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Filed 1/29/14 P. v. Duenas CA3 

NOT TO BE PUBLISHED 

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 This opinion has not been certified for publication 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 

THIRD APPELLATE DISTRICT 

(San Joaquin) 

---- 

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

GERARDO DUENAS, 

 Defendant and Appellant. 

C071883 

(Super. Ct. No. SF109960A) 

 A jury found defendant Gerardo Duenas guilty of corporal injury upon a child and 

felony child abuse of his three-year-old daughter, B. In a trial to the court, defendant was 

found to have two prior strike convictions. Defendant was sentenced to concurrent terms 

of 25 years to life on each count.1 

 

1 Defendant was subsequently resentenced pursuant to Penal Code section 1170.126 

to a term of 14 years eight months. 
2 

 On appeal, defendant contends the trial court prejudicially erred by: (1) admitting 

evidence of two uncharged acts of domestic violence by him against his wife, I.; and 

(2) admitting expert testimony regarding victim abuse. We reject both contentions. 

STATEMENT OF FACTS 

 Defendant married 16-year-old I. in 1999 and they divorced in 2009. During the 

marriage they had five children, one of whom was B., who was born in 2004.2 

According to I., defendant “hated” B. from the time of her birth. He struck her daily with 

a belt, pinched her, would not let their other children play with her, would leave her in a 

closet without food, and would make her face the wall when she displeased him. 

Charged Offenses 

 In October 200,7 I. left home to go to a laundromat. At that time, B. was standing 

facing the wall in the living room. When I. returned home she found B. standing naked 

in a washroom tub, shaking and clinching her hands while defendant poured cold water 

over her. B.’s lower back and “rib area” were covered with bruises and red marks. I. 

asked defendant what he was doing and defendant said, “ ‘She just didn’t want to eat her 

food.’ ” 

 On October 13, 2007, the day after I. gave birth to her youngest son, she returned 

home from the hospital and saw that B. had a “slash” or “gash” on her head. Fearful that 

defendant would kill B., I. packed B.’s clothes and medical records and took her to I.’s 

mother’s home for safe keeping. I. then returned to her home, gathered the rest of her 

children and moved into a trailer with her father. When relatives of I. saw the bruises and 

welts on B. they reported the matter to the police. 

 On October 28, 2007, Officer Beverly Young conducted a welfare check on B. 

“head to toe.” B. “had bruising pretty much from the top of her body to the bottom. She 

 

2 In 2007, I. learned that defendant was not the father of her youngest child. 
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had bruising on her face, her chest, back, bottom, arms and legs. She had some bald 

patches on her head, and a cut on her head. She had a lump above her right eye, and 

some swelling below the eye, in the face. [¶] She had a very large bruise on the right 

side of her body on her rib cage that also had some abrasions around it. . . . Some of them 

scabbed and some of them just red.” 

Uncharged Offenses 

 On May 23, 2006, I. and defendant got into an argument regarding her cheating on 

him. Defendant began hitting her and she called the police, but may have hung up on 

them. Nevertheless, officers showed up at the residence and, over defendant’s 

protestations, entered and questioned I. I. signed a police report prepared by one of the 

officers, but she never went to court because defendant threatened to leave the country 

and she would be without financial support. 

 In December 2006, I. and defendant again got into an argument about her cheating 

on him. The argument became physical when I. caused defendant’s laptop to fall to the 

floor. Defendant began kicking and choking her. She tried to call her mother on the cell 

phone, but defendant took it from her and broke it. Officers arrived, but I. was 

uncooperative because defendant threatened to go to Mexico and not support her or the 

children if he got sent to jail. 

Expert Testimony On Domestic Abuse 

 Melinda Shrock, a marriage and family therapist, testified regarding several means 

by which domestic male abusers gain control of household members and prevent them 

from reporting physical abuse. Specifically, the abusers may gain control by intimidation 

(looks, abuse of pets, displaying weapons); emotional abuse (name calling, putting the 

female down); isolation (controlling where the female goes and who she talks to); use of 

children (threatening to take the children away from her); economic abuse (controlling 

money); and threatening physical abuse or actually using physical abuse. 
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DISCUSSION 

I 

Uncharged Acts Testimony 

Defendant contends the trial court prejudicially erred by admitting evidence of two 

uncharged acts of domestic violence committed by him against his wife.3 The court did 

not err. 

 

3 Over defendant’s objection, the trial court instructed the jury (pursuant to 

CALCRIM No. 852) regarding the jury’s use of evidence of uncharged domestic violence 

by the defendant. As instructed, CALCRIM No. 852 provides: “The People presented 

evidence that the defendant committed domestic violence that was not charged in this 

case, specifically: Acts committed on May 23, 2006, and December 28, 2006. 

 “Domestic violence means abuse committed against an adult who is a spouse, or 

person with whom the defendant has had a child. 

