Filed 4/1/15 P. v. Bush CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE, Plaintiff and Respondent,

v. DONALD LEE BUSH, JR., Defendant and Appellant. B254817 (Los Angeles County Super. Ct. No. NA092372)

APPEAL from a judgment of the Superior Court of Los Angeles County. Tomson T. Ong, Judge. Affirmed.

Jennifer A. Mannix, under appointment by the Court of Appeal , for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gera ld A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorn ey General, Scott A. Taryle and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.2 Defendant and appellant Donald Lee Bush, Jr. (defendant) appeals from his murder conviction. He contends that the trial court erred in admitting evidence of an uncharged crime or past misconduct under Ev idence Code section 1101 and propensity evidence under Eviden ce Code section 1109. 1 He contends that the admission of such evidence resulted in a denial of due proce ss and that the two statutes violate the constitutional guarantees of due process and equal protection. Finally, defendant contends that the trial court e rred in refusing to instruct the jury with regard to voluntary manslaughter as a lesser included offense of murder. Finding no merit to any of defendant’s contentions, we affirm the judgment. BACKGROUND Procedural history Defendant was charged with the murder of Dana Milo (Milo), in violation of Penal Code section 187, subdivision (a). The in formation also alleged that defendant personally used a deadly and dangerous weapon in the commission of the offense, within the meaning of Penal Code section 12022, subdivision (b)(1). A jury found defendant guilty of murder as charged, fo und the murder to be in the fi rst degree, and found true the deadly weapon allegation. On February 24, 2014, the trial court sentenced defendant to 26 years to life in prison. The court impos ed mandatory fines and fees, and calculated presentence custody credit as 642 actual days, with no conduct credit. Defendant filed a timely notice of appeal from the judgment. Prosecution evidence In May 2012, defendant lived with Milo in room 105 of an apartment building in San Pedro. At 1:31 a.m. on May 24, 2012, police were ca lled to the room and found Milo lying dead on the bed, cross-legged w ith a plastic bag wrap ped around her head. Blood was on the pillow cases a nd elsewhere in the room. Detective Isidro Rodriguez testified that it appeared Milo had been sitting up watching television when she was

1 All further statutory references are to the Evidence Code, unless otherwise indicated.3 struck on the head. A search of the room turned up a ha mmer with blood on it, but no other metal or hard objects that co uld have caused similar injuries. Sharon Anderson testified th at she lived in the room next door, and on May 23, 2012, about 10:00 or 10:30 p.m., she looked th rough the slightly open door to room 105 as she was walking to the co mmunal bathroom at the end of the hall. She saw Milo inside with defendant and ex changed glances with Milo who was sitting on the bed crosslegged. Defendant was bending over, apparen tly picking up something. The door was closed when Anderson returned from the bathroom about five minutes later, although residents usually left doors slight ly open due to the hot weather. Another neighbor, Carmela Rodriguez, testif ied that she was asleep that evening, awakened about 9:30 or 10:00 p.m. by a telepho ne call, and then heard what sounded like three blows that made a squishy sound as though someone was hitting a watermelon. After each blow, she heard a sigh. The thir d sigh sounded like the life leaving someone. Curious, Rodriguez stepped into the hallway and saw defendant at his door. Rodriguez saw no signs of an injury on defendant. After defendant and Rodriguez made eye contact, defendant closed hi s door and Rodriguez procee ded down the hall to the bathroom. When she returned , defendant’s door was closed. Resident building manager Scott Fender test ified that about 1:00 or 1:15 a.m. that night when he left his room to move his moto rcycle to the back of the building, he saw defendant wearing a baseball cap, poking his head out of the door of his room. After the two men greeted each other, Fender went ou tside. A few minutes later, Fender saw defendant standing nearby looking nervous. Fender accompanied defendant back to his room where he saw Milo sitting cross-legged on the bed, looking gray . Fender shut the door and asked his wife to call 911. Defend ant was no longer wearing the baseball cap and Fender noticed a large welt and so me blood on defe ndant’s forehead. Defendant was taken to the hospital. Emergency room nurse Gabriel Gomez testified that he treated defendant for two lumps and a superficial cut on his forehead. Defendant was given a CT scan which ruled out bleeding in