Filed 10/27/15 P. v. Yarbrough CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b) . This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,
Plaintiff and Respondent,

v.

EDWARD YA RBROUGH,

Defendant and Appellant. B 259513 (Los Angeles County Super. Ct. No. PA073596)

APPEAL from a judgment of the Superior Court of Los Angeles County, Daniel B. Feldstern, Judge. Affirmed. Rachel Lederman, under a ppointment by the Court of Appeal, for Defendant and Appellant

. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, James William Bilderback and Jaime L. Fuster, Deputy Attorneys Ge neral, for Plaintiff and Respondent.2

Appellant Edward Yarbrough challenges the constitutionality of Evidence Code section 1109, which permits introduction of evidence of uncharged acts of
domestic violence to support a current charge of domestic violence , contending the introduction of such evidence violated his right to due process under the state and
federal constitution s

. 1 He further challenges CALCRIM No. 852, which informs the jur y that the evidence of uncharged acts may be used to support an infere nce that the defendant was disposed or inclined to commit the current offenses . We conclude, in line with the many courts that have considered the same or similar challenges
, that section 1109 is constitutional and that CALCRIM No. 852 properly instructs the jury on the controlling principles that must guide it in its
consideration of evidence introduced under the provision . Accordingly, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND
A. Information On May 8, 2014, a ppellant was charged by information wi th inflicting corporal injury on a cohabitant on April 25, 2012 (count one, Pen. C ode § 273.5, subd. (a)) ; assault by means likely to produce great bodily injury that same date (count two, Pen. Code, § 245, subd

. (a)(4)) ; attempting in May and June 2012 to dissuade a witness from testifying ( count three, Pen. Code, § 136.1, subd. (a)(2)) ; failure to appear while on bail in August 2013 (count four, Pen. Code, § 1320.5) ; injuring a cohabitant on February 11, 2014 , after a prior conviction (count five,
Pen. Co de, § 273.5, subd. (f)(1)) ; and inflicting corporal injury on a cohabitant on October 10, 2013 (count six, Pen. Code, § 273.5, subd. (a)). The victim named in

c ounts one through three was Susan M. The victim named in c ounts five and six

was Patricia G.

1 Undesignated statutory references are to the Evidence Code.3

B

. Evidence at Trial
1. Susan M. Appellant was charged with assaulting and inflicting corporal injury on Susan M. on April 25, 2012
, and attempting to dissuade her from testifying a few
months later. Susan testified that i n early 2011, she met appell ant through a dating
W eb site. H e moved into her home within a couple of months . On the morning of September 19, 2011, she asked him to leave, calling the sheriff’s department for assistance when he refused to go. Appellant broke Susan’s cell phone, thr ew her

on a bed, grabbed her wrists above her head
, and told her he was going to kill her. Appellant eventually let her go
, packed his things
, asked Susan to take him to the bus stop and then took her keys so he could drive

. As they we re approaching the

garage , Susan tried to get away

. A ppellant grabbed her, ripped her shirt, slammed her to the ground and dragged her to the kitchen hallway, where they struggled and she pleaded for her life. During the struggle, appellant pulled a chunk of hair from
her head. When appellant calmed down, Susan drove him to a bus station. Susan did not immediately report the incident, first going to a stylist to attempt to fix her
hair and later going to pick up her sons from s chool. She called authorities later
that eve ning, after the boys had gone to sleep

. A deputy came and t ook a report. Susan and appellant got back together six or seven weeks after the September 2011 incident
, and in February 2012, they both mov ed into a new apartment. In March 2012 , a fter accus ing her of “messing with other guys,” appellant kicked her and took her phone away. 2

2 Neither the September 2011 nor the March 2012 incidents was charged in the information. As discussed in greater detail below, the eviden ce was admitted under section 1109 as other acts of domestic violence relevant to the charged incidents in April 2012 and thereafter.4

