Opinion
G037841
6-24-2008
THE PEOPLE, Plaintiff and Respondent, v. ABRAHAM MARTINEZ GUAJARDO, Defendant and Appellant.
Martha L. McGill, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published
Abraham Martinez Guajardo appeals from a judgment after a jury convicted him of first degree murder. He argues insufficient evidence supports the jurys finding the murder was deliberate and premeditated, there was evidentiary error, and there were instructional errors. None of his contentions have merit, and we affirm the judgment.
FACTS
Very early one morning, Guajardos brother went to the Buena Park Police Department to report Guajardo had committed a crime. Police officers went to a relatives house and arrested Guajardo. He had a wound on his left hand. In the bedroom where he was sleeping, officers found a key to room No. 202 of the Townhouse Motel. Officers transported Guajardo to the police station where Officer Michael Riley interviewed him.
We will discuss the interview anon. A videotape of the interview was played for, and transcripts provided to, the jury.
Meanwhile, officers also went to the motel. Upon entering room No. 202, they found a woman, later identified as Mary Barajas, laying on her back on a sheetless bed. Her head was at the foot of the bed, and a bedspread covered all but her hair. She was not breathing, was cold to the touch, and was colorless. Officers did not attempt to resuscitate her because it appeared she was deceased.
Barajass left eye was swollen and bruised, her lips swollen, and her left cheek bruised. She had dried blood around her nose, which was stuffed with white tissue. She was missing an acrylic nail from her middle finger. An officer observed blood droplets on the kitchen floor and wall, and a broken nail on the kitchen floor. There was a red substance on the beds headboard and a nearby cardboard box. There was a red substance on the bathroom wall near the toilet paper roll. There was a white telephone mounted on the wall that was scratched, cracked, and held together with tape; there was a second telephone under the bed.
Riley interviewed Guajardo a couple hours later. After advising him of his Miranda rights, Guajardo said, "I didnt do it, man. Like I did, but I didnt do it intentionally . . . ." Guajardo explained that when the cellular telephone rang, Barajas answered it and said it was for him. She threw the telephone at him, and he threw it back at her, hitting her in the head. He asked her if she was okay, she said she was, and he went to take a shower. He took a shower, and when he was done, she was laying on the bed covered with her head at the foot of the bed. He told her to get up, but she did not, and he started cooking. When he finished, he took the covers off her and noticed her lips were blue. He tried to give her cardiopulmonary resuscitation (CPR) but she was dead. He called his brother and told him what happened, and he decided to leave her there. He suggested she had a heart attack, or a stroke because she had one previously, and she was disabled. Later, he admitted he hit her when they were younger. He again admitted killing her, but claimed it was not intentional.
Miranda v. Arizona (1966) 384 U.S. 436.
The next day, Officer Frank Nunes spoke with Guajardo, at Guajardos request. Guajardo repeated the story about the telephone call, but said it was the motel telephone Barajas threw at him and he threw it back at her. He smashed a radio, cutting his hand. Barajas threw a ceramic figurine at him, and he picked it up and threw it at her, hitting her on the mouth. She threw some forks at him, which missed. She slapped him once, and he slapped her three times. She went after him, and he pushed her and she fell and hit her head on a table, and began to cry. He took a shower, and when he finished, he saw she was laying down on the bed covered, and he cooked some meat. After Guajardo was done cooking, he looked at Barajas more closely, and when she did not respond to him, he tried to do CPR. When he realized she was dead, he left and drove around. He eventually called his brother who turned him in.
A videotape of the interview was played for, and transcripts provided to, the jury.
Officers found a broken tape deck in the room.
An information charged Guajardo with murder (Pen. Code, § 187, subd. (a)) and alleged he suffered a prior conviction of a serious or violent felony within the meaning of the "Three Strike" law (§§ 667, subds. (d) & (e)(1), 1170.12, subds. (b) & (c)(1)).
All further statutory references are to the Penal Code, unless otherwise indicated.
