated that the court would later consider whether the proffered evidence could be admitted as impeachment or rebuttal evidence.
The court ruled that the proffered statements of Sunday to Esquibias were admissible under Evidence Code sections 1101, subdivision (b) and 1109. The court indicated, as to section 1101, subdivision (b), that Sunday’s statements were relevant to motive and intent. The court also stated it analyzed the statements under Evidence Code section 352, and found they were certainly more probative than prejudicial. Esquibias later testified at trial concerning, inter alia, Sunday’s statements to him about appellant’s abuse of her, as reflected in the Factual Summary.
In defense, appellant testified as indicated in the Factual Summary. Moreover, appellant testified that he had had a problem with alcohol all his adult life, and began drinking when he was 11 or 12 years old. He was an alcoholic, and Sunday used methamphetamine. Sometimes the two would argue when appellant was under the influence of alcohol and she was under the influence of methamphetamine. Whenever appellant found Sunday’s methamphetamine, he would get rid of it, she would get extremely mad, and the two would argue.
During cross-examination, appellant testified as follows. Just about the only time appellant got upset was when he had the arguments with Sunday about her drug use. Otherwise, appellant was a calm and cool person. Appellant and Grigsby had arguments, but Grigsby did not have a methamphetamine problem. The prosecutor asked what would happen when appellant would get upset with Grigsby, and appellant objected to the question.
The following occurred at sidebar. The prosecutor argued that appellant had characterized the situation as one in which he would not have done anything violent except for the fact that Sunday had called him a liar and thief. However, according to the prosecutor, appellant was comfortable with violence as evidenced by the fact that he had been violent with women in the past. The prosecutor argued appellant put his character in issue by claiming he had been an alcoholic for a long time. The prosecutor noted that appellant had been an alcoholic when he was married to Grigsby, he had not killed her, and he was used to being an alcoholic. The prosecutor suggested that it was not appellant’s alcoholism that contributed to the instant killing, but his character for violence; therefore, the court should permit the People to introduce the evidence of appellant’s prior violence towards Grigsby.
Moreover, according to the prosecutor, appellant opened the door to this evidence because he testified he would never do anything like what he did in the present case, and he was provoked to act as he did because of Sunday’s behavior with drugs. The prosecutor commented, “He was practically smirking and saying, ‘Oh, I would never lay a hand on her,’ as if he’s just so foreign to the thought of abusing women.”
The court overruled appellant’s objection and indicated the prosecutor would be able to cross-examine appellant on the issue. Appellant later testified that he had never physically assaulted or threatened Grigsby.
Outside the presence of the jury, appellant indicated that the prosecutor was going to present testimony from Grigsby. Appellant renewed his objection that her testimony was remote under Evidence Code section 1109 and excludable under Evidence Code section 352.
The court indicated that, to some extent, appellant’s direct examination testimony presented a false aura of his peacefulness. The court later found that, although the prior acts involving Grigsby were more than 10 years old, they were admissible in the interest of justice for purposes of Evidence Code section 1109. Concerning Evidence Code section 352, the court indicated that the prior incidents of domestic violence were not more egregious than the present offense, they would not confuse the jury, the court would give an appropriate jury instruction which would diminish the likelihood of the jury punishing appellant for the past incidents, and Grigsby’s testimony would provide relevant information regarding appellant, his testimony, and his behavior. The court indicated that the probative value of Grigsby’s testimony would not be outweighed by any prejudicial effect, undue consumption of time, or confusion, and her testimony would be allowed.
Grigsby subsequently testified in rebuttal, and Barnas in surrebuttal, as reflected in the Factual Summary. During its final charge to the jury, the court gave CALCRIM No. 375 on uncharged offenses to prove, inter alia, intent and motive, and CALCRIM No. 852 on evidence of appellant’s propensity for violence.
b. Analysis.
Appellant claims Esquibias’s testimony about appellant’s prior acts of domestic violence against Sunday was inadmissible under Evidence Code sections 1101 and 352. We disagree. Evidence Code section 1101, provides, in pertinent part, “(a) Except as provided in this section, . . . evidence of a person’s character or a trait of his or her character . . . is inadmissible when offered to prove his or her conduct on a specified occasion. [¶] (b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, . . . [or] intent, . . .) other than his or her disposition to commit such an act.”
