Filed 11/24/20 P. v. Lopez CA2/1

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

HECTOR LOPEZ,

Defendant and Appellant.

 B297094

 (Los Angeles County

 Super. Ct. No. PA089086)

APPEAL from a judgment of the Superior Court of Los

Angeles County, Michael Terrell, Judge. Affirmed.

Robert E. Boyce, under appointment by the Court of Appeal, 

for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, David E. Madeo and Thomas C. Hsieh, Deputy 

Attorneys General, for Plaintiff and Respondent.

_____________________
2

Hector Lopez was charged with first degree murder for the 

death of Michelle Malander. The information further alleged he 

personally used a deadly and dangerous weapon in the killing. The 

jury convicted Lopez of second degree murder and found the deadly 

and dangerous weapon use allegation to be true.

Because this case involved domestic violence, Evidence Code1

section 1109 permitted the prosecution to introduce evidence of 

Lopez’s prior acts of domestic violence against Malander (her 

hearsay statements involving Lopez’s abuse but we hold that they 

weren’t admissible), and evidence of her injuries in order to prove 

his propensity to commit the charged offense.

On appeal, Lopez argues the trial court prejudicially abused 

its discretion by admitting evidence of the following: Malander’s 

hearsay statements involving Lopez’s abuse; photos of her injuries;

and uncharged prior acts of domestic violence. Lopez also argues 

the trial court erred by refusing defense counsel’s request for a jury 

instruction on the lesser-included offense of involuntary 

manslaughter. We affirm.

The trial court did not abuse its discretion by admitting 

evidence of prior acts of domestic violence and evidence of 

Malander’s injuries. The evidence was relevant and not unduly 

prejudicial. The trial court also did not err by refusing to instruct 

on the lesser included offense of involuntary manslaughter.

However, the trial court did err by admitting Malander’s hearsay 

statements, but the error was harmless.

1 Subsequent undesignated statutory citations are to the 

Evidence Code.
3

BACKGROUND AND PROCEDURAL HISTORY

A. Factual Background

Lopez and Malander lived in a motorhome behind a house 

rented by Maribel Gamez. Gamez rented her home from Lopez’s 

uncle. After an extensive history of domestic violence, spanning 

more than a decade, Lopez killed Malander one evening in this 

motorhome by the use of a sharp instrument inflicting a fatal 

puncture wound to her skull.

1. Domestic Violence Incident Observed Two Months Prior 

to the Murder

Gamez testified she witnessed the following about two 

months prior to Malander’s murder. Gamez heard a noise and 

when she looked out of her window she saw Malander running. 

Lopez caught up to Malander, pulled her hair, and kicked her. 

Gamez approached the couple and told them to calm down—

Gamez’s children were watching. Gamez saw no injuries on Lopez, 

but noticed Malander was bleeding from her nose and mouth. 

Gamez asked Malander if she should call the police, but Malander

said, “No,” explaining she was afraid Lopez would retaliate and 

hurt her even more. So Gamez washed Malander’s face and offered 

to let her stay the evening in her home. Malander again refused,

explaining that Lopez would retaliate if she was seen speaking to 

other people. When Gamez asked Lopez about the incident, Lopez 

said it was Malander’s fault that he hit her.

2. The Murder

The murder occurred late in the evening on June 22, 2017, or 

in the early morning on June 23. Gamez was at home and heard a 

woman screaming. When she went outside to throw out the trash,

Lopez asked to borrow her cell phone to call the police. He said “his 

wife had drank and had passed out.” Gamez gave Lopez her cell 
4

phone, Lopez dialed and spoke, but Gamez did not hear the 

conversation. Lopez then returned the cell phone and left.

Lopez came back to speak with Gamez a second time, and 

again explained he needed her phone to call “an ambulance.” 

Gamez responded that Lopez already called them, but Lopez said: 

“Dial again because it’s an emergency.” Gamez gave Lopez her 

phone, Lopez dialed again, but Gamez did not hear Lopez speak to 

the operator.

Lopez left and returned a third time, again asking Gamez to 

call 911. Gamez gave her phone to her 12-year-old son and asked 

him to call 911. She thought Lopez was frightened.

Gamez’s son did not know how to dial correctly, handed 

Gamez the phone, and the operator told Gamez that the previous 

caller “was not giving the address.” Gamez gave the operator the 

address and the operator asked her to check to see if Malander was 

breathing. Gamez went to the motorhome, still holding her phone, 

and Lopez took the phone away from her when Gamez lifted the 

curtain inside the motorhome to check on Malander. She saw 

Malander sitting in a chair with her eyes open, not breathing, and 

bleeding from her left temple.

Gamez heard Lopez say to Malander, “Mamacita, I love you 

and I will not do this to you again.” Gamez and Lopez exited the 

motorhome and Lopez ran toward the ambulance.