At trial, the prosecutor offered the testimony of Dr. Aruna Singhania; she performed the autopsy on Barajas. She testified Barajas had a bruise on the left side of the eye down to the left side of the cheek, on her jaw, inner lip, neck, shoulder, arms, and hip. The bruises occurred within two hours before her death. She had abrasions between her nose and upper lip and near her mouth consistent with trying to defend oneself, and a missing acrylic nail on her middle finger. She had a hemorrhage in her eye which is typical in people who are asphyxiated, and in her skull. She had soft tissue hemorrhage on the right side of her neck which was consistent with the bruising. She also had hemorrhages in her larynx and pharynx. She also said Barajas had an older brain injury that was consistent with someone having had a stroke. Based on her examination, Singhania opined Barajas died from "asphyxia due to compression of [the] face." She ruled out a stroke.
On cross-examination, defense counsel explored the possibility Guajardo accidentally killed Barajas while performing CPR. Singhania explained a person cannot kill another person during CPR if it is done correctly. She said if the person who administers the CPR kills the person, "then I dont know what it is you are doing." On redirect examination, Singhania stated a person cannot bruise after they are dead.
The prosecutor offered the testimony of Annette McCall, a forensic scientist. She testified a fingernail on Guajardos left hand had Barajass DNA under it. She also said she found Guajardos DNA in the blood under Barajass middle finger, and she found his DNA on her hands. She found Guajardos DNA in the blood found on the cardboard box, and both Guajardos and Barajass DNA in the blood found on the comforter.
The prosecutor also offered three Evidence Code section 1109 witness: Laura Barajas (Laura), Barajass niece; Christina Mendoza, Barajass niece; and Angie Barajas (Angie), Barajass older sister.
Laura testified that five or six years before trial, Guajardo and Barajas were at a Christmas Eve party when she saw them arguing. Family members ran to Barajass side. She was crying and holding her stomach. She also described another incident a few years prior to the holiday incident where she saw Guajardo hitting Barajas and repeatedly shoving her head in the toilet. Laura said that as the police led Guajardo away, he spit at Barajass face. Angie confirmed this story, but stated Guajardos brother tried to pull him off Barajas when Guajardo was shoving her head in the toilet.
Mendoza testified that when Barajas was seven or eight months pregnant, Guajardo punched her in the stomach, and when she fell, he kicked her in the stomach. She described another incident where Guajardo "stabbed her with a screwdriver[,]" but admitted she did not witness the attack.
Guajardo called no witnesses on his behalf. He rested on the state of the evidence.
The jury convicted Guajardo of first degree murder. After waiving his right to a jury trial on the truth of the prior conviction, the trial court found he suffered a prior conviction. The trial court sentenced Guajardo to a total state prison term of 50 years to life.
DISCUSSION
I. Insufficient Evidence-Deliberation and Premeditation
Guajardo argues insufficient evidence supports the jurys conclusion the murder was deliberate and premeditated and we should either reverse the judgment or reduce the conviction to second degree murder. We disagree.
"Review on appeal of the sufficiency of the evidence supporting the finding of premeditated and deliberate murder involves consideration of the evidence presented and all logical inferences from that evidence in light of the legal definition of premeditation and deliberation that was previously set forth. Settled principles of appellate review require us to review the entire record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—from which a reasonable trier of fact could find that the defendant premeditated and deliberated beyond a reasonable doubt. [Citations.] The standard of review is the same in cases such as this where the People rely primarily on circumstantial evidence. [Citation.] `Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court which must be convinced of the defendants guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment. [Citations.]" (People v. Perez (1992) 2 Cal.4th 1117, 1124 (Perez).)