There was no dispute that appellant shot and killed Sunday. The issue was appellant’s mental state. Esquibias testified that a few months after January 2004, he saw Sunday visibly shaking. She indicated she did not want to go home, appellant was an alcoholic, the two had argued, and she was afraid to go home. Esquibias talked to Sunday about outreach groups and her trying to contact a shelter if she felt unsafe at home. He suggested there were organizations available for battered women. Sunday asked Esquibias to look into this. She did not deny that such an organization was appropriate or that her husband had battered her. This provided evidence that appellant had battered Sunday. On another occasion, Esquibias saw Sunday shaking and crying, and she told him that she was afraid to go home. There was evidence that the two continued to have a troubled relationship.
The evidence of appellant’s prior acts of domestic violence against Sunday was admissible to prove his motive and intent for purposes of Evidence Code section 1101, subdivision (b), that is, a premeditated intent to kill, as well the absence of heat of passion, voluntary intoxication, and/or unconsciousness on appellant’s part at the time he killed Sunday; therefore, the evidence was not made inadmissible by Evidence Code section 1101, subdivision (a). Moreover, the record demonstrates the trial court understood and fulfilled its responsibilities under Evidence Code section 352 (People v. Williams, supra, 16 Cal.4th at p. 213); this was all that was required. The trial court did not abuse its discretion by failing to exclude the challenged evidence under Evidence Code section 352.
Appellant claims Esquibias’s testimony about appellant’s prior acts of domestic violence against Sunday was inadmissible under Evidence Code sections 1109 and 352. In particular, he argues there was no evidence of prior acts of “domestic violence” within the meaning of Evidence Code section 1109, because that term requires evidence of “abuse” within the meaning of Penal Code section 13700, subdivision (a), and the People’s proffer lacked evidence of such abuse. Appellant notes that, under Penal Code section 13700, subdivision (a), “ ‘[a]buse’ means intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another.” Appellant also argues (1) the People proffered no corroboration of Esquibias’s testimony about prior acts of domestic violence against Sunday and (2) the alleged lack of a time frame for the prior acts suggests they were remote, a factor not addressed by the court.
Evidence Code section 1109, states, in relevant part: “(a)(1) Except as provided in subdivision (e) or (f), in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant’s commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352. [¶] . . . [¶] (d) As used in this section: [¶] . . . [¶] (3) ‘Domestic violence’ has the meaning set forth in Section 13700 of the Penal Code. Subject to a hearing conducted pursuant to Section 352, which shall include consideration of any corroboration and remoteness in time, ‘domestic violence’ has the further meaning as set forth in Section 6211 of the Family Code, if the act occurred no more than five years before the charged offense. [¶] (e) Evidence of acts occurring more than 10 years before the charged offense is inadmissible under this section, unless the court determines that the admission of this evidence is in the interest of justice.” Penal Code section 13700, states, in relevant part: “As used in this title: [¶] (a) ‘Abuse’ means intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another. [¶] (b) ‘Domestic violence’ means abuse committed against an adult or a minor who is a spouse, former spouse, [or] cohabitant, . . .”
However, as mentioned, Esquibias repeatedly saw Sunday shaking, she complained that appellant was an alcoholic and the two of them had argued, and she was afraid to go home. Esquibias talked to Sunday about her trying to contact a shelter if she felt unsafe at home. He suggested there were organizations available for battered women. She did not then claim she had not been battered, but asked Esquibias to look into this. Appellant and Sunday continued to have a troubled relationship. There was sufficient evidence that appellant placed her in reasonable apprehension of imminent serious bodily harm and battered her, and that appellant committed the requisite abuse for purposes of Penal Code section 13700, subdivision (a).
Moreover, appellant cites no authority requiring corroboration of the prior acts, Sunday’s statements to Esquibias were not remote because she made them within three years of her death, and the record reflects the trial court considered the age of the prior acts. We reject appellant’s claim.
