Filed 4/26/22 P. v. Burgess CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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or ordered published for purposes of rule 8.1115. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

KEVIN BURGESS,

Defendant and Appellant.

 D078156

 (Super. Ct. No. SCE392962)

APPEAL from a judgment of the Superior Court of San Diego County, 

Steven E. Stone, Judge. Affirmed.

Gary V. Crooks, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant 

Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. 

Ragland and Michael Dolida, Deputy Attorneys General, for Plaintiff and 

Respondent. 
2

INTRODUCTION

Over the Fourth of July holiday in 2019, Kevin Burgess strangled his 

estranged wife Jane Doe1 to unconsciousness two times, fashioned a noose 

and put it around her neck, prevented her from leaving the house, and told 

Jane’s young children he would kill her if they tried to leave the house to get 

help. He was convicted by a jury of assault, corporal injury to a spouse, false 

imprisonment by violence or menace, making a criminal threat, and 

misdemeanor willful cruelty to a child. At trial, the prosecution was 

permitted to present evidence of three uncharged acts of prior domestic 

violence, in which Burgess had physically isolated Jane, strangled her, and 

threatened to kill her. 

Burgess appeals, claiming the trial court committed evidentiary error 

when it admitted evidence of his prior acts of domestic violence pursuant to 

Evidence Code section 1109, subdivision (a)(1).2 He also contends the court 

committed instructional error because it failed to inform the jury that it could 

not consider the prior acts of domestic violence when deciding his guilt of the 

charged crimes of false imprisonment or willful cruelty to a child. He further

contends there was insufficient evidence to support his convictions for false 

imprisonment and making a criminal threat. We affirm the judgment.

1 Pursuant to rule 8.90(b)(4) of the California Rules of Court, we use an 

anonymous first name and surname to protect the victim’s identity. In 

subsequent references, we use only the first initials of the victim’s children, 

and the name and first initial of the surname of the testifying adult 

witnesses.

2 All further unspecified statutory references are to the Evidence Code.
3

FACTUAL AND PROCEDURAL BACKGROUND

I.

The Evidence At Trial

Trial began on February 5, 2020. After the prosecution presented its 

case-in-chief, the defense rested without presenting evidence. We summarize 

the testimony from the prosecution’s witnesses.

A. The Charged Crimes of July 4 and July 5, 2019

1. Jane’s Testimony

Jane and Burgess had been in an on-and-off romantic relationship

since 2010. They married in April 2018 and were still married at the time of 

trial in February 2020.3 Between March and July 2019, they were separated 

but trying to get back together. Jane lived in a two-story townhome with her 

five children: S. (age 12), R. (age nine), A. (age eight), B. (age six), and J. (age 

three). Burgess had moved out and had not lived in the townhome since 

March 2019. 

At around 8:00 a.m. on July 4, 2019,4 Jane and six-year-old B. were 

asleep in Jane’s upstairs bedroom. Jane was awakened by Burgess yelling at 

B. to get up and clean her room. Burgess had come into the house uninvited 

and unannounced, and Jane did not know how he got in. When Jane sat up

in bed, she could see Burgess “down the hall . . . yelling at [B.] to clean her 

room.” Burgess “physically” but not “forcefully” took B. to her room, while 

the child was “groggy” and “disoriented” from still being “half-asleep.” Jane

3 At the time of the trial, Jane had reconciled with Burgess. She 

acknowledged she did not want to testify, because despite what Burgess had 

done to her, she still loved him.

4 All further dates refer to 2019 if no year is specified.
4

started yelling at Burgess, and he yelled back. At some point, he grabbed 

Jane’s cell phone and “smashed” it on the bathroom counter, breaking it and 

rendering it inoperable. 

Burgess then stood blocking the entranceway to her bedroom. Jane

“freak[s] out” when an entrance or exit is blocked; it causes her to have “a 

panic attack” and makes it “hard [for her] to breathe.” But Jane wanted to 

avoid “hav[ing] this type of day,” so she sat down and played a music video on 

her bedroom television. The song she played was “Independence Day”⎯a 

song about “family violence.” Playing that song was Jane’s “passive 

aggressive” response, a “Fuck You” message, to Burgess’s “drama” of coming 

in uninvited, screaming at B. and breaking her phone. Hearing the song, 

Burgess broke the television by throwing the smashed phone at it. 

Jane pushed past Burgess to get out of the bedroom, and tried to go

downstairs. But Burgess followed her. They were “tussling” on the stairs. 

He was “trying to hold [her] from going downstairs,” and she “was trying to 

break free of him.” At some point, Burgess “put his hands around [her] neck.” 

Jane cannot remember “anything after that.”

The next thing Jane remembered was waking up at the bottom of the 

stairs. Her face was wet because Burgess and some of her kids had put water 

on it. She felt “disoriented and weak.” Burgess was trying to help her get up 

but she “couldn’t move.” She did not know how long it took until she was able 

to get up, but eventually, she got to the couch. Later, when she went to the 

bathroom, she noticed her panties were wet. She had urinated on herself. 

Jane remained disoriented for “quite a while” the rest of the day. But it 

was the Fourth of July, and she had changed shifts at work to spend the 

holiday with her kids. So even though she “was in shock,” she barbecued on 

the back patio “to try to salvage it for them.” 
5

Burgess remained in the house the rest of the day and night. Jane was 

scared with Burgess in the house, because the kids were there and Burgess 

“wasn’t himself.” “He was a maniac . . . [l]ike . . . when a bipolar person . . . 

has . . . like a severe attack, and they’re not all there.” Jane did not feel she 

could leave the house alone. She did not try because she felt “very, very 

weak, and very disoriented.” She also believed Burgess “probably wouldn’t 

have allowed” her to leave without him. In the evening of July 4 or the “early 

morning” of July 5, inside the garage, Burgess tried to tie her arms together 

with something, either a zip tie or a shoelace, but she “fought it off.” Jane did 

not sleep much that night because Burgess was “opening every box and going 

through everything” in the house. 

The next morning on July 5, Jane was trying to come up with a plan “to 

get out of the house without escalation,” but she was having trouble thinking. 

“[Her] head was going really slow.” And she was trying to get her “gears to 

move properly,” but “they were not.” Jane did not know how they were going 

to escape but she told 12-year-old S. to “[b]e dressed [and] ready.”

Jane made several attempts to leave the house by going “towards the 

front door.” But each time, Burgess stopped her. Once, Burgess stopped her 

from getting through the front door by grabbing her sweater and pulling her 

back in so that she “went back into . . . the couch or something.”

In another attempt to escape, Jane and S. boosted eight-year-old A.

over the back patio fence so he could go get help from the children’s 

babysitter who lived about half a mile away. But after they put A. over the 

fence, “he didn’t go.” Instead, he came back around to the front door and 

rang the doorbell. When Burgess heard the doorbell, he ran out the back 

door, but when he realized it was only A., he came back inside.
6

Burgess’s violence escalated. He took an extension cord and “looped it”

or tied it into “an oval.”5 He told Jane, “he was going to hang himself and 

[her].” He first tried to put the noose around Jane’s neck. But S. thwarted 

him. She either hit Burgess or did something else to give Jane “enough 

leverage” for Jane to get the noose off her neck. Burgess then put the noose

around his neck. He attached the other end of the cord to the balcony, and 

tried to commit suicide by stepping on a “five-gallon thing” and jumping off. 

“[H]is face started to swell up,” but “he didn’t die.”

At that moment, Jane told S. “she had to go.” “Everything was 

escalating.” But Burgess told the children, “if they left, that he would hurt” 

Jane. It was possible Burgess said he would “kill” Jane, but she was not “a 

hundred percent” certain that he used those words.6 Burgess’s threat scared

Jane. It also made S. “reluctant” and “scared” to leave. Despite her fear, S.

climbed the back patio wall to go get help. She stopped at the top of the wall

to tell Burgess, “Don’t hurt my mom.” S. jumped, and Burgess lunged at 

Jane. Jane did not remember anything else after that except the sound of 

eight-year-old A. screaming. 

When Jane woke up, she was on the ground. Her children were 

standing over her. Burgess was kneeling on her side trying to wake her up

and telling her to go find S. Jane “was slow” and her “body was really heavy.” 

She was disoriented, her neck hurt “all over,” and she was having “problems 

breathing.” Still, Burgess was trying to hurry Jane out the door to go 

retrieve S. 

5 In his opening brief on appeal, Burgess called it a “noose.”

6 S. testified that Burgess told the children and Jane that “he would kill” 

Jane if any of the children left. 
7

Next, Burgess, Jane, and the other children walked down the street

towards the babysitter’s house; they presumed S. had gone there. They heard 

sirens, and Burgess immediately ran away. The sirens turned out to be 

unrelated to their ordeal. Jane and the children continued down the street

when, a few minutes later, the babysitter pulled up in her car with S. The 

babysitter took the family back to her house. Jane was disoriented and tired. 

The children were all scared. 

On the following Monday, July 8, Jane went to the courthouse and filed 

for a restraining order. The same day, she sought out a domestic violence 

advocate and reported the incident to the police. She waited to file the police 

report because she was concerned that Child Protective Services (CPS) might 

act on the police report “immediately and probably remove the kids.” She 

wanted to tell CPS what happened directly to avoid losing the children. 