The trial court instructed the jury with Judicial Council of California Criminal Jury Instructions (2007-2008) CALCRIM No. 521, as follows: "The defendant is guilty of first degree murder if the People have proved that he acted willfully, deliberately, and with premeditation. . . . The defendant acted deliberately if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill. The defendant acted with premeditation if he decided to kill before committing the act that caused death. [¶] The length of time the person spends considering whether to kill does not alone determine whether the killing is deliberate and premeditated. The amount of time required for deliberation and premeditation may vary from person to person and according to the circumstances. A decision to kill made rashly, impulsively, or without careful consideration is not deliberate and premeditated. On the other hand, a cold, calculated decision to kill can be reached quickly. The test is the extent of the reflection, not the length of time." (Italics added.)
Guajardo does not dispute CALCRIM No. 521 correctly states the law.
There are "three categories of evidence pertinent to the determination of premeditation and deliberation: (1) planning activity, (2) motive, and (3) manner of killing." (Perez, supra, 2 Cal.4th at p. 1125.) We will "sustain[] [a] verdict[] of first degree murder typically when there is evidence of all three types and otherwise requires at least extremely strong evidence of (1) or evidence of (2) in conjunction with either (1) or (3). [Citation.]" (Ibid.)
Here, there was sufficient evidence for the jury to conclude Guajardo committed premeditated and deliberate murder. Guajardos statements to Nunes establish he threw a telephone at Barajas, which hit her in the head, he threw a ceramic figurine at her, which hit her in the face, he slapped her on the face three times, and he pushed her causing her to fall and hit her head on the table. Officer Daniel Binyon testified that when he found Barajas, she had white tissue in her nose to stop the bleeding, and there was a red substance on the bathroom wall near the toilet paper roll. Singhanias testimony established Barajas had bruises beginning on her jaw running down to her hip that occurred within the two hours before her death. She stated Barajas was missing an acrylic nail on her middle finger, and had abrasions between her nose and upper lip and near her mouth consistent with trying to defend oneself. She stated Barajas had internal hemorrhaging that was typical in people who are asphyxiated. She opined Barajas died from "asphyxia due to compression of [the] face." McCall testified Guajardos fingernail had Barajass DNA under it, and Barajas had Guajardos blood underneath her fingernail, and his DNA on her hands. She found both his and her blood on the comforter. Finally, the prosecutor presented evidence Guajardo previously hit and kicked Barajas, shoved her head in the toilet, and stabbed her with a screwdriver.
Evidence of planning activity is shown by the fact that Barajas had bruising from her head to her waist. Based on the fact she had extensive bruising that likely occurred within two hours prior to her death, the jury could reasonably infer Guajardo straddled Barajas to limit her movement so he could carry out his plan of strangling her. Guajardo stated Barajas had a stroke and was disabled. Based on his superior height and weight, and her physical disability, the jury could reasonably infer Guajardos straddling Barajas was in furtherance of his plan to strangle her.
Evidence of motive is shown by the fact Guajardo had physically abused her in the past. The jury heard evidence that Guajardo hit and kicked Barajas, shoved her head in the toilet, and stabbed her with a screwdriver. From this evidence the jury could reasonably infer Guajardos physical abuse escalated into a deliberate and premeditated murder when he straddled her and choked her to death. The evidence established they fought, and one reasonable inference was at some point Barajas put tissue in her nose to stop the bleeding. Subsequently, the dispute resumed and Guajardo straddled her to choke her to death.
Finally, evidence of manner of killing is shown again by the fact that Guajardo, who was physically larger than Barajas, straddled her and choked her to death. Barajass physical injuries were consistent with defending herself, and she had his blood underneath her fingernail. From this evidence the jury could reasonably infer that when Guajardo straddled her and began to choke her, she fought back, and he continued to choke her. Continuing to choke the victim despite her efforts to defend herself is indicative of deliberation and premeditation.
Guajardo challenges the strength of the inferences claiming they are speculative. He states the evidence at trial established only that Guajardo and Barajas had "a verbal and physical altercation," and Barajas died by suffocation. He complains there was no expert medical testimony concerning "how the compression was applied[]" and "the length of time it would have taken" for Barajas to suffocate to death. Further, he grouses there was no expert medical testimony establishing Barajass injuries occurred during the struggle while she was suffocated.