the brain and a skull fracture. Over the course of his career, Gomez had s een about 500 head tr aumas caused by hard4 objects such as clubs, baseball bats, rocks, st eel-toed boots, bottles, and hammers. Many of them were self-inflicted, and most of th ose were located on the forehead and did not involve serious injury. Treating emergency physician David Munoz testified that defendant appeared to have consumed alcohol but was not combative and had normal strength in his extremities. Dr. Munoz observed two minor lumps and v-sh aped lacerations on defendant’s forehead near his scalp which were consistent with self-inflicted wounds. He saw no defensive wounds. Dr. Munoz sealed defendant’s cu ts with a medical adhesive to stop any bleeding, and opined that bleeding would re occur only if someone tampered with the sealed wound. After defendant was released from the hospital and transported to the police station, Detective Rodriguez and his partner stripped him, examined his entire body, and documented his injuries. A few hours later, Detective Rodriguez noticed a change in defendant’s head wound. The detective th ought defendant had don e something to cause it to bleed. Medical examiner Stephen Scholtz test ified that he performed the autopsy on Milo, and determined she died fr om injuries caused by blunt force trauma to her head and neck, consistent with two blows by a hammer inflicted at least 20 minutes apart. Dr. Scholtz explained that the bl ow to the neck damaged the vertebral artery and caused blood to accumulate at the base of the sku ll, a process that woul d normally take from 20 minutes to four hours. In Dr. Scholtz’s opini on, this blow was delivered first, as Milo would have been alive at least 20 minutes until the blood found its way to the base of the brain. Milo also had a bone-deep lacerati on on her scalp and a depressed fracture of the skull, which Dr. Scholtz consid ered the second blow, as it w ould have instantly or very rapidly resulted in death. Milo’s blood al cohol content was about .20 percent, and she had methamphetamine in her system in a therapeutic (medicinal) range. The prosecution’s expert witness, emergency physician Marie Russell, testified that she had reviewed defendan t’s medical records and photograp hs taken after his arrest. She found old torso injuries but no evidence of defensive wounds. Defendant had a fresh5 bruise, some swelling, and some blood on his forehead near th e hairline, which Dr. Russell found to be consistent with a blow fro m the flat, non-clawed part of the hammer. Dr. Russell could not definitively say whethe r the injuries were self-inflicted or assaultive, but she found that several facts su ggested that they were self-inflicted. Dr. Russell noted that none of defendant’s injuries was severe, there were several wounds in the same small area, they we re in the forehead, and ther e were no defensive wounds. Assaultive hammer wounds were generally very deep, requiring mu ltiple layers of suturing to close, and often a ssociated with skull fractures. Dr. Russell also reviewed the autopsy report, and agreed with the medical examiner that the blow to th e neck came first. She also opined that the neck blow immediately incapacitated Milo so that she could not move ev en if she continued to live for awhile. Diane H. (Diane) testified that in 2007, she stayed with defe ndant off and on for some time at the Palos Verdes Inn, room 12. In the earl y morning hours of August 7, 2007, defendant struck her with a 40-ounce beer bottle as she sat on the bed. They had been watching a movie and defendant wanted to start another movie, but because had Diane seen it several times before, she said she was going to go to bed as soon as she finished her cigarette. Without saying anythi ng, defendant struck her on the left side of her head with the bottle. Several teeth were knocked out and her lip was cut through and through, requiring stitches insi de and outside her m outh. Diane denied that she had been drinking or holding a bottle of beer at that time. She also denied that she lived with defendant or had a key to his room. She clai med they had sex just twice, and the last time was a week befo re the incident. Los Angeles Police Officer Irene Castro te stified that on August 7, 2007, she was called to the Palos Verdes Inn, where she s poke to Diane and defendant. After Diane reported that she had been struck in the face with a 40-ounce King Cobra glass bottle, Officer Castro found such a bottle in room 12. Diane id entified it as the weapon and identified defendant as her assailant. Defend ant told Officer Castro that Diane had hit him in the head with a 12-ounce beer bottle, which made him angry, so he hit her back,6 also with a 12-ounce beer bottle. Officer Ca stro searched room 12, but was unable to find a 12-ounce bottle or any bottle