On April 24, 2012, appellant became angry after finding old photographs of Susan with other men. He hit her multiple times, including once in the right eye, causing pr ofuse bleeding and extensive damage to her eye socket
, and fracturing
her nose

. 3 Susan went to an emergency room for treatment and called law
enforcement officers to report the incident

. The next day, appellant turned up at Susan’s home and demanded to b e let in. She called 911 and he left. S hortly thereafter, she allowed him to move back in , plan ning to persuade him to stay in
her home until she could call authorities and have him arrested. She contacted authorities and appellant was arrested on May 2 1 , 2012

. A ppellant called Susan multiple times from jail. After she testified a t the preliminary hearing, appellant attempted to persuade her not to appear at trial. 4

2. Patricia G

. Appellant was charged with inflicting injury on Patricia G. on October 10, 2013 and February 11, 2014. Patricia testified that i n August 2013, she met appellant through a dating W eb site. Within a short period, he moved into her
ho me . He told Patricia he had hit other women in the past, and had been in jail for
dom estic violence. O n October 9, 2013, appellant accused Patricia of having an

3 Susan eventually had extensive surgery to save her eye, but it remained damaged two years after the incident.

4 The preliminary hearing for the April 25, 2012 assault took place in June 2012, and an information charging appellant with assaulting Susan was filed that same month. In November 2012, appellant was released on bail. On August 13, 2013, appellant failed to a ppear for trial. T he court ordered bail forfeited and declared a mistrial. Appellant was not located and arrested until April 8, 2014.5

affair and pulled her hair. 5 The next day, she refused his request for money and he punched her in the face

. Patricia called authorities and appellant left for a time. In
Janu ary 2014, Patricia allowed him to move back in with her. O n February 11,
2014 , he again accused her of infidelities . He pull ed her hair and push ed her down
on a bed. She gave him money and told him to leave. While she was dr iving him to a bus stop, he hit her on the right temple

. Appellant re appeared a few days later
outside Patricia’s home and threatened to slash her tires

. S he called authorities , but he left the area before they arrived

.

3. Jeannette W. Jeannette W. was permitted to testify c oncerning additional incidents of
domestic violence not charged in the information

. Jeannette met appellant through
a chat site and began dating him in 2008 . In February 2009, appellant moved in with her. On October 14, 2009, after Jeannette questioned him about a telephone
conversation he had had with another woman, appellant punched her in the head and eye, and dragged her by the hair from the kitchen to the bedroom, where he continued to punch and kick her. He pulled the telephone out of the wall and threatened to kill her if she told anyone about the assault. W hen Jeannette tried to stop appellant from taking her car and leaving , he punched her again. In February 2010, a ppellant was convicted for his assault on Jeannette

.

4. Defense Appellan t took the stand and denied that Susan told him to move out of her home in September 2011
, or that he had engaged in an altercation with her in

5 Appellant was not charged in the October 9, 2013 hair pulling incident. The evidence of this incident was admitte d under section 1109 as another act of domestic violence to support the charged incidents on October 10, 2013 and February 11, 2014.6

which he pulled her hair out . He said that in April 2012, they had looked at some old photographs and laughed a bout them

. He denied having any argument with Susan in connection with the photographs

. He claimed that he accidentally hit Susan in the eye in his sleep. He testified that he walked out of the original trial
because he heard a prospective juror say she could not judg e him fairly. He denied assaulting Patricia in October 2013. He claimed they had had an open relationship
and that she was free to see other men. He denied hitting Patricia when she drove
him to the train station i n February 201 3
, or ever physically abusing her

. The defense also called Ana Rubalcava, the deputy sheriff who responded to
Susan’ s September 19, 2011 call. Rubalcava saw no evidence of Susan ’s physical injuries , but was shown chunks of hair, a broken phone and a torn shirt. Detective
Juan Carrillo testified that when he follow ed up on Deputy Rubalcava’s report
, Susan told him she did not want appellant prosecuted and signed a complaint
refusal form. Detective Roland De La Maza testified that when he spoke to Susan

on May 18 , 2012, she did not mention appellant was again living in her residence. Audrey Hernandez testified she met appellant on a dating Web site

. T hey had a relationship for approximately six weeks, during which appellant neither
threatened nor assaulted her . Appellant told Hernandez he had accidentally punched Susan in the eye in his sleep.