Singhania testified Barajass physical injuries suggested somebody "compress[ed] the face or facial structure, compress[ed] the respiratory passages." Additionally, she explained, "Its not one single injury that [she could] say this shoulder bruising is consistent with asphyxia. Its altogether, all the injuries." Based on her testimony, and Guajardos statements, the jury could reasonably infer he straddled Barajas and thereby caused her bruises and strangled her to death as she struggled to resist him. Guajardo points to nothing to support his claim the prosecutor was required to establish through expert testimony how long it takes to strangle someone. If he wanted to, he could have explored this on cross-examination. (People v. Prince (2007) 40 Cal.4th 1179, 1229 [defendants job to expose weaknesses in experts opinion on cross-examination].) Finally, to the extent he claims Singhania should have testified Guajardo straddled Barajas in a particular manner for a required period of time and that must have caused her bruising, we are convinced he would complain that testimony was not the proper subject of expert testimony because it invaded the province of the jury by deciding an ultimate issue on the case. Therefore, a rational trier of fact could have been persuaded beyond a reasonable doubt Guajardo committed deliberate and premeditated murder of Barajas.
II. Evidence Code section 1109
Guajardo argues the trial court erroneously admitted the evidence of prior acts of domestic violence evidence because their probative value was outweighed by their prejudicial effect and it denied him his constitutional right to due process. None of his contentions have merit.
Evidence Code section 1101, subdivision (a), prohibits the use of disposition or propensity evidence to prove a defendants conduct on a specific occasion. (People v. Falsetta (1999) 21 Cal.4th 903, 911 (Falsetta).) However, Evidence Code section 1109, subdivision (a)(1), provides, "[I]n a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendants commission of other domestic violence is not made inadmissible by [Evidence Code] [s]ection 1101 if the evidence is not inadmissible pursuant to [Evidence Code] [s]ection 352." Evidence Code section 352, however, authorizes a trial court to exclude prior sexual offenses evidence. Evidence Code section 352 provides: "The court in its discretion may 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." We review a trial courts ruling for an abuse of discretion. (People v. Jennings (2000) 81 Cal.App.4th 1301, 1313-1314 (Jennings) [ruling on Evidence Code sections 1109 and 352 reviewed for an abuse of discretion].)
A. Probative Value and Prejudicial Effect
Relying on factors articulated in Falsetta, supra, 21 Cal.4th 903, where the California Supreme Court concluded Evidence Code section 1108, a statute authorizing admission of evidence of prior sexual offenses where defendant is charged with a sexual offense, was constitutional, Guajardo argues the trial court abused its discretion in admitting the prior domestic violence evidence because its probative value, if any, was substantially outweighed by its prejudicial effect. We disagree.
In Falsetta, supra, 21 Cal.4th at page 917, the court explained a trial courts discretion to exclude evidence under Evidence Code section 352 saved Evidence Code section 1108 from defendants due process challenge. The court stated: "Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendants other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense."
1. Probative Value
Guajardo contends the prior domestic violence evidence had little, if any, probative value as to the disputed factual issues of whether the killing was deliberate and premeditated because of the following: (1) his identity was not at issue; (2) the evidence was not relevant as to how she died; (3) the evidence was not similar to the charged offense; and (4) the evidence was not relevant as to his mental state. Not so.
As we explain above, Evidence Code section 1109 creates an exception in domestic violence cases, reflecting the Legislatures determination that evidence of prior acts of domestic violence is highly probative and, therefore, despite its potential prejudicial impact, should be admissible in new prosecutions involving domestic violence. (See People v. Escobar (2000) 82 Cal.App.4th 1085, 1095-1097.) Prior domestic violence evidence has probative value when it is relevant to the issues before the jury, that is when it had "any tendency in reason to prove or disprove any disputed fact" in the case. (Evid. Code, § 210; People v. Freeman (1994) 8 Cal.4th 450, 491.)