2. S.’s Testimony

S. was 13 years old at the time of trial. She woke up on the morning of 

July 4 to Jane and Burgess arguing. At some point, Jane and Burgess were 

on the stairs and S. saw Burgess “choking” her mother. He was “gripping 

[her mother’s neck] tightly” with both of his hands. Her mother was not 

saying anything, because “[s]he couldn’t.” Jane passed out and fell down 

“[o]n the bottom of the stairs.” Jane “wasn’t waking up” and her body “was 

shaking a little bit.” 

S. was scared. She was “trying to get [Burgess] off [her] mom” by 

hitting him. When her mother woke up, she was “[w]eak” and “[i]t was hard 

for her to get up.” Burgess helped Jane get up, and she sat down on the 

couch for a short time. After that, her mother went to the kitchen for food, 

“[b]ecause it was the Fourth of July.”
8

S. did not see “anything else physical” happen between Jane and 

Burgess the rest of that day. But S. saw her mother try to leave the house 

three times. Each time, Burgess “wouldn’t let her” leave. He would block the 

door, and one time “[he] pushed her away from it.” S. was worried that her 

mother “wouldn’t make it,” that “she would pass away.” 

That night, S. slept in the living room with her three-year-old brother

J. When she woke up the next day, Burgess was still in the house. At 

around 9:00 a.m., S. heard her mother and Burgess arguing. Jane was 

sitting on the couch, and Burgess was either upstairs or coming down the 

stairs. Burgess had shoved a “door stopper” at the front door so “you can’t 

open it.” Jane “tried to go to the door and unlock it” but Burgess “pushed her 

down” and “told her, ‘You can’t leave.’ ” 

Burgess threatened all the children and Jane that “he would kill” Jane

if any of the children left. S. believed him and she was scared. At one point, 

A. had jumped over the patio wall, but “then he had to come back because 

[Burgess] said he was going to kill [their mother].” Burgess made the threat 

before and after A. went over the wall. He had threatened to kill Jane if any 

of them left “[a]bout five times.” 

S. saw Burgess “choke” her mother with his hands a total of about six 

times on July 4 and 5. It happened differently each time. Sometimes he 

would use two hands, sometimes he would use one. He would choke her for 

longer or shorter periods of time. One time S. saw Burgess choke Jane on the 

back porch. At first, he “was just using his hands.” Later, Burgess tried to 

choke Jane with an electrical cord connected to an electrical fire pit they used 

to make S’mores on the Fourth of July. Burgess took the cord and tied it into 

a circle “big enough to go around her neck.” Then, as Jane was walking into 

the kitchen, Burgess “tried to put it around her neck,” but “she ducked[.]” 
9

“[T]hen he had tried to [do it] again, but she moved.” As this was happening, 

S. was “pushing him away from her” mother so “it wouldn’t go around her

neck.” 

S. tried to leave the house to get help three times. First, she tried to 

leave through the garage, but the garage door would not open. She tried to 

leave a second time after Burgess tried to put the cord around her mother’s 

neck. She “hopped the wall,” but then jumped back over into their patio 

when Burgess said “he was going to kill” Jane. It was then that Burgess 

“walked over to [Jane] and started choking her” on the patio. S. escaped on 

the third try when Jane threw a skateboard at Burgess over the fence and S. 

went after it. S. ran to a friend’s house across the street but no one was 

there. She then ran to the babysitter’s house because she was scared Burgess 

would kill her mother while she was gone. 

3. A.’s Testimony

A. was almost nine years old at the time of trial. On July 5, A. saw 

Burgess hit and push his mother. A. said he was trying to “stop the fight.” 

He climbed over the wall that day because “Mom asked for help,” and he went 

“[t]o go get some help.” But after he got over the wall, A. explained, “I just 

stayed there, because I was scared.” He was scared “[o]f Mom getting hurt” 

because Burgess told him he would “do something bad to her” if A. jumped 

over the wall. A. believed Burgess. He had already seen that Burgess “had a 

knife” and “an extension cord . . . tied around in a loop,” and he “[s]tarted 

choking [his mother].” A. loudly told Burgess “ ‘stop’ ” a lot of times. A. saw 

his mother had “blacked out.” He thought his mother “[l]ooked like she was 

dead.”
10

4. The Babysitter’s Testimony

At around 9:30 a.m. on July 5, S. came to the babysitter’s house with a 

panicked look on her face. She immediately told the babysitter her mother 

needed help. The babysitter had never seen S. so scared. S. told her “they 

had been trapped in the house since yesterday, the Fourth of July.” Burgess 

had broken the phone so they had no way to call for help. S. also explained 

“she was told that, if any of them get out of the house, [Burgess] said that he 

would kill them, anybody who was left in the house.” 

They got into the babysitter’s car and sped towards Jane’s house. S.

was shaking and scared that Burgess “would do something to her mom” 

before she came back with help. S. told the babysitter that Burgess “choked” 

Jane and S. “had to pull him off” her mother. At that moment, they saw Jane 

and the other children “running up the street.” The children looked scared, 

“[l]ike they were trying to get away from something.” The family got into the 

car. Jane’s hair and clothing were disheveled. Her face and neck were 

“really red.” She had scratches on her arms and redness on her wrists. And 

she was “out of it.” 

5. Thomas R.’s Testimony

Jane’s friend Thomas R. saw her about two days after the Fourth of

July holiday. She had multiple bruises, so Thomas took photographs of her 

neck, chest, and arm. The bruising on Jane’s chest were “the worst of them.” 

Jane asked Thomas to take down the noose that was tied around a two-byfour on her patio, “because she couldn’t stand to look at it.” After he took it 

down, he realized he should have photographed it, so he put it back near its 

original location and took a photograph. The jury was shown these 

photographs.
11

6. Dr. Steven Campman’s Testimony

Dr. Campman, the Chief Deputy Medical Examiner for San Diego 

County, testified as an expert on the subject of strangulation. He explained 

strangulation is a form of asphyxiation caused by pressure on the outside of 

the neck. Lay people sometimes mistakenly refer to strangulation as 

“choking,” but, medically, choking refers to the airway being blocked from the 

inside. There are different types of strangulation, including manual 

strangulation, ligature strangulation, and hanging. All are potentially lethal.

What happens when someone is strangled depends on how much 

pressure is applied, and how long the pressure is applied. Strangulation 

involves compression to two main sets of structures in the neck: the airway

(trachea or windpipe) and the blood vessels (jugular vein and carotid 

arteries). Different amounts of pressure are required to compress these 

structures. It only takes about 4.4 pounds of pressure to compress the 

jugular veins, and about 11 pounds of pressure to compress the carotid 

arteries, but it takes about 33 pounds of pressure to compress the trachea, or 

windpipe. An average 30-year-old man’s “handshake,” i.e. his grip strength,

is around 100 to 120 pounds. Thus, an average man’s hands would be strong 

enough to block any or all three of the jugular veins, carotid arteries or

trachea in the neck. 

Compressing the blood vessels in the neck can stop blood flow, and thus 

oxygen, to the brain. Or it can stop blood filled with carbon dioxide from 

draining out of the brain, causing a potentially damaging carbon dioxide 

build-up in the brain. Similarly, when the trachea is blocked, oxygen or air is 

prevented from flowing to the lungs. A person can lose consciousness from 

strangulation. The amount of time it takes for a strangled person to lose 

consciousness depends on the amount of pressure applied and where it is 
12

applied. If both carotid arteries are completely blocked, unconsciousness can 

happen in as little as six seconds. If the blockage of blood flow or air flow is 

incomplete, it will take longer for the oxygen concentration in the blood to 

drop. 

When a person is strangled to unconsciousness, some of her brain cells 

may temporarily lose function, or if the loss of oxygen continues, the cells 

may die and permanently lose function. Irreversible brain damage can 

happen in as little as five minutes. “[T]he longer a person is strangled, the 

more damage to the brain that person is getting.” Brain damage is also more 

likely to occur if there are multiple incidents of strangulation as opposed to 

one. 

A victim of strangulation will not always have outwardly visible 

injuries. Loss of bladder control is a commonly reported symptom or sign of 

strangulation. 

In a person with no physical injuries, the loss of consciousness and

bladder control and memory problems can be consistent with strangulation or 

seizures.7 But a tender or swollen neck is not attributable to seizures. Also, 

in the case of a person with a history of seizures, “strangulation lowers the 

7 Jane testified that it occurred to her, after the Fourth of July incidents 

but before the preliminary hearing, that after Burgess put his hands around 

her neck when they were on the stairs, she had suffered a “long seizure.” She

explained that she had suffered a “big” seizure in 2012, and also had 

previously experienced one or two “very minor” seizures. Several days before 

July 4, she ran out of her antiseizure medication. She believed “that 

probably played a part as well” in her loss of consciousness. She testified 

that one of her children told her she had been “shaking” while lying on the 

floor. But she admitted that on July 4, before she lost consciousness on the 

staircase, Burgess had applied pressure to her neck; that she had been trying 

to fight him off; that she was having difficulty breathing; and that the next 

thing she remembered was waking up at the bottom of the stairs. 
13

seizure threshold”⎯that is, “if someone has a seizure disorder and they’re 

strangled, they’re more likely to have a seizure brought on by the 

strangulation.” Strangulation can also induce a seizure in a victim with no 

history of seizures. As Dr. Campman explained: “Not only would someone

who has an existing seizure disorder be more likely to have a seizure because 

of the lack of oxygen from the strangulation, but . . . one of the signs of 

strangulation . . . can be a seizure. [¶] When someone . . . is lacking enough 

oxygen in their brain, one of the things that happens, and can precede death, 

is a seizure.”