5. Rebuttal In rebuttal, Detective Ryan Elsee, who arrested appellant on May 21, 2012
, testified that after bein g advised o f his constitutional rights, appell a n t stated that he
had been in volved in a “tussle” with Susan on A pril 25, 2012
, and that she had hit her face on a dresser after falling off the bed.7

C. Verdict and Sentence
Th e jury found appellant guilty on all counts, and found true the allegation
th at he had inflicted great bodily injury on Susan M. Appellant admitted having a prior “strike” conviction. The court sentenced appellant to an aggregate prison term of 29 years ( 19 years on count one, 10 years on count two (stayed), 16 months

on count th ree, 40 months on count four, 32 months on count four, and 32 months

on count five). This appeal followed.

DISCUSSION
A. Admission of Propensity Evidence Under Section 1109
1

. Background
The information stated that pursuant to section 1109, prior i ncident s of
domestic violence “may be used in the prosecution of [ the case ]

. ” Prior to trial, the prosecutor identified the prior incidents she intended to introduce into evidence:
the October 2 009 incidents with Jeannette for which appellant suffered a conviction; the September 2011 incident, when appellant allegedly broke Susan’s cell phone, threw her on the bed, held her arms, threw her to the ground, dragged her, and pulled out a chunk of her hair; the March 2013 incident
, when appellant allegedly kic ked Susan ; and the February 2014 incident, when appellant allegedly

came to Patricia’s house and threatened her. Defense counsel object ed to the
introduction of this evidence , a rguing that the circumstances surrounding the prior
incidents were not similar to the charged offenses
, and that the sole reason for introducing such evidence was to show a general proclivity to engage in domestic
violence.8

The court found the evidence relevant under section 1109 to demonstrate propensity to inflict injury upon a cohabitant or someone in a dating relationship. 6
The court fu r ther found that the potential for prejudice did not substantially outweigh the probative value. Prior to deliberations, t he jury was instructed pursuant to CALCRIM N o. 852 that it could con sider th e evidence of prior acts of domestic violence to establish that appellant was “ disposed or inclined to commit domestic violence
, ” if it found the People had proven by a preponderance of the evidence that appellant
committed the acts . It was furthe r instructed that such evidence was “only one factor to consider along with all the other evidence,” that it was “not sufficient by itself to prove that the defendant is guilty of corporal injury to a cohabitant,” and that “[t]he People must still prove ea ch charge and allegation beyond a reasonable
doubt.”

2

. Analysis Section 1109, subdivision (a)(1) provides that with limited exceptions not applicable here, “in a criminal action in which the defendant is accused of an offense involving domestic vio lence, evidence of the defendant’s commission of other domestic violence is not made inadmissible by Section 1101 [precluding evidence of character to prove conduct] if the evidence is not inadmissible pursuant to Section 352.” Subdivision (b) under secti on 1109 provides that “[i]n an action in which evidence is to be offered under this section, the people shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be of fered

. . . .”

6 The court also found the evidence admissible under section 1101, subdivision (b) to show motive and intent

.9

Appellant’s primary contention on appeal is that his state and federal due process right s were violated by introduction of evidence of prior acts of domestic violence that were not charged in the information. As appellant acknowledges,

ove rwhelming authority, including Supreme Court precedent , supports the admissibility of such evidence and precludes us from assigning error to its
admission.
In People v. Falsetta (1999) 21 Cal.4th 903 ( Falsetta )
, our Supreme Court

con cluded that admissio n of evidence of uncharged sexual offenses under the substantially similar provision s of section 1108 did not violate a defendant’s due

process rights

. 7 The court found that even if “the rule against ‘ propensity ’
evidence in sex offense cases should be de emed a fundamental historical principle of justice,” section 1108 “did not unduly ‘ offend ’ those fundamental due process principles