Here, the prior domestic violence evidence established Guajardo repeatedly plunged Barajass head into a toilet, hit and kicked her in the stomach when she was pregnant, and stabbed her in the arm with a screwdriver. This evidence was probative because it demonstrated Guajardo had a propensity for violent conduct toward Barajas that could cause serious injury. It was also probative as to the issue of deliberation and premeditation because it demonstrated Guajardo was capable of committing violent conduct against Barajas which if left unchecked could cause death.
We agree the prior domestic violence evidence was not probative as to some of the uses that typically make evidence otherwise inadmissible under Evidence Code section 1101 admissible for a limited purpose. However, as we explain above, the California Legislature created an exception to the general rule prohibiting the use of propensity evidence in cases involving domestic violence. Finally, similarity is not a requirement under Evidence Code section 1109. (See People v. Soto (1998) 64 Cal.App.4th 966, 984 [Evidence Code section 1108 does not require similarity].) We must now determine whether the prior domestic violence evidences probative value was outweighed by its prejudicial effect. We conclude it was not.
2. Prejudicial Effect
Guajardo contends the prior domestic violence evidences probative value, if any, was outweighed by the evidences prejudicial effect. Specifically, he claims the evidence he repeatedly plunged Barajass head into the toilet and kicked her in the stomach when she was pregnant would evoke an emotional bias against him. Although we agree this evidence was inflammatory, we cannot conclude its probative value was outweighed by its prejudicial effect.
"`"The `prejudice referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against defendant as an individual and which has very little effect on the issues. In applying [Evidence Code] section 352, `prejudicial is not synonymous with `damaging."`" (People v. Rucker (2005) 126 Cal.App.4th 1107, 1119.)
Here, we agree the prior domestic violence evidence was inflammatory. The jury heard Barajass relatives testify he hit and kicked her when she was pregnant, he stabbed her in the arm with a screwdriver, and he repeatedly plunged her head into a toilet. However, the circumstances of the instant offense were equally inflammatory. Guajardo threw a telephone and figurine at Barajas, hitting her in the head with both. He slapped her across the face three times. And, he pushed her causing her to fall and hit her head on a table. This evidence would have evoked a similar emotional bias against Guajardo. We cannot conclude the substantial probative value of the prior domestic violence evidence was outweighed by its prejudicial effect.
Additionally, the prior domestic violence evidence did not necessitate an undue consumption of time. The three witnesses testimony took up only 52 pages of a 427 page reporters transcript, or 12 percent of the total trial transcript. Additionally, it required only one additional jury instruction. (People v. Frazier (2001) 89 Cal.App.4th 30, 42 [uncharged offense evidence that comprised 27 percent of the total trial transcript did not consume an unreasonable amount of time].) And, Guajardo does not complain the prior domestic violence offenses were too remote. All appear to have to have occurred within the 10-year limit. (Evid. Code, § 1109, subd. (e).) Finally, the prior domestic violence evidence would not confuse the jury. The trial court properly instructed the jury with CALCRIM No. 852, "Evidence Of Uncharged Domestic Violence." The prior domestic violence evidence was short and included three discrete instances of domestic violence. We conclude the prior domestic violence evidence was not confusing.
B. Due Process
In his opening brief, Guajardo acknowledges the California Supreme Court in Falsetta, supra, 21 Cal.4th 903, has rejected a due process claim lodged against Evidence Code section 1108, a statute authorizing admission of evidence of prior sexual offenses where defendant is charged with a sexual offense. Nevertheless, he "raises the issue to preserve it for federal review." The Attorney General responds he waived appellate review of his claim because he did not object at trial on due process grounds and Falsetta requires we reject his claim. We conclude Guajardo did not waive appellate review of this claim (People v. Partida (2005) 37 Cal.4th 428, 431, 433-439), and Falsetta and its progeny mandate we reject his claim.
