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

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a) , prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.11 15.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,

v.

HENRY SIMON COW E N,
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 st rike , plus 5 years for the serious felony prior

. Cowen contends t he court : (1) v iolat ed his due process rights by admitting evidence that hi s mother, Isela Cowen, 2 obstructed the investigation ; and (2) erroneously admi tted propensity evidence under
Evidence Code section 1109 , thus depriv ing him of his due process right s under the federal C onstitution . We affirm.

FACTUAL AND PROCEDURAL BACKGROUND As Cowen does not challenge the sufficiency of the evidence to support
his co nviction, we summarize only th os e 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 grab bing her arm

. A different neighbor heard Cowen yelling and slamming doors on September 20 and 21. Another neighbor testified that early on the morning o f September 21, Cowen had a “blank sta re” and was outside the granny flat

. O n October 3, 2019, San Diego Sheriff’s Department deput ies
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 sheriff s access to the property

. After the deputy sheriff s learned that Cowen and Lukowsky knew each other, they returned and
walk ed around Isela’s property

. An odor emanated from the granny flat, and neighbors complained i t 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 ask ed 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 intermit tent 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 t here were flies “everywhere.” The granny flat was locked with t he 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 st ain 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 scraping s was consistent with that of a Cowen male.
A supervising medical examiner who attend ed the autopsy testified Lukowsky had head injuries from blunt force trauma and multiple rib4

fractures that damaged her lungs. H e r hyoid bone was fractured, indicating strangulation. The cause of death was strangulation, with b lunt 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 “ in festation ” 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 Angele s 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 be came 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, h e “started throw ing defensive strikes

. ” At one point, Lu kowsky threatened to kill him and reached to cut his throat
with a broken cha m pagne bottle. Cowen “ threw a right

- hand punch. Immediately deadly force. ” His blow landed on her neck

. S he collapsed on him and he lost consciousness for a while. When he re covered, Lukowsky never said anything further to him . H e did not check on her before leaving5

for Los Angeles on the afternoon of September 21, 2019

. He did not try to
contact her from Los Angeles

.

I. Testimony A bout 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 no t demonstrate relevance.” He adds that even if minimally relevant,
under Evidence Code section 3 52, 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 tha t 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 prose cution 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 Luko w sky was , said the foul odor was chicken feces f rom the neighbor ’ s house, denied law enforcement entry to the property , and “ her general uncooperative demeanor .” The prosecuto r 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 cause d the6

direction of the investigation that culminated in a search warrant being
executed at [her] home.”
Defense counsel objected that Isela’s statem ents were hearsay a nd 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 g et 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 t o 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 [s ic ]

. [¶]

. . . 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 [ C owen’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 discretion7

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 ‘ “ ‘ ten ds “ 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, 93 1.) “Ev idence 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 e valuate 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 a n 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 . D espite the offensive odor th at emanat ed8

from the property, and the compla ints of neighbors about it , Isela offered them an explanation for it and told them she would report them for walking around her property . The e xclusion of t h e challe n ged testimony could have
left doubts in the jur ors ’ mind s about the deputy sheriff s ’ comp etence in conducting the investigation. Under Evidence Code section 352, t he challenged testimony was more probative than prejudicial . It was not the kind of evidence that would inflame the jury against Cowen. Moreover, t his case did not turn on the

sta tements 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 t he 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 t he trial court ’ s decision to admit testimony regarding Isela’s statements and conduct was not arbitrary, capricio us, 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 Evidenc e 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
defe ndant ’ 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 110 9

. Specifically, the court ruled: “All those incidents that allege to have occur r ed between [ ] Cowen and [Lukowsky] I do believe [are] relevant and admissible
to show th e circumstances surrounding their relationship

. . . th os e 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 c ourt’s ruling, t wo individuals testified that i n September
2019 , they saw Lukowsky was wearing dark glasses and makeup around he r10

eye s, apparently to cover bruis ing . She also was quiet and did not engage with anyone

. N.G., Cowen’s previous girlfriend, testif i ed 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

c ouldn ’ 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 ev idence received during the trial to help you
determine whether [Cowen] committed [ m ] urder [.]” The prosecutor argue d 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 t he court’s use of propensity evidence under
Evidence Code section 1109 violate d his due process rights under the f ederal
Constitution ; however, he conced es the California Supreme Court rejected his position in People v. Falsetta (1999) 21 Cal.4th 903 ( Falsetta )

. H e 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 in11

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, 13 1 0 [“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 acknowledg es the special nature of domestic violen ce 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 t he 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 the12

foregoing, the California Legislature has determined the p olicy 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 “damag ing.” ( 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 co urt’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.