Filed 6/29/22 P. v. Rodriguez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSELINE VALERIE RODRIGUEZ,

Defendant and Appellant.

F081292

(Kern Super. Ct. No. BF174081A)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Kern County. John R. 

Brownlee, Judge.

Eric Weaver, under appointment by the Court of Appeal, for Defendant and 

Appellant.

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

General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Jennifer 

Oleska for Plaintiff and Respondent.

-ooOoo-

* Before Hill, P. J., Levy, J. and Detjen, J.
2.

INTRODUCTION

Appellant and defendant Joseline Valerie Rodriguez was charged and convicted of 

the first degree murder of Fidel Osorio, committed on October 9, 2018. Defendant had 

lived with Osorio in his trailer for two to three months prior to the murder. Defendant 

was arrested a few hours after the murder, and admitted she repeatedly hit him in the 

head with a metal pipe. She was sentenced to 25 years to life, plus one year for a 

personal use enhancement.

On appeal, defendant argues the court abused its discretion when it granted the 

prosecution’s motion to introduce evidence that she had three prior convictions for 

domestic violence offenses, committed against another person, within the meaning of 

Evidence Code1section 1109. She further argues the court again abused its discretion by 

excluding evidence that Osorio had prior felony convictions, and that such evidence was 

admissible and relevant under section 1103 to show his violent nature.

We affirm.

FACTS

Elena Bautista lived in a house on Florence Street in Lamont. There was a trailer 

parked on the back of the property. Ms. Bautista testified to her belief that at the time of 

the homicide, Fidel Osorio had lived in the trailer for a few years, and defendant Joseline 

Rodriguez had been living with Osorio for about one month.

Ms. Bautista saw defendant and Osorio together when things were fine between 

them, and that seemed “[l]ike an everyday thing.” Ms. Bautista testified that she saw 

defendant and Osorio arguing one time, and defendant was yelling at him. She never saw 

defendant or Osorio place their hands on each other. Ms. Bautista usually chatted with 

defendant whenever they passed each other. On two or three occasions, defendant 

1

All further statutory references are to the Evidence Code unless otherwise 

indicated.
3.

complained to Ms. Bautista about Osorio, and said that “he would touch her” sexually,

and she did not like that.

Joviet Osorio Lopez was Osorio’s niece and regularly visited Osorio at his trailer. 

Ms. Lopez thought defendant had been living with Osorio for about three months. 

Ms. Lopez frequently saw them together, and they seemed happy. Osorio bought clothes 

and food for defendant. Ms. Lopez often spoke with defendant, and she never 

complained about Osorio.

Osorio meets Jimenez and Ferrer

Jaime Jimenez described Osorio as a very good friend. He regularly visited 

Osorio at his trailer and met defendant several times.

On October 9, 2018, Jimenez met Osorio on the street, and they walked to a 

market and bought beer. Osorio invited Jimenez to his trailer to eat something, and 

Jimenez agreed.

Meliton Ferrer was at the same market that day. Ferrer did not know Osorio and 

Jimenez, but they started talking to him. Osorio invited Ferrer to join them at his trailer 

for something to eat. Ferrer liked them and agreed. Ferrer testified he drank one beer, 

and Osorio had three beers.

Osorio, Ferrer, and Jimenez left the market and walked together to Osorio’s trailer. 

Before they reached the trailer, Osorio gave Jimenez some money and told him to buy a 

12-pack of beer and meet them at the trailer. Jimenez headed to another market, and 

Osorio and Ferrer continued walking to the trailer.

The homicide

Ferrer testified that when he arrived at the trailer with Osorio, a woman, later 

identified as defendant, was waiting outside the trailer’s door. Ferrer testified the woman 

was upset and the situation seemed “dangerous” because Osorio was “having problems 

with his partner.” Osorio kept walking to the trailer, but Ferrer stopped before he got 

near defendant.
4.

Ferrer testified Osorio and defendant began arguing and pushing each other. 

Osorio “backed off,” and defendant hit the top of Osorio’s head with an object, “like with 

a bar.” Ferrer testified defendant had the bar near her, ready to hit Osorio, when they 

were pushing each other.

Ferrer testified the blow split open Osorio’s head and he started bleeding. Osorio 

fell to the ground and then got up. Osorio and defendant started grabbing each other 

again, and defendant still had the “bar.” Ferrer could not understand what they were 

saying to each other because they spoke in English. Ferrer immediately left the area and 

walked home because he did not want to get involved in a problem between them.

In the meantime, Jimenez bought the 12-pack of beer and headed to Osorio’s 

trailer. When Jimenez arrived, Osorio was “laid out” on the ground in the front of the 

trailer. Jimenez told Osorio to get up, but he did not move or respond. There was blood 

around Osorio’s body.

Jimenez testified that defendant was outside the trailer, leaning on a “metal tube,” 

and laughing. She told Jimenez to come into the yard. Jimenez testified that he did not 

get closer, and saw defendant hit Osorio with the metal tube twice: once in the throat, 

and once on his stomach. Jimenez thought Osorio was already dead when defendant hit 

him.

Jimenez turned around, left the trailer area, contacted a neighbor, and asked to 

borrow a telephone to call for help. Jimenez called the police because Osorio “had been 

beaten badly,” and met the officers on the street when they arrived.

Initial investigation

At 2:22 p.m. on October 9, 2018, a call was placed to the 911 dispatcher to report 

a crime of violence at an address on Florence Street in Lamont. At 2:25 p.m., Kern 

County Sheriff’s Deputy Wong responded to that location, spoke to people in front of a 

residence, and was directed to the trailer at the rear of the property.
5.

Deputy Wong found Osorio lying on the ground near the steps to the trailer. There 

was trauma and bleeding from Osorio’s head, and blood was puddled in his mouth and 

under his head. Osorio was not moving but there was labored breathing, and Wong

administered CPR. Emergency personnel responded, but Osorio was pronounced dead at 

the scene.

No one else was present in the area. A metal pipe was on the ground in front of 

the trailer, and there was possible blood on it. Detective Perez described the metal pipe 

as “sturdy” and “stiff,” it was not “flimsy,” and it was easy to pick up and move. The 

pipe was 21 inches long and weighed about a pound and a half.

Osorio’s prescription medication and paperwork with defendant’s name on it were 

found inside the trailer. There was a “DC” brand left shoe on the ground near Osorio, 

and the matching right shoe was found on his side; the shoes had possible blood stains.2

The video cameras

Ms. Bautista had motion detector security cameras installed inside her house. The 

cameras activated when someone entered the yard area between her house and the trailer, 

and she provided the video to the investigating officers. In viewing the video, she 

identified Osorio as he arrived at the trailer with an unknown man (Ferrer), and defendant 

when she left the area.

The security video was introduced at trial and played for the jury and is part of the 

instant appellate record. There were two video cameras in Ms. Bautista’s house that 

filmed approximately the same area: the street, a driveway leading from the street to a 

building, presumably Ms. Bautista’s house, and an area where the people on the video 

turned to their right and went out of the frame, presumably entering the yard where the 

2

In closing argument, the prosecutor speculated that defendant was wearing these 

shoes when she attacked Osorio and changed the bloody shoes before she left the scene.
6.

trailer was located. The trailer itself was not visible in the video, and defendant’s assault 

on Osorio was not filmed.

The video exhibit showed that at approximately 1:59 p.m., Osorio and Ferrer 

walked from the street into the driveway, Osorio was in front of Ferrer, he turned to his 

right, and Ferrer followed him. They went out of frame, but a voice can briefly be heard. 

At 2:07 p.m., Ferrer emerged from the same side of the screen, walked away, and kept 

going down the street. At 2:12 p.m., Jimenez arrived, and he carried a shopping bag. He 

walked from the street, continued into the driveway, and also turned to his right side and 

went out of the frame. The video did not show Jimenez leaving; the People’s trial brief 

stated that he left almost immediately.