In Falsetta, the California Supreme Court held Evidence Code section 1108 does not violate due process principles. (Falsetta, supra, 21 Cal.4th at pp. 916, 922.) The California Supreme Courts reasoning in Falsetta has been extended to Evidence Code section 1109. (Jennings, supra, 81 Cal.App.4th at p. 1310 [listing three Court of Appeal cases holding similarly].) Thus, we reject his constitutional arguments to Evidence Code section 1109.
III. CALCRIM No. 852
Guajardo argues the trial court erroneously instructed the jury with CALCRIM No. 852, "Evidence Of Uncharged Domestic Violence," because it violated his constitutional right to due process. Specifically, he claims the instruction was constitutionally defective because: (1) it allowed the jury to infer his guilt of the murder charge based on his predisposition to commit domestic violence; (2) it was internally inconsistent; (3) it conflicted with other instructions; and (4) it was not logical or reasonable to conclude he committed first degree murder based on the fact he previously committed domestic violence. None of his contentions have merit.
The Attorney General contends Guajardo waived appellate review of this claim because he did not object to CALCRIM No. 852 at trial, and People v. Reliford (2003) 29 Cal.4th 1007, mandates we reject his claims. Guajardo responds appellate review of this issue is not waived because it affects his substantial rights. (§ 1259.) We agree Guajardo did not waive appellate review of this issue (People v. Van Winkle (1999) 75 Cal.App.4th 133, 139-140), but conclude his claims are meritless.
The trial court instructed the jury with CALCRIM No. 852 as follows: "The People presented evidence that the defendant committed domestic violence that was not charged in this case. [¶] Domestic violence means abuse committed against an adult who is a spouse/or cohabitant/or person with whom the defendant has had a child. [¶] 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 herself. [¶] The term cohabitants means two unrelated adults living together for a substantial period of time, resulting in some permanency of the relationship. Factors that may determine whether people are cohabiting include, but are not limited to, (1) sexual relations between the parties while sharing the same residence, (2) sharing of income or expenses, (3) joint use or ownership of property, (4) the parties holding themselves out as husband and wife, (5) the parties registering as domestic partners, (6) the continuity of the relationship, and (7) the length of the relationship. [¶] 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, 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 element of every charge beyond a reasonable doubt."
As to his first claim, we find People v. Reyes (2008) 160 Cal.App.4th 246 (Reyes), instructive. In Reyes, the court considered a due process challenge to CALCRIM No. 852. The court stated: "Our Supreme Court has held that Evidence Code section 1108 conforms with the requirements of due process. (People v. Falsetta [,supra,] 21 Cal.4th [at p.] 915 . . . .) It has also ruled that CALJIC No. 2.50.01, an instruction explaining the application of section 1108, is proper. (People v. Reliford [, supra,] 29 Cal.4th [at p.] 1012 . . . .) The analysis in Falsetta has been used to uphold the constitutionality of Evidence Code section 1109 (People v. Jennings[, supra,] 81 Cal.App.4th [at p.] 1312 . . .; People v. Price (2004) 120 Cal.App.4th 224, 240 . . .) and the analysis in Reliford has been used to uphold the constitutionality of the corresponding CALJIC instruction, CALJIC No. 2.50.02. (People v. Pescador (2004) 119 Cal.App.4th 252, 261-262 . . . .) In fact, this court has held `[f]or the purposes of evaluating the constitutional validity of the instructions, there is no material difference between CALJIC No. 2.50.01 and CALJIC No. 2.50.02. (People v. Escobar (2000) 82 Cal.App.4th 1085, 1097 . . ., fn. 7 . . . . [(Escobar)]) [Citation.]
"Similarly, there is no material difference between the language found constitutional in CALJIC No. 2.50.02 and that in CALCRIM No. 852. In fact, CALCRIM No. 852 is expressed in clearer language and makes more certain the manner in which such evidence may or may not be used by the jury. The reasoning of the cases analyzing CALJIC No. 2.50.02 is equally applicable to the validity and propriety of CALCRIM No. 852.