B. The Uncharged Acts of Domestic Violence8

1. Jane’s Testimony About the March 20 and March 24 Incidents

On March 20, Burgess “choked” Jane more than once during an 

argument. After he had been “gone for days,” Burgess called Jane to meet 

him at the hospital because he had been in a motorcycle accident. Jane was 

mad that Burgess “didn’t call for days,” so rather than go to the hospital, she 

“left to go play bingo.” When she got home, Burgess was already there and 

“enraged.” He thought Jane was cheating on him because she did not go to 

the hospital. The argument turned physical, and he choked her with his 

hands more than once. It was less severe than when he choked her in July in 

that she did not blackout. Burgess got on his motorcycle and left.

Jane did not call the police on March 20, “[b]ecause [Burgess] had never 

done that before.” She believed Burgess was acting “out of character” and he 

was having “severe mental health issues.” She did not want to get him into 

8 Over the defense’s objection, the trial court granted the People’s motion 

in limine to admit evidence of three uncharged acts of domestic violence that 

occurred in March 2019, pursuant to section 1109, subdivision (a)(1). Later, 

we discuss the proceedings related to the motion in limine in further detail in

connection with Burgess’s claim of evidentiary error.
14

trouble. But she called 911 four days later because Burgess was not 

“deescalating” and she “didn’t have a choice.”

On March 24, Jane came home and saw Burgess’s motorcycle. She got 

scared because of what happened on March 20. Burgess saw Jane and 

“started to . . . come towards [her].” He “ran into the street” after her and she 

ran to a nearby convenience store to call 911. A recording of the 911 call was 

played for the jury. 

Jane told the emergency dispatcher, “on the 20th my husband almost 

murdered me, he like choked me and punched me and all kinds of stuff and 

he came back.” She explained that she still “ha[d] a black eye and bruises”

from the incident. The dispatcher asked Jane if he was still at the home and 

Jane responded: “I was hiding . . . around the corner because I seen his 

motorcycle and then he seen me and then he ran into the street and grabbed 

my hair and said he was gonna murder me. . . . I like hid behind a car and 

. . . then he drove by on his motorcycle, but he’s gonna come back and he took 

my phone so, I don’t have a way to call you from my house.” 

After she called 911 on March 24, Jane requested an emergency 

protective order. She also met with a police officer, who took photographs of 

the black eye and a bruise to the arm that she sustained in the March 20 

incident. These photographs were shown to the jury. The police also 

interviewed nine-year-old R. about the March 24 incident. On cross 

examination, Jane admitted she interrupted the interview and prompted R. 

to agree that he saw Burgess hit her. On redirect, she explained she was 

being “a little controlling” but was not trying to tell R. to “give a different 

story[.]”
15

2. Megan S.’s Testimony About the March 28 Incident

In 2019, Megan S. lived on the same street as Jane. On March 28, 

while she was standing outside her home with a friend, Megan saw two 

women walking up the street. One of them was pushing a little boy in a 

wagon. A man on a motorcycle approached the women and began “yelling at 

them pretty loudly.” 

Megan identified Burgess in court as the man on the motorcycle. She 

described the two women as both White with brown hair. She was shown a 

photograph of Jane and testified, “I know that woman was there. Which of 

the two, I don’t remember.” She explained “it’s been a while” and the best 

she could recall was that Jane, from the photograph, was “one of the two 

ladies that was walking down the sidewalk that [Burgess] yelled at.” Megan 

did not know any of these people. 

Megan testified that Burgess “kept going at it and [was] just yelling.” 

Burgess then stopped and “got in one of the lady’s face and was yelling at 

her.” She heard the lady “telling him to leave her alone and to leave, and . . . 

to get out of her face.” Megan thought Burgess’s behavior was “pretty crazy.” 

He was initially yelling at the lady who was pushing the wagon with the little 

boy. Then the other lady “tried to kind of get him away from her,” she got out 

a cell phone and was trying to call for help, but the man grabbed it out of her 

hand. 

Burgess then “got back into the other lady’s face and continued trying 

to talk with her.” When “he was getting really in her face,” Megan stepped in 

and told Burgess he should leave, “because [the lady] clearly didn’t want him 

there.” Megan threatened to call the police but Burgess did not stop. While 

Megan’s friend called the police, Burgess “had pinned [the lady] into a corner, 

up against the fence, and was holding her there, and wouldn’t let her go, and 
16

she was screaming to let go and for help.” Megan yelled at him to stop. The 

man let the lady go, but he did not leave. When the police came, he was still 

there.

C. Recorded Jail Calls from November and December

Burgess had tried to call Jane from jail over 500 times. Jane 

“guesstimate[d]” that out of these calls, she actually spoke to Burgess 30 

times. The jury heard excerpts of recorded calls Burgess made from jail on 

November 5 and 6, and December 5 and 19. 

In the November 5 call, Burgess and Jane discussed the possibility of 

Jane telling the prosecutor she was not coming to court. Burgess said, “it just 

makes it easier for me to beat the case.” 

In the November 6 call, Jane was unhappy with Burgess and reluctant 

to assist him by not testifying. She asked Burgess, “[D]o you realize how 

close everything came?” She told Burgess she could “see a difference” in 

herself, and that she was having difficulty “process[ing] verbally.” She told 

Burgess: “I’m not saying I don’t love you. . . . [But] I’m scared of you.” 

In the December 5 call, Jane and Burgess again discussed the 

possibility of Jane not appearing for trial. Burgess suggested that if Jane

were to tell the prosecutor she would not testify, the prosecutor would “kick it 

out and I’ll get out.” Jane said, “I don’t want to risk anything with you . . . 

doing major time . . . , but at the same time, . . . I’m already scared of you and 

I don’t know how to not be.” She talked about the possibility of Burgess 

“tak[ing] the deal” because then she would not be “in any kind of position.” 

She told Burgess, repeatedly: “I’m scared of you.”

Finally, in the December 19 call, Burgess told Jane: “I know you’re 

scared, and I don’t blame you, believe me, I don’t, I don’t blame you at all.” 

Jane responded, “Every part of me . . . would love for us to work out.” At the 
17

same time, she asked Burgess: “[H]ow can I feel safe with you. 

[Transcription states Jane is crying.] How would I know you wouldn’t try to 

kill me again?” Jane explained she has thought about “a possible statistic 

where [she] don’t end up gone.” She asked Burgess, “Do you understand that 

my bladder had already emptied?[9] That that’s the last thing before you’re 

gone.” Burgess offered the following responses: “You’re not [going to end up 

gone]. If I was gonna kill, I would kill you. I’m not gonna kill you.” “I’m not 

gonna kill you. You are fine. I know it’s gonna take time for you not to be 

scared of me, but [Jane], I’ve never loved nobody like, like this.”

Under cross examination, Jane explained the recordings of jail calls 

played for the jury were not complete. She offered explanations for some of 

their conversations. For example, when Burgess suggested to Jane that she 

not come to court, she had already told Burgess she did not want to testify. 

When Jane told Burgess she was scared of him, she meant she was “scared of 

his mental health issues, and if he’s not taking care of himself, us ever going 

down that road again.” 

II.

Closing Arguments, Verdict, and Sentence

A. Closing Arguments

1. The Prosecutor’s Closing Argument

Burgess was charged in an amended information with two counts of 

assault by means of force likely to produce great bodily injury (counts 1 and 

2; Pen. Code, § 245, subd. (a)(4)), corporal injury to a spouse (count 3; Pen. 

Code, § 273.5, subd. (a)), making a criminal threat (count 4; Pen. Code, 

9 This appears to be a reference to Jane urinating on herself during the 

strangulation on July 4.
18

§ 422), false imprisonment by violence, menace, fraud, and deceit (count 5; 

Pen. Code, §§ 236, 237, subd. (a)), and misdemeanor willful cruelty to a child 

(count 6; Pen. Code, § 273a, subd. (b)). It was alleged that Burgess inflicted

great bodily injury under circumstances involving domestic violence in the 

commission of counts 1 and 2 (Pen. Code, § 12022.7, subd. (e)), and that he

suffered a prior conviction that qualified as a serious felony (Pen. Code, § 667, 

subd. (a)(1)) and a strike (Pen. Code, § 667, subds. (b)–(i)).

The prosecutor argued the jury should find Burgess guilty of assault 

with force likely to cause great bodily injury (counts 1 and 2) based on the 

evidence he strangled Jane two times to unconsciousness on July 4 and 5. 

She argued Jane had suffered brain damage from the strangulation, which

was great bodily injury to support true findings on the related enhancement 

allegations. She further argued the bruises, red marks, and swelling on 

Jane’s arms, chest, and neck were injuries sufficient to support a guilty 

verdict on the crime of corporal injury to a spouse (count 3).

The prosecutor argued that any of Burgess’s many threats to kill Jane

on July 4 and 5 would justify a verdict of guilty on the crime of making a 

criminal threat (count 4). As for false imprisonment (count 5), the prosecutor 

argued that Burgess had kept Jane in the house against her will. He had 

used menace by threatening to kill her, and had used violence when he 

physically pushed her when she tried to leave. On misdemeanor willful 

cruelty to a child (count 6), the prosecutor argued Burgess had inflicted 

mental suffering on S. by causing her to experience panic and terror. Finally, 

the prosecutor argued Burgess showed consciousness of guilt when he ran 

after hearing sirens and tried to convince Jane not to testify at trial.
19

2. Defense Counsel’s Closing Argument

Defense counsel argued that Jane was a dishonest and unreliable 

witness. She had lied to the police in 2015 and had encouraged S. to lie.10 

Defense counsel argued that Jane was equally dishonest about everything 

that occurred on July 4 and 5. Overall, Jane had “lie[d] and exaggerate[d]

this whole crime report.” 

