Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF130870 Jean P. Leonard, Judge.
Edward J. Haggerty, 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, and Steve Oetting and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI J.
The infant son of defendant Jason Dennis Williams suffered devastating brain damage while in defendant’s care. First, defendant told police that the baby fell off a couch; then he told them that he hit the baby with a couch pillow.
A jury found defendant guilty of felony child abuse (Pen. Code, § 273a, subd. (a)), with an enhancement for the personal infliction of great bodily injury on a child under five (Pen. Code, § 12022.7, subd. (d)). Defendant admitted one “strike” prior (Pen. Code, §§ 667, subds. (b)-(i), 1170.12) and two 1-year prior prison term enhancements (Pen. Code, § 667.5, subd. (b)). As a result, he was sentenced to 20 years in prison.
Defendant now contends:
1. The trial court erred by admitting evidence of a prior incident of domestic violence under Evidence Code section 1109.
2. Judicial Council of California Criminal Jury Instructions (CALCRIM) No. 852, regarding evidence of uncharged domestic violence, violated due process.
3. CALCRIM No. 371, regarding fabrication of evidence, violated due process.
4. The trial court erred by failing to instruct on misdemeanor child abuse and simple battery as lesser included offenses.
5. The prosecutor committed misconduct in closing argument.
6. The trial court erred by denying defendant’s motion for new trial, which was based on ineffective assistance of counsel.
7. The trial court erred by denying defendant’s Romero motion.
A “Romero motion” is a motion to dismiss a strike prior in the interest of justice under Penal Code section 1385. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497.)
We find no error. Hence, we will affirm.
I
FACTUAL BACKGROUND
A. Prosecution Evidence.
1. June 14, 2006.
Defendant and C. had four children together. Their youngest child, J., was born in February 2006.
As of June 2006, defendant and C. were living together. Defendant was unemployed. He generally took care of the children when C. was at work.
On June 14, 2006, C. left for work at 4:30 a.m. Before going, she breast-fed J. He seemed normal. She then put him back to sleep.
C. got back home a little after 2:30 p.m. J. was lying on the couch. He seemed to be sleeping normally. She left to do errands. When she got back, sometime before 4:00 p.m., J. still appeared to be sleeping. She lay down on the couch next to him and took a nap.
Around 5:30 p.m., C.’s sister arrived. As she bent down to kiss J., she noticed that “he was breathing funny, ” “like he was struggling to breathe....” She also noticed that he had a black eye. She picked him up and realized that his body was limp.
C.’s sister woke C. and said, “There’s something wrong with J.” C. tried to wake J. up but could not. She left a message for his doctor. She then asked the other children where defendant was. They said he had gone down the street. She found him and asked him what was wrong with J. He said he did not know.
C. and defendant then took J. to the hospital. As they were sitting in the emergency room, she asked defendant again what had happened. This time, he said that J. had fallen off the couch.
That evening, the police interviewed defendant. Initially, he said that J. had fallen. Around 10:30 a.m., defendant said, he had gone to the bathroom, leaving his five-year-old daughter holding J. He heard J. “holler” and came out to find him lying on the floor in front of the couch. The five-year-old seemed scared and would not tell him what happened, so he “assume[d] she dropped him or he fell off the couch.” Defendant picked him up, and for five or ten seconds, “he acted like he was dizzy... or like he couldn’t catch his breath....” Then he seemed to be all right.
However, after the police told defendant that J.’s injuries could not have been caused by a fall off the couch, defendant suggested, “Say I hit him with a pillow.” An officer responded, “I’m not gonna play theories....” Defendant then affirmatively stated, “I hit him with the couch pillow.”
He explained that J. had been crying for 30 to 45 minutes. While J. was lying on the couch, defendant took one of the large couch pillows and hit J. with it, “two times back to back real fast.” The first time, he hit him with about 80 percent of his strength; the second time, with about 95 percent. J. bounced up off the couch, maybe six inches. He stopped crying and “stiffen[ed] up, ” stretching out his arms, which was what he did when he was scared. Defendant picked him up and walked around with him for 10 or 20 minutes. Every once in a while, he seemed to have trouble breathing. Defendant then put him back on the couch, where he went to sleep.
At the suggestion of the police, defendant wrote a letter to the court saying, “I’m very sorry for hurting my son.... I didn’t realize that a couch pillow would cause so much damage.”
The next day, June 15, 2006, Dr. Sandra Murray, a pediatrician and an expert in child abuse, examined J. She found bruising and swelling around his right eye and on his forehead. This indicated a contact injury.