. ” ( Falsetta , supra, 21 Cal.4th at pp. 914

- 915 , italics deleted .) “By their very nature, sex crimes are usually committed i n seclusion without third party witnesses or substantial corroborating evidence. The ensuing trial often presents conflicting versions of the event and requires the trier of fact to make difficult credibility determinations. Section 1108 provides the tri er of fact in a sex offense case the opportunity to learn of the defendant’s possible disposition to commit sex
crimes ,” which evidence is “ at least circumstantially relevant to the issue of his disposition or propensity to commit these offenses.” ( Falset ta , supra, at p. 915
, italics deleted ; see ibid ., quoting People v. Alcala (1984) 36 Cal.3d 604, 631

7 Section 1 108, subdivision (a) provides: “(a) In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not i nadmissible pursuant to Section 352. [¶] (b) In an action in which evidence is to be offered under this section, the people shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered .

. . .”10

[“ ‘ Such evidence ‘is [deemed] objectionable, not because it has no appreciable probative value, but because it has too much .’

. . . [Citations.]”] .) The c ourt further explained that t he limitation on the scope of evidence admissible under the statute (evidence of prior sex offenses only and only when the defendant is charged with committing another sex offense) meant no undue burden would be imposed on the defense; the requirement of pretrial notice of the intention to introduce such
evidence precluded any possibility of surprise or lack of preparedness; and t he discretion afforded the trial judge to exclude the proffered evidence eliminated the potential fo r “protracted ‘mini

- trials’” to determine the truth or falsity of the prior charge and undue prejudice to the defendant. (21 Cal.4th at pp. 915

- 916.) The
court held that w ith these checks and balances in place, admission of propensity
evidence under sect ion 1108 did not violate state or federal due process. ( 21 Cal.4th at pp. 918, 922.)
In the immediate wake of Falsetta
, three C ourts of A ppeal were called on to address due process challenge s to section 1109 : People v. Brown (2000) 77 Cal.App.4th 1324
, People v. Hoover (2000) 77 Cal.App.4th 1020 , and People v.
Johnson (2000) 77 Cal.App.4th 410

. In People v. Brown , Division Two of the
First District concluded the reasoning in Falsetta was equally applicable to a due process challenge to section 1109 , fi nding sections 1108 and 1109 to be “complementary portion s of the same statu t ory scheme ” creating an exception to the usual exclusion of propensity evidence due to “the difficulties of proof unique to the prosecution of [the specified] crimes.” ( 77 Cal.Ap p.4th at p. 1333.) The
court observed that b oth s ection 1108 and section 1109 require “ ‘pretrial notice of the offenses sought to be proved, assuring that the defendant will not be surprised or unprepared to rebut the proposed evidence.’” ( Id

. at p. 1334
, italics deleted, quoting Falsetta
, supra , 21 Cal.4th at p. 916.) In addition , both sections “limit the admissibility of evidence of prior misconduct if its probative value is substantially11

outweighed by its prejudicial effect. [Citations.]” ( 77 Cal.Ap p.4th at p. 133 4 .) Further, “ [t] he specific retention of the power to exclude evidence under section
352 found in both [ provisions ] , provides a ‘realistic safeguard that ensures that the presumption of innocence and other characteristics of due process ar e not weakened by an unfair use of evidence of past acts.’” ( Ibid ., quoting People v.
Harris (1998) 60 Cal.App.4th 727, 730.) Accordingly, Falsetta’s reasoning was “fully applicable to section 1109

