Filed 5/19/23 P. v. Cowen CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

 DIVISION ONE 

STATE OF CALIFORNIA

 

THE PEOPLE,

Plaintiff and Respondent,

v.

HENRY SIMON COWEN,

Defendant and Appellant.

 D079766

 (Super. Ct. No. SCN406008)

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

Kelly C. Mok, Judge. Affirmed.

Benjamin Boyce Kington, under appointment by the Court of Appeal, 

for Defendant and Appellant. 

Rob Bonta, Attorney General, Lance E. Winters and Charles C. 

Ragland, Assistant Attorneys General, A. Natasha Cortina and Lynne G. 

McGinnis, Deputy Attorneys General, for the Plaintiff and Respondent. 

A jury convicted Henry Simon Cowen of first degree murder. (Pen. 

Code,1 § 187, subd. (a).) The trial court found true allegations he had 

1 Undesignated statutory references are to the Penal Code.
2

suffered a prior serious felony conviction and a prior strike conviction under 

the “Three Strikes” law. (§§ 667, 668, 1170.12, 1192.7.) It sentenced him to a 

total term of 55 years to life in prison as follows: 25 years to life, doubled for 

the prior strike, plus 5 years for the serious felony prior.

Cowen contends the court: (1) violated his due process rights by 

admitting evidence that his mother, Isela Cowen,2 obstructed the

investigation; and (2) erroneously admitted propensity evidence under 

Evidence Code section 1109, thus depriving him of his due process rights

under the federal Constitution. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

As Cowen does not challenge the sufficiency of the evidence to support 

his conviction, we summarize only those facts necessary to provide context for 

his contentions.

On September 20, 2019, Cowen and his girlfriend, Sabrina Lukowsky 

lived in a granny flat behind his mother’s home in Cardiff, California. Early 

that day, a neighbor heard a fight and saw Cowen yelling angrily at a woman 

and grabbing her arm. A different neighbor heard Cowen yelling and

slamming doors on September 20 and 21. Another neighbor testified that 

early on the morning of September 21, Cowen had a “blank stare” and was 

outside the granny flat.

On October 3, 2019, San Diego Sheriff’s Department deputies

conducted a welfare check on Lukowsky at the granny flat. Isela answered

the door and mentioned her other son, but not Cowen. Isela initially denied 

knowing Lukowsky but when asked about the presence of Lukowsky’s car in 

the driveway, Isela said Lukowsky sometimes delivered flowers to her. She

2 To avoid confusion, we refer to Cowen’s mother by her first name; we 

intend no disrespect.
3

denied the deputy sheriffs access to the property. After the deputy sheriffs

learned that Cowen and Lukowsky knew each other, they returned and

walked around Isela’s property. An odor emanated from the granny flat, and 

neighbors complained it might be a dead animal. A lock on the gate appeared 

to be new. Isela followed the deputies as they walked around the yard. She

told them she would file a complaint against them.

On October 4, 2019, deputy sheriffs returned as part of a missing 

person investigation and asked neighbors whether they had seen Lukowsky. 

The deputies saw Isela, who was “very standoffish, confrontational, and

uncooperative.” They said a “really terrible, foul smell” was in the air.

On October 6, 2019, a deputy sheriff responded to a call regarding a

foul odor at Isela’s home. Isela said the smell had been intermittent for years 

and she believed it was from the neighbor’s chicken coop. The deputy ran the 

plates of the car in the driveway and found out Lukowsky was the subject of a 

missing person report. He returned to speak with Isela, who declined to

speak with him further.

On October 8, 2019, deputy sheriffs executed a warrant to search

Isela’s home. The smell was stronger than before, and there were flies 

“everywhere.” The granny flat was locked with the doorknob and a deadbolt. 

Blood was found throughout the granny flat, including on a wall, floor, 

window shade, and ceiling. DNA testing showed that some of the blood was 

Lukowsky’s. Lukowsky’s body was found in a bed in the granny flat. The

blood stain patterns indicated force was used. Based on a specific DNA test 

used to detect DNA from males, it was determined that DNA from 

Lukowsky’s fingernail scrapings was consistent with that of a Cowen male.

A supervising medical examiner who attended the autopsy testified 

Lukowsky had head injuries from blunt force trauma and multiple rib 
4

fractures that damaged her lungs. Her hyoid bone was fractured, indicating 

strangulation. The cause of death was strangulation, with blunt force 

injuries to the torso as a contributing factor. The manner of death was 

homicide.

A forensic entomologist testified regarding the amount of time it takes, 

postmortem, for a body to begin to be colonized by insects. He testified that 

the “infestation” of Lukowsky’s body by insects likely started as early as 

September 24, 2019, and that the body could have been available for 

“infestation” as early as September 21, 2019.