Appellant claims the evidence of appellant’s prior acts of domestic violence against Grigsby were inadmissible under Evidence Code sections 1109, because they were evidence of acts occurring more than 10 years before the present offense and the trial court erred by concluding that their admission in evidence was in the “interest of justice” within the meaning of Evidence Code section 1109, subdivision (e). We disagree.
This is not a case in which there was a single prior act of domestic violence against Grigsby followed by a hiatus before violence occurred to Sunday. There was substantial evidence that appellant continually battered Grigsby, that is, three to five times yearly, and that once that relationship ended, a new relationship began between appellant and Sunday, and he physically and emotionally abused her. As mentioned, an appellate court applies the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence. (People v. Waidla, supra, 22 Cal.4th at p. 725.) The trial court did not abuse its discretion by concluding that the admission in evidence of the challenged evidence was in the “interest of justice” within the meaning of Evidence Code section 1109, subdivision (e), and that the evidence of appellant’s prior acts of domestic violence against Grigsby was propensity evidence admissible under section 1109.
To the extent appellant argues the evidence was inadmissible under Evidence Code section 1101, we reject the argument because, like the evidence concerning Sunday’s statements to Esquibias, the evidence of appellant’s prior violence towards Grigsby was admissible on the issues of appellant’s motive and intent. To the extent appellant argues that the admission in evidence of any of the statements to which he refers in connection with his third contention violates his right to due process, he waived the issue by failing to raise it below.
Finally, as to each of appellant’s above evidentiary claims, there was, as previously discussed, ample evidence that appellant premeditatedly killed Sunday during a confrontation over his spending. The court gave limiting instructions to the jury, CALCRIM Nos. 375 and 852, concerning the permissible use of the domestic violence and propensity evidence, and the jury is presumed to have followed those instructions and not to have used the challenged evidence for impermissible purposes. The jury’s first degree murder verdict indicates that the jury rejected appellant’s defense that Sunday’s alleged methamphetamine addiction caused him to shoot her, and that the jury rejected his arguments that, as a result of voluntary intoxication and/or heat of passion, he committed only involuntary manslaughter, voluntary manslaughter, or second degree murder. Any error in admitting into evidence the testimony challenged here was harmless. (Cf. People v. Watson, supra, 46 Cal.2d at p. 836.)
4. No Instructional Error Occurred.
Appellant claims the trial court erred by giving CALCRIM No. 375, pertaining to evidence of uncharged offenses to prove, inter alia, intent and motive, and CALCRIM No. 852, pertaining to evidence of appellant’s propensity for violence. He argues in essence that, in violation of his Fifth Amendment right to due process and Sixth Amendment right to a jury trial, the instructions erroneously told the jury that they could convict appellant of first degree murder based solely on evidence of prior acts of domestic violence, proven only by a preponderance of the evidence and not beyond a reasonable doubt. We disagree.
CALCRIM No. 375 read: “The People presented evidence of other behavior by the defendant that was not charged in this case/that the defendant threatened and abused Sunday Henig and threatened and abused Karen Grigsby. [¶] 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 offenses/acts. 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 uncharged offenses/acts, you may, but are not required to, consider that evidence for the limited purpose of deciding whether or not: [¶] A. Identity [¶] The defendant was the person who committed the offense alleged in this case; or [¶] B. Intent [¶] The defendant acted with the intent to kill and premeditate the murder in this case; or [¶] C. Motive [¶] The defendant had a motive to commit the offense alleged in this case; or [¶] D. Accident [¶] The defendant’s alleged actions were the result of mistake or accident; or [¶] E. Common Plan [¶] The defendant had a plan or scheme to commit the offense[s] alleged in this case; [¶] G. Other Purpose [¶] The Defendant was not unconscious when he committed the offense alleged in this case. The Defendant premeditated the murder of Sunday Henig. [¶] In evaluating this evidence, consider the similarity or lack of similarity between the uncharged offense/acts and the charged offenses. [¶] Do not consider this evidence for any other purpose. [¶] Do not conclude from this evidence that the defendant has a bad character or is disposed to commit crime. [¶] If you conclude that the defendant committed the uncharged offenses/acts, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of the charged offense. The People must still prove each element of charges beyond a reasonable doubt.”