At 2:14 p.m., defendant walked out of the same side of the frame where Osorio, 

Ferrer, and Jimenez had entered. She went down the driveway and walked down the 

street. At 2:26 p.m., officers arrived and walked into the driveway with their firearms 

drawn. Jimenez was standing in the background and pointing out the area to the officers. 

The officers entered that same right side and went out of the frame.

The pathologist’s testimony

The pathologist testified Osorio had severe injuries to the face, hands, back, and 

abdominal area. There was blood all over Osorio’s face and extensive injuries to his 

head. There were large lacerations predominately on the left upper part of his head and 

face and around his left eye, “[e]xtending diagonally across his upper head, the forehead, 

... a little bit of swelling, bruising around the left eye.” The large lacerations measured 

from one and one-half to three and one-half inches long. There were abrasions and 

contusions under his left eye, nose, left side of his lip, and cheek, and a small laceration 

on his chin.

Osorio had open fractures on his head that were under the lacerations, meaning 

that there was “a laceration overlying the bone fracture itself, and so there’s multiple 

comminuted fractures or multiple spiderweb-type pattern of fractures of the left side of 
7.

the skull over the plate, the base of the skull and underlying those areas of the 

lacerations.” On the back of Osorio’s head, there were multiple lacerations and fractures 

under those lacerations, consistent with being inflicted by “significant impact” either by a 

blunt instrument or a significant fall.

Osorio had fractures above his left eye that extended all the way to the right ear, 

that resulted in subarachnoid hemorrhaging in the brain. The trauma caused blood 

vessels to break, and there was blood all over the brain. It would have required 

significant and severe force to inflict that type of bleeding in the brain.

Osorio also had major injuries on his back, consisting of multiple, diagonal, 

horizontal-type pattern injuries, in parallel lines “like a train track,” consistent with being 

hit four or five times “with some round object, such as a pipe or a bat or other cylindricaltype objects.” These blows resulted in deep muscle and soft tissue hemorrhages that also 

would have caused internal bleeding that leaked into the blood system and further 

damaged his body.

Osorio had defensive injuries consisting of significant and extensive bruising, and 

deep hemorrhaging, on the outside back of his right hand, consistent with being inflicted 

by blunt force trauma. There were no injuries to his neck.

The pathologist concluded the injuries to the front of Osorio’s face and back of his 

head were inflicted from multiple blows “struck by multiple instruments—or by an 

instrument.” Osorio was hit “[a]t least two times” in the front of his head, and “[a]t least 

three” serious blows by a blunt object to the back of his head, based on the separate 

nature of the serious lacerations. The contusions, abrasions, and bruises on his body were 

also caused by blunt trauma and were significant but not severe enough to cause death.

The pathologist testified Osorio died from “[m]ultiple blunt force traumatic head 

injuries” and died quickly after the infliction of the injuries. Osorio suffered from 

cirrhosis of the liver and had heart damage that might have increased the bleeding, but the 

head trauma would have been fatal without the underlying conditions.
8.

Arrest of defendant

Around 5:30 p.m., about two hours after Osorio’s body was found, the deputies 

received information defendant was possibly at Weedpatch Supermarket, located near 

Osorio’s trailer. Deputy Wong found defendant sitting in the market’s parking lot. She 

was not injured and did not complain of any injuries. She was taken into custody without 

incident.

Defendant’s postarrest interview

Kern County Sheriff’s Detectives Perez and Meyer interviewed defendant after 

she was arrested. She was advised of the warnings pursuant to Miranda v. Arizona

(1966) 384 U.S. 436 and agreed to answer questions. The recorded interview was played 

for the jury and introduced into evidence.

Defendant, who was 27 years old, said she met Osorio the prior year while 

hanging out in Weedpatch. She had been living with Osorio at the trailer “for about two 

months now.” When asked if she paid rent, defendant said she had not worked for two 

years, she received food stamps, and she planned to start working to “put in my part.”

Defendant said Osorio talked about being her boyfriend, but she was not 

interested. Defendant would sleep on Osorio’s bed, and occasionally he would sleep 

outside on the grass. Osorio told defendant that she should take care of him, and he 

would take care of her. He showed her that he kept a metal baseball bat in the trailer.

Defendant said that for the last couple of months, Osorio repeatedly attempted to 

have a sexual relationship with her nearly every day, but she refused and told him to stop. 

Osorio would get angry and call her names, and she told him to give her space. 

Defendant said she slept with Osorio only once, and that was “a few days ago.”

Defendant said the prior evening, she stayed with Osorio at the trailer. She woke 

up in the morning, and she “was like laying sideways and I was straight up shaking all 

over the place and I turned and [Osorio] was sodomizing me.” She closed her eyes and 
9.

Osorio left. Defendant said she previously gave permission to Osorio to sodomize her,

and conceded the act was something Osorio would have “thought it was okay to do[.]”

Defendant said when she later woke up, Osorio had left the trailer. Defendant said 

she left the trailer around noon while Osorio was still gone, and she never went back.

Detective Perez asked defendant if she knew why she was detained. Defendant 

said she did not know, and thought it was because she was on probation for prior 

domestic violence convictions committed against another person, a female identified as 

M.J.3 Defendant said she had complied with the conditions of probation and stayed away 

from that person. Perez asked about the prior incidents, and defendant said she did not 

feel comfortable talking about it.

The detectives asked defendant if she knew there was a security camera that 

showed the trailer area, and defendant said yes. The detectives advised defendant that the 

video showed her leaving the trailer area at approximately 2:14 p.m. and not at noon, as 

she claimed. Defendant thought the timer might have been off, and insisted Osorio left 

while she was asleep that morning, he never said anything to her, and she did not see 

Osorio before she left the trailer at noon.

Detective Meyer told defendant the video showed Osorio walked back to the

trailer, defendant left at 2:14 p.m., and asked her what happened to Osorio. Defendant 

asked if he was dead, and Detective Meyer said yes. Detective Perez added, “More to the 

point, he’s been murdered,” and defendant replied, “I understand that.”

The detectives asked defendant to be truthful about what happened. Defendant 

insisted she did not know, and she never went back to the trailer after she left. The 

detectives told defendant they were going to collect her DNA to compare it to the murder 

3 As will be explained below, the court granted the prosecution’s motion to 

introduce evidence of defendant’s prior domestic violence convictions that involved a 

different victim, pursuant to section 1109.
10.

weapon, a metal bat, and again asked for her side of the story.4 Defendant said the 

previous night, Osorio tried “to come on to [her],” and hit her in the arm. Defendant said 

he always pressured her for sex. The detectives said they could see a bruise on her arm.

Defendant said she had no idea where Osorio went or when he would return, but 

she was not trying to “run around the streets,” and “I’m supposed to look for work or, 

you know, go to school or something.” Detective Perez replied, “Well, you’re young and 

he’s not,” and defendant agreed.

Defendant said that Osorio and a friend arrived at the trailer, and she did not know 

the friend’s name. Defendant was outside and “meditating” when they got there, and 

Osorio “reeked” of alcohol. Osorio looked at her like he wanted to have sex, and 

defendant said not to touch her or put his hands on her. Defendant told Osorio’s friend 

that Osorio had hit her, but the friend did not say much.5

Detective Meyer said the video showed Osorio’s friend left a few minutes after 

they arrived, and asked defendant what happened after the friend left. Defendant said 

Osorio “started wrestling” and “using force” against her, he smelled of fecal matter, he 

said things that did not make sense, and he was delusional.

The detectives asked what she did with the metal pipe. Defendant said, “I don’t 

know how to say it.” Defendant was asked how many times she hit Osorio with the pipe. 