Defense counsel told the jury the alleged false imprisonment “didn’t 

happen,” and that it could not convict Burgess of making a criminal threat 

because “there was no oral threat.” Defense counsel asserted that Jane had 

simply suffered two seizures and blamed them on Burgess, and that “[S.]

knows [her mother] just had a seizure.” She further asserted that the 

witnesses had “all talked about this,” that the babysitter was not truthful 

and was merely “trying to be helpful,” and that Thomas had made the noose

himself and had “fabricated evidence.” Defense counsel stated, “this case 

cannot be proven beyond a reasonable doubt because it started with that 

faulty foundation of an unreliable, dishonest witness making the report of a 

crime that has not been supported by any police officer in this case.”

3. The Prosecutor’s Rebuttal Argument

Responding to defense counsel’s assertions that the witnesses were 

dishonest, the prosecutor argued it was unreasonable to conclude that all of 

the witnesses, even including the babysitter and Thomas, who had no motive 

to lie, would testify falsely. She pointed out that Jane testified she still loved 

10 Under cross examination, Jane admitted that in 2015, she made a false 

statement to the police about an incident not involving Burgess. She also 

“[i]nitially” had S. lie, and told S. to tell the police “that somebody else . . . 

was at the house.” 
20

Burgess, and that she had been an unwilling witness who was not interested 

in getting Burgess in trouble. 

The prosecutor also argued the witnesses’ descriptions of Burgess’s 

actions on July 4 and 5 were consistent with the evidence of his prior acts of 

violence in March. The March 28 incident was witnessed by a stranger, 

Megan, who had no reason to lie. The prosecutor told the jury that if it found 

by a preponderance of evidence the March incidents had occurred, it could 

rely on them as “one factor” supporting the conclusion Burgess had 

committed the charged offenses involving domestic violence on July 4 and 5.

B. Verdict and Sentence

After deliberating for two days, the jury convicted Burgess on all six 

counts. It found the two enhancement allegations charging Burgess with 

infliction of great bodily injury to be not true. Burgess admitted he suffered a 

serious felony prior (Pen. Code, § 667, subd. (a)(1)) and a strike prior (Pen. 

Code, § 667, subds. (b)–(i)). The trial court sentenced Burgess to a total 

prison term of 13 years. At Jane’s request, the court also entered a criminal 

protective order effective for the maximum period of 10 years. 

DISCUSSION

I.

The Trial Court Did Not Abuse Its Discretion By Admitting Evidence of

Uncharged Acts of Domestic Violence

Burgess contends the trial court abused its discretion by admitting 

evidence of the three uncharged acts of domestic violence from March. He 

contends the balance of interests under section 352 favored exclusion of this 

evidence, and that the trial court violated his due process rights by admitting 
21

the evidence. We conclude there was no evidentiary error, and thus no 

constitutional violation.

A. Additional Background

In a motion in limine, the prosecution sought to admit evidence of the 

March 20, 24, and 28 incidents pursuant to section 1109, subdivision (a). The 

defense moved in limine to exclude such evidence. At the hearing on the 

motions, the prosecutor stated she would question Jane about all three 

incidents. She proffered that Jane’s testimony would be corroborated by one 

of Jane’s children, who was home on March 20 and March 24 and had been 

interviewed by police on March 24, and by Megan, the witness to the March 

28 incident. Defense counsel responded that Jane had told her child what to 

say to the police, such that the child was not a reliable witness. Defense 

counsel also asserted the proffered evidence was inadmissible under section 

352. 

The trial court granted the prosecution’s motion, ruling all three 

incidents were admissible. It observed that section 1109 does not require 

“perfect corroboration” and stated it was satisfied there was “sufficient 

corroboration.” The court further determined the probative value of the

evidence was not substantially outweighed by a danger that its admission 

would create undue prejudice, and that it was therefore not inadmissible 

under section 352. 

During trial, defense counsel renewed her objection to the March 28 

incident on the basis that the prosecutor had not questioned Jane about it, 

meaning Megan’s testimony about the incident would not be corroborated. 

Defense counsel argued that “abundant” time had already been spent on 

establishing the March 20 and 24 incidents. The trial court overruled the 

objection.
22

After Megan testified about the March 28 incident, the trial court 

stated on the record outside the presence of the jury that there had been a 

sidebar conference during which the court had said it would strike Megan’s 

testimony unless the prosecution established the incident had involved 

Burgess and Jane. Defense counsel argued Megan’s identification of Jane

was insufficient because she described the victim as having brown hair, 

whereas “here in court, [Jane] had blond hair.” Defense counsel also argued 

Megan’s testimony lacked probative value because Megan had been unable to 

confirm Jane was the victim. 

The trial court declined to strike the testimony. It observed that 

section 1109 required the prosecution to prove a prior act of domestic violence 

by a preponderance of the evidence, and ruled that Megan’s testimony was 

sufficient to satisfy this burden. Referring to section 352, the court further 

ruled that the probative value of Megan’s testimony was not outweighed by 

the probability its admission would create undue prejudice.

B. Admission of Uncharged Domestic Violence Offenses under Section 1109

“Ordinarily, propensity evidence—evidence that a defendant committed 

an uncharged offense—is inadmissible to prove the defendant’s disposition to 

commit the charged offense. (§ 1101, subd. (a).) Evidence that the defendant 

committed uncharged crimes or other acts, however, is admissible to prove 

relevant facts other than disposition, such as motive, intent, and absence of 

mistake or accident. (§ 1101, subd. (b).)” (People v. Kerley (2018) 23 

Cal.App.5th 513, 531 (Kerley).) 

Section 1109 is yet another legislative carveout to this general rule 

against admitting propensity evidence and provides an exception in domestic 

violence cases. It states: “[I]n 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 
23

1101 if the evidence is not inadmissible pursuant to Section 352.”11 (§ 1109, 

subd. (a)(1).) “As a result, section 1109 ‘permits the admission of defendant’s 

other acts of domestic violence for the purpose of showing a propensity to 

commit such crimes.’ ” (Kerley, supra, 23 Cal.App.5th 513, 531, quoting 

People v. Hoover (2000) 77 Cal.App.4th 1020, 1024.)

“[T]he California Legislature has determined the policy considerations 

favoring the exclusion of evidence of uncharged domestic violence offenses are 

outweighed in criminal domestic violence cases by the policy considerations 

favoring the admission of such evidence.” (People v. Johnson (2000) 77 

Cal.App.4th 410, 420.) “[T]he legislative history of the statute recognizes the 

special nature of domestic violence crime, . . . : ‘The propensity inference is 

particularly appropriate in the area of domestic violence because on-going 

violence and abuse is the norm in domestic violence cases. Not only is there a 

great likelihood that any one battering episode is part of a larger scheme of 

dominance and control, that scheme usually escalates in frequency and 

severity. Without propensity inference, the escalating nature of domestic 

violence is likewise masked. . . . Since criminal prosecution is one of the few 

factors which may interrupt the escalating pattern of domestic violence, we 

must be willing to look at that pattern during the criminal prosecution, or we 

will miss the opportunity to address this problem at all.’ (Assem. Com. Rep. 

on Public Safety (June 25, 1996) pp. 3-4.).” (Id. at p. 419.) Section 1109 thus 

“ ‘reflects the legislative judgment that in domestic violence cases . . . similar 

11 Section 1109, subdivision (e), provides that “[e]vidence 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.”
24

prior offenses are “uniquely probative” of guilt in a later accusation.’ ” 

(Kerley, supra, 23 Cal.App.5th at p. 531.) 

Before admitting evidence of a defendant’s “other domestic violence,”

section 1109 expressly requires the trial court to exercise its discretion under 

section 352 to determine whether the “probative value [of the evidence] 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.” (§§ 1109,

352.)

The “ ‘determination as to whether the probative value of [prior 

uncharged acts] evidence is substantially outweighed by the possibility of . . . 

unfair prejudice or misleading the jury is “entrusted to the sound discretion 

of the trial judge who is [in] the best position to evaluate the evidence.” ’ ” 

(People v. Hernandez (2011) 200 Cal.App.4th 953, 966 (Hernandez).) “We 

review a challenge to a trial court’s decision to admit [this] evidence for abuse 

of discretion.” (People v. Johnson (2010) 185 Cal.App.4th 520, 531

(Johnson).) “A trial court’s exercise of its discretion under section 352 ‘ “must 

not be disturbed on appeal except on a showing that the court exercised its 

discretion in an arbitrary, capricious or patently absurd manner that resulted 

in a manifest miscarriage of justice.” ’ ” (People v. Brown (2000) 77 

Cal.App.4th 1324, 1337.)

C. Analysis

1. The Prior Uncharged Acts of Domestic Violence Did Not Lack 

Probative Value

Burgess’s challenge to the trial court’s exercise of discretion under 

section 352 focuses in large part on the contention that the evidence he 

abused Jane in March lacked probative value. He offers two reasons why this 

is so. First, he contends the prior incidents were not frequent, regular or 
25

severe. Second, he contends the degree of certainty that the incidents 

actually occurred was reduced, thus diminishing their probative value, 

because the trial testimony about them was uncorroborated. We reject both 

contentions. 

Burgess’s first argument about the purported lack of frequency, 

regularity, and severity of his uncharged domestic violence offenses is based 

on his interpretation of Kerley, supra, 23 Cal.App.5th at pages 534–536. He

contends his own prior acts of abuse were not as frequent, regular, or severe 

as the uncharged domestic violence incidents held admissible in Kerley. So 

he contends his assaults and threats on Jane on three separate occasions in 

March were not as probative as the uncharged acts admitted in Kerley. This 

argument lacks merit. 