CAT scans showed bleeding and swelling on the surface of his brain, on both sides, but especially on the left. Bridging veins, which take blood away from the brain, had been torn. He also had “lots of retinal hemorrhages.” There was a possible rupture of the choroid – the membrane between the retina and the white of the eye. This indicated “a great deal of force.” Out of 1, 500 cases of suspected child abuse, this was the only time Dr. Murray had seen a choroid rupture.
Taken together, these injuries indicated “a rotational acceleration de-acceleration movement” of the head. They were not consistent with the head hitting or being hit by a hard object. Thus, they could not have been caused by a fall off the couch. However, they could have been caused by being hit once or twice with a pillow while lying on another pillow.
Dr. Murray concluded that J.’s injuries were “consistent” with abusive head trauma. He would have started to show symptoms “very quickly, ” “within minutes[.]” These might have included stiffening of the arms.
In a forensic interview, defendant’s five-year-old daughter said that J. had fallen off the couch. However, in the interviewer’s opinion, she sounded “coached or rehearsed.”
By the time of trial, J. was in a “home” for children who needed 24-hour medical assistance.
2. Prior Incident of Domestic Violence.
C. testified that, as of 2000, she was “scared” of defendant due to “[d]omestic violence.” On one occasion, in July 2000, defendant hit her in the face, knocking her down, and pulled her hair.
Deputy Tony Hoxmeier testified that, on July 26, 2000, he went to C.’s apartment in response to a domestic violence call. She told him that she and defendant had gotten into an argument over the potty training of one of the children, then one year old. Defendant had slapped the child on the hand to make her stop crying. C. and defendant had then argued. He hit C. in the side of the face, knocking her onto the couch. He also pulled one of her braids out of her head.
B. Defense Evidence.
Defendant testified in his own behalf. He was impeached with prior convictions for residential burglary, domestic violence, petty theft with a prior, and resisting an officer.
In April 2005, after being released on parole, defendant went to live with C. and the children (even though this was a violation of his parole on the earlier domestic violence conviction).
On June 14, 2006, defendant testified, sometime before noon, he went to the bathroom, leaving J. propped up in a sitting position on the couch. When he got back, he found J. lying on the floor, crying. Defendant picked him up, and within 30 seconds, he stopped crying. He seemed to be normal.
According to defendant, when the police interviewed him, he decided to “take the heat, ” because he believed that otherwise, both he and C. would go to jail and Child Protective Services would take the children. He denied hitting J. with a pillow or otherwise hurting him.
On cross-examination, the prosecutor brought out several inconsistencies between defendant’s testimony and his statement to the police. First, defendant had told police that the five-year-old was holding J., not that J. was sitting on the couch. Second, he had told police that, immediately after falling, J. seemed dizzy and could not catch his breath. Third, he had told police that, when C. first got home, she pointed out that J. was breathing oddly.
The prosecutor also brought out the fact that, once defendant changed his story and admitted hitting J. with a pillow — which was supposedly a lie — he accurately described J.’s likely symptoms, including ceasing to cry, stiffening up, breathing unevenly, and going right to sleep without drinking from his bottle.
A neighbor, Lydia Vega, testified that she had had opportunities to see defendant interact with J. and the other children. Defendant never hit them or yelled at them, and they did not seem to be afraid of him. C. agreed that she had never known defendant to harm any of the children.
II
EVIDENCE OF THE PRIOR INCIDENT OF DOMESTIC VIOLENCE
Defendant raises several issues arising out of the admission of evidence of the prior incident of domestic violence against C.
A. Additional Factual and Procedural Background.
By way of a written motion in limine, the prosecution sought to introduce evidence that defendant had committed the prior act of domestic violence.
Defense counsel argued that the prior incident was not sufficiently similar to the charged offense, because it was involved an adult victim rather than a child victim. She added: “The injury was to C. The charge was relating to violence upon a spouse. I don’t think that it’s sufficiently similar to come in under [Evidence Code section] 1109.”
The trial court admitted evidence of the prior incident under Evidence Code section 1109. It specifically found “that the probative value is not outweighed by undue prejudice or undue consumption of time.”