Defendant replied: “I don’t know. I – I was f- fearful for my life.... [¶] ... I don’t know 

what he’s gonna [sic] do if I woke up to him sodomizing me. I don’t know what he’d –

he’d do, he already and hit me and ....” Defendant believed she hit Osorio with the pipe 

“at least ... ten or more” times on his head and back, and they were in the yard when this

4

The murder weapon was not the metal baseball bat that defendant said Osorio 

kept in the trailer.

5

Ferrer testified that he did not speak English and did not understand what 

defendant and Osorio said to each other.
11.

happened. She described the pipe as a “cylinder,” and she held it on one end with both 

hands.

The detectives asked defendant to describe how she started to hit Osorio with the 

pipe. Defendant said she threw Osorio to the ground before she hit him with the pipe 

because he got in her personal space. Osorio threatened her, but he was slurring his 

words, and defendant could not give an example of what he said. Defendant said she 

grabbed the pipe after Osorio was on the ground, started hitting him, and “murdered” 

him. Detective Perez cautioned defendant that “we don’t know it’s murder yet.”

Detective Perez asked defendant what happened after she hit Osorio with the pipe. 

Defendant said she “lost control” and was “[a] little bit” angry. Defendant said Osorio 

was bleeding from his head and making gurgling sounds, and she kept hitting him until 

he stopped moving. She stopped hitting him and fled the scene. She said she felt 

traumatized by what happened, and that Osorio “[f]orced” her to do it.

At the suggestion of the detectives, defendant agreed to write Osorio a letter. She 

wrote that she loved him even though they had their differences. She turned him down to 

have sex because she did not find him sexually attractive, “not would I be interested, but 

my situation is I’m homeless and out on the street.” She “choked” and could not handle 

the pressure of sleeping with him. Defendant wrote that she had her needs too, and she 

“gave [him] some action because [she] did enjoy [his] company.” Defendant “grew to 

develop love” for him and “found shelter” at his home, and but felt under pressure when 

he approached her, apologized, and wrote that she “messed up.”

After the interview, the detectives took a photograph of defendant that showed “an 

injury of some sort on her arm” that looked like “some sort of bruise” or “red mark,” but 

the skin was not torn.

Stipulations

As will be discussed further in issue I below, the jury was advised that the parties 

stipulated that defendant had two prior misdemeanor convictions under Penal Code 
12.

section 243, subdivision (e)(1), and one prior felony conviction under Penal Code section 

273.5, subdivision (a).

Defense

Defendant did not testify.

Detective Chambliss was called by the defense and testified that he initially 

interviewed Jimenez in front of the residence on Florence Street. Jimenez had red, 

watery eyes and smelled of alcohol. Later that day, Chambliss conducted a recorded 

interview with Jimenez with the assistance of an interpreter, and the defense introduced 

the recording into evidence.

In the recorded interview, Jimenez stated that when he arrived at the trailer, Osorio 

was lying on the ground, unconscious, and “bathed in blood.” Defendant was standing 

next to Osorio and holding “a stick of iron,” that he thought was a skinny metal fence 

pole. She did not say anything. Jimenez said defendant looked both “fine” and “upset.” 

She did not move, and he did not see defendant hit Osorio.6 Jimenez left and asked a 

neighbor for a telephone to call for help. Jimenez identified defendant from a 

photographic lineup as the suspect.

PROCEDURAL BACKGROUND

On August 26, 2019, an information was filed in the Superior Court of Kern 

County charging defendant with count 1, first degree premeditated murder (Pen. Code, 

§§ 187, subd. (a), 189, subd. (a)), with the special allegation that she personally used a 

deadly or dangerous weapon, a metal pipe, in the commission of the offense (Pen. Code, 

§ 12022, subd. (b)(1)).

6

At trial, Jimenez testified that when he arrived at the trailer, Osorio was on the 

ground and not moving, and he saw defendant hit him with the pipe in the throat and 

stomach. The pathologist testified he did not find any trauma or injuries on Osorio’s 

throat.
13.

Jury trial and instructions

On March 4, 2020, defendant’s jury trial began with the prosecution’s case-inchief.

The jury was instructed with CALCRIM No. 505 on justifiable homicide and 

lawful self-defense; CALCRIM Nos. 520 and 521 on first degree premeditated murder, 

second degree murder, and express and implied malice; and CALCRIM Nos. 3471 and 

3474 on the right to self-defense after mutual combat, and that self-defense may not be 

contrived.

The jury was also instructed with CALCRIM Nos. 570 and 571 on the lesser 

offense of voluntary manslaughter based on sudden quarrel or heat of passion, and 

voluntary manslaughter based on imperfect self-defense.

Verdict and sentence

On March 12, 2020, defendant was convicted of first degree premeditated murder, 

and the personal use enhancement was found true.

On June 2, 2020, defendant was sentenced to 25 years to life plus one year for the 

personal use enhancement; the court revoked probation in another case and imposed a 

concurrent midterm of three years.

On the same day, defendant filed a notice of appeal.

DISCUSSION

I. Admission of Defendant’s Prior Convictions of Domestic Violence

Defendant contends the court improperly granted the prosecution’s motion to 

introduce evidence of her three prior convictions for domestic violence that she 

committed against another person, because defendant and Osorio were not “cohabitants” 

as defined by section 1109, the prior convictions did not show a pattern of abusive 

conduct, and the evidence was unduly prejudicial.
14.

A. Section 1109

We begin with the provisions of 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).)

“The Legislature ... has carved out specific exceptions to this general rule in cases 

involving domestic violence, elder abuse, and child abuse (§ 1109) and cases involving 

sexual offenses (§ 1108). Section 1109 provides, in relevant part, ‘in a criminal action in 

which the defendant is accused of an offense involving domestic violence, evidence of 

the defendant’s commission of other domestic violence is not made inadmissible by 

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

subd. (a)(1).) ‘[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.’ [Citation.] 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. [Citation.]’ [Citation.] Section 1109 ‘reflects the legislative 

judgment that in domestic violence cases, as in sex crimes, similar prior offenses are 

“uniquely probative” of guilt in a later accusation.’ ” (Kerley, supra, 23 Cal.App.5th at 

p. 531.)

“[S]ection 1109 expressly incorporates the limitations of section 352. Therefore, 

before admitting evidence under section 1109, the trial court must exercise its discretion 

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 
15.

(b) create substantial danger of undue prejudice, of confusing the issues, or of misleading 

the jury.’ (§ 352.) [¶] ‘[U]ndue prejudice,’ as used in section 352, however, does not 

mean evidence that is harmful to the defendant's case. ‘ “ ‘ “[T]he prejudice which 

exclusion of evidence under Evidence Code section 352 is designed to avoid is not the 

prejudice or damage to a defense that naturally flows from relevant, highly probative 

evidence. ‘[A]ll evidence which tends to prove guilt is prejudicial or damaging to the 

defendant’s case. The stronger the evidence, the more it is “prejudicial.” The “prejudice”

referred to in ... section 352 applies to evidence which uniquely tends to evoke an 

emotional bias against the defendant as an individual and which has very little effect on 

the issues.’ ” ’ ” ’ ” (Kerley, supra, 23 Cal.App.5th at p. 532.)

“The weighing process under section 352 depends upon the trial court’s 

consideration of the unique facts and issues of each case, rather than upon the mechanical 

application of automatic rules.’ [Citation.] The record must affirmatively show that the 

trial judge did in fact weigh prejudice against probative value, but no more is required. 

[Citation.] We review the trial court’s exercise of discretion in admitting evidence under 

section 352 for abuse and will not disturb the court’s ruling ‘except on a showing the trial 

court exercised its discretion in an arbitrary, capricious, or patently absurd manner that 

resulted in a manifest miscarriage of justice.’ ” (People v. Megown (2018) 

28 Cal.App.5th 157, 164.)

With this background in mind, we turn to the evidence introduced in this case.