Gamez called Lopez’s mother, Meztli Papalotl. When 

Papalotl arrived, paramedics were at the scene. When Papalotl

asked Lopez what happened, he said Malander fell in the trailer; he 

did not say anything about Malander hitting her head.
5

Around 12:30 a.m., Lopez drove to Lucille Malander’s house, 

who was Malander’s mother.

2 He shook her awake and said, “Get 

up. Get up. It’s Michelle and this time it’s really bad.” Lucille 

exited her home and joined Papalotl in a vehicle waiting outside, 

and they drove to a nearby hospital.

Nothing was said in the car ride to the hospital. When Lucille 

asked Lopez what happened to her daughter, Lopez did not answer. 

Lucille never saw Lopez cry, nor did she ever get an explanation 

from him as to why her daughter died.

Rachael Johnson, Malander’s sister, arrived at the hospital. 

When Johnson asked Lopez what happened, Lopez told her, “I 

didn’t do anything to her. I wouldn’t do anything. I love her.” 

Johnson testified that Lopez appeared nervous, but not crying. 

Lopez told Johnson that he and Malander had been drinking, that 

Malander could not control how much she drank, and that she fell 

accidentally.

Police arrived at the hospital a few hours later, around 

3:40 a.m. Officer Sergio Moreno spoke with Lopez. Lopez said that 

he and Malander were “drinking margaritas [outside] because it 

was a hot night.” Lopez at first said that when they were done 

drinking, Malander walked into the motorhome first, but then 

stated, “No, no, no. Wait. I walked in first.” And after he walked 

in first, Malander fell backwards and hit her head. Lopez was not 

sure whether she hit her head on the ground or on the building 

beside the motorhome. Lopez said Malander then immediately fell

unconscious. Lopez added he then called 911 and administered

CPR until the ambulance arrived.

2 Since the mother and the victim share the same last name, 

we refer to the mother by her first name for ease of reading.
6

Officer Moreno testified Lopez appeared nervous and avoided 

eye contact. Lopez repeatedly insisted he had never drunk alcohol 

before that evening, and that he only drank that evening because it 

was hot.

Lopez was arrested at the hospital.

3. The Investigation

Detective Gabriel Bucknell responded to the crime scene later 

that morning around 9:00 a.m. He observed the inside of the 

motorhome was cluttered and showed signs of a struggle. He saw a 

shattered mirror, and the pieces of the mirror were on the floor and 

even outside the motorhome. He also saw a broken remote control. 

Trace amounts of blood were on the floor and clothing was strewn 

about. Outside the motorhome, he noticed a table was set up with 

some tools. A screwdriver was among the tools, but it was not 

bloody and did not appear out of place. A hammer was lying on the 

ground next to the table.

Dr. Timothy Dutra, a deputy medical examiner, performed 

the autopsy. He determined Malander died of a penetrating stab 

wound to the side of her head: the wound was about two inches 

deep. Dr. Dutra opined the fatal stab was caused by a screwdriver. 

He testified the stab wound could not have been caused by falling to 

the ground, or falling and hitting the corner of a countertop or 

cabinet.

On cross-examination, Dr. Dutra testified it was “possible” 

that the stab wound could have been caused by falling on a nail 

sticking out of the wall or the floor. But after Dr. Dutra was shown 

several photographs of the crime scene, he could find nothing in 

those pictures that could account for the particular kind of wound 

that was inflicted to Malander’s head. Nor did anyone else testify 

there was a protruding object at the scene of the murder that could 

have caused the wound.
7

Malander had bruises and abrasions all over her body. Dr. 

Dutra testified that these bruises had been recently inflicted. 

Traces of alcohol and THC were found in Malander’s system.

B. Charges, Trial, and Sentencing

1. Charges

A single-count information charged Lopez with murder in the 

first degree. (Pen. Code, § 187, subd. (a).) The information further 

alleged Lopez personally used a deadly and dangerous weapon. 

(Id., § 12022, subd. (b)(1).)

2. Evidence of Prior Acts of Domestic Violence and the 

Trial Court’s Rulings

The prosecutor filed a trial brief in which she advised the trial 

court she was seeking to introduce evidence of Lopez’s prior acts of 

domestic violence against Malander. One of the occurrences was a 

May 17, 2008 incident which was reported to the police. The 

prosecutor also sought to introduce evidence from several witnesses 

who would testify that they saw injuries on Malander, along with 

Malander’s statements that Lopez inflicted the injuries.

The prosecutor argued that the prior acts of domestic violence 

were relevant to explain Malander’s conduct, to prove her state of 

mind (that she was afraid of Lopez), to prove Lopez’s motive to kill, 

and to rebut any assertion that Malander’s killing was an accident. 