other than the 40-ounce King Cobra beer bottle. She also examined defendant’s bo dy for any visible injuries a nd defensive wounds, but found none. Diane admitted to Officer Castro that she had been drinking. Her breath smelled of alcohol and she appeared to be intoxicated. Officer Juan Terrazas testified that he was called to the Palos Verdes Inn on April 2, 2011, and found a dist raught Milo in room 12. Milo had visible injuries on her face, she was crying, and appeared to have been in an altercation. She also appeared to have been drinking. Officer Terrazas inte rviewed Milo, took phot ographs, and filed a cohabitant abuse report. Defendant was re gistered in room 12 but was not there and Officer Terrazas was unable to find him. DISCUSSION I. Uncharged crimes evidence A. Standard and scope of review Defendant contends that th e trial court erred in admitti ng evidence of the August 2007 incident involving Diane, and that the error resulted in a denial of his constitutional rights to due process and a fair trial. At th e hearing on the pretrial motion to admit the evidence pursuant to section 1109, subdivisi on (a)(1), the prosecution argued that the evidence was also admissible und er section 1101, subdivision (b). The trial court found the evidence admissible under both sections. As relevant here, section 1101, subdivi sion (a), prohibits evidence of specific instances of a defendant’s conduct when o ffered to prove his conduct on a specified occasion, except as provided in section 1109. Subdivision (b) of section 1101 provides: “Nothing in this section pr ohibits the admission of evid ence that a person committed a crime, civil wrong, or other act when rele vant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, abse nce of mistake or accident . . . ) other than his or her disposition to comm it such an act.” We review the trial court’s7 rulings under section 1101 for an abuse of discretion. 2 ( People v. Fuiava (2012) 53 Cal.4th 622, 667-668.) Section 1109 provides an exception to section 1101 in cases where a criminal defendant is accused of an offe nse involving domestic violence. In such cases, “evidence of the defendant’s commission of other domes tic violence is not made inadmissible by Section 1101 if the evidence is not inadmissibl e pursuant to Section 352 .” (§ 1109, subd. (a)(1).) “The court enjoys broa d discretion in making this determination, and the court’s exercise of discretion will not be disturbed on appeal except upon a showing that it was exercised in an arbitrary, capricious or patent ly absurd manner that resulted in a manifest miscarriage of justice. [Citations.]” ( People v. Brown (2011) 192 Cal.App.4th 1222, 1233, fn. omitted.) B. Section 1109 Defendant contends that the incident in volving Diane was not “domestic violence” and was thus not admissi ble under section 1109. “‘Domestic violence’ has the meaning se t forth in Section 13700 of the Penal Code [and] as set forth in Secti on 6211 of the Family Code . . . .” (§ 1109, subd. (d)(3).) Both sections define domestic violence as abuse committed against a person with a current or former specified relationship with the defendant, including a cohabitant or a person with whom the defendant has had a dati ng relationship. “Dating relationship” is defined in Family Code section 6210 as “frequent, intimate associations primarily characterized by the expectation of affec tion or sexual involvem ent independent of financial considerations.”

2 Defendant acknowledges that the admission of other crimes evidence is reviewed for an abuse of discretion, while at the same time, he suggests that a de novo review is required because he has made a constitutional argument. As defendant did not make a constitutional argument below, he may argue that the error resulted in the additional consequence of violati ng constitutional rights, but only if he first establishes error under state law. (See People v. Thornton (2007) 41 Cal.4th 391, 443-444; People v. Partida (2005) 37 Cal.4th 428, 435-439.)8 First, defendant points out that Diane wa s not a cohabitant, as she denied living with defendant or even having a key to defe ndant’s room. Defendant then contends that having sex twice did not amount to a dating relationship. Defendant relies on the very restrictive definition of “dati ng relationship” formulated in Oriola v. Thaler (2000) 84 Cal.App.4th 397 ( Oriola ), and applied to an application for a restraining order under the Domestic Violence Prevention Act (DVPA) (Fam. Code, § 6200 et seq.). The Oriola court equated a dating re lationship with a “serious courtshi p” and defined it as “a social relationship between two individuals who have or have had a reciprocally amorous and increasingly exclusive interest in one another, and shared ex pectation of the growth of that mutual interest, that has endured for such a length of time and stimulated such frequent interactions that the relationship ca nnot be deemed to have been casual.” ( Oriola, supra , at p. 412.) The Oriola definition is obsolete as it was formulated before the California Legislature added Family Code section 6210 to clarify the meaning of “dating relationship.” (See People v. Rucker (2005) 126 Cal.App.4th 1107, 1114-1116 ( Rucker ).) The legislative definition does not require a c ourtship, exclusivity, or an expectation of a lasting relationship, and the phase, “frequent, intimate associations,” in the statutory definition does not preclude a relativ ely new dating relationship. ( Id . at p. 1116, quoting Fam. Code, § 6210.) 3