. . . . ” ( 77 Cal.App.4th at p. 133 4 .)
The Third Dist rict and Division Two of the Fourth District reached the same
conclusion in People v. Johnson
, supra , 77 Cal.App.4th at p. 420 [“ Falsetta , by parity of reasoning, supports upholding the constitutional validity of Evidence Code section 1109 against a due p rocess challenge ”] and People v. Hoover
, supra , 77 Cal.App.4th at pp. 102 6

- 1027 [“ In determining the constitutionality of section 1109, we adopt the reasoning of the California Supreme Court as put forth in
Falsetta ”], as has e very other C ourt of A ppeal to have considered the issue

. ( See,

e.g., People v. Brown (2011) 192 Cal.App.4th 1222, 1232

- 1237; People v. Cabrera (2007) 152 Cal.App.4th 695, 703

- 704; People v. Price (2004) 120 Cal.App.4th 224, 239

- 240; People v. Escobar (2000) 82 Cal.App.4th 1085, 1095

- 1096; People v. Jennings (2000) 81 Cal.App.4th 1301, 1309

- 1310; People v. James (2000) 81 Cal.App.4th 1343, 1353.) In light of th is overwhelming authority, we view the constitutionality of section 1109 to be settled.

B. CALCRIM No. 852 Appellant also challenges CALCRIM No. 852, contending it is argumentative in that it “‘invite[s] the jur y to draw inferences favora b le to the defendant from specified items of evidence on a disputed question of fact.’” (Quoting People v. Wright (1988) 45 Cal.3d 1126, 11 35.)12

Apart from whether a

ppellant’s failure to object to the wording of the
instruction or request any modification precludes consideration of this issue on appeal ( s ee People v. Bolin (1998) 18 Cal.4th 297, 327

- 328 [where instruction correctly states the law, failure to request clarification or amplification of its terms
waives challenge to the instruction on appeal]) , these a ttacks on CALCRIM No.
852 have been uniformly rejected by appellate courts, which have held that the instruction correctly states t he law concerning the purpose for which the jury may consider prior acts of domestic violence admitted under section 1109. ( People v. Reyes (2008) 160 Cal.App.4th 246, 25 0

- 253; People v. Pescador (2004) 119 Cal.App.4th 252, 261

- 262; People v. Johnson (200 8) 164 Cal.App.4th 731, 739 ; People v. Brown , supra, 77 Cal.App.4th at pp. 1335

- 1337 .) In addition, our Supreme Court has approved an instruction similar in all material respects to CALCRIM No. 852, except that it instructs the jury as to the proper infer ences and burden of proof where evidence of uncharged sex crime s is admitted under section
1108. ( People v. Reliford (2003) 29 Cal.4th 1007, 1009, 1012

- 1016 .) Although none of these cases addressed the contention that the instruction was argumentative

un der the definition in People v. Wright, supra, 45 Cal.3d 1126 (quoted above) , the Supreme Court addressed an analogous issue in People v. Kelly (1992) 1 Cal.4th 495, where the instruction (CALJIC No. 2.03) allowed the jury to infer consciousness of guilt f

rom a defendant’s pretrial fabrications : “CALJIC No. 2.03

. . . not merely pinpoint evidence the jury may consider. It tells the jury it may
consider the evidence but it is not sufficient by itself to prove guilt . [Citation.]
Defendant obvio us ly does n ot quarrel with the emphasized language. If the court tells the jury that certain evidence is not alone sufficient to convict, it must necessarily inform the jury
, either expressly or impliedly, that it may at least
consider the evidence. Nothin g in Wrig ht affects such an instruction. There was no error.” ( Kelly, supra, 1 Cal.4th at p p . 531

- 532.) Here, the instruction similarly13

highlighted the evidence in order to inform the jurors that it was not sufficient to prove appellant’s guilt, but that it cou ld be considered in conjunction with the other evidence to support a guilty verdict . There was no error in giving the instruction.
/ / /
/ / /
/ / /14 DISPOSITION The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MANELLA, J.

We concur:

EPSTEIN, P. J.

WILLHITE, J.