The prosecutor asserted that Malander’s hearsay statements were 

admissible under sections 1250, subdivision (a) (declarant’s thenexisting state of mind, emotion or physical sensation offered to 

prove or explain declarant’s conduct where it was at issue), 1251 

(similar provision), and 1252 (hearsay statement inadmissible if 

made under circumstances indicating lack of trustworthiness). The 

prosecutor also asserted Malander’s statements were admissible 

nonhearsay offered as circumstantial evidence of the declarant’s 

state of mind and the state of mind of the listener.
8

In a section 402 pretrial hearing, the trial court, defense 

counsel, and prosecutor discussed the prior acts and hearsay 

evidence. We now review this evidence and indicate the trial court’s 

rulings.

a. Zonia Sermeno

i. Statements

Zonia Sermeno knew Malander since they were children. She 

said Malander was her best friend. They were also coworkers at an 

emergency medical call center from 2013 to 2017.

Malander told Sermeno that Lopez was an abusive person. 

Sermeno would see Malander come to work, “three, four times out 

of the week . . . [a]nd during the day, four, five times [Sermeno] 

would catch [Malander] crying.”

About a year before Malander was murdered, she showed up 

to work and told Sermeno she “got to show you something.” 

Malander took Sermeno into the bathroom, took off her pants, and 

Sermeno “saw bruising in between [Malander’s] thighs.” Malander

said Lopez held her down and raped her.

On another incident, Malander called Sermeno on a Friday 

night and asked if Sermeno would come with her to the emergency 

room. Sermeno said of course she would. Malander said: “He just 

broke my wrist. Can you go with me?” Malander added: “Let me

see if he falls asleep. I can’t—I can’t leave.” Sermeno never heard 

back from Malander, and later the next day Malander appeared at 

work with her bone “sticking out of her wrist.”

Sermeno told Malander multiple times that she should leave 

Lopez. Malander explained that she could not, because she was 

afraid he would kill her and afraid that she would never see her son 

again—Lopez’s mother had custody of their son. Malander told 

Sermeno to tell no one about the abuse.
9

Malander told Sermeno that she had to leave work on time or 

she would get in trouble with Lopez. Malander had to check in with 

Lopez every 15 to 20 minutes. At times, Lopez made Malander

leave work early.

ii. Objections and Ruling

Lopez’s counsel objected to the admission of Malander’s 

hearsay statements to coworkers and family members, asserting 

they did not fall within the hearsay exceptions identified by the 

prosecutor, and were also inadmissible under section 352 because 

some of the statements were prejudicial and irrelevant.

Lopez’s counsel argued that Sermeno’s testimony about 

Malander’s statements that Lopez held her down and raped her 

were inadmissible under section 352. Counsel further argued that 

the rape was inflammatory and the jury’s focus would turn from the 

facts of the case to the asserted rape.

Lopez’s counsel also argued that Malander’s statements that 

Lopez made her “check in” with him multiple times a day 

constituted multiple levels of hearsay without an appropriate 

exception and was inadmissible under section 352.

The prosecutor responded that the rape was relevant to show 

that Lopez exerted control over Malander, and that the rape and 

her visible injuries showed she was in fear of him. The prosecutor 

argued that Malander’s statements about checking in with Lopez 

were admissible to show Lopez’s motive and her fear. The 

prosecutor argued Malander’s fear and mental state were at issue 

because Lopez had told multiple persons that the killing was an 

accident. The statements about checking in were also relevant to 

explain Malander’s conduct.

The trial court overruled counsel’s objections to Sermeno’s 

testimony.
10

b. Rachael Johnson

i. Statements/Documents

Johnson also worked at the emergency medical call center. 

She testified that Lopez and Malander started dating when 

Malander was about 16 years old. Sometime within the first two 

years of that relationship, Johnson saw Lopez pull Malander’s hair 

and slap her.

Johnson also saw Malander’s broken wrist, testifying: “She 

had a bone popping out here, and she kept saying she had to go get 

it looked at. She never went to get it looked at, so it stayed that 

way.”

About six months prior to her murder, Malander told Johnson 

that Lopez had an affair with another woman but Malander was 

afraid to leave him. Johnson discovered evidence of the affair on 

Lopez’s Facebook page. Malander also told Johnson that Lopez had 

raped her.

The trial court admitted three notes from Lopez to Malander 

that Johnson had found in the motorhome after Malander’s death. 

In one card dated February 15, 2008, Lopez wrote “em [sic] sitting 

here in the car crying thinking about how bad I hurted you.” The 

card concludes with the promise, “I’m gonna perfect my-self and 

check my-self in not hitting you no more.” In a letter, Lopez wrote,

“this time I learn the true meaning of not touching u in . . . any 

hitting way.” In another card, Lopez wrote, “There is no reason to 

hit a woman especially if she didn’t do anything to hurt you!!” “I 

will come to you and say sorry, but if you speak I will hit you,” and 

“I hit Michelle just because I think she is stupid compared to me.”

ii. Objections and Ruling

Lopez’s counsel objected on “[section] 352 grounds, multiple 

hearsay grounds” to Johnson’s testimony about Malander’s 

statements to Johnson and Johnson’s observations on Facebook 
11

confirming Lopez’s affair. The trial court ruled that Malander’s 

statements that she confronted Lopez about an affair was

admissible.

c. Lucille Malander

i. Statements

Lucille was the office manager at the emergency medical call 

center where Malander worked. Lucille testified that Malander and 

Lopez started dating when Malander was 16 years old and had a 

son together about a year and a half later. Lopez’s mother, 

Papalotl, took custody of the boy when he was about nine months 

old due to domestic violence in the Malander-Lopez household.