B. The Prosecution’s Motion

The prosecutor moved to introduce evidence that defendant had three prior 

convictions for domestic violence offenses, and argued the evidence was relevant 

pursuant to section 1109. The convictions were for violation of Penal Code section 

273.5, willful infliction of corporal injury resulting in a traumatic condition, on January 

12, 2018; and two convictions for violating Penal Code section 243, subdivision (e)(1), 
16.

battery, on January 12 and May 4, 2018. The victim in the three offenses was a female 

identified as M.J.; Osorio was not involved in the prior offenses.

The prosecutor’s trial brief stated the following facts about defendant’s prior 

convictions:

“On August 2, 2017[,] defendant had been in a dating relationship 

with female [M.J.] born in 1966 for approximately two years. The two 

were living together but [M.J.] told defendant she needed to move out but 

could stay for a couple of days. They were in the bedroom as defendant 

was trying to talk to [M.J.] but was being ignored. Defendant grabbed 

[M.J.’s] face and told her to look at her, [M.J.] was able to push defendant 

off of her and an oral argument ensued.

“On August 3, 2017[,] an argument ensued, and defendant again 

grabbed [M.J.’s] face and told her to listen to her. [M.J.] was unable to 

push defendant away and attempted to swing a cane at her, but defendant 

took the cane. Defendant then pinned [M.J.] down and shoved a cucumber 

into her mouth. After a few minutes she stopped shoving the cucumber into 

her mouth and punched her in the right eye and then started poking her 

(including the vaginal area) and drawing on her with a pen. [M.J.] was able 

to escape when a food delivery person knocked on the door.”

At the hearing on the motion, the prosecutor argued the prior domestic violence 

convictions were highly probative under section 1109 because the evidence showed 

defendant’s propensity for violence in her relationships and conduct, and the evidence not 

unduly prejudicial since the prior acts were less severe than the charged offense of 

murder. The prosecutor offered to sanitize the prior convictions by only introducing 

documentary evidence or reaching a stipulation.

The prosecutor further argued defendant and Osorio were cohabitants as defined 

by section 1109 and statutes cited therein, because defendant admitted in her pretrial 

statement that she had lived with Osorio for two months, she planned to start working to 

contribute to their expenses, and she admitted having sexual relations with Osorio.

Defense counsel argued the prior convictions were inadmissible under section 

1109 because defendant was not a “cohabitant” as defined by statute since she only lived 
17.

at Osorio’s trailer for a short period of time, she may not have slept there every night, and 

there was no evidence of the permanency of their relationship.

Defense counsel did not challenge the factual basis for the prior convictions stated 

in the prosecution’s trial brief but argued defendant’s three prior convictions were not 

relevant because they involved a different victim than Osorio, the evidence was 

insufficient to establish a pattern or propensity, there was no evidence that defendant 

inflicted any serious injuries in the prior offenses, and the prior acts would be unduly 

prejudicial.

Defense counsel also moved to exclude evidence that defendant was on probation 

for these prior offenses at the time of the homicide.

C. The Trial Court’s Ruling

After hearing the parties’ arguments, the court granted the prosecution’s motion to 

admit defendant’s three prior domestic violence convictions pursuant to section 1109, and 

found defendant and Osorio were cohabitants:

“The Court finds the current offense involves domestic violence, in 

that there was sexual relations between the parties while sharing living 

quarters, the joint use of property or cohabitants of property when 

harassment, threats, and/or sexual assault occurred, and all the above 

occurred within the last five years.

“The sexual contact between the defendant and the victim, though 

infrequent, and the victim’s romantic feelings for the defendant, though 

unreturned, show an intimacy going well beyond ordinary roommates.

“... Section 352 analysis here regarding probative value versus prejudicial 

effect is as follows: The prior acts of domestic violence demonstrate the 

defendant’s propensity to be in violent relationships. This would be 

relevant in this case because the defendant states she did not like [Osorio’s] 

sexual advances. Other than the defendant’s own statement, there is no 

other evidence to support her claim that she had to ward off his sexual 

advances in this matter. Her prior acts of domestic violence tend to 

demonstrate her propensity to commit such crimes.
18.

“In addition, documents will be used in lieu of live witnesses and 

will not nearly evoke an emotional response or bias as that of live witnesses 

discussing specific facts of a prior incident.”

The court also found defendant’s three prior convictions were offenses of moral 

turpitude and were admissible to impeach her possible trial testimony. Defense counsel 

withdrew his objection to admission of defendant’s probation status based on those same 

three convictions.

D. Trial Evidence and Instruction

As set forth above, defendant did not testify.

The evidence about defendant’s prior domestic violence conviction was 

introduced through a stipulation to the jury that defendant had two prior misdemeanor 

convictions under Penal Code section 243, subdivision (e)(1), and one prior felony 

conviction under Penal Code section 273.5, subdivision (a). The court’s stipulation 

further advised the jury:

“A conviction for a violation of ... [Penal Code] Section 273.5 

requires proof that the defendant willfully inflicted a physical injury on the 

defendant’s cohabitant or former cohabitant and the jury inflicted by the 

defendant resulted in a traumatic condition. A traumatic condition is a 

wound or other bodily injury, whether minor or serious, caused by the 

direct application of physical force. [¶] ... A conviction for a violation of 

... [Penal Code] Section 243, subdivision (e)(1), requires proof that the 

defendant willfully touched the defendant’s cohabitant or former cohabitant 

in a harmful or offensive manner.”

The jury received CALCRIM No. 852A, evidence of uncharged domestic 

violence.

“The People presented evidence that the defendant committed 

domestic violence that was not charged in this case. Specifically, one, a 

felony, PC 273.5, on or about January 12th, 2018 ... [¶] Two, 

misdemeanor Penal Code Section 243(e)(1) on or about 1/12/18 ... [¶] 

Number three, misdemeanor Penal Code Section 243(e)(1), on or about 

May 4, 2018 ...

“The People and the defense have stipulated that the defendant was 

convicted of these offenses. If you decide that the defendant committed the 
19.

uncharged domestic violence, you may, but are not required to, conclude 

from that evidence that the defendant was disposed or inclined to commit 

domestic violence, and based on that decision, also conclude that the 

defendant was likely to commit, and did commit, murder as charged here.

“If you conclude that the defendant committed the uncharged 

domestic violence, that conclusion is only one factor to consider, along 

with all the other evidence. [¶] It is not sufficient by itself to prove that the 

defendant is guilty of murder. [¶] The People must still prove each charge 

and allegation beyond a reasonable doubt. Do not consider this evidence 

for any other purpose.”

E. Closing Arguments

In closing argument, the prosecutor addressed defendant’s prior domestic violence 

convictions, argued defendant was mad at Osorio “[p]robably over the sex thing,” and 

suggested the jury should “look at her history” and “the person we’re talking about.”

“She’s not a person who’s going to act reasonably all the time 

because she has a history of violence. And these are convictions. This isn’t 

just events that happened. These are actual criminal convictions for

violence. [¶] She had a misdemeanor in 2017. That’s the offense date, not 

the conviction date. August of 2017 she had a felony. And, again, in April 

of 2018, just a few months before this, she had another misdemeanor for 

violence. [¶] So she reacts to situations. Where most people wouldn’t, she 

reacts violently. [¶] And thanks to instruction [CALCRIM No.] 852A, you 

may conclude that the defendant was likely to commit murder because of 

her past.”

The prosecutor argued the jury could consider defendant’s prior convictions to 

conclude she was likely to commit murder, in light of the other circumstances, because 

she had a violent history.

“Domestic violence has an ugly, ugly past ... [and] becomes a pattern over 

and over and over. It can go on for years until the couple either separates or 

they get the help they need to fix it, and [defendant] is someone that has 

been in a domestic violence relationship with violence before and here she 

comes with [Osorio] and she’s in a domestic violence relationship with 

[Osorio] again, and she is the aggressor in both.”