“ ‘The principal factor affecting the probative value of an uncharged act 

is its similarity to the charged offense.’ ” (People v. Hollie (2010) 180 

Cal.App.4th 1262, 1274; Hernandez, supra, 200 Cal.App.4th at p. 966 [a 

significant factor in determining the probative value of the evidence is 

“ ‘whether the uncharged conduct is similar enough to the charged behavior 

to tend to show the defendant did in fact commit the charged offense’ ”].) 

“[P]roponents of the bill that became section 1109 argued for admissibility of 

such evidence because of the ‘typically repetitive nature’ of domestic 

violence,” a “pattern” that “suggests a psychological dynamic not necessarily 

involved in other types of crimes.” (Johnson, supra, 185 Cal.App.4th at 

p. 532.) 

Thus, the probative value of a defendant’s uncharged abusive acts 

arises primarily from the similarity between the uncharged act and the 

charged conduct. The repetition of similar abusive behavior suggests the 

defendant has a pattern of engaging in particular forms of domestic violence 
26

under particular circumstances. For example, in Johnson, supra, 185 

Cal.App.4th 520, an attempted murder case in which the defendant was 

alleged to have shot his girlfriend, the Court of Appeal held the trial court 

properly admitted evidence of two prior instances in which the defendant had 

shot other girlfriends. (Id. at pp. 532–533.) Although the shootings occurred 

more than 10 years before the charged crime, their probative value was great 

because they demonstrated a pattern of the defendant using guns against his 

domestic partners to exact revenge when he felt rejected by them. (Ibid.)

Here, Burgess’s acts of domestic violence in March revealed a 

behavioral pattern also seen in his conduct in July underlying the charged 

offenses. In the March 20 incident, Burgess, while angry at Jane and arguing 

with her verbally, escalated the argument into a physical confrontation by 

“choking” Jane multiple times. On March 24, he took Jane’s phone from her, 

threatened to kill her, and attempted to restrain her movement by grabbing 

her hoodie and pulling on her. On March 28, he “got in [Jane’s] face,” 

grabbed her companion’s phone when the companion tried to call for help, 

and then pinned Jane against a fence and held her there, restraining her 

movement, as she screamed for help. In these incidents, Burgess showed a 

pattern of escalating verbal arguments into physical confrontations, a 

tendency to use strangulation as a method of inflicting physical harm on 

Jane, a tendency to restrain Jane’s movement using physical force, and to 

prevent Jane or others from calling for help in response to his abuse. These 

patterns of depriving Jane of her phone, controlling her movement and then 

escalating to strangulation were strikingly similar to Burgess’s conduct on 

July 4 and 5. His prior acts of domestic violence were thus highly probative 

of his tendency to commit acts like those he was accused of committing here.
27

Burgess’s reliance on Kerley does not persuade us to conclude 

otherwise. A review of Kerley reveals the facts and issues presented in that 

case to be quite different from those presented here. In Kerley, the defendant 

was accused of murdering his girlfriend. She went missing, and her 

decomposed body was discovered and identified more than a decade later. 

(Kerley, supra, 23 Cal.App.5th at pp. 521–526.) The cause of death, including 

whether it had resulted from an assaultive act, was disputed, and revolved 

around competing expert interpretations of fractures in the ribcage of the 

deceased victim. (Id. at pp. 525–527.) 

During the prosecution’s case-in-chief, “[t]he jurors learned that, over a 

period of 10 years, Kerley regularly punched and kicked [the decedent], 

slapped her, threw her to the ground when she was pregnant, punched and 

kicked her in the stomach when she was pregnant, restrained her from 

leaving the home, stalked her, beat her in the back with a two-by-four, kicked 

her in the eye, mopped the floor with her face and hair, stomped on her hand 

and foot, and repeatedly threatened to kill her.” (Kerley, supra, 23 

Cal.App.5th at p. 540.) The Court of Appeal concluded the trial court did not 

err by admitting this evidence under section 1109. (Id. at pp. 539–540.) It 

reasoned that evidence of Kerley’s prior assaults was “directly relevant” 

because “the fact that [he] regularly assaulted the victim is evidence the jury 

can use to conclude, along with other evidence, that [he] assaulted the victim 

in committing the charged crime.” (Id. at p. 539.) 

Rejecting Kerley’s argument that the evidence was inflammatory and 

prejudicial under section 352, the Court of Appeal reasoned that Kerley’s 

behavior represented “compelling evidence” of his propensity to beat his 

partner, that “[t]he frequency and regularity with which Kerley beat [the 

decedent] provided vivid proof he would likely beat [her] again,” and that 
28

“[t]he severity and viciousness with which [Kerley] assaulted [the decedent] 

was probative of the intensity and depth of his willingness to harm her.” 

(Kerley, supra, 23 Cal.App.5th at p. 540.) The court explained, “this type of 

‘prejudice’ is not the ‘prejudice’ envisioned by section 352.” (Ibid.) 

Turning back to this case, Burgess argues that his abusive acts in 

March were not probative because they were not as frequent, regular, or 

severe as in Kerley. The comparison with Kerley misses the point. That 

particularly egregious acts of violence were admitted in Kerley does not, on its 

own, establish a general rule requiring evidence of domestic violence to be 

just as egregious to be admissible in other cases. The probative value of a 

defendant’s prior domestic violence incidents comes from the defendant’s 

tendency to engage in a particular pattern of abuse. The probative value of 

this evidence is in the similarity of defendant’s later conduct to his own 

earlier behavior, not the similarity of the defendant’s abusive acts to those of 

another defendant, particularly another defendant accused of a dissimilar 

offense. Burgess, unlike the defendant in Kerley, was not on trial for 

murdering his partner by crushing her ribcage. Burgess’s uncharged 

misconduct did not need to be similar to uncharged acts admitted in Kerley to 

be probative here. 

Burgess’s next argument about the limited probative worth of the 

March incidents has to do with an asserted lack of corroboration. Burgess 

contends the prior instances of domestic violence lacked probative value 

because the degree of certainty they actually occurred was “[g]reatly 

[r]educed” by the fact they were “uncorroborated.” He asserts that Jane’s 

trial testimony about the March 20 and 24 incidents was “entirely 

uncorroborated” and that the testimony of Megan was “likewise 

uncorroborated by any other witness.” We reject these contentions.
29

At the outset, section 1109 does not mandate corroboration. The 

relevant part of the statute states: “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.” (§ 1109, subd. (d)(3), italics added.) 

“Consideration of a factor such as corroboration does not mandate the 

existence of that factor.” (People v. Mani (2022) 74 Cal.App.5th 343, 373 

(Mani).) Thus, under section 1109, “corroboration is not a requirement.” (Id.

at p. 372.)

Also, contrary to Burgess’s argument, evidence corroborating Jane’s 

testimony about the March 20 and 24 incidents was presented at trial. The 

word “any” in section 1109, subdivision (d)(3), signals that “the nature of the 

corroboration can be anything that serves as corroboration.” (Mani, supra, 74 

Cal.App.5th at p. 373.) “Thus, contemporaneous reports to the police can 

serve as corroboration that an event occurred.” (Ibid.) Here, Jane called 911 

on March 24 and reported the abuse Burgess committed that day as well as 

on March 20. The recording of the 911 call, which was played for the jury, 

was evidence corroborating Jane’s in-court testimony. The jury had the 

opportunity to hear the audio of Jane as she reported the incidents to the 

authorities, and was able to consider her vocal intonations and affect close in 

time to the alleged events, and evaluate her credibility. That was not all. In 

addition, the police responded to the call and photographed Jane’s black eye 

and the bruising on her arm. These photographs were shown to the jury, and 

they served as additional corroboration of Jane’s testimony that Burgess had 

physically abused her.
30

As for the March 28 incident, Burgess’s assertion that Megan’s 

testimony was “uncorroborated by any other witness” is not untrue. But as 

noted, section 1109, subdivision (d)(3), does not condition the admissibility of 

a prior incident of domestic violence on the existence of corroborative 

evidence. (Mani, supra, 74 Cal.App.5th at pp. 372, 373.) 

Burgess nevertheless contends that People v. Stanley (1967) 67 Cal.2d 

812 (Stanley) required the trial court to exclude any uncorroborated

uncharged acts. His reliance on this case is also misplaced. Stanley stands 

for the proposition that “uncorroborated testimony of the prosecuting witness

as to noncharged offenses” should generally be excluded. (Id. at pp. 817–818, 

italics added.) Since, as we have just explained, the March 20 and 24 

incidents were corroborated by other evidence, we consider his argument as 

addressing the March 28 incident testified to by Megan. But Megan’s 

testimony does not fall within the rule articulated in Stanley, because she 

was not the prosecuting witness. Further, in the wake of Stanley, our high 

court has emphasized that Stanley “expressly declined ‘to adopt rigid rules’ ” 

of admissibility, and has confirmed that a trial court retains discretion to 

admit uncorroborated testimony about the defendant’s uncharged acts. 

(People v. Ewoldt (1994) 7 Cal.4th 380, 407, 408.) Further still, Stanley did 

not involve a prosecution for domestic violence, and it was decided before the 

Legislature adopted section 1109 to ensure that patterns of domestic violence 

should not go unseen. For these reasons, Stanley is inapposite. 