Lucille saw injuries on Malander on two occasions. Once, she 

saw Malander with a missing front tooth. Malander initially 

claimed that she knocked out her tooth from tripping, then later 

said Lopez had knocked her tooth out. Another time, Michelle saw 

Lopez strike Malander with nunchucks.

When Lucille told her daughter to leave Lopez, Malander said 

if she tried, Lopez “would kill her whole family.”

Lucille also testified that Malander would often call in sick to 

work, and she knew the reason was that there had been violence 

between Malander and Lopez.

ii. Objections and Ruling

Lopez’s counsel objected to the testimony of any witnesses 

speculating that Malander called in sick to work because Lopez had 

beaten her. Counsel also objected to Lucille testifying about “all 

sorts of hearsay stories about things that may have happened or 

didn’t happen.”

The trial court ruled that Lucille’s testimony could not be 

“just a generalized he’s always hitting her,” but had to be about 

specific incidents.
12

d. Yessica Garcia/Meztli Papalotl

i. Statements

Yessica Garcia knew Malander since they were children. 

Garcia testified that Malander was around 17 years old when she 

started dating Lopez. On two or three occasions, Malander told her 

that Lopez was very abusive and would hit her. The second time 

that Malander told Garcia about the abuse, Garcia went to look for 

Lopez because she wanted to beat him up. Malander followed 

Garcia and told her to let it be. Garcia could not find Lopez. The 

third time, Garcia saw a bruise on Malander’s left wrist. Garcia 

tried to lift up Malander’s sleeve, but Malander pulled away. 

Garcia stopped talking to Malander; Garcia told her “I can’t hear 

this and you’re not doing anything to leave him.” Garcia was afraid 

for Malander’s safety.

Papalotl testified that she took custody of Lopez’s and

Malander’s son when he was about a year old because they 

constantly argued and were homeless. Papalotl did not see physical 

violence between the two of them. Papalotl told Malander to leave 

Lopez if he was not good to her. Malander responded that she knew 

how to handle Lopez. Papalotl told the police that Lopez and 

Malander had a violent relationship. Lopez became aggressive 

when he drank.

Garcia offered a different account of why Papalotl took 

custody of the boy. She would testify that Lopez was so jealous of 

the child that he did not permit Malander to breastfeed her son.

ii. Objections and Ruling

Lopez’s counsel objected on hearsay, relevance and section 

352 grounds to Garcia’s testimony recounting Malander’s

statements of why Malander gave up her baby.

The trial court ruled that “[t]he fact that the baby was given 

up because of domestic violence” was relevant and admissible. The 
13

court also ruled that evidence that Lopez was jealous of the baby as 

relevant to prove the state of mind of both Lopez and Malander if 

supported by adequate foundation, but that any details, such as 

Lopez becoming jealous when Malander was breastfeeding, were 

inadmissible under section 352. This ruling also applied to 

Papalotl’s testimony to the same facts.

e. May 17, 2008 Arrest

Detective Glenn Jackson testified that on May 17, 2008, he 

responded to a 911 call involving a domestic violence incident in a 

Rite-Aid parking lot. Malander told the detective that she and 

Lopez had gotten into an argument inside their van about his 

drinking. Malander had told Lopez to sober up because they were 

going to her parent’s home to visit their child. Lopez became upset, 

told Malander “you can’t tell me what to do,” and pinned her to the 

floor of the van. Detective Jackson could not locate Lopez at the 

scene. Detective Jackson noticed bruising on Malander’s right arm. 

She said that Lopez had hit her 20 times in the past. Lopez was 

later arrested for this incident, but the arrest did not result in a 

conviction.

Lopez’ counsel objected to the officer’s testimony describing 

the May 2008 domestic violence incident, arguing that it was too 

long in the past to be probative, having taken place 10 years prior to 

the charged murder. The prosecutor responded that she intended to 

only present the testimony of the arresting officer, who would 

testify as to Malander’s spontaneous statements. The prosecutor 

further argued the incident was crucial because it was the only 

report that Malander made to the police, and multiple witnesses 

would testify that Malander never made any additional reports 

because Lopez had threatened to kill her.

The trial court ruled the incident was admissible because 

section 1109 was “designed for this purpose.”
14

3. The Trial Court’s General Limiting Instruction

The trial court instructed the jury with CALCRIM No. 303 as 

follows: “During the trial, certain evidence was admitted for a 

limited purpose. Specifically, Maribel Gamez, Rachael Johnson, 

Lucille Malander, Zonia Ser[meno] and Yessica Garcia all testified 

about statements the victim Michelle Malander made to them 

concerning domestic violence. You may consider those statements 

by the victim only as evidence of the victim’s then existing state of 

mind, emotion or physical sensation, and for no other purpose.”