In late September 2019, Cowen went to the Israeli consulate in Los 

Angeles to seek a visa in order to travel to Israel quickly. However, he

learned the visa process would take approximately six months. For several 

days after the murder, the sheriff’s department did not know Cowen’s 

whereabouts. They finally arrested him in Riverside, California on October 

11, 2019. 

Cowen testified at trial regarding an altercation he had with Lukowsky 

starting on the night of September 20, 2019, and continuing into the next 

day. He stated Lukowsky drank two bottles of wine and became upset 

because he was planning to travel to Los Angeles the next day. He stated she 

threatened to kill him for leaving her, and repeatedly hit him in the head 

with a wine bottle. In response, he “started throwing defensive strikes.” At 

one point, Lukowsky threatened to kill him and reached to cut his throat 

with a broken champagne bottle. Cowen “threw a right-hand punch. 

Immediately deadly force.” His blow landed on her neck. She collapsed on 

him and he lost consciousness for a while. When he recovered, Lukowsky 

never said anything further to him. He did not check on her before leaving 
5

for Los Angeles on the afternoon of September 21, 2019. He did not try to 

contact her from Los Angeles.

I. Testimony About Isela’s Statements and Conduct

Cowen contends the challenged evidence of Isela’s statements and 

conduct that impeded the investigation were irrelevant: “The bare assertion 

that [Isela’s] actions caused the ‘investigation [to take] the course that it did’ 

does not demonstrate relevance.” He adds that even if minimally relevant, 

under Evidence Code section 352, the evidence was substantially more 

prejudicial than probative. Cowen contends the court’s instruction to the jury 

did not cure the court’s error, and that the prosecutor’s argument in a 

pleading emphasized that Isela’s behavior was “highly suspicious.” He 

concludes, “If a trained prosecutor could not properly compartmentalize the 

evidence, neither could the jurors.”

A. Background

Before trial, the prosecution moved to admit Isela’s “multiple odd 

statements that affected the law enforcement listeners, and influenced the 

direction of the investigation”; specifically, that Isela initially denied knowing 

who Lukowsky was, said the foul odor was chicken feces from the neighbor’s 

house, denied law enforcement entry to the property, and “her general 

uncooperative demeanor.” The prosecutor argued the statements were not 

inadmissible hearsay because they were not admitted for the truth of the 

matter: “[Isela’s] statements and behavior towards the deputies was highly

suspicious, many of her statements were demonstrably false, and therefore 

not offered for the truth. [Her] statements to law enforcement as well as her 

uncooperative and suspicious conduct is not offered for the truth either, but 

for the effect on the listener law enforcement officers that caused the 
6

direction of the investigation that culminated in a search warrant being 

executed at [her] home.”

Defense counsel objected that Isela’s statements were hearsay and 

inadmissible because she was unavailable to testify.

The trial court admitted the evidence as “relevant for the jury to hear 

why this investigation, when it started October 3rd, took so long to actually 

obtain a warrant to actually get into the house.” The court explained, “And 

the officers and detectives, they didn’t go in and obtain any warrant to 

actually go into the house, even with the smell, but then the fact that [Isela]

said it was the chicken coop or the chicken feces, and to go to that state of 

mind regarding how they proceeded in their investigation. But it would be

very limited in terms of what [Isela] said.”

Defense counsel conceded: “I think that [Isela’s] statements and

conduct did contribute to possibly a delay in investigation, so I understand 

that. My primary concern is that since she is his mother, that her adverse

behavior would be somehow interpreted as implying guilt to my client [sic]. 

[¶] . . . I understand that’s connected to the investigation. I think that a 

curing instruction that all of that should not impugn [sic] guilt to my client.” 

Before the first law enforcement witness testified about Isela’s 

behavior, the trial court instructed the jury as follows: “[Y]ou may hear some 

testimony regarding statements and conduct of Isela [ ]. If it is presented to 

you, . . . it is presented to you solely to explain the delays in the investigation 

of this case. [¶] You are not to consider [Isela’s] statements or conduct when 

evaluating [Cowen’s] innocence or guilt in this case.”

B. Standard of Review and Applicable Law

“ ‘ “A trial court has ‘considerable discretion’ in determining the 

relevance of evidence. [Citation.] Similarly, the court has broad discretion 
7

under Evidence Code section 352 to exclude even relevant evidence if it 

determines the probative value of the evidence is substantially outweighed by 

its possible prejudicial effects.” ’ [Citation.] Evidence is relevant when it 

‘ “ ‘tends “logically, naturally, and by reasonable inference” to establish 

material facts such as identity, intent, or motive.’ ” ’ [Citation.] We review 

the trial court’s evidentiary decision for abuse of discretion, disturbing it only 

if we conclude that the trial ‘ “ ‘ “ ‘court exercised its discretion in an 

arbitrary, capricious or patently absurd manner that resulted in a manifest 

miscarriage of justice.’ ” ’ ” ’ ” (People v. Parker (2022) 13 Cal.5th 1, 53; 

People v. Young (2019) 7 Cal.5th 905, 931.) 