"CALCRIM No. 852 makes clear the evidence of uncharged acts of domestic violence may only be considered at all if it has been established by a preponderance of the evidence and explains what is meant by that burden of proof. The instruction also explains that if that burden is not met, the evidence must be disregarded entirely." (Reyes, supra, 160 Cal.App.4th at pp. 251-252, fns. omitted.) We find the Reyes courts well-reasoned analysis convincing here as it demonstrates the instruction does not unconstitutionally lower the prosecutors burden of proof.
As to his second claim, CALCRIM No. 852 is not internally inconsistent. The Reyes court explained the proper and improper uses of prior domestic violence evidence. The court stated: "As with CALJIC No. 2.50.02, CALCRIM No. 852 explains that if the jury finds the defendant committed the uncharged acts, it may but is not required to conclude the defendant was disposed to or inclined to commit domestic violence and may also conclude that the defendant was likely to commit and did commit the crimes charged in this case. [¶] Also as with CALJIC No. 2.50.02, CALCRIM No. 852 clarifies that even if the jury concludes the defendant committed the uncharged acts, that evidence is only one factor to consider, along with all the other evidence and specifies that such evidence alone is insufficient to prove the defendants guilt on the charged offenses. CALCRIM No. 852 then goes on to state that the People must still prove each element of every charge beyond a reasonable doubt. In this, CALCRIM No. 852 goes further than CALJIC No. 2.50.02 with a clarification which inures to defendants benefit." (Reyes, supra, 160 Cal.App.4th at pp. 251-252.) CALCRIM No. 852 clearly informs the jury that if it finds the defendant committed the uncharged acts it may also conclude the defendant was likely to commit and did commit the crimes charged in this case, but the uncharged acts alone are insufficient to prove defendants guilt on the charged offenses. The instruction is not internally inconsistent.
With respect to his third claim, the trial courts other instructions did not conflict with CALCRIM No. 852. He complains the following instructions conflicted with CALCRIM No. 852: CALCRIM Nos. 200, "Duties Of Judge And Jury;" 220, "Reasonable Doubt;" 225, "Circumstantial Evidence: Intent Or Mental State;" 520, "Murder with Malice Aforethought;" and 521, "Murder: Degrees." First, he does not explain how CALCRIM No. 200s mandate to consider all the instructions together confused the jury, and we will not conclude it did. Second, CALCRIM No. 225s requirement circumstantial evidence of a defendants guilt must be proved beyond a reasonable doubt does not conflict with CALCRIM No. 852s requirement prior domestic violence evidence must be established by a preponderance of the evidence. Similarly, CALCRIM Nos. 221, 520, and 521s requirements element of the charged offense, here murder, must be proved beyond a reasonable doubt does not conflict with CALCRIM No. 825s preponderance of the evidence standard. We presume jurors are intelligent people "`"capable of understanding [the] instructions and applying them to the facts of the case."`" (People v. Carey (2007) 41 Cal.4th 109, 130.)
Finally, the jury could logically infer Guajardo committed first degree murder of Barajas based on the prior domestic violence evidence. Evidence Code section 1109 defines "domestic violence" by reference to section 13700, subdivision (b), to mean "abuse committed against an adult . . . who is a spouse, former spouse, cohabitant, former cohabitant, or person . . . ." (Evid. Code, § 1109, subd. (d)(3).) In Escobar, supra, 82 Cal.App.4th at pages 1094-1097, the court upheld admission of prior incidents of domestic violence under Evidence Code section 1109 to show propensity to commit first degree murder. In People v. Johnson (2000) 77 Cal.App.4th 410, 416, the court concluded there was no due process violation where the prosecutor was permitted to use evidence of prior acts of domestic violence under Evidence Code section 1109 to show a propensity to commit first degree murder. The murder charged in this case is the ultimate form of domestic violence. The prior domestic violence evidence against Barajas was admissible to the first degree murder charge. Thus, the trial court properly instructed the jury with CALCRIM No. 852.