4. Defense Evidence

Lopez did not present any affirmative evidence on his behalf.

5. Conviction and Sentencing

Lopez was found guilty of second degree murder, and the jury 

found the personal deadly and dangerous weapon use allegation 

true. The court sentenced Lopez to a total state prison term of 16 

years to life. Lopez timely appealed.

DISCUSSION

A. Standard of Review

A trial court’s rulings on the admissibility of evidence—

including hearsay, the admissibility of prior acts of domestic 

violence, and section 352 determinations—are reviewed for abuse of 

discretion. (See People v. Waidla (2000) 22 Cal.4th 690, 725 [abuse 

of discretion standard applies to any evidentiary ruling, including 

hearsay]; People v. Yates (2018) 25 Cal.App.5th 474, 484-485 

[hearsay rulings]; People v. Poplar (1999) 70 Cal.App.4th 1129, 1138 

[§ 1109 evidence].)

Appellate courts review a trial court’s failure to give a lesser 

included offense instruction under a de novo standard, considering 

the evidence in the light most favorable to the defendant. (People v. 

Brothers (2015) 236 Cal.App.4th 24, 30.)
15

We reverse a conviction only if the alleged error was 

prejudicial. (See Cal. Const., Art. VI, § 13). We review evidentiary 

errors for prejudice under the Watson test.3 We reverse if “ ‘after an 

examination of the entire cause, including the evidence,’ [we are] of 

the ‘opinion’ that it is reasonably probable that a result more 

favorable to the appealing party would have been reached in the 

absence of the error.” (Watson, supra, 46 Cal.2d at p. 836.)

B. The Trial Court Did Not Abuse its Discretion by

Admitting Evidence of Past Domestic Violence and 

Malander’s Injuries

1. Applicable Law

Generally, evidence of propensity or disposition is 

inadmissible to prove a person’s conduct on a specific occasion. 

(§ 1101, subd. (a); People v. Villatoro (2012) 54 Cal.4th 1152, 1159.) 

The Legislature, however, has created a specific exception to this

general rule when the propensity evidence is domestic violence. 

(Villatoro, supra, at p. 1159.)

Section 1109, subdivision (a)(1), provides, in relevant part: 

“[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 1101 if the evidence is not inadmissible pursuant to Section 

352.”

Section 1109 allows for the admission of evidence of domestic 

violence perpetrated by the defendant even when the charged 

offense is murder. (See People v. Mitchell (2020) 46 Cal.App.5th 

919, 929 [“courts have unambiguously rejected the suggestion that 

[§ 1109] may only be applied when a domestic violence offense is 

3 People v. Watson (1956) 46 Cal.2d 818 (Watson).
16

charged”]; People v. Brown (2011) 192 Cal.App.4th 1222, 1234-1237 

[§ 1109 applied where defendant charged with murder].)

2. The Trial Court Properly Admitted Evidence of Prior 

Acts of Domestic Violence

Lopez argues that the trial court abused its discretion by 

admitting evidence of Malander’s injuries because there was no 

evidence, other than her inadmissible hearsay statements, to prove 

that he was the one who inflicted the injuries.

While we agree with Lopez that Malander’s statements 

attributing the source of her visible injuries to Lopez are hearsay

statements requiring a valid exception or nonhearsay purpose, we 

disagree Malander’s hearsay statements were the only evidence 

showing Lopez was the one who was harming Malander.

Lopez himself made admissions he had abused Malander. He 

wrote three cards or letters to Malander in which he admitted that 

he hit her.

There was also percipient witness testimony of Lopez 

committing acts of violence against Malander. Multiple witnesses 

personally observed Lopez commit acts of violence against 

Malander about two months prior to the killing. Gamez saw Lopez 

pull Malander’s hair and kick her, and saw her bleeding from her 

nose and mouth. Johnson saw Lopez pull Malander’s hair and slap 

her. Lucille saw Lopez hit Malander with nunchucks.

Because other admissible evidence overwhelmingly showed 

that Lopez beat Malander, there is no reasonable possibility that if 

those statements were omitted the result of the trial would have 

been different. Lopez therefore cannot demonstrate he was 

prejudiced by admission of Malander’s hearsay statements 

attributing her injuries to Lopez.
17

3. Admission of the Uncharged Acts of Domestic Violence 

Was Not Unduly Prejudicial Under Section 352

Lopez asserts that the prior acts evidence was inadmissible 

under section 352 because it was highly prejudicial, had little 

probative value, was inflammatory, and confused the issues. We 

disagree.

Section 352 affords the trial court discretion to exclude 

evidence if its probative value 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.” 

(§ 352.)

Lopez’s acts of domestic violence, offered to prove his 

propensity to commit such acts, was highly probative to show that 

Malander’s killing was not an accident. (See People v. Wang (2020) 

46 Cal.App.5th 1055, 1075 [rationale for permitting domestic 

violence propensity evidence under § 1109 is to eliminate any 

presumption that the isolated offense was an accident, isolated 

incident, or fabrication].) As for inflammatory, it was no more

inflammatory than the circumstances of the murder itself: killing 

Malander by inserting a sharp object into her head.