“Evidence is not prejudicial, as that term is used in [the Evidence Code] 

section 352 context, merely because it undermines the opponent’s position or 

shores up that of the proponent. The ability to do so is what makes evidence

relevant. The code speaks in terms of undue prejudice.” (People v. Doolin

(2009) 45 Cal.4th 390, 438-439.) Evidence is unduly prejudicial when “it is of 

such nature as to inflame the emotions of the jury, motivating them to use 

the information, not to logically evaluate the point upon which it is relevant, 

but to reward or punish one side because of the jurors’ emotional reaction.” 

(Id. at p. 439.) “ ‘ “The ‘prejudice’ which [Evidence Code] section 352 seeks 

to avoid is that which ‘ “ ‘uniquely tends to evoke an emotional bias against 

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

issues.’ ” ’ ” ’ ” (People v. Parker, supra, 13 Cal.5th at p. 54.)

C. Analysis

The relevance of testimony regarding Isela’s statements and conduct 

was that it filled gaps in the evidence regarding the sheriff department’s 

investigation. Deputy sheriffs went to Isela’s home at different times before 

gaining access to the granny flat. Despite the offensive odor that emanated
8

from the property, and the complaints of neighbors about it, Isela offered 

them an explanation for it and told them she would report them for walking 

around her property. The exclusion of the challenged testimony could have 

left doubts in the jurors’ minds about the deputy sheriffs’ competence in 

conducting the investigation.

Under Evidence Code section 352, the challenged testimony was more 

probative than prejudicial. It was not the kind of evidence that would 

inflame the jury against Cowen. Moreover, this case did not turn on the 

statements or actions of Isela in the weeks after the murder, but rather on 

Cowen’s actions around the estimated date of her murder, as the evidence 

from Cowen, the neighbors and the medical examiner showed. Cowen’s own 

testimony placed him at the scene of the crime at the relevant time, and 

implicated him in Lukowsky’s death. The jury could easily separate Isela’s 

obstruction of the sheriff’s department’s investigation from Cowen’s actions in 

killing Lukowsky. We point out defense counsel conceded at trial that Isela’s 

statements and conduct did contribute to possibly a delay in investigation, 

and counsel sought a limiting instruction, which the court gave. “Any 

prejudice that the challenged information may have threatened must be 

deemed to have been prevented by the court’s limiting instruction to the jury.

We presume that jurors comprehend and accept the court’s directions. 

[Citation.] We can, of course, do nothing else. The crucial assumption 

underlying our constitutional system of trial by jury is that jurors generally 

understand and faithfully follow instructions.” (People v. Mickey (1991) 54 

Cal.3d 612, 689, fn. 17.) We conclude the trial court’s decision to admit 

testimony regarding Isela’s statements and conduct was not arbitrary, 

capricious, or patently absurd. 
9

II. Propensity Evidence

Cowen contends the court erroneously admitted evidence of prior acts 

of domestic violence under Evidence Code section 1109.

A. Applicable Law

Evidence Code section 1109 expressly incorporates Evidence Code 

section 352, so evidence of past domestic violence is inadmissible only if the 

court determines that “its probative value is substantially outweighed” by its 

prejudicial impact. (Evid. Code, § 352.) 

“[A] defendant’s propensity to commit domestic violence against a 

former girlfriend who was murdered . . . is relevant and probative to an 

element of murder, ‘namely, [a defendant’s] intentional doing of an act with 

malice aforethought that resulted in the victim’s death.’ [Citation.] A 

defendant’s pattern of prior acts of domestic violence logically leads to the 

inference of malice aforethought and culpability for murder.” (People v. 

Brown (2011) 192 Cal.App.4th 1222, 1237.)

B. Background

Over Cowen’s objection, the trial court admitted evidence of Cowen’s 

prior acts of domestic violence under Evidence Code section 1109.

Specifically, the court ruled: “All those incidents that allege to have occurred 

between [ ] Cowen and [Lukowsky] I do believe [are] relevant and admissible 

to show the circumstances surrounding their relationship . . . those incidents 

can go to motive. However, the 2008 incident [involving strangulation of 

N.G.] will not be argued for either motive or identity, but it may be argued for 

propensity.” 