In his closing argument, defense counsel argued defendant was not guilty based on 

lawful self-defense because she reasonably feared being raped or forcibly sodomized. In 
20.

the alternative, counsel argued she was only guilty of voluntary manslaughter based on 

imperfect self-defense. Defense counsel acknowledged defendant had prior convictions 

for domestic violence but reminded the jury to also consider Osorio’s prior threats to 

defendant, he regularly pressured her to have sex, and he hit her and performed an act of 

sodomy the night before the homicide. Counsel asserted that when Osorio arrived at the 

trailer, defendant argued with him, Osorio came at her, and defendant reasonably feared 

for her life. Defendant believed she had to defend herself because Osorio arrived with an 

unknown man, and she had been through Osorio’s past and current harm and threats.

Defense counsel clarified defendant’s prior convictions did not involve Osorio:

“As for the prior domestic violence convictions, yes, the law says 

you’re allowed to take those into consideration, but it doesn’t say that ... 

you can rely solely on that to conclude that she’s guilty of ... the charge in 

this case and the lesser-included offenses. [¶] It may have some more 

value if these were prior offenses that had to do with Mr. Osorio, but these 

aren’t. They didn’t have anything to do with Mr. Osorio. They were 

totally separate. Two of them were misdemeanor convictions which don’t 

require proof of any injury.

“One was a felony which requires only proof of what’s called a 

traumatic condition, which can be a minor injury. Nothing similar to here 

where we’re trying to make it look like she’s really this violent person 

that’s reacting in these ways. That’s actually—there’s no assault with a 

deadly weapon, any use of a weapon alleged in these, or any allegations 

that she actually inflicted any kind of significant harm.”

In rebuttal, the prosecutor responded to defense counsel’s characterization of 

defendant’s prior convictions:

“[Defense counsel] tried to tell you that, ‘Oh prior DV is—is not 

important here because it happened with someone else.’ It’s more 

important because it tells you it’s not a misunderstanding between two 

people. This is a person violent with one person and another. So we know 

it’s not the partners. It’s her. That’s very telling.”
21.

F. Cohabitants

On appeal, defendant first asserts the court abused its discretion by admitting the 

prior domestic violence convictions because defendant and Osorio were not “cohabitants” 

as that term is defined by section 1109, so that her prior domestic violence convictions 

were inadmissible.

As previously stated, section 1109 provides, in relevant part, that “in a criminal 

action in which the defendant is accused of an offense involving domestic violence, 

evidence of the defendant's commission of other domestic violence is not made 

inadmissible by Section 1101 if the evidence is not inadmissible pursuant to 

Section 352.” (§ 1109, subd. (a)(1).)

Section 1109 defines “domestic violence” and “cohabitants” by reference to two 

different statutes: “‘Domestic violence’ has the meaning set forth in Section 13700 of the 

Penal Code. Subject to a hearing conducted pursuant to Section 352, which shall include 

consideration of any corroboration and remoteness in time, ‘domestic violence’ has the 

further meaning as set forth in Section 6211 of the Family Code, if the act occurred no 

more than five years before the charged offense.” (§ 1109, subd. (d)(3), italics added.)

Under the definition set forth in Penal Code section 13700, domestic violence is 

defined as “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” (id., subd. (a)), that is “committed against an adult or a 

minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with 

whom the suspect has had a child or is having or has had a dating or engagement 

relationship.... ‘[C]ohabitant’ means two unrelated adult persons living together for a 

substantial period of time, resulting in some permanency of relationship. Factors that 

may determine whether persons are cohabiting include, but are not limited to, (1) sexual 

relations between the parties while sharing the same living quarters, (2) sharing of 

income or expenses, (3) joint use or ownership of property, (4) whether the parties hold 
22.

themselves out as spouses, (5) the continuity of the relationship, and (6) the length of the 

relationship” (id., subd. (b), italics added).

Section 1109’s alternate definition is contained in Family Code section 6211, that 

“defines domestic violence more broadly” and is subject to section 1109’s limitation that 

the acts must have occurred no more than five years before the charged offense. (People 

v. Dallas (2008) 165 Cal.App.4th 940, 953.) Family Code section 6211 defines domestic 

violence, in relevant part, as “abuse perpetrated against ... [¶] ... [¶] ... [a] cohabitant or 

former cohabitant, as defined in [Family Code] Section 6209.” (Fam. Code, § 6211, 

subd. (b).) Family Code section 6209 defines a cohabitant as “a person who regularly 

resides in the household. ‘Former cohabitant’ means a person who formerly regularly 

resided in the household.” (Fam. Code, § 6209, italics added.)

Section 1109’s definitions of “cohabitant” do not require “ ‘serious courtship,’ an 

‘increasingly exclusive interest,’ ‘shared expectation of growth,’ or that the relationship 

endures for a length of time.” (People v. Rucker (2005) 126 Cal.App.4th 1107, 1116.) 

Instead, the Legislature intended “the domestic violence statutes should apply to a range 

of dating relationships.” (Ibid.)

Thus, a couple in an intimate relationship are cohabitants under the narrow 

definition in section 1109 and Penal Code section 13700, which is not subject to the fiveyear time limitation. (§ 1109, subd. (d)(3), Pen. Code, § 13700.) Platonic roommates are 

cohabitants under the broader definition in the Family Code that applies to nonintimate 

household members, but that evidence is subject to the five-year limitation. (§ 1109, 

subd. (d)(3); Fam. Code, §§ 6211, subd. (b), 6209.)

G. Analysis

As explained above, section 1109 defined “cohabitant” by reference to both Penal 

Code section 13700 and Family Code section 6211. Defendant relies on cases 

interpreting Penal Code section 275.5, willful infliction of corporal injury, to argue she 

was not within the definition of a cohabitant.
23.

These cases, however, solely rely on the definition of a cohabitant stated in Penal 

Code section 11370. In People v. Holifield (1988) 205 Cal.App.3d 993, the court 

addressed a conviction for violating section 273.5, willful infliction of corporal injury, 

and held the word “cohabitating” under that statute could be defined by reference to the 

definition of “cohabitant” in Penal Code section 13700. (Id. at pp. 998–999.) Holifield

rejected the defendant’s argument that “cohabiting” meant a quasi-marital relationship 

but held that Penal Code section 273.5’s definition “requires something more than a 

platonic, rooming-house arrangement,” and instead requires “a ‘significant relationship’

by analogy to the domestic violence act provisions.” (Id. at p. 999; ibid.) Holifield

concluded that “cohabiting” under section 273.5 “means an unrelated man and woman 

living together in a substantial relationship—one manifested, minimally, by permanence 

and sexual or amorous intimacy. That definition accords with the common, broad 

understanding of ‘cohabiting’ except for the limitation, implied from the man-woman 

restriction on the face of the statute, that the couple must be unrelated and living in sexual 

or amorous intimacy. This definition gives sufficiently definite warning to the offender 

and guidelines for law enforcement to satisfy the state and federal Constitutions.” (Id. at 

p. 1000.)

It has thus been held that “[f]or purposes of Penal Code section 273.5, which 

defines the crime of inflicting corporal injury on a cohabitant, ‘cohabitants’ have been 

defined as ‘those “ ‘living together in a substantial relationship—one manifested, 

minimally, by permanence and sexual or amorous intimacy.’ ” [Citation.]’ [Citations.] 

We may assume, without deciding, that ‘cohabitant’ has the same meaning in Penal Code 

section 13700.” (People v. Dallas, supra, 165 Cal.App.4th at pp. 952–953.)