There was also little possibility of confusing the issues. The 

jury was instructed with CALCRIM No. 852A regarding the 

purposes for which they could consider the prior uncharged acts of 

domestic violence.4 Given the high probative value of the 

4 The instruction read in pertinent part: “The People 

presented evidence that the defendant committed domestic violence 

that was not charged in this case, specifically, conduct or acts 

occurring prior to June 22, 2017.
18

uncharged acts of domestic violence to Lopez’s defense of accident, 

the trial court acted within its discretion in concluding that the 

probative value of the evidence of domestic violence was not 

substantially outweighed by the risk of undue prejudice, nor that it 

was likely to confuse the issues.

“Domestic violence means abuse committed against an adult 

who is his cohabitant.

“Abuse means intentionally or recklessly causing or 

attempting to cause bodily injury, or placing another person in 

reasonable fear of imminent serious bodily injury to himself or 

herself or to someone else. [¶] . . . 

“You may consider this evidence only if the People have 

proved by a preponderance of the evidence that the defendant in 

fact committed the uncharged domestic violence. Proof by a

preponderance of the evidence is a different burden of proof from 

proof beyond a reasonable doubt. A fact is proved by a 

preponderance of the evidence if you conclude that it is more likely 

than not that the fact is true.

“If the People have not met this burden of proof, you must 

disregard this evidence entirely.

“If you decide that the defendant committed the uncharged 

domestic violence, you may consider that evidence and weigh it 

together with all the other evidence received during the trial to help 

you determine whether the defendant committed murder. 

Remember, however, that evidence of uncharged domestic violence 

is not sufficient alone to find the defendant guilty of murder. The 

People must still prove each charge and allegation of murder 

beyond a reasonable doubt.

“Do not consider this evidence for any other purpose.”
19

C. The Trial Court Erred by Admitting Malander’s 

Hearsay Statements, But the Error Was Harmless

1. Applicable Law

If hearsay evidence is admissible, it may be introduced to 

prove prior acts of domestic violence offered under section 1109. 

(See People v. Price (2004) 120 Cal.App.4th 224, 240-241 [finding 

victim’s hearsay statements offered to prove defendant’s prior acts 

of domestic violence were admissible].)

Section 1250 provides: “(a) Subject to Section 1252,[5]

evidence of a statement of the declarant’s then existing state of 

mind, emotion, or physical sensation (including a statement of 

intent, plan, motive, design, mental feeling, pain, or bodily health) 

is not made inadmissible by the hearsay rule when: [¶] (1) The 

evidence is offered to prove the declarant’s state of mind, emotion, 

or physical sensation at that time or at any other time when it is 

itself an issue in the action; or [¶] (2) The evidence is offered to 

prove or explain acts or conduct of the declarant. [¶] (b) This 

section does not make admissible evidence of a statement of 

memory or belief to prove the fact remembered or believed.”

“Our cases repeatedly have held that under . . . section 1250, 

a victim’s out-of-court statements expressing fear of a defendant are 

relevant only when the victim’s conduct in conformity with that fear 

is in dispute. [Citations.] We have upheld the admission of such 

evidence under . . . section 1250 when the victim’s fearful state of 

mind rebutted the defendant’s claims that the victim’s death was 

5 Section 1252 provides that a hearsay statement is 

inadmissible if made under circumstances indicating lack of 

trustworthiness. Lopez does not assert that any of Malander’s 

hearsay statements were inadmissible under this statute; rather his 

only assertion is that her state of mind was not at issue.
20

accidental [citation], or provoked . . . .” (People v. Riccardi (2012) 54 

Cal.4th 758, 816, fn. omitted, italics added.)

2. The Trial Court Incorrectly Admitted Malander’s 

Hearsay Statements

The general rule is that an out-of-court statement offered for 

the truth of the matter asserted is inadmissible hearsay unless the 

statement falls under an appropriate exception. (See § 1200.)

Malander’s statements to witnesses that (i) Lopez beat her; 

(ii) he was the source of her visible injuries, and (iii) he raped her, 

are all hearsay statements requiring an exception to the hearsay 

rule or a valid nonhearsay purpose to be properly admitted into

evidence.

The Attorney General argues that Malander’s statements 

were properly admitted for the nonhearsay purpose of establishing 

Malander’s state of mind. Lopez agrees that state of mind evidence 

is admissible where relevant, but argues that it was not relevant 

here. More specifically the Attorney General contends that Lopez 

placed Malander’s state of mind in issue himself by telling 

witnesses that Malander’s death was accidental, and telling Gamez 

that Malander was the aggressor in an earlier fight. The Attorney 

General cites People v. Hernandez (2003) 30 Cal.4th 835, 872-873, 

disapproved on another ground in People v. Riccardi, supra, 54 

Cal.4th at p. 824, fn. 32, for the rule that a murder victim’s fear 

may be at issue when the defendant claims the victim behaved in 

manner inconsistent with that fear. The Attorney General also 

cites People v. Garcia (1986) 178 Cal.App.3d 814, 822, for the rule 

that where the defendant claims self-defense or that a killing was 

accidental, statements by the victim showing fear of the defendant 

may be admitted to show the victim would not likely have been the 

aggressor.
21

We do not find the Attorney General’s argument persuasive. 