Based on the court’s ruling, two individuals testified that in September 

2019, they saw Lukowsky was wearing dark glasses and makeup around her
10

eyes, apparently to cover bruising. She also was quiet and did not engage 

with anyone.

N.G., Cowen’s previous girlfriend, testified he strangled her in 2008: 

“[H]e jumped on top of me, and so I fell backwards. And I couldn’t get him off 

of me. He’s much larger than I am. He had both hands on my neck, and I

couldn’t get him off. I couldn’t make any noise. And so I started banging on 

the wall to try to get my roommate’s attention.”

The court instructed the jury that if the People proved these prior acts

by a preponderance of the evidence, it could “consider that evidence and 

weigh it together with all other evidence received during the trial to help you 

determine whether [Cowen] committed [m]urder [.]”

The prosecutor argued in closing that Cowen was simply the type of 

person who commits domestic violence: “I’m not the kind of person who 

quotes and cites people because I’m just not that smart, but I like this one: 

When someone shows you who they are, believe them the first time. It’s 

Maya Angelou. [N.G.] did.” The prosecutor added, “There’s one more piece of 

proof this was strangulation. He’s done it before.”

C. Analysis

Cowen contends that the court’s use of propensity evidence under 

Evidence Code section 1109 violated his due process rights under the federal

Constitution; however, he concedes the California Supreme Court rejected his 

position in People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta). He raises the 

issue to preserve it for review in federal court. 

In Falsetta, supra, 21 Cal.4th 903, the California Supreme Court 

rejected a constitutional due process challenge to Evidence Code section 1108, 

a parallel statute to Evidence Code section 1109, which applies to prior 

sexual offenses rather than prior domestic violence. The reasoning in 
11

Falsetta has been applied by appellate courts to reject similar constitutional 

due process challenges to Evidence Code section 1109. (See People v. Brown

(2000) 77 Cal.App.4th 1324, 1329; see also People v. Hoover (2000) 77 

Cal.App.4th 1020, 1024; People v. Johnson (2000) 77 Cal.App.4th 410, 412; 

People v. Jennings (2008) 81 Cal.App.4th 1301, 1310 [“In short, the 

constitutionality of [Evidence Code] section 1109 under the due process 

clauses of the federal and state constitutions has now been settled”]; People v. 

Price (2004) 120 Cal.App.4th 224, 240-241; People v. Reyes (2008) 160 

Cal.App.4th 246, 249-253.) 

As recognized in caselaw, the legislative history of Evidence Code 

section 1109 acknowledges the special nature of domestic violence crime: 

“ ‘The propensity inference is particularly appropriate in the area of domestic 

violence because on-going violence and abuse is the norm in domestic violence 

cases. Not only is there a great likelihood that any one battering episode is 

part of a larger scheme of dominance and control, that scheme usually 

escalates in frequency and severity. Without the propensity inference, the 

escalating nature of domestic violence is likewise masked. If we fail to 

address the very essence of domestic violence, we will continue to see cases 

where perpetrators of this violence will beat their intimate partners, even kill 

them, and go on to beat or kill the next intimate partner. Since criminal 

prosecution is one of the few factors which may interrupt the escalating 

pattern of domestic violence, we must be willing to look at that pattern 

during the criminal prosecution, or we will miss the opportunity to address 

this problem at all.’ (Assem. Com. Rep. on Public Safety (June 25, 1996) pp. 

3-4.) Moreover, the special nature of domestic violence cases is legislatively 

recognized in enactments such as the Law Enforcement Response to 

Domestic Violence, sections 13700 through 13731. [¶] Based on the 
12

foregoing, the California Legislature has determined the policy 

considerations favoring the exclusion of evidence of uncharged domestic 

violence offenses are outweighed in criminal domestic violence cases by the 

policy considerations favoring the admission of such evidence.” (People v. 

Johnson, supra, 77 Cal.App.4th at pp. 419-420.)

Cowen has not explained how the propensity evidence introduced at 

trial was more prejudicial than probative so as to constitute an abuse of 

discretion. As stated, it is well established that “prejudice” is not 

synonymous with “damaging.” (People v. Chhoun (2021) 11 Cal.5th 1, 29.) 

Further, “[t]he 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.) In light of the fact that the propensity 

evidence introduced was probative, and neither as strong or more 

inflammatory than the testimony concerning Lukowsky’s death by 

strangulation, and in light of the court’s curative instructions to the jury 

regarding propensity evidence, we conclude the trial court did not abuse its 

discretion in admitting the challenged evidence under Evidence Code sections 

1109 and 352.
13

DISPOSITION

The judgment is affirmed.

O’ROURKE, Acting P. J.

WE CONCUR:

DATO, J.

DO, J.