Defendant relies on these definitions to argue she was not a “cohabitant” with

Osorio because there was no evidence that they had a substantial, permanent relationship

with involving sexual intimacy. The trial court relied on Holifield when it found

defendant and Osorio were cohabitants, and the evidence supports the trial court’s finding
24.

under the definition in Penal Code section 13700. Ms. Bautista, who lived in the house in 

front of the trailer, believed defendant had been living with Osorio for about one month 

and she regularly saw them together. Ms. Lopez, Osorio’s niece, regularly visited the 

trailer, saw them together, and believed defendant and Osorio had been living together 

for about three months. Defendant told the detectives that she had lived in the trailer with 

Osorio for two months. She never said that she planned to leave defendant and move out 

of the trailer, and instead claimed she was going to look for a job to contribute to their 

living expenses. She admitted that she engaged in sexual relations with Osorio. While 

defendant told the detectives that she was not romantically attracted to Osorio and did not 

want to have sex with him, she never testified that Osorio used force or threats to engage 

in sexual relations. During her interview with the detectives, when she wrote a letter to 

Osorio, she wrote that she loved him even though they had their differences. She turned 

him down to have sex because she did not find him sexually attractive, and she “gave 

[him] some action because [she] did enjoy [his] company.” The evidence supports the 

court’s finding that their sexual contact, “though infrequent, and the victim’s romantic 

feelings for the defendant, though unreturned, show an intimacy going well beyond 

ordinary roommates.”

We further find that even if defendant’s insistence that she did not have an

intimate relationship with Osorio was accepted, the trial court’s finding that they were

cohabitants was also correct under section 1109’s alternate definition in Family Code

section 6211, that “defines domestic violence more broadly as including abuse committed 

against either ‘[a] cohabitant or former cohabitant, as defined in Section 6209,’ 

[citation] .... ... Family Code section 6211 expressly incorporates the following 

definition in Family Code section 6209: ‘ “Cohabitant” means a person who regularly 

resides in the household.’ ” (People v. Dallas, supra, 165 Cal.App.4th at p. 953.)

Defendant and Osorio were clearly “cohabitants” within the meaning of the 

broader definition in Family Code sections 6211 and 6209. Defendant was charged with 
25.

committing the murder on October 9, 2018, and her prior domestic violence convictions 

occurred in 2017 and 2018, within section 1109’s requirement of a five-year period to 

rely on the Family Code definitions. As already explained, she had lived with Osorio in 

the trailer for two to three months. Ms. Bautista regularly saw them together. 

Ms. Lopez, Osorio’s niece, also saw them together, and testified Osorio bought clothes 

and food for her, and they seemed happy. Defendant stated she had lived with him for 

two months, and never stated that she was planning to move out. Instead, she stated her 

intent to start working to contribute to their expenses. Defendant and Osorio were thus 

cohabitants within the meaning of Family Code sections 6211 and 6209.7

H. Relevance and Prejudice

Defendant next argues her three prior convictions were not relevant under section 

1109, and were unduly prejudicial under section 352, because they did not show an 

escalating pattern of abusive conduct since the prior offenses occurred 17 months before 

the murder, they were for “harmful touching in which no injury was inflicted,” and the 

offenses involved a different victim.

Section 1108 is parallel provision to section 1109 and permits introduction of a 

defendant’s prior sexual offenses as propensity evidence under certain circumstances. 

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

77 Cal.App.4th 410, 420.) “In the context of ... sections 1108 and 1109, a defendant’s 

propensity to commit sexual offenses or domestic violence is not an extraneous factor; it 

is relevant to the guilt of the accused—and evidence tending to show that propensity has 

probative value.” (People v. Baker (2021) 10 Cal.5th 1044, 1089.) As to section 1108 

7 We note that any error in the court’s reliance on Penal Code section 13700 for the

definition of “cohabitant” is irrelevant because defendant and Osorio were cohabitants 

under the broader definition in Family Code section 6211. A decision correct in result

will not be reversed even though the stated reason is wrong. (People v. Armstrong (1991) 

232 Cal.App.3d 228, 241–242.)
26.

evidence, “there is no requirement that the charged and uncharged offenses be so similar 

that evidence of the prior acts would be admissible under section 1101. If such strict 

similarities were required, ‘section 1108 would serve no purpose. It is enough the 

charged and uncharged offenses are sex offenses as defined in section 1108.’ ” (People

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

Defendant’s prior domestic violence convictions occurred in 2017 and 2018, the 

murder occurred in October 2018, and the prior offenses were not unduly remote. 

(People v. Jones (2012) 54 Cal.4th 1, 52.) The evidence about the prior acts “ ‘was 

highly relevant and probative because it created a strong inference that [the defendant] 

had a propensity to commit’ ” the currently charged offense against the victim. (Kerley, 

supra, 23 Cal.App.5th at p. 536.)

“The potential for prejudice is decreased ... when testimony describing the

defendant’s uncharged acts is no stronger or more inflammatory than the testimony

concerning the charged offense.” (People v. Tran (2011) 51 Cal.4th 1040, 1047.) The 

evidence introduced at trial about defendant’s prior domestic violence offenses was far 

less inflammatory than the evidence in support of the murder charge. The prosecution 

agreed to stipulate to the existence of the offenses, and the jury did not hear any details 

about those offenses except for the important fact that Osorio was not the victim of the 

prior offenses. (People v. Rhoades (2019) 8 Cal.5th 393, 413; People v. Jones, supra, 54 

Cal.4th at p. 51.)

In addition, the jury was advised that defendant was convicted of the prior 

offenses. “[T]he prejudicial effect of the evidence is increased if the uncharged acts did 

not result in a criminal conviction. This is because the jury might be inclined to punish 

the defendant for the uncharged acts regardless of whether it considers the defendant 

guilty of the charged offense and because the absence of a conviction increases the 

likelihood of confusing the issues, in that the jury will have to determine whether the 

uncharged acts occurred.” (People v. Tran, supra, 51 Cal.4th at p. 1047.)
27.

Finally, the court properly instructed the jury on the consideration of the evidence, 

and the language in CALCRIM No. 852 has been found constitutional to instruct the jury 

on the consideration of section 1109 evidence. (People v. Reliford (2003) 29 Cal.4th 

1007, 1012; People v. Johnson (2008) 164 Cal.App.4th 731, 739–740; People v.

Reyes (2008) 160 Cal.App.4th 246, 251–252.)

II. The Court’s Denial of Defendant’s Motion to Admit Osorio’s Prior 

Convictions

Defendant next claims the court improperly denied her motion to admit evidence 

of Osorio’s prior convictions pursuant to section 1103, that such evidence was admissible 

to support a self-defense theory in a murder case, and the exclusion of the evidence 

violated her due process right to present a defense because the court “improperly tailored 

the evidence” to her detriment since it admitted her prior domestic violence convictions.

A. Section 1103

As with section 1109, section 1103, subdivision (a)(1) provides another exception 

to section 1101, subdivision (a), and permits the defendant to offer evidence regarding 

the character or trait of a victim to prove conduct of the victim in conformity with the 

character or trait of character. (People v. Gutierrez (2009) 45 Cal.4th 789, 827.) Section 

1103, subdivision (a) states in relevant part:

“(a) In a criminal action, evidence of the character or a trait of 

character (in the form of an opinion, evidence of reputation, or evidence of 

specific instances of conduct) of the victim of the crime for which the 

defendant is being prosecuted is not made inadmissible by Section 1101 if 

the evidence is:

“(1) Offered by the defendant to prove conduct of the victim 

in conformity with the character or trait of character.

“(2) Offered by the prosecution to rebut evidence adduced by 

the defendant under paragraph (1).” (Italics added.)

If the victim’s violent character “ ‘was known to the defendant, the evidence tends 

to show the defendant’s apprehension of danger; if it was not known, the evidence 
28.

nevertheless tends to show that the victim was probably the aggressor.’ ” (People v. 

DelRio (2020) 54 Cal.App.5th 47, 55–56 (DelRio).)

A defendant’s motion to introduce evidence about the victim under section 1103 is 

still subject to exclusion under section 352, and the court’s determination under both 

statutes is reviewed for an abuse of discretion. (People v. Gutierrez, supra, 45 Cal.4th at 

pp. 827–828.)