Defendant contends that it was not cl ear whether Diane’s relationship with defendant included sex before or after the be er bottle incident, despite Diane’s testimony that they had sex the week before the incident . In any event, the statute does not require frequent sexual relations, but merely “frequent, intimate associations” which are primarily characterized by the “ expectation of affection or sexual involvement.” (Fam. Code, § 6210, italics added.) A dating relati onship is one with “unique emotional and

3 We also agree with the Rucker court that the Oriola definition was mere dictum, as the parties were not in a dating relati onship by any reasonable person’s definition but at most, were “‘just friends.’” ( Rucker, supra , 126 Cal.App.4th at p. 1117.)9 privacy aspects that do not exist in other social or business relationships” and which distinguish it from mere casual soci al or business relationships. ( Rucker, supra , 126 Cal.App.4th at pp. 1116-1117; see also People v. Upsher (2007) 155 Cal.App.4th 1311, 1322-1323.) Here, Diane stayed with defend ant off and on, their relationship was sexual in nature, and there was no evidence of financia l considerations. We agree with the trial court and respondent that the statutory defi nition of dating relations hip was satisfied. (See Fam. Code, § 6210.) C. Section 1101 , subdivision (b) In addition to finding the evidence admi ssible under section 1109, subdivision (a)(1), the trial court found th e evidence admissible to show intent, absence of mistake, and modus operandi, three of the exceptions e numerated in subdivision (b) of section 1101. Defendant contends that the incident involving Diane was too dissimilar to the current offense to prove intent or a pattern of behavior. He argues that the only similarity was the use of a weapon. In addition, defend ant suggests that the prior incident would prove no more than an intent to commit an assault with a dead ly weapon, not an intent to kill. Defendant understates the si milarities of the two incide nts. “To be admissible, there must be some degree of similarity be tween the charged crime and the other crime, but the degree of similarity depends on the purpose for whic h the evidence was presented. The least degree of similarity is needed when, as here, th e evidence is offered to prove intent. [Citation.]” ( People v. Jones (2011) 51 Cal.4th 346, 371.) Further, the intent to be proven may be nor mal criminal intent as opposed to an innocent mental state. ( Ibid .) The fact that an earlier victim of a sim ilar assault surv ived to testify in a later murder trial does not render th e evidence less probative of defendant’s intent. (See People v. Kelly (2007) 42 Cal.4t h 763, 783, 785.) We agree with the trial court the two incide nts were sufficiently similar to raise an inference of criminal intent. Further, the two incidents also met the requirement of a greater degree of similarity to show a pattern of behavior suggestive of a common plan or modus operandi. (See People v. Ewoldt (1994) 7 Cal.4th 380, 402 ( Ewoldt ).) Indeed, we10 agree with respondent that the similarities were overwhelm ing. In both incidents, defendant and a woman companion were alone in his room watching television, when he struck the woman in th e head with a heavy, blunt object. Also, defendant claimed Diane had struck him first but he had no defensive wounds; an d in the current incident, defendant presented with apparently self-infli cted wounds, suggesting an intent to create support for a similar defense, without any defensive wounds. We observe that defendant does not conte nd that the court erred in ruling that the evidence was admissib le to show absence of mistake. Defense counsel told the court he intended to argue that Milo had playfully struck defendant twice with the hammer and that defendant reacted without malice by reflexively taking the hammer from her and hitting her back. The prosecuto r then pointed out that defe ndant made a similar claim after striking Diane. In ruling the evidence admissible, the trial court noted that any argument that the hammer incident was pl ayful would probably result in a