In Garcia, the witness had called the victim who was at the 

defendant’s house. The victim answered the phone and asked the 

witness to come pick him up stating the defendant had “gone crazy 

and he’s going to shoot me.” (People v. Garcia, supra, 178 

Cal.App.3d at p. 818.) The victim asked the witness to bring a gun 

with her. After some angry yelling, the phone went dead. (Id. at 

p. 819.) At his trial for murder, the defendant admitted 

involvement in the victim’s death, but claimed it was an accident. 

(Id. at p. 818.) Initially the trial court was cautious about 

admitting the hearsay statement of the victim, but then allowed the 

testimony after “it became apparent that the defense was 

attempting to portray [the victim] as a ‘tough guy’ with a bad 

temper who could become violent and unpredictable, especially 

while drinking.” (Id. at p. 822.) This strategy “put in issue [the 

victim’s] conduct, demeanor and actions.” (Ibid.)

Such is not the case here. The theory of the defense case was 

Lopez did not have the mental state for murder: Malander’s death 

was either accidental or “a rash or impulsive” act. Lopez did not 

argue self defense, nor did he argue that he was provoked. Lopez 

made no claim that Malander behaved in any manner inconsistent 

with her fear of him. Thus, her state of mind was not relevant to 

any issue. As a result, the trial court should not have admitted the 

various hearsay statements made by Malander in which she stated 

Lopez beat her and caused her injuries observed by others into 

evidence because the section 1250 exception did not apply.

The error, however, was harmless. (Watson, supra, 46 Cal.2d 

at p. 836; People v. Wang, supra, 46 Cal.App.5th at p. 1070 

[applying Watson standard].) As detailed above, there was 

overwhelming evidence that Lopez committed numerous acts of 

domestic violence against Malander, including in the notes that he 
22

wrote to Malander admitting that he hit her, the testimony of 

multiple witnesses who saw Lopez hit her, and observed injuries on 

her on numerous occasions.

Further, Lopez’s explanation of Malander’s death as the 

result of an accidental fall is belied by the record. She could not 

have died by falling onto a sharp object because the police found no 

such object at the scene of the crime capable of accidently inflicting 

the distinctive, long, narrow penetrating stab wound to her skull. 

Nor did Lopez show the police where Malander fell or otherwise 

identify any item that could have caused her fatal and distinct 

injury. Further, after viewing the photos of the crime scene, Dr. 

Dutra found no object capable of accidentally killing Malander.

Perhaps most importantly, Lopez kept telling the dead Malander 

that he would not do it again.

In light of the foregoing, any error in admitting the hearsay 

statements attributed to Malander was not prejudicial.

D. The Trial Court Did Not Abuse its Discretion by 

Declining to Instruct on the Lesser Included Offense of 

Involuntary Manslaughter

Lopez argues that the trial court erred by refusing his 

counsel’s request to instruct the jury on the lesser included offense 

of involuntary manslaughter. We disagree. The trial court properly 

refused to give the instruction because it was not supported by 

substantial evidence.

1. Applicable Law

Murder is the unlawful killing of a human being with malice 

aforethought. (Pen. Code, § 187, subd. (a); People v. Bryant (2013)

56 Cal.4th 959, 964.) Malice may be express or implied. (Pen. 

Code, § 188, subd. (a).) It is express when the defendant intends to 

kill. (Id., subd. (a)(1); Bryant, supra, at p. 964.) It is implied when 

the defendant (a) knowingly performs an act, the natural 
23

consequences of which are dangerous to life; (b) with a conscious 

disregard for life. (People v. Brothers, supra, 236 Cal.App.4th at p. 

30.)

Involuntary manslaughter is a lesser included offense of 

murder. (People v. Thomas (2012) 53 Cal.4th 771, 813.) It is 

statutorily defined as a killing occurring during either: (1) the 

commission of an unlawful act not amounting to a felony, i.e., a 

misdemeanor; or (2) the commission of a lawful act which might 

produce death, performed in an unlawful manner or without due 

caution and circumspection. (Pen. Code, § 192, subd. (b); People v. 

Brothers, supra, 236 Cal.App.4th at p. 31.) The unlawful act must 

be “dangerous to human life or safety under the circumstances of its 

commission.” (People v. Cox (2000) 23 Cal.4th 665, 675.) “A battery 

is any willful and unlawful use of force or violence upon the person 

of another.” (Pen. Code, § 242.) A battery may constitute an 

unlawful act for purposes of involuntary manslaughter “if shown to 

be dangerous under the circumstances of [its] commission.” (Cox, 

supra, at p. 674.)