Guajardo attempts to distinguish Reyes, supra, 160 Cal.App.4th 264, on the grounds it did not address his claim there is no rational connection between evidence of prior domestic violence and murder, CALCRIM No. 852 is internally inconsistent, and it lowers the prosecutions burden of proof. To the extent Reyes did not address these claims, we have and find them unpersuasive.
Reyes, supra, 160 Cal.App.4th 246, was filed after briefing in this case was complete. We ordered the parties to file supplemental letter briefing on its affect on this case.
IV. CALCRIM No. 362
Guajardo contends the trial court erroneously instructed the jury with CALCRIM No. 362, "Consciousness Of Guilt: False Statements," because his state of mind after the incident was not probative as to his state of mind at the time of her death and was not probative to any other disputed issue on the case. Additionally, he claims CALCRIM No. 362 did not provide the jury with any guidance on the proper use of the evidence. Neither of his contentions have merit.
Again, the Attorney General argues waiver, and Guajardo contends substantial rights. We agree with Guajardo. (People v. Benavides (2005) 35 Cal.4th 69, 100.)
The trial court instructed the jury with CALCRIM No. 362 as follows:
"If the defendant made a false or misleading statement relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show he was aware of his guilt of the crime and you may consider it in determining his guilt. [¶]
If you conclude that the defendant made the statement, it is up to you to decide its meaning and importance. However, evidence that the defendant made such a statement cannot prove guilt by itself."
Guajardo acknowledges the California Supreme Court has approved the giving of consciousness of guilt instructions. "The inference of consciousness of guilt from willful falsehood or fabrication or suppression of evidence is one supported by common sense, which many jurors are likely to indulge even without an instruction." (People v. Holloway (2004) 33 Cal.4th 96, 142 [addressing CALJIC No. 2.03, "Consciousness Of Guilt-Falsehood," CALCRIM No. 362s predecessor].)
Contrary to Guajardos claim, consciousness of guilt evidence goes generally to a defendants consciousness of wrong doing generally and not at the time of the offense. "A reasonable juror would understand `consciousness of guilt to mean `consciousness of some wrongdoing rather than `consciousness of having committed the specific offense charged. The instructions advise the jury to determine what significance, if any, should be given to evidence of consciousness of guilt, and caution that such evidence is not sufficient to establish guilt, thereby clearly implying that the evidence is not the equivalent of a confession and is to be evaluated with reason and common sense. The instructions do not address the defendants mental state at the time of the offense and do not direct or compel the drawing of impermissible inferences in regard thereto." (People v. Crandell (1988) 46 Cal.3d 833, 871, overruled on other grounds in People v. Crayton (2002) 28 Cal.4th 346, 364-365 [addressing CALJIC No. 2.03, "Consciousness Of Guilt-Falsehood," CALCRIM No. 362s predecessor].)
Also without merit is Guajardos claim consciousness of guilt is relevant only when identity is at issue. (People v. Turner (1990) 50 Cal.3d 668, 694, fn. 10 ["[g]uilty flight may be relevant not only where the identity of the perpetrator is at issue, but also where the accused admits some or all of the charged conduct, merely disputing its criminal implications"].) Here, Guajardo disputed the criminal implications of his conduct.
Finally, CALCRIM No. 362 did provide the jury with guidance on how to use the postarrest statements. The instruction stated his statements that conduct may show he was aware of his guilt of the crime and the jury could consider it in determining his guilt. Although the instruction charges the jury with determining the evidences meaning and importance, it also states the evidence alone cannot establish guilt. The plain language of CALCRIM No. 362 allows the jury to consider evidence of consciousness of guilt as one factor in determining guilt, but prohibits a jury from relying on that evidence alone to convict a defendant. Therefore, the trial court properly instructed the jury with CALCRIM No. 362.
DISPOSITION
The judgment is affirmed.
WE CONCUR:
SILLS, P. J.
RYLAARSDAM, J.