In his reply brief on appeal, Burgess contends for the first time that 

Megan’s testimony should have been excluded on the ground it was 

“ambigu[ous],” because although Megan was able to identify Jane as one of 

the two women she saw on March 28, she was unable to confirm whether 
31

Jane was the victim or the victim’s female companion. Burgess contends that 

to conclude Jane was the victim would be “speculation.” 

This contention is belated and unaccompanied by a showing of good 

cause for the delay, and it is therefore forfeited. “ ‘Obvious reasons of 

fairness militate against consideration of an issue raised initially in the reply 

brief[.]’ ” (People v. Rangel (2016) 62 Cal.4th 1192, 1218 (Rangel) [defendant 

forfeited a contention about a reason the trial court erred in admitting 

evidence by raising the contention for the first time in reply].) 

And even if not forfeited, the contention lacks merit. When considering 

whether to admit evidence of an uncharged act, “[t]he trial court must make 

a preliminary determination of whether the proffered evidence is sufficient 

for the jury to find, by a preponderance of the evidence, that the defendant 

committed an enumerated offense.” (People v. Jandres (2014) 226 

Cal.App.4th 340, 353.) The trial court’s determination of this preliminary 

fact is reviewed for an abuse of discretion. (Ibid.) “ ‘The court should exclude 

the proffered evidence only if the “showing of preliminary facts is too weak to 

support a favorable determination by the jury.” ’ ” (Ibid., quoting People v. 

Lucas (1995) 12 Cal.4th 415, 466.) 

Here, the jury was presented with sufficient evidence from which it 

could conclude by a preponderance of the evidence that Jane was the victim 

of the March 28 incident. Although Megan was unable to confirm, based on 

Jane’s appearance in a photograph shown to her by the prosecutor, that Jane

was the person Burgess yelled at and pinned against the fence, other details 

of Megan’s testimony supported the conclusion Jane was the victim. Megan 

was confident in her identification of Burgess as the perpetrator. Megan 

confirmed the incident occurred on March 28 on Jane’s street, and that the 

lady yelled at by Burgess was “pushing the wagon with the little boy.” When 
32

the jury heard these details of the March 28 incident, it had already learned 

Jane was the mother of J., a 3-year-old boy. The jury had also heard that 

four days before March 28, Jane had reported Burgess to the authorities and 

had sought a restraining order against him. The jury could infer from this 

evidence that Jane was likely the person pulling the wagon with the little boy 

as well as the object of Burgess’s rage, and therefore the victim of the March 

28 incident. 

Finally, in his reply brief, Burgess appears to offer another new 

argument: he asserts that section 1109 propensity evidence is inherently 

prejudicial, and therefore must have substantial probative value to be 

admissible under section 352. This belated position, unaccompanied by an 

explanation for the delay, has been forfeited. (Rangel, supra, 62 Cal.4th at 

p. 1218.) In any event, to the extent Burgess means to contend that the 

probative value of the March incidents was not substantially probative, we 

disagree. As discussed above, the pattern of behavior revealed by these

uncharged incidents was so similar to the conduct involved in the charged 

offenses as to be highly probative of his behavioral tendencies and propensity 

to commit the charged acts of domestic abuse.

In summary, we reject Burgess’s claims that the probative value of the 

evidence of his prior abusive acts on March 20, 24, and 28 was diminished 

either because his misconduct was not as regular, frequent, or severe as the 

uncharged conduct admitted in Kerley, or because it was uncorroborated.

2. Burgess Fails to Demonstrate That the Probative Value of the 

March 2019 Incidents Was Outweighed by a Factor Favoring 

Exclusion Under Section 352

As we have noted, Burgess’s contention that his prior acts of domestic 

violence should have been excluded under section 352 focuses on the 

assertedly diminished probative value of the incidents. He presents very 
33

little by way of argument addressing the other side of the section 352 

equation. 

In the analogous context of section 1108,12 courts have stated that 

when determining whether evidence of uncharged misconduct should be 

excluded pursuant to section 352, “the probative value of the evidence must 

be balanced against four factors: (1) the inflammatory nature of the 

uncharged conduct; (2) the possibility of confusion of issues; (3) remoteness in 

time of the uncharged offenses; and (4) the amount of time involved in 

introducing and refuting the evidence of uncharged offenses.” (People v. 

Branch (2001) 91 Cal.App.4th 274, 282, citing People v. Harris (1998) 60 

Cal.App.4th 727, 737–741.) In addition, “other-crimes evidence . . . ‘is 

inadmissible if not relevant to an issue expressly in dispute’ ” or “ ‘if “merely 

cumulative with respect to other evidence which the People may use to prove 

the same issue[.]” ’ ” (Harris, at p. 737.) 

Here, Burgess argues the evidence of his uncharged acts should have 

been excluded as “cumulative” because it was “ ‘beyond dispute’ ” he had the 

propensity to commit domestic violence. His claim that his propensity toward 

domestic violence was “undisputed” relies on the fact that he was convicted of 

the charged offenses. In his words: “if the jury was convinced beyond a 

reasonable doubt that the requisite elements of each of the charged crimes 

12 Section 1108 applies when a defendant is charged with a sexual 

offense. Subdivision (a) of section 1108 provides: “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 inadmissible pursuant to 

Section 352.” Section 1108 and section 1109 “are virtually identical, except 

that one addresses prior sexual offenses while the other addresses prior 

domestic violence.” (People v. Johnson, supra, 77 Cal.App.4th at p. 417.) 
34

was proven (which it would have to be to reach convictions even without the 

evidence of the uncharged crimes) then proof by uncharged crimes evidence of 

a propensity to commit those crimes was cumulative.”

This argument is devoid of merit. The record of the proceedings in the 

trial court makes clear that whether Burgess committed, and therefore had 

the propensity to commit, the charged offenses was not undisputed. Burgess 

pled not guilty to the charges in the amended information. He did not 

stipulate to any element of any offense. (See People v. Valdez (2012) 55 

Cal.4th 82, 131 [allegation not undisputed where the record did not clearly 

show defendant offered to stipulate to it].) His trial counsel vigorously 

disputed his guilt, telling the jury the acts described by Jane had been 

fabricated, “didn’t happen,” and “can’t be proven beyond a reasonable doubt.” 

On this record, Burgess’s contention on appeal that it was undisputed he 

committed the charged offenses borders on the frivolous. The fact that he 

was convicted does not demonstrate his guilt was undisputed. Rather, it 

simply demonstrates that the jury resolved the issues in dispute against him. 

In summary, we reject Burgess’s claims that the evidence of the March 

20, 24, and 28 incidents should have been excluded because they were 

insufficiently probative or were cumulative. The trial court did not abuse its 

discretion in admitting this evidence under section 1109, subdivision (a). 

Because there was no evidentiary error, Burgess’s due process rights were 

not violated. (See Mani, supra, 74 Cal.App.5th at pp. 374–375.)

II.

The Trial Court Did Not Commit Instructional Error

The trial court instructed the jury pursuant to CALCRIM No. 852A. In 

relevant part, the instruction stated:

“The People presented evidence that the defendant committed 

domestic violence that was not charged in this case, specifically 
35

on March 20, 2019; March 24, 2019; and March 28, 2019. [¶] 

Domestic violence means abuse committed against an adult who 

is a spouse or a person who dated or is dating 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. [¶] . . . [¶] 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 involving domestic 

violence on July 4th and 5th 2019.”

Burgess contends the trial court committed instructional error because 

it did not correctly limit the “charged offenses involving domestic violence” for 

which the jury could consider the propensity evidence. He maintains that 

willful cruelty to a child (Pen. Code, § 273a) and false imprisonment (Pen. 

Code, § 237, subd. (a)), are not domestic violence crimes, and that the jury 

should not have been permitted to rely on the March incidents when deciding 

whether he was guilty of committing these two charged offenses. He 

contends the trial court was required to give the jury a limiting instruction 

telling the jury the propensity evidence “was only applicable to domestic 

violence counts” and not to the counts charging him with willful cruelty to a 

child or false imprisonment. He contends the court’s purported failure to 

instruct the jury in this manner was error, and that allowing the jury to 

consider his prior misconduct as evidence of a propensity to commit these 

crimes violated his right to due process. 

Preliminarily, we note that Burgess’s trial counsel did not object to the 

CALCRIM No. 852A instruction. However, “failure to object to instructional 

error will not result in forfeiture if the substantial rights of the defendant are 

affected.” (People v. Mitchell (2019) 7 Cal.5th 561, 579.) Here, Burgess 

claims the alleged error deprived him of due process. “[B]ecause this would 
36

affect his substantial rights if true, his claim is not forfeited.” (Id. at p. 580; 

see Kerley, supra, 23 Cal.App.5th at p. 542.) Accordingly, we consider the 

merits of Burgess’s contention.

Burgess’s claim that the trial court erred by failing to instruct the jury 

it could not consider the propensity evidence when evaluating his guilt of the 

charged crime of willful cruelty to a child is easily resolved. The jury was not 

misinformed. The instruction stated: “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 involving 

domestic violence on July 4th and 5th 2019.” (Italics added.) The court 

defined “[d]omestic violence,” in turn, as “abuse committed against an adult 

who is a spouse or a person who dated or is dating the defendant.” (Second 

italics added.) This definition of domestic violence as a crime committed 

against “an adult” plainly excluded the Penal Code section 273a crime 

involving a child. This offense was simultaneously defined for the jury 

pursuant to CALCRIM No. 823 as the “willful[ ] inflict[ion of] unjustifiable 

physical pain or mental suffering on a child.” (Italics added.) Thus, the trial 

court did not fail to inform the jury that the March incidents could not be 

used to consider his propensity to commit the charged crime of willful cruelty 

to a child. There was no need for an additional limiting instruction.