 “Abuse means intentionally or recklessly causing or attempting to cause bodily 

injury, or placing another person in reasonable fear of imminent serious bodily injury to 

himself or herself or to someone else. 

 “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 the charged offenses. 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 the charged offenses involving domestic 

violence. The People must still prove each charge beyond a reasonable doubt. 

 “Do not consider this evidence for any other purpose.” 
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 In prosecutions for child abuse under Penal Code sections 273d, subdivision (a) 

and 273a, subdivision (a), Evidence Code section 1109 makes admissible prior uncharged 

acts of domestic violence by the defendant to establish his or her propensity for 

committing such acts as long as the evidence is not inadmissible under Evidence Code 

section 352. (People v. Dallas (2008) 165 Cal.App.4th 940, 942-943, 951-957.) 

Evidence Code section 352 provides that: “The court in its discretion may exclude 

evidence if its probative value is substantially outweighed by the probability that its 

admission will . . . create substantial danger of undue prejudice, of confusing the issues, 

or of misleading the jury.” 

 Defendant argues that “admission of the uncharged acts . . . served merely to 

confuse the issues and mislead the jury.” This is so, he claims, because “[t]he fact--if it 

was a fact--that he hit his wife one year earlier because he discovered she had cheated on 

him--does not logically tend to show that he committed the totally unrelated violent acts 

upon his daughter. A person who strikes another adult during an argument about 

infidelity does not harbor the same intent or motive [as] someone who strikes a threeyear-old child. The prosecution presented no evidence that a wife-beater is also a 

childbeater.” Defendant’s argument is not persuasive. 

 It is a defendant’s commission of prior acts of domestic violence that is 

particularly probative in demonstrating whether he or she has a propensity to commit 

such acts, including the one or ones charged, rather than a defendant’s intent or motive 

for doing so. (People v. Cabrera (2007) 152 Cal.App.4th 695, 705-706; People v. 

Jennings (2000) 81 Cal.App.4th 1301, 1318-1319.) 

 Further, any potential danger that the jury would confuse or misuse the evidence 

of the uncharged offenses was effectively eliminated by the trial court’s instruction 

limiting the jury’s use of that evidence. Specifically, the court instructed the jury: “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 
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inclined to commit domestic violence and, based on that decision, also conclude that the 

defendant was likely to commit and did commit the charged offenses. 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 the charged offenses involving domestic violence. 

The People must still prove each charge beyond a reasonable doubt. [¶] Do not consider 

this evidence for any other purpose.” 

 Consequently, we find no error by the trial court in admitting evidence of 

defendant’s uncharged acts of domestic violence. 

II 

Expert Testimony Regarding Victim Abuse 

Defendant contends the trial court prejudicially abused its discretion in admitting, 

over his objection, testimony by Melinda Shrock regarding intimate partner battering and 

the means used by male abusers to control their female victims. Defendant argues that 

because Schrock “failed directly to offer expert testimony that an abused mother likely 

would fail to report the abuse of her daughter” the net effect of Schrock’s testimony was 

“to simply assassinate the character of [defendant], and make it likely the jury would 

believe anything about him, including that he abused his child.” Again, we find no error 

in admitting the challenged testimony. 

 Evidence Code section 1107, subdivision (a) makes admissible in a criminal trial 

expert testimony regarding intimate partner battering and its effects on the victim, but 

makes such evidence inadmissible to prove the act or acts which form the basis for the 

criminal charge. Subdivision (b) of section 1107 states that a foundation for admission of 

the expert testimony is sufficient if its proponent establishes its relevancy and the 

qualifications of the expert. 

 I. testified that immediately after she and defendant were married he severely 

limited her communication with her family because “[e]very body was a heathen to him” 
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and the family was trying “to destroy us.” When asked if she ever tried to intervene 

when defendant was hitting B. with a belt, I. explained that she tried to argue with 

defendant but he would get “physical” with her and she “couldn’t defend [B.].” I. also 

feared reporting defendant’s physical abuse because he threatened to leave the country, 

go to Mexico, and she would have no one to support her. 

 Shrock’s testimony was offered to show why I. stayed in the relationship with 

defendant and did not report his abuse to law enforcement. In People v. Kovacich (2011) 

201 Cal.App.4th 863, we determined that such expert testimony was relevant to explain 

why victims of domestic violence may stay in a relationship with their abusers. (Id. at 

pp. 901-902.) When Shrock was asked if there had been research on “misconceptions 

that still exist about domestic violence,” she reported that there was a “myth” that if the 

abuse “[w]asn’t reported [then] [i]ts probably not going on.” Since Shrock’s testimony 

was relevant to show I.’s proffered reasons for not reporting the abuse and remaining 

with defendant was not uncommon among victims of domestic abuse, the court did not 

err in admitting Shrock’s testimony. 

DISPOSITION 

The judgment is affirmed. 

 ROBIE , Acting P. J. 

We concur: 

 BUTZ , J. 

 MAURO , J.