In addition to these statutorily defined means of committing 

the offense, an unintentional homicide, committed in the course of a 

noninherently dangerous felony, without due caution and 

circumspection, may be involuntary manslaughter. (People v. 

Burroughs (1984) 35 Cal.3d 824, 835-836; People v. Brothers, supra, 

236 Cal.App.4th at p. 31.) And, a homicide committed in the course 

of an inherently dangerous assaultive felony and accomplished 

without malice (that is, without the intent to kill and without 

conscious disregard for life) is also involuntary manslaughter. 

(Brothers, supra, at pp. 32, 33-34.)
24

2. Trial Court’s Duty to Instruct on Lesser Included 

Offenses

“ ‘[E]ven absent a request, and over any party’s objection, a 

trial court must instruct a criminal jury on any lesser offense 

“necessarily included” in the charged offense, if there is substantial 

evidence that only the lesser crime was committed.’ ” (People v. 

Smith (2013) 57 Cal.4th 232, 239, italics added.)

Instruction upon a lesser included offense must be given only 

if the accused presents evidence sufficient “to deserve consideration 

by the jury, i.e., ‘evidence from which a jury composed of reasonable 

men could have concluded’ ” that the particular facts underlying the 

instruction did exist. (People v. Flannel (1979) 25 Cal.3d 668, 684 &

fn. 12.)

Due process requires that the jury be instructed on a lesser 

included offense if the evidence warrants such an instruction. 

(Hopper v. Evans (1982) 456 U.S. 605, 611 [102 S.Ct. 2049, 72 

L.Ed.23 367]; People v. Avena (1996) 13 Cal.4th 394, 424.)

3. Relevant Trial Court Proceedings

During discussions regarding jury instructions, Lopez’s 

counsel asked that the court give instructions on “any and all 

less[e]r-related offenses to the crime of murder.” Counsel argued 

that the court should instruct on involuntary manslaughter because 

there was evidence from which the jury could conclude that Lopez 

committed an act that was reckless but without the intent to kill or 

conscious disregard for human life.

The trial court deferred ruling on the request. Subsequently, 

the court noted that it had met with both counsel in chambers. The 

court refused to give the involuntary manslaughter instruction, 

finding that it was not supported by substantial evidence. The 

court permitted the parties to state their positions for the record.
25

Lopez’s counsel argued there was substantial evidence from 

which the jury could infer that “an act could have occurred causing 

the victim’s death that would fall short of intent to kill or conscious 

disregard for human life.”

The prosecutor argued that there was no evidence that Lopez 

committed any act that could support an involuntary manslaughter 

instruction, noting that Lopez’s statements were that he was a 

bystander who saw Malander slip and fall.

The trial court ruled that it was “standing by its earlier 

decision” to not grant the defense request for the involuntary 

manslaughter instruction because it was not supported by 

substantial evidence.

4. The Trial Court Properly Refused to Instruct on the 

Offense of Involuntary Manslaughter

Lopez argues substantial evidence supported giving the 

instruction. Specifically, Lopez asserts that the “circumstances” of 

Malander’s death (such as evidence from the crime scene showing 

signs of a struggle and Malander’s recent bruises), together with 

the history of Lopez’s domestic violence involving Malander, is 

substantial evidence from which the jury could have found that 

Malander’s fatal injury occurred during a physical fight in which 

she fell or was pushed into something sharp. Without an 

instruction on involuntary manslaughter, Lopez concludes the jury 

was left with an “all or nothing choice” and likely convicted of 

second degree murder to avoid finding Lopez not guilty of any 

crime.

We disagree. There was no substantial evidence to support 

an instruction on involuntary manslaughter. Because the thin, 

straight, two-inch deep stab wound to Malander’s temple is so 

distinctive, Dr. Dutra opined it was caused by a screwdriver. Dr. 

Dutra specifically ruled out that Malander could have suffered this 
26

wound from falling onto the corner of a counter in the motorhome or 

onto an object or structure located outside the motorhome during 

their argument. It had to be an object “rigid enough that it 

penetrated through the skin and the skull,” and the impact must 

have had “[a]bout as much force as it would take to slam closed a 

heavy door.”

On cross-examination Lopez’s counsel asked: “[I]s it possible 

that a person could fall and if there’s a nail sticking out of a wall or 

the floor that the person may fall on a nail and a nail may penetrate 

the skull and the skin in the same fashion?” Dr. Dutra responded: 

“Yes, that would be possible, yes.” However, no such “nail sticking 

out of [the] wall or the floor” was ever found. Nor was there any

other evidence of accident. That leaves a single manner of death as 

the cause: a person pushing a long, hard, thin object into 

Malander’s skull with the strength necessary to “slam” a “heavy 

door.” As a result, the court did not err in refusing to instruct on

involuntary manslaughter.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED

SINANIAN, J.*

We concur:

ROTHSCHILD, P. J. CHANEY, J.

* Judge of the Los Angeles Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.