Burgess’s next contention—that the trial court was required to tell the 

jury it could not consider his uncharged misconduct when deciding his guilt of 

the charged crime of false imprisonment—also lacks merit. In this case, false 

imprisonment was an offense that involved domestic violence, and the jury 
37

was not prohibited from considering Burgess’s prior abusive acts when 

deciding whether he committed this offense.

Under section 1109, “ ‘[d]omestic violence’ has the meaning set forth in 

Section 13700 of the Penal Code.” (§ 1109, subd. (d)(3).) Penal Code section 

13700, subdivision (b), provides that “ ‘[d]omestic violence’ means abuse

committed against . . . a spouse[.]” (Italics added.) Penal Code section 

13700, subdivision (a), states, “ ‘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.” 

Section 1109 applies where “the defendant is accused of an offense 

involving domestic violence.” (§ 1109, subd. (a)(1), italics added.) The 

statutory word “involving” has been interpreted as broadening the scope of 

charged domestic violence offenses for which propensity evidence may be 

considered, because “[b]eing ‘accused of an offense involving domestic 

violence’ is broader than domestic violence which is defined as abuse 

committed against one of certain defined individuals.” (People v. Megown

(2018) 28 Cal.App.5th 157, 166.)

When deciding whether an offense constitutes a crime involving 

domestic violence, courts consider the manner in which the offense was 

committed. In People v. James (2010) 191 Cal.App.4th 478, the Court of 

Appeal held the crime of first degree burglary, although not facially a crime 

of domestic violence, qualified as a crime involving domestic violence under 

the facts of the case because the defendant “broke down the door of . . . a 

person with whom he had a dating relationship, and repeatedly made 

threatening remarks towards her” which placed her “in reasonable 

apprehension of imminent serious bodily injury to herself.” (Id. at p. 483.) 
38

And in People v. Merchant (2019) 40 Cal.App.5th 1179, 1194 (Merchant), this 

court held that a prior conviction of false imprisonment, as committed by the 

defendant, qualified as a domestic violence crime. The defendant had 

committed the offense by punching his girlfriend while driving on the 

freeway, refusing to take her home, and preventing her from leaving when 

they reached his house. This qualified as domestic violence because the 

defendant had placed the girlfriend “in reasonable apprehension of serious 

bodily injury.” (Id. at p. 1195.)

Under the facts of this case, the false imprisonment charge clearly

involved domestic violence. On July 4 and 5, Burgess smashed Jane’s phone, 

weakened her by strangling her to unconsciousness, used physical force to 

prevent her from leaving the house, and threatened to kill her if she or her 

children left. Jane testified she was scared for her physical safety. The 

conduct and threats Burgess used to restrain Jane involved “causing or 

attempting to cause bodily injury.” (Pen. Code, § 13700, subd. (a).) They also 

placed Jane “in reasonable apprehension of imminent serious bodily injury.” 

(Pen. Code, § 13700, subd. (a).) Accordingly, the charged crime of false 

imprisonment was an offense involving domestic violence under section 1109. 

The trial court was not required to instruct the jury that it could not consider 

the March 2019 events as evidence of Burgess’s propensity to commit this 

offense. Section 1109 imposed no such limitation.

In his reply brief, Burgess contends for the first time on appeal that the 

March 28 incident did not qualify as an admissible act of domestic violence 

because Megan did not testify “there was any evidence [Burgess] 

intentionally or recklessly caused or attempted to cause bodily injury, or 

placed another person in reasonable fear of imminent [serious] bodily injury.” 

This contention, offered belatedly and without a showing of good cause, is 
39

forfeited. (Rangel, supra, 62 Cal.4th at p. 1218.) It is also meritless. Megan

testified that Burgess repeatedly got in the victim’s face, his conduct “was 

pretty crazy,” and he pinned the victim against a fence as she screamed for 

help. From this testimony, the jury could infer that Burgess placed the 

victim, Jane, in reasonable fear of imminent serious bodily injury. 

For these reasons, we reject Burgess’s claim of instructional error.

III.

Section 1109 Does Not Violate the Due Process Clause of the Federal

Constitution

Burgess asserts that section 1109, by allowing the admission of 

evidence of prior uncharged crimes to prove a propensity to commit the 

charged crime, violates the due process clause of the federal Constitution. 

Clearly recognizing that California courts have rejected this claim, he states 

that he has included this argument to preserve the issue for future litigation. 

In People v. Falsetta (1999) 21 Cal.4th 903, 915–916, the California 

Supreme Court rejected a due process challenge to section 1108, an analogous 

provision that renders evidence of a defendant’s commission of prior sexual 

offenses admissible in a criminal action accusing the defendant of a sexual 

offense. The rationale underlying Falsetta applies to section 1109, “since the 

two statutes are virtually identical, except that one addresses prior sexual 

offenses while the other addresses prior domestic violence.” (People v. 

Johnson, supra, 77 Cal.App.4th at p. 417, 420; People v. Hoover (2000) 77 

Cal.App.4th 1020, 1024.) As this court has recognized, “[c]ourts have 

consistently rejected [the] claim . . . that the admission of propensity evidence 

under section 1109 violates due process.” (Merchant, supra, 40 Cal.App.5th 

at p. 1194; see People v. Baker (2021) 10 Cal.5th 1044, 1090, fn. 6 [noting 

“that the Court of Appeal has rejected the view that section 1109 is 
40

distinguishable from section 1108 for due process purposes”].) Accordingly, 

we reject Burgess’s challenge as raising an issue that has been settled 

unfavorably to him by the courts of this state.

IV.

Substantial Evidence Supported Burgess’s Convictions for False 

Imprisonment and Making a Criminal Threat

Burgess’s last claim on appeal is that insufficient evidence was 

presented at trial to support his convictions for false imprisonment by 

violence or menace (count 5) and making a criminal threat (count 4). We 

reject both contentions.

A. Standard of Review

Our consideration of these claims is governed by the following 

principles. When considering a challenge to the sufficiency of evidence 

supporting a conviction, we “review the whole record in the light most 

favorable to the judgment below to determine whether it discloses substantial 

evidence—that is, evidence which is reasonable, credible, and of solid value—

such that a reasonable trier of fact could find the defendant guilty beyond a 

reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578; see also 

Jackson v. Virginia (1979) 443 U.S. 307, 319.) “We do not reweigh the 

evidence, resolve conflicts in the evidence, or reevaluate the credibility of 

witnesses.” (People v. Jacobo (2019) 37 Cal.App.5th 32, 42; People v. Ochoa

(1993) 6 Cal.4th 1199, 1206.) The question is not whether we believe the 

evidence established the defendant’s guilt beyond a reasonable doubt, but 

whether “ ‘ “any rational trier of fact could have found the essential elements 

of the crime beyond a reasonable doubt.” ’ ” (People v. Kelly (1990) 51 Cal.3d 

931, 956; People v. Rich (1988) 45 Cal.3d 1036, 1081.) “Reversal on this 

ground is unwarranted unless it appears ‘that upon no hypothesis whatever 
41

is there sufficient substantial evidence to support [the conviction].’ ” (People 

v. Bolin (1998) 18 Cal.4th 297, 331.)

B. Substantial Evidence Supported Burgess’s Conviction for False 

Imprisonment by Violence or Menace

Burgess was charged in count 5 with false imprisonment of Jane in 

violation of Penal Code sections 236 and 237, subdivision (a). “False 

imprisonment is the unlawful violation of the personal liberty of another.” 

(Pen. Code, § 236.) False imprisonment is a felony if accomplished by 

“violence, menace, fraud, or deceit.” (Pen. Code, § 237, subd. (a).)

At trial, the jury was instructed pursuant to CALCRIM No. 1240 on 

false imprisonment by means of violence or menace. The instruction told the 

jury that to find Burgess guilty of this crime, the prosecution was required to 

prove that he “intentionally restrained, or confined, or detained someone by 

violence or menace” and “made the other person stay or go somewhere 

against that person’s will.” It further stated: “Violence means using physical 

force that is greater than the force reasonably necessary to restrain someone. 

[¶] Menace means a verbal or physical threat of harm, including use of a 

deadly weapon. The threat of harm may be express or implied.” The jury 

returned a verdict finding Burgess “guilty of the crime of false imprisonment 

by violence or menace.” (Capitalization omitted.)

Burgess’s challenge to his false imprisonment conviction focuses on the 

asserted absence of evidence he used violence to restrain Jane’s movement. 

He emphasizes that Jane identified just one instance when he grabbed and 

pulled her sweater to keep her from going through the front door, such that 

she “went back into . . . the couch,” and that according to S., of the two times 

he pushed Jane as she tried to make her way to the front door, Jane fell to 

the ground only once. He contends the force he used to keep Jane from 
42

leaving the house was no more than necessary to prevent her from leaving. 

So he argues his conviction should be reduced to a misdemeanor. 

We disagree. Contrary to Burgess’s contentions, grabbing Jane’s 

sweater and pulling her backwards, and pushing her to the ground, involved 

sufficient force to constitute “violence” within the meaning of Penal Code 

section 237, subdivision (a). “ ‘Force is an element of both felony and 

misdemeanor false imprisonment. Misdemeanor false imprisonment becomes 

a felony only where the force used is greater than that reasonably necessary 

to effect the restraint. In such circumstances the force is defined as ‘violence’ 

with the false imprisonment effected by such violence a felony.’ ” (People v. 