defense request for an instruction on accident or misfortune. Further, the trial court was not limited by the examples enum erated in section 1101, subdivision (b). ( People v. Catlin (2001) 26 Cal.4th 81, 146.) Other crimes evidence “may properly be admitted whenever it tends logically, naturally, and by reasonable inference to establish any fact material for the People or to overcome any material matter sought to be proved by the defense . [Citations.]” ( People v. Montalvo (1971) 4 Cal.3d 328, 331-332, italics added; see also People v. Spector (2011) 194 Cal.App.4th 1335, 1373.) Here , by anticipating a defense request for an instruction, the trial court impliedly ruled in accordance with this principle in addition to finding the evidence relevant to nega ting accident or mistake. As we find sufficient similari ty in the two incidents to raise a reasonable inference of intent, and as defendant has not challenge d the court’s finding regarding absence of mistake, we conclude that the trial court di d not abuse its discreti on in determining that the prior incident involving Diane was admi ssible under section 1101, subdivision (b).11 D. Section 352 1. Balancing required Before admitting evidence of uncharged cr imes under section 1101 or 1109, a trial court must take the additional step under se ction 352 of weighing the probative value of the evidence against the prob ability that admission of the evidence “would create a serious danger of undue prejudice, of confus ing the issues, or of misleading the jury. [Citation.] On appeal, a trial court’s resolution of these issues is reviewed for abuse of discretion. [Citation.] A court abuses its discretion when its ruling ‘falls outside the bounds of reason.’ [Citation.]” ( People v. Kipp (1998) 18 Cal.4th 349, 371.) Due to the “substantial prejudice inherent” in uncharged crimes, the proba tive value of such evidence must be substantial. ( People v. Kelly, supra , 42 Cal.4th at p. 783.) 2. Balancing process was implied First, defendant contends that the tria l court failed to engage in the required weighing process, and that the court failed to make a finding on the question, but merely ruled that the evidence wa s admissible. The record demonstrates otherwise. While the trial court “could have been mo re explicit in explaining its reasoning, ‘we review the ruling, not the reasoning.’” ( People v. Carter (2005) 36 Cal.4th 1114, 1152.) Although it is the “better practice” for th e trial court to set fo rth on the record its balancing of the probative value of the eviden ce against its potential prejudicial effect, a failure to do so is not errone ous when the court heard lengthy argument on the issue as it did in this case. ( Id . at pp. 1151-1152.) At the hearing on the prosecution’s motion, the trial court heard defense counsel’s argument that the “incident may be so close in terms of the use of a bottle to this woman’s face and the evidence here that it could confuse th e jurors and be prejudicial against [defendant].” The court replied that the similarity of the two incidents made the evidence highly relevant and that all releva nt evidence was prejudicial. The court indicated it would evaluate the question, a nd then heard arguments regarding probable prejudice and the probative value of the incident involving Diane.12 Although the trial court’s ruling was not an express statement that the probative value of the incident outweighed the potentia l for prejudice, such a finding was clearly implied. The court expressly found that Di ane and defendant had a dating relationship, and thus the bottle incident involved dome stic violence. Then the court discussed defendant’s indicated defense based on assert ed playfulness to negate malice and ruled the evidence admissible. Fina lly, the trial court heard further argument on the issue after jury selection. It is thus reasonably clear that the trial court weighed potential prejudice against probative value. 3. No undue prejudice Defendant also contends that the eviden ce was more prejudicial than probative. The various factors to be considered when weighing the proba tive value against the prejudicial effect of uncharged crimes evid ence include: the tendency of the uncharged offense to demonstrate the fact in issue; the independence of the source of the uncharged crime; whether the facts of the uncharged crim e are more inflammatory than the facts of the charged offense; the remote ness in time to the charged offe nse; whether there is other evidence to substantiate the fact in issue; and whether the uncharged crime resulted in conviction. ( Ewoldt, supra , 7 Cal.4th at pp. 404-406.) Defendant argues that the evidence was mi nimally probative of intent or common plan because it was only vaguely similar. We glean four reasons from defendant’s argument that the potential prejudicial effect outweighed probative value: it suggested that he had a bad character and a disposition to abuse wome n; it suggested deliberate and premeditated murder rather than an accident; it was unduly in flammatory; and it served to bolster the prosecution’s case, which was weak due to the absence of eyewitness or other direct evidence of the events leading up to the fatal blow. Initially we note that the purpose of adm itting evidence under se ction 1109 is to prove defendant’s propensity to abuse women such as Diane and Milo. (See Rucker,