We now turn to defendant’s motion and Osorio’s prior convictions.

B. Defendant’s Motion

As explained above, the court held a hearing and granted the prosecution’s motion 

to introduce defendant’s prior domestic violence convictions under section 1109. After 

the court’s ruling, defense counsel then made an oral motion to introduce Osorio’s prior 

convictions: two violations of Penal Code section 273.5, willful infliction of corporal 

injury resulting in a traumatic condition, in 1991 and 1998; and violation of Penal Code

section 417, subdivision (a), brandishing, in 1995.

Defense counsel argued the prior convictions were admissible under section 1103, 

subdivision (a)(1) to prove Osorio’s conduct “in conformity with the trait of his character, 

which would [be] a trait for violence, which could be showed by prior specific instances 

of conduct under that statute.” Counsel argued the evidence was highly relevant to 

support defendant’s theories of both perfect and imperfect self-defense because “[Osorio] 

has these prior acts of violence, especially given that we really only have one eyewitness 

to just the beginning of what was happening between Mr. Osorio and [defendant].”

Defense counsel acknowledged the most recent of Osorio’s convictions occurred 

20 years ago, “but they did occur over a span of seven years, indicating some type of 

pattern, even though there weren’t convictions after that, and given their probative nature, 

I believe that that would outweigh any prejudice effect to [the People’s] case ... despite 

the age.”
29.

The prosecutor objected because the victim’s prior convictions were too remote, 

and 20 years was “a pretty big break” between the prior convictions and defendant’s 

alleged need for self-defense to show Osorio’s propensity at the time of the murder in 

October 2018.

C. The Court’s Ruling

The court asked the prosecutor and defense counsel if they had any information or 

evidence about the underlying facts of Osorio’s prior convictions. Both parties agreed 

they were unable to find any evidence, and there was no evidence defendant was the 

victim. Defense counsel stated that only the dockets for the convictions were available, 

and the prosecutor agreed all the other documents had been destroyed.

The court acknowledged Osorio’s prior convictions might be relevant under 

section 1103 as to defendant’s self-defense theories, but the convictions occurred 20 to 

30 years earlier, and there was no evidence or information about the nature of the 

offenses that might show a pattern of conduct.

The court denied defendant’s motion to admit such evidence but stated that it 

would reconsider if the parties obtained information about the underlying facts of 

Osorio’s prior convictions. The parties did not produce additional evidence, and Osorio’s 

prior convictions were not introduced.

D. Analysis

Defendant argues that Osorio’s prior convictions were relevant and admissible 

under section 1103 to rebut the prosecutor’s claims that she fabricated her self-defense 

claims that she feared Osorio.

1. Closing Argument

In challenging the court’s ruling under section 1103, defendant asserts for the first 

time on appeal that the prosecutor improperly asserted in closing argument that Osorio 

“ ‘probably thought it was okay to make a move on [defendant]’ because she had 

consented in the past. [The prosecutor’s closing] argument is of course an outdated trope 
30.

that has been removed from the law. Even if a person initially consents to intercourse, if 

that person withdraws the consent but the partner ignores the withdrawal and persists, 

that conduct is rape. (In re John Z. (2003) 29 Cal.4th 756, 762–763.)”

We note that defendant has forfeited any contentions based on prosecutorial 

misconduct because she did not object to the prosecutor’s closing argument, and she has 

not raised a misconduct claim in this appeal. (People v. Centeno (2014) 60 Cal.4th 659, 

674.) There is nothing in the record to indicate that an objection would have been futile, 

and the prosecutor’s argument was not so extreme or pervasive that a prompt objection 

and admonition would not have cured the harm. (Ibid.)

As for John Z., the California Supreme Court addressed in that case “whether the 

crime of forcible rape [citation] is committed if the female victim consents to an initial 

penetration by her male companion, and then withdraws her consent during an act of 

intercourse, but the male continues against her will,” and held “that a withdrawal of 

consent effectively nullifies any earlier consent and subjects the male to forcible rape 

charges if he persists in what has become nonconsensual intercourse.” (In re John Z., 

supra, 29 Cal.4th at p. 757, italics added; id. at p. 758, italics added.) John Z. held that 

even assuming the victim in that case “initially consented to, or appeared to consent to, 

intercourse with defendant, substantial evidence shows that she withdrew her consent 

and, through her actions and words, communicated that fact to defendant” at the time of 

the acts. (Id. at p. 762, italics added.)

Even if defendant had preserved this issue for review, the prosecutor’s closing 

argument cited on appeal, when quoted in its entirety, did not run afoul of John Z. The 

prosecutor addressed defendant’s statements to the detectives, that she didn’t want a 

romantic relationship with Osorio, and argued there was evidence that they had a good 

relationship. The prosecutor played a portion of defendant’s pretrial interview, where she 

stated Osorio performed an act of sodomy on her the prior night and she had previously 

given him permission to do that act. The prosecutor then argued: “And there you have it. 
31.

The detectives defined what consensual was, and she said, ‘Yeah, it was probably 

consensual.’ [Osorio] probably thought it was okay to make a move on her. Is that what 

she wanted? No. But she never communicated that to him.” (Italics added.) The 

prosecutor’s argument was thus consistent with John Z., that defendant told the detectives 

she had previously given Osorio permission to perform the sexual act, and admitted that 

she did not withdraw permission.

2. DelRio

Next, defendant relies on People v. DelRio, supra, 54 Cal.App.5th 47, and argues 

the court abused its discretion to exclude Osorio’s prior convictions. In DelRio, the 

defendant and the victim were two men involved in a shootout with each other. The 

defendant killed the victim and was charged with murder. (Id. at pp. 48–49.) The trial 

court excluded evidence of three instances of the victim’s past domestic violence on the 

ground the defendant did not know about them so they could not have influenced his 

actions. (Id. at pp. 54–55.)

DelRio reversed the defendant’s conviction and held the trial court’s analysis was 

incorrect as a matter of law because the defendant’s knowledge of the victim’s past acts 

was not relevant to the question of whether the victim acted violently at the scene. 

(DelRio, supra, 54 Cal.App.5th at pp. 55–56.) DelRio held that where the defendant’s 

theory of the case is that the victim’s “violent character was circumstantial evidence of

how [the victim] acted at the scene,” the defendant need not show he was aware of the 

victim’s prior violent conduct. (Id. at p. 55.)

DelRio rejected the People’s argument that the evidence was properly excluded 

since it was prejudicial under section 352. DelRio held the evidence the victim was by 

nature violently aggressive was potentially highly probative since both men had loaded 

guns, both fired at each other, and there were no independent witnesses to corroborate or 

refute the defendant’s testimony that the victim drew his gun first, leaving the defendant 

in fear of his life. (DelRio, supra, 54 Cal.App.5th at pp. 49–50, 56–57.)
32.

DelRio concluded the court’s exclusion of the evidence was not harmless in “this 

close case” because “[t]he only eyewitness testified to classic self-defense: [the 

defendant] shot after [the victim] aggressively racked and aimed a semiautomatic at [the 

defendant]. [The defendant’s] testimony was self-serving but fit all physical evidence.

The witnesses who heard shots were nearly useless, for none knew whether [the victim or 

the defendant] first raised a gun. No evidence suggested [the defendant] had a motive to 

shoot [the victim]. [The defendant] did show consciousness of guilt, but his testimony 

portrayed him as a dealer in illegal drugs, as a convicted felon who knew he could not 

legally carry a gun, and as one scared of the law—and his mother’s judgment should she 

learn the truth. [The defendant] had reasons besides murder to feel guilt.” (DelRio, 

supra, 54 Cal.App.5th at p. 57.)