Castro (2006) 138 Cal.App.4th 137, 140 (Castro).) 

Castro is illustrative of the relatively minimal degree to which the force 

used by a defendant must exceed the force necessary to restrain his victim to 

constitute “violence” within the meaning of Penal Code section 237, 

subdivision (a). In Castro, the defendant drove by the victim and made 

sexual comments to her as she walked down the street. (Castro, supra, 138 

Cal.App.4th at p. 139.) As she continued to walk, the defendant grabbed her 

arm and pulled her towards him. (Id. at pp. 139, 141–142.) A jury convicted 

the defendant of felony false imprisonment. (Id. at p. 139.) 

Rejecting the defendant’s insufficiency-of-the-evidence challenge, the 

Court of Appeal reasoned: “[A]ppellant grabbed the victim and turned her 

around. If that is all that had happened, we would agree with appellant that 

his conduct amounted only to misdemeanor false imprisonment. But 

appellant pulled her toward his car, an act more than what was required to 

stop her and keep her where she was located.” (Castro, supra, 138 

Cal.App.4th at p. 143.) The court concluded “the evidence that appellant 

used force to pull the victim toward his car was sufficient to establish force 
43

above that required for misdemeanor false imprisonment” and that the 

defendant’s conviction was therefore supported by sufficient evidence. (Ibid.)

Here, the degree of force Burgess used to restrain Jane exceeded the 

force necessary to restrain her to a greater degree than the differential in 

Castro. Like the defendant in Castro, Burgess did not just grab Jane and 

stop her movement by keeping her in place. Rather, on one occasion, he 

pulled her back with enough force that she “went back into . . . the couch.” 

On two other occasions, he pushed Jane as she was heading for the front 

door, on one of these occasions hard enough that she fell to the ground. 

Pulling Jane back into the couch, and pushing her to the ground, was more 

force than necessary to stop her progress. The evidence was therefore 

“sufficient to establish force above that required for misdemeanor false 

imprisonment.” (Castro, supra, 138 Cal.App.4th at p. 143.)

In addition, sufficient evidence was presented at trial that Burgess 

committed the crime using menace. In the context of false imprisonment, 

“ ‘[m]enace’ is defined as ‘ “ ‘a threat of harm express or implied by word or 

act.’ ” ’ ” (People v. Reed (2000) 78 Cal.App.4th 274, 280.) “When a rational 

fact finder could conclude that a defendant’s acts or words expressly or 

impliedly threatened harm, the fact finder may find that there is menace 

sufficient to make false imprisonment a felony.” (People v. Wardell (2008) 

162 Cal.App.4th 1484, 1491; see id. at pp. 1489, 1491–1493 [evidence 

sufficient to support a conviction of false imprisonment by menace where the 

defendant entered the victim’s house while carrying a gun, told the victim “to 

‘keep quiet’ and ‘stay where [he] was,’ ” and followed the victim around the 

house while pointing the gun at the ground]; Reed, at p. 281 [evidence 

sufficient to support conviction of false imprisonment by menace where the 

victims were directed, at gunpoint, to get down and stay down on the floor, 
44

the gun was placed against each victim’s head and used to pistol-whip one of 

them]; People v. Newman (2015) 238 Cal.App.4th 103, 107–109 [evidence 

sufficient to support conviction of false imprisonment by menace where 

defendant yelled “ ‘Nobody is going anywhere,’ ” while pointing a gun in the 

victims’ direction during a robbery].) 

The evidence at trial established that Burgess threatened to harm Jane

expressly and by implication. Burgess strangled Jane until she lost 

consciousness, either because the strangulation reduced her blood oxygen 

level or because it induced a seizure. He strangled her several more times 

with no loss of consciousness, and he tried to put a noose around her neck 

with the intent of hanging her. Jane testified Burgess said he would hurt 

her, and possibly said he would kill her, if the children left the house. Jane

testified she was scared by these threats “because he wasn’t rational,” and 

she was afraid he would hurt her. S. testified Burgess threatened to kill Jane

“if she left or if any of [them] left.” The babysitter testified that S. said “she 

was told that, if any of them get out of the house, [Burgess] said that he 

would kill them, anybody who was left in the house.” Substantial evidence 

supported the finding Burgess expressly threatened to harm Jane if she or 

the children left. He made the threats after strangling Jane, and then 

fulfilled his threats when S. left. This evidence was sufficient to support the 

conclusion that Burgess committed the false imprisonment by using menace.

We reject Burgess’s contention that his felony false imprisonment 

conviction was supported by insufficient evidence.

C. Substantial Evidence Supported Burgess’s Conviction for Making a 

Criminal Threat

Finally, we consider, and reject, Burgess’s contention that there was 

insufficient evidence to support his conviction for making a criminal threat. 
45

“[T]o prove the offense of making a criminal threat under [Penal Code] 

section 422, ‘[t]he prosecution must prove “(1) that the defendant ‘willfully 

threaten[ed] to commit a crime which will result in death or great bodily 

injury to another person,’ (2) that the defendant made the threat ‘with the 

specific intent that the statement . . . is to be taken as a threat, even if there 

is no intent of actually carrying it out,’ (3) that the threat . . . was ‘on its face 

and under the circumstances in which it [was] made, . . . so unequivocal, 

unconditional, immediate, and specific as to convey to the person threatened, 

a gravity of purpose and an immediate prospect of execution of the threat,’ (4) 

that the threat actually caused the person threatened ‘to be in sustained fear 

for his or her own safety or for his or her immediate family’s safety,’ and (5) 

that the threatened person’s fear was ‘reasonabl[e]’ under the 

circumstances.” ’ ” (People v. Brugman (2021) 62 Cal.App.5th 608, 630–631 

(Brugman), quoting In re George T. (2004) 33 Cal.4th 620, 630.) “ ‘[A]ll of the 

surrounding circumstances should be taken into account to determine if a 

threat falls within the proscription of [Penal Code] section 422.’ ” (Brugman,

at p. 631; In re Ricky T. (2001) 87 Cal.App.4th 1132, 1137 [“The surrounding 

circumstances must be examined to determine if the threat is real and 

genuine, a true threat.”].) The threat must place the victim “ ‘in sustained 

fear for his or her own safety or for his or her immediate family’s safety[.]’ ” 

(People v. Wilson (2015) 234 Cal.App.4th 193, 201.) 

Burgess acknowledges the trial evidence showed that on July 4 and 5, 

he stated several times he would kill Jane if anyone left the house. But he

contends these statements did not qualify as criminal threats because “the 

surrounding circumstances show that neither [Jane] nor [S.] took the words 

seriously, and they were certainly not in sustained fear as a result.” He 

contends Jane would not have “helped her children jump the fence” if she 
46

thought the threats were serious and was in sustained fear he would act on 

them. 

Burgess’s attempt to cast his threats as not serious fails because it 

ignores the evidence of his own assaults on Jane, which served as powerful 

evidence conveying “ ‘a gravity of purpose and an immediate prospect of 

execution of the threat[s].’ ” (Brugman, supra, 62 Cal.App.5th at p. 631.) 

“[T]he nature of the threat cannot be determined only at face value. [Penal 

Code] [s]ection 422 demands that the purported threat be examined ‘on its 

face and under the circumstances in which it was made.’ The surrounding 

circumstances must be examined to determine if the threat is real and 

genuine, a true threat.” (In re Ricky T., supra, 87 Cal.App.4th at p. 1137.) 

Burgess’s threats were conveyed after the first time he strangled Jane to 

unconsciousness. It was apparent from this assault Burgess had both the 

ability and willingness to make good on threats to commit an act harmful 

enough to kill or seriously injure Jane. Later, Burgess proved by his own 

actions that his threats were serious: as soon as S. escaped over the patio 

wall, he lunged at Jane and strangled her to unconsciousness again.

Burgess’s contention that since Jane encouraged her children to jump 

the fence, she must not have been in sustained fear Burgess would actually 

harm her, is specious. Jane testified that Burgess’s threat did, in fact, scare 

her; she unequivocally agreed with the prosecutor that on “July 5th, [she 

was] scared that he would hurt [her]”; and she testified that “[t]he whole time 

he was in the psychotic break, [she] was scared.” Burgess also ignores Jane’s 

testimony explaining why she encouraged her children to leave. She stated 

that on July 5 she was trying to come up with a plan of escape, not because 

she was unafraid of Burgess, but because his behavior was escalating. She 

was trying to figure out how “to get out of the house without escalation.” She 
47

told A. to leave to get help from the babysitter. Jane testified that after 

Burgess tried to hang her with the electrical cord, she finally “told [S.] that

she had to go,” because “[e]verything was escalating.” The jury could infer 

from this evidence that Jane perceived she was in grave danger whether or 

not the children tried to escape, and was ultimately forced to risk an escape 

because she needed help and saw no other options. 

For these reasons, we reject Burgess’s contentions that his threats to 

kill Jane if the children left the house failed to meet the requirements of 

Penal Code section 422, subdivision (a).13 

DISPOSITION

The judgment is affirmed.

DO, J.

WE CONCUR:

McCONNELL, P. J.

DATO, J.

13 Burgess was charged with a single count of violating Penal Code 

section 422, subdivision (a). As we have already concluded the evidence of 

Burgess’s threats to kill Jane if the children left the house was sufficient to 

support his conviction of this offense, we need not and do not consider 

Burgess’s contentions that this conviction was not supported by other 

threatening statements he made on July 4 and 5.