supra , 126 Cal.App.4th at p. 1114.) A nd we do not agree with defendant’s characterization of the prosecution case as weak simply because it was based upon circumstantial evidence. As we have alre ady determined that the two incidents were13 remarkably similar, the prior incident had gr eat probative value in proving defendant’s propensity. (See People v. Branch (2001) 91 Cal.App.4th 274, 2 85.) It follows that the prior incident had a substantial tendency to prove that defendant harbored a criminal intent in both cases, and that neither incident was an accident or the result of a mistake. In addition, the source of the other crimes evidence was independent of the charged offense, as the assault on Dian e was unrelated to the current offense, and the testimony of the two police officers there invo lved served to substantiate Diane’s testimony. Finally, the assault on Diane was not remo te in time, in that it occurre d less than five years before the current offense. Also it wa s not more inflammatory than the current offense as it was a single blow, not two, and did not result in death. Thus, all but one of the Ewoldt factors favor the trial court’s determination that the probative value of the evidence outweighed th e potential for undue pr ejudice: that the uncharged crime did not result in conviction. Such a circumstan ce can increase the danger that a jury might be inclined to punish defendan t for the uncharged offense, regardless if it considered him guilty of the charged offenses. ( Ewoldt, supra , 7 Cal.4th at p. 405.) However, the fact that the assa ult on Diane was less in flammatory reduced its potential for prejudice in the murder case. (See ibid .) We conclude that the trial court properly exercised its discreti on under section 352, in a manner that was neither arbitrary, capricious, nor patently absurd. Moreover no miscarriage of justice is shown. Defendant must demonstrate not only that the ruling was erroneous, but also that the error resulted in a miscarriage of justice, as defined in People v. Watson (1956) 46 Cal. 2d 818, 836-837 ( Watson ). ( People v. Paniagua (2012) 209 Cal.App.4th 499, 524.) Thus defendant must show that an examination of the entire record demonstr ates a reasonable probability of a more favorable result in the absen ce of the claimed error. ( Watson, supra , at pp. 836-837.) Contrary to this required scope of re view, defendant focuses on the challenged evidence and disregards all unc hallenged evidence. He then reargues in essence, that evidence of the incident involvi ng Diane was more prejudicia l than probative, and that the court’s limiting instructions were too gene ral to cure the prejudice. Defendant also14 contends that the prejudicial effect was ex acerbated by the prosecutor’s inflammatory argument that defendant was “a wife beater. He’s an abuser of women. He hits their heads. He uses hard objects, at least the one time. Then go, now you’ve got the beyond a reasonable doubt standard to prove that he murdered [Milo] and he murdered her with premeditation, deliberate and willful.” Defend ant does not argue that without the alleged error -- that is, if the trial court had exclude d the prior crime evidence -- there would have been a reasonable probability of a more favorable result. We have reviewed the entire record, incl uding all the uncha llenged evidence, and conclude first that the evidence supporting th e jury’s finding that defendant killed Milo was overwhelming. Between 9:30 and 10 :30 p.m. on the night Milo was killed, defendant and Milo were toge ther in defendant’s room w ith the door open. When Anderson saw Milo about that time, Milo wa s alive and sitting cross-legged on the bed in defendant’s room, as the two women made eye contact. Defendant was picking up something from the floo r. Then, after the door was closed, Rodriguez heard blows, a squishy sound, and sighs, including a long final sigh that sounded like someone dying. Defendant was still in his room at that time, as Rodriguez thereafter saw him peak out from his door. When defendant led Fender into his room, Milo was either dead or dying, sitting in the same cross-legged position on the bed. The po lice soon found Milo dead on the bed, with her legs in the same position. Second, the evidence of defe ndant’s premeditated intent