B. The Constitutionality of Evidence Code Section 1109 .
Defendant contends that Evidence Code section 1109 violates due process and equal protection. He acknowledges that the California Supreme Court has rejected a due process challenge to a closely analogous statute, Evidence Code section 1108. (People v. Falsetta (1999) 21 Cal.4th 903, 912-922.) He also acknowledges that our sister courts have rejected challenges to Evidence Code section 1109 based on both due process (People v. Rucker (2005) 126 Cal.App.4th 1107, 1120; People v. Escobar (2000) 82 Cal.App.4th 1085, 1095-1096; People v. Jennings (2000) 81 Cal.App.4th 1301, 1310; People v. Brown (2000) 77 Cal.App.4th 1324, 1332-1334; People v. Hoover (2000) 77 Cal.App.4th 1020, 1028-1029 [Fourth Dist., Div. Two]; People v. Johnson (2000) 77 Cal.App.4th 410, 416-420) and equal protection (People v. Price (2004) 120 Cal.App.4th 224, 240; Jennings, at pp. 1310-1313; see also People v. Fitch (1997) 55 Cal.App.4th 172, 184-185 [Evid. Code, § 1108 does not violate equal protection].) We find these opinions well reasoned, and we are persuaded to follow them.
Defendant argues, however, that “... Falsetta must be reconsidered in light of the Ninth Circuit’s decision in Garceau v. Woodford (9th Cir. 2001) 275 F.3d 769 [(Garceau)]....” To the extent that Falsetta and Garceau are in conflict, however, we must follow Falsetta. (Compare Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [California appellate court is bound by California Supreme Court decisions] with Forsyth v. Jones (1997) 57 Cal.App.4th 776, 782 [California appellate court is not bound by Ninth Circuit decisions].) Moreover, even after Garceau, our Supreme Court has specifically refused to reconsider Falsetta. (People v. Lewis (2009) 46 Cal.4th 1255, 1288-1289.)
We also note that, as defendant concedes, a different panel of the Ninth Circuit reached a conclusion contrary to Garceau; it upheld a federal rule of evidence that was analogous to Evidence Code section 1109. (United States v. LeMay (9th Cir. 2001) 260 F.3d 1018, 1022, 1031.)
We therefore conclude that Evidence Code section 1109 is not unconstitutional.
C. Admissibility Under Evidence Code Section 1109 .
Defendant also contends that the trial court erred by admitting evidence of the prior incident of domestic violence because this was a prosecution for child abuse, not domestic violence.
The People respond that defense counsel forfeited defendant’s present contention by failing to raise it in the trial court. (See Evid. Code, § 353, subds. (a), (b).) Defense counsel’s actual objection (“The injury was to C. The charge was relating to violence upon a spouse.”) was somewhat ambiguous; at least in hindsight, it could be construed as invoking a distinction between domestic violence and child abuse. Hence, we may assume without deciding, that defendant’s present contention has been preserved. Even if so, it lacks merit.
Evidence Code section 1109, subdivision (a)(1), as relevant here, provides: “[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.”
Similarly, Evidence Code section 1109, subdivision (a)(3) provides: “[I]n a criminal action in which the defendant is accused of an offense involving child abuse, evidence of the defendant’s commission of child abuse is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352.”
Defendant argues that Evidence Code section 1109 does not make evidence of a prior act of domestic violence admissible in a prosecution for child abuse, or vice versa. As this court has previously held, however, these two categories are not mutually exclusive. In light of the definitions set forth in Evidence Code section 1109, a particular offense against a child may “involv[e]” both domestic violence and child abuse.
In People v. Dallas (2008) 165 Cal.App.4th 940 [Fourth Dist., Div. Two], the defendant was charged with child abuse (id. at p. 942), allegedly committed against the baby son of his live-in girlfriend. (See id. at pp. 943-946.) The prosecution introduced evidence of a prior act of domestic violence, committed against another girlfriend. (Id. at pp. 947-948.)
We began with the definition of “domestic violence.” As we noted: “Evidence Code section 1109 provides: ‘“Domestic violence” has the meaning set forth in Section 13700 of the Penal Code. Subject to a hearing conducted pursuant to Section 352, which shall include consideration of any corroboration and remoteness in time, “domestic violence” has the further meaning as set forth in Section 6211 of the Family Code, if the act occurred no more than five years before the charged offense.’ [Citation.]” (People v. Dallas, supra, 165 Cal.App.4th at p. 952.)
“Family Code section 6211... defines domestic violence... broadly as including abuse committed against either ‘[a] cohabitant or former cohabitant, as defined in Section 6209’ [citation], or ‘[a] child of a party’ [citation].... Family Code section 6211 expressly incorporates the following definition in Family Code section 6209: ‘“Cohabitant” means a person who regularly resides in the household.’ [Citations.]” (People v. Dallas, supra, 165 Cal.App.4th at p. 953.)
We concluded “that, because defendant lived with the baby, this was not only a prosecution for ‘child abuse’..., but also a prosecution for ‘domestic violence’ so that prior acts of domestic violence were likewise admissible under Evidence Code section 1109, subdivision (a)(1).” (People v. Dallas, supra, 165 Cal.App.4that pp. 942-