Defendant’s reliance on DelRio is misplaced because the trial court’s decision to 

exclude the evidence in this case was not based on whether or not defendant knew of 

Osorio’s prior convictions. Instead, the court acknowledged Osorio’s prior convictions 

could be relevant and probative in this case but excluded the evidence because both 

parties admitted there were no surviving records to establish the facts surrounding these 

convictions, and the offenses occurred over 20 years before the murder.

3. The Remoteness of the Prior Convictions

Defendant asserts the probative value of Osorio’s prior convictions was not 

diminished by their remoteness. “No specific time limits have been established for 

determining when an uncharged offense is so remote as to be inadmissible.” (People v.

Branch (2001) 91 Cal.App.4th 274, 284.) “Remoteness of prior offenses relates to ‘the 

question of predisposition to commit the charged sexual offenses.’ [Citation.] In theory, 

a substantial gap between the prior offenses and the charged offenses means that it is less 

likely that the defendant had the propensity to commit the charged offenses. However ... 

significant similarities between the prior and the charged offenses may ‘balance[] out the 

remoteness.’ [Citation.] Put differently, if the prior offenses are very similar in nature to 
33.

the charged offenses, the prior offenses have greater probative value in proving 

propensity to commit the charged offenses.” (Id. at p. 285.)

In this case, however, the court was unable to make this determination because of

the absence of any evidence or information about the factual basis that resulted in

Osorio’s convictions that occurred as long as 27 years before the murder: in 1991 and

1998 for violating Penal Code section 273.5, willful infliction of corporal injury resulting 

in a traumatic condition; and in 1995 for violating of Penal Code section 417, 

subdivision (a), brandishing.

8

In evaluating the probative value of evidence under section 352, the focus is on the

underlying facts of the prior and current offenses to determine whether the evidence

should be admitted even if remote and far removed from the current offense. In People v.

Harris (1998) 60 Cal.App.4th 727, the defendant was charged with using a position of 

trust as a mental health nurse to engage in sex with two women who were “vulnerable 

due to their mental condition.” (Id. at pp. 730–732.) The prior offense involved a brutal 

rape where the defendant beat and stabbed the victim. (Id. at p. 733.) Harris held the 

prior offense was improperly admitted at trial because there were striking dissimilarities 

between the 23-year-old prior offense and the charged offenses and concluded that the 

prior offense had no “significant probative value” on any disputed issue. (Id. at pp. 740–

741.)

In contrast, in People v. Branch, supra, 91 Cal.App.4th 274, the defendant was 

charged and convicted of committing a lewd and lascivious act upon a child under the 

age of 14 and using a foreign object to penetrate the genital opening of a child under the 

8 Given the absence of the records of the prior convictions, defendant was also 

unable to clarify which subdivision of Penal Code section 417 was violated by Osorio in 

1995, because section 417, subdivision (a) defined two offenses at that time: 

(1) brandishing any deadly weapon; and (2) brandishing a firearm, whether loaded or 

unloaded. (See § 417 Historical Notes; Stats. 1993, Ch. 1098, § 6.5 (A.B. 1268).)
34.

age of 14, who was more than 10 years younger than the perpetrator. The trial court 

admitted evidence that the defendant committed “a series of uncharged prior sexual 

offenses committed more than 30 years prior” to the charged crimes. (Id. at p. 277.) On 

appeal, the defendant argued admission of the prior acts was prejudicial because the 

incidents occurred 30 years before the charged offenses. Branch rejected the defendant’s

argument and held the prior and the current offenses committed by the defendant “were 

remarkably similar. As noted by the trial court, [the defendant] first molested a 12-yearold stepdaughter [in the prior uncharged acts], then a 12-year-old step-greatgranddaughter [in the charged offenses]. Moreover, [the defendant] took advantage of 

the fact that each victim was staying in his home when the molestations took place [in the 

prior and charged offenses]. Further, in an evident attempt to shield himself from being 

found out, he lied and told each victim’s principal female caretaker that the victim had 

recently done something wrong. In sum, the substantial similarities between the prior 

and the charged offenses balance out the remoteness of the prior offenses.” (Id. at 

p. 285.)

In this case, such an analysis was impossible since the parties agreed the records 

no longer existed to disclose any underlying facts or even the identity of the victims of

Osorio’s convictions in 1991, 1995, and 1998. Thus, we cannot say the court abused its 

discretion when it denied defendant’s motion to admit Osorio’s prior convictions.

Defendant argues the court’s reliance on the absence of underlying facts to 

exclude Osorio’s prior convictions was invalid because the court had already “allowed 

[defendant’s] priors to be introduced without inquiring into the circumstances of those 

cases.” As explained in issue 1, however, the prosecution’s motion to introduce 

defendant’s prior domestic violence convictions included a factual summary of those 

offenses, which had occurred within two years of the murder. Defendant never objected 

to the accuracy of that summary, and the court conducted an analysis pursuant to section 

352 when it admitted that evidence.
35.

4. Prejudice

Defendant argues the court’s exclusion of Osorio’s prior convictions was 

prejudicial and violated her due process right to present her self-defense theories at trial. 

It is well settled, however, that application of the ordinary rules of evidence does not 

implicate due process and is reviewed under the prejudice standard of People v. Watson

(1956) 46 Cal.2d 818. (People v. Marks (2003) 31 Cal.4th 197, 226–227.) “Although 

completely excluding evidence of an accused’s defense theoretically could rise to this 

level, excluding defense evidence on a minor or subsidiary point does not impair an 

accused’s due process right to present a defense.” (People v. Fudge (1994) 7 Cal.4th 

1075, 1103.)

Even assuming the court erroneously excluded Osorio’s prior convictions, any 

error was harmless because it would not have resulted in a more favorable verdict, and 

the court’s ruling did not prevent defendant from introducing evidence of her defense 

theories of justifiable homicide based on self-defense, and manslaughter based on 

imperfect self-defense. The jury heard defendant’s pretrial interview with the detectives, 

where she said Osorio talked about being her boyfriend but she was not interested; Osorio 

told defendant that she should take care of him, and he would take care of her; Osorio 

repeatedly attempted to have a sexual relationship with her nearly every day, but she 

refused and told him to stop; Osorio would get angry and call her names; and her account 

of what happened the night before the murder when Osorio tried “to come on to [her],” 

and hit her in the arm; defendant said he always pressured her for sex; and she woke up to 

discover Osorio was sodomizing her. Defendant stated when Osorio and his friend 

arrived at the trailer that afternoon, he “reeked” of alcohol and looked at her like he 

wanted to have sex, she told him not to touch her, Osorio “started wrestling” and “using 

force” against her, she threw him to the ground, and then she started hitting him with the 

pipe because she feared for her life and that he would sodomize her again. The jury also 

heard supporting testimony from Ms. Bautista, that she saw defendant and Osorio arguing 
36.

once, defendant was yelling at him, and on two or three occasions, defendant complained 

about Osorio and said “he would touch her” sexually, and she did not like that.

While the jury heard evidence that supported defendant’s self-defense theories, it 

also heard defendant’s admissions during the pretrial interview that when Osorio returned 

to the trailer, she “lost control,” she was “[a] little bit” angry, she hit him in the head and 

body at least ten times with the metal pole, Osorio was bleeding from his head and 

making gurgling sounds, and she kept hitting him until he stopped moving and then fled 

the scene. The jury also heard testimony from Ferrer, who did not previously know 

either Osorio or defendant, and described how defendant was waiting outside the trailer 

when he arrived in the yard with Osorio, she already had the metal bar near her, she was 

upset, Osorio and defendant began arguing and pushing each other, Osorio “backed off,”

defendant hit the top of Osorio’s head with the metal bar, and she split his head open.

Based on the record before this court, there is no reasonable probability that 

defendant would have obtained a more favorable outcome had he been permitted to 

introduce evidence of Osorio’s prior convictions. (People v. Gutierrez, supra, 45 Cal.4th 

at p. 828.)

DISPOSITION

The judgment is affirmed.