to kill Milo was also overwhelming. Defendant’s first blow struck Milo near her clavicle and immediately incapacitated her. Then she remained alive but immobile for at least 20 minutes before defendant delivered the final fatal blow. The inference is inescapable that defendant waited for Milo to die for at least 20 minutes before he delib erately decided to finish her off. As it is unlikely that the passions of the jurors could be any more inflamed by defendant’s nonfatal blow to Diane’s jaw with a 40-ounce beer bottle than this manner of killing Milo, we conclude that there was no reasonable probability th at defendant would have achieved a more favorable result ha d the trial court excluded the evidence.15 II. Constitutionality of section 1109 Defendant contends that s ection 1109 interferes with a criminal defendant’s rights to equal protection, due process, and a fair tr ial, and he asks that we declare it invalid. We find no merit in defenda nt’s arguments, and reject his constitutional challenge. A. Due process As defendant recognizes, in People v. Falsetta (1999) 21 Cal.4th 903 ( Falsetta ), the California Supreme Court rejected a simila r facial challenge to section 1108, which provides for the admission of evidence of propensity to commit se x crimes. The court held that “the trial court’s discretion to exclude propensity evidence under section 352 saves section 1108 from defendant ’s due process challenge.” ( Falsetta, supra , at p. 917.) Defendant contends that th e protections afforded by se ction 352 are unreliable and inadequate to safeguard a defendant’s right to due process under s ection 1109, and thus invites us to reject the holding of Falsetta that propensity evidence in general is not a per se violation of due process. Defendant also sugges ts that we adopt the reasoning of the Ninth Circuit Court of Appeals in Garceau v. Woodford (9th Cir. 2001) 275 F.3d 769, overruled on other grounds in Woodford v. Garceau (2003) 538 U.S. 202. We are not bound by decisions of the federal circuit cour ts of appeal, even with regard to federal constitutional questions. ( People v. Cleveland (2001) 25 Cal.4th 466, 480.) On the other hand, as defendant also recognizes, we are bo und to follow the majo rity opinions of the California Supreme Court, and do not have discretion to reject them. ( Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) More over, as our high court recently noted in reiterating that section 352 saves section 1108 from a due process challenge, “the federal courts follow an analogous rule. (See U.S. v. LeMay (9th Cir. 2001) 260 F.3d 1018, 1022 [upholding co nstitutionality of Fed. Rules Evid ., rule 414, 28 U.S.C.].)” ( People v. Wilson (2008) 44 Cal.4th 758, 797.) Further, the courts of appeal have consis tently applied the reasoning set forth in Falsetta to uphold the cons titutionality of section 1109 agai nst a due process challenge. (See, e.g., People v. Cabrera (2007) 152 Cal.App. 4th 695, 703-704, and cases cited therein, cited with approval in People v. Wilson, supra , 44 Cal.4th at p. 797.) “In short,16 the constitutionality of section 1 109 under the due process clau ses of the federal and state constitutions has now been settled.” ( People v. Jennings (2000) 81 Cal. App.4th 1301, 1310 ( Jennings ).) B. Equal Protection The courts of appeal have also repeated ly rejected equal protection challenges to section 1109. (See, e.g., People v. Price (2004) 120 Cal.App.4t h 224, 240, and cases cited therein.) One such court applied the analysis of People v. Fitch (1997) 55 Cal.App.4th 172 ( Fitch ), which rejected an equal protection challenge to section 1108. (See Jennings, supra , 81 Cal.App.4th at pp. 1309-1313.) The Fitch court concluded that section 1108 did not violate equal protectio n because it bore a rational relationship to a legitimate state purpose based upon the Legisl ature’s determination that “the nature of sex offenses, both their seriousness and their secretive commission which results in trials that are primarily credibility contests, justif ied the admission of relevant evidence of a defendant's commission of other sex offenses.” ( Fitch, supra , at p. 184, citing Estelle v. Dorrough (1975) 420 U.S. 534, 537-538.) In Jennings , the court drew on the analysis of Fitch , discerned a similar purpose in section 1109, as domestic violence is also a secretive crime resulting inevitably in credibility issues, a nd held that section 1109 also met the more relaxed scrutiny of a rational-basis analysis. ( Jennings, supra , at p. 1313.) 4 We agree. III. Voluntary manslaughter jury instructions Defendant contends that the trial court erred in de nying his request for jury instruction CALJIC No. 8.40, which provides in relevant part: “There is no malice aforethought if the killing occurred upon a su dden quarrel or heat of passion . . . .”