The written CALCRIM No. 852 instruction read: “The People presented evidence that the defendant committed domestic violence that was not charged in this case, specifically physically abused and threatened Karen Grigsby. [¶] Domestic violence means abuse committed against an adult who is a spouse, or former spouse, or cohabitant, or former cohabitant, or person with whom the defendant has had a child, or person who dated or is dating the defendant, or person who was or is engaged to the defendant. [¶] Abuse means intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable fear of imminent serious bodily injury to himself or herself or to someone else. [¶] The term cohabitants means two unrelated adults living together for a substantial period of time, resulting in some permanency of the relationship. Factors that may determine whether people are cohabiting include, but are not limited to, (1) sexual relations between the parties while sharing the same residence, (2) sharing of income or expenses, (3) joint use or ownership of property, (4) the parties’ holding themselves out as husband and wife, (5) the parties’ registering as domestic partners, (6) the continuity of the relationship, and (7) the length of the relationship. [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged domestic violence. Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. [¶] If the People have not met this burden of proof, you must disregard this evidence entirely. [¶] If you decide that the defendant committed the uncharged domestic violence, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit domestic violence and, based on that decision, also conclude that the defendant was likely to commit and did commit murder, 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. The People must still prove each element of every charge beyond a reasonable doubt.”
We have quoted the instructions. As to CALCRIM No. 852, first, that instruction, as given, referred only to evidence of appellant’s domestic violence against Grigsby, not Sunday. Second, the instruction referred to an inference that appellant committed murder, but did not refer to an inference that he committed first degree murder. Third, the language of the instruction indicated that propensity evidence alone was insufficient to support a conviction, and the People still had to prove each element of the charge beyond a reasonable doubt. That is, no reasonable jury would have understood the instruction as indicating that they could convict appellant of murder based solely on propensity evidence.
People v. Orellano (2000) 79 Cal.App.4th 179, and People v. Vichroy (1999) 76 Cal.App.4th 92, cited by appellant, are unhelpful, since those cases involved CALCRIM No. 852’s predecessor instruction which (unlike CALCRIM No. 852) did not instruct the jury that propensity evidence alone was insufficient to support a conviction.
Fourth, CALCRIM No. 852 properly indicated that the standard of proof for the prior acts of domestic violence was preponderance of the evidence, not proof beyond a reasonable doubt. It is settled that prior crimes evidence need not be proven beyond a reasonable doubt. (See People v. Medina (1995) 11 Cal.4th 694, 763.)
Similarly, CALCRIM No. 375 did not expressly refer to an inference merely that appellant committed murder, but permitted, e.g., inferences that appellant had one or more mental states such as motive and intent. Similar to CALCRIM No. 852, the language in CALCRIM No. 375 indicated that prior acts of domestic violence alone were insufficient to support a conviction, and the People still had to prove each element of the charge beyond a reasonable doubt. The instruction also correctly indicated the standard of proof for prior acts of domestic violence. CALCRIM No. 375 specifically told the jury to consider the similarity or lack of similarity between the uncharged acts and the charged offense.
Notwithstanding appellant’s argument to the contrary, the fact that CALCRIM Nos. 375 and 852 indicated the prior acts could be proven by a preponderance of the evidence did not violate Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [147 L.Ed.2d 435, 120 S.Ct. 2348] or its progeny. This is not a case in which facts (prior acts of domestic violence) which were not submitted to the jury and proven beyond a reasonable doubt increased the penalty for a crime beyond the prescribed statutory maximum. The penalty imposed by the court here was merely the statutory maximum for first degree murder with the firearm enhancement.
Moreover, that penalty was wholly based on facts reflected in the jury’s verdict. Any Apprendi concerns of appellant were satisfied once the jury, properly instructed on the standard elements of first degree murder and the firearm enhancement, and on the burden of proof beyond a reasonable doubt according to CALJIC No. 2.90, concluded, beyond a reasonable doubt, that appellant committed that offense with the firearm as alleged. The instructions indicated the jury could consider prior acts of violence, but did not require the jury to do so, and the instructions indicated that such prior acts, by themselves, were insufficient to convict appellant of murder. Any prior act of violence was evidence, not an element, of murder.
DISPOSITION
The judgment is affirmed.
We concur: CROSKEY, Acting P. J., ALDRICH, J.