4 Although the California Supreme Cour t did not directly address the equal protection issue in Falsetta , it referred to Fitch and indicated its agreement with its analysis, and concluded: “As Fitch stated, ‘The Legislature is free to address a problem one step at a time or even to apply the remedy to one area and neglect others. [Citation.]’ [Citations.]” ( Falsetta, supra , 21 Cal.4th at p. 918, quoting Fitch, supra , 55 Cal.App.4th at pp. 184-185; see also Jennings, supra , 81 Cal.App.4th at p. 1312, fn. 4.)17 Malice is negated, and murder reduced to voluntary manslaughter, when the defendant kills “upon a sudden quarrel or heat of passion.” (Pen. Code, § 192, subd. (a).) “Heat of passion arises when ‘at the time of the killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from such passion rather than from judgment.’ [Citations.]” ( People v. Barton (1995) 12 Cal.4th 186, 201.) The facts and circumstances that would arouse the passions of an ordinarily reasonable person of average disposition must be viewed objectively. ( People v. Gutierrez (2002) 28 Cal.4th 1083, 1143.) “[T]he factor which distinguishes th e ‘heat of passion’ form of voluntary manslaughter from murder is provocation. The provocation which incites the defendant to homicidal conduct in the heat of passion mu st be caused by the victim [citation], or be conduct reasonably believed by the defendant to have been engaged in by the victim. [Citations.] The provocative conduct by the vi ctim may be physical or verbal, but the conduct must be suffici ently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation an d reflection. [Citations.]” ( People v. Lee (1999) 20 Cal.4th 47, 59.) Although the su fficiency of the provocation is measured by an objective standard, th ere is a subjective component. ( People v. Steele (2002) 27 Cal.4th 1230 , 1252.) The subjective componen t is the defendant’s state of mind, which requires a showing that he in fact acted in the heat of passion. ( Ibid .) The trial court must instruct the jury on this theory only when it is supported by substantial evidence. ( People v. Breverman (1998) 19 Cal.4th 142, 156, 162.) Here, the trial court found insufficient evidence to justify giving the instruction. Defendant contends that the instruction was supported by the following ev idence: defendant presented with a laceration an d swelling on his forehead, bump s on either side of his head, and some bleeding from one of the bumps; the injuries were consistent with having been caused by the front end of a hammer; al though the injuries ap peared to be selfinflicted, they could have been the result of an assau lt; defendant showed signs of18 intoxication; and defendant cried during his conversations with both Fender and Detective Rodriguez. Defendant argues that the jury could have inferred provocation from such circumstances. He concludes that the ev idence sufficiently show ed that Milo hit defendant in the head with the hammer, thus provoking defendant, and upon this sudden quarrel, defendant hit Milo in the head, wh ich resulted in her death. Defendant’s arguments are not persuasive. There was no evid ence, direct or circum stantial, that Milo ever touched the hammer or even knew that it was in defendant’s room. It is only speculation that Milo delivered the hammer blows which caused defendant’s injuries, and if so, under what circumstances, or even wh en she might have delivered them -- other than sometime before she was to tally incapacitated by defendant’s first blow to her neck. Without more, we do not agree with defendant that the jury could have been able to determine, by inference or otherwise, whether the provocation was sufficient to “cause an ordinary person of average di sposition to act rashly or without due deliberation and reflection. [Citations.]” ( People v. Lee, supra , 20 Cal.4th at p. 59.) Moreover, since defendant did not test ify, there was no other direct or circumstantial evidence of defendant’s subjec tive state of mind, and thus no evidence that defendant in fact acted under a heat of passi on. Defendant does not point to any such evidence or argue that there was substantial evidence of the subjective component. A trial court has no duty to give heat of passi on instructions to the jury withou t evidence that the victim’s conduct had some eff ect on the defendant’s state of mind. ( People v. Manriquez (2005) 37 Cal.4th 547, 585.) We conclude that the trial court did not err in failing to give a voluntary manslaughter jury instruction. Regardless, any such error would have been harmless under the test of Watson, supra , 46 Cal.2d at page 836, as it is not reasonably probable that defendant would have obtained a more favorable result had it been given. (See People v. Breverman, supra , 19 Cal.4th at pages 177-178 [ Watson test applicable].) Before hitting Milo in the he ad, defendant struck her on her neck near the clavicle, instantly incapacitating her for a period of at least 20 minutes before striking the final19 fatal blow to her head. We have already concluded that such evidence overwhelmingly supported the jury’s determin ation that defendant killed Milo with premeditation and deliberation. Based upon such evidence, and in the absen ce of any substantial evidence that defendant acted rashly or that Milo did anything th at would have provoked an ordinary person of average di sposition to act rashly, we conclude that there was no reasonable probability that defe ndant would have achieved a more favorable result had the trial court instructed the ju ry with regard to voluntary manslaughter based upon heat of passion. DISPOSITION The judgment is affirmed. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

____________________________, J. CHAVEZ

We concur:

__________________________, P. J. BOREN

__________________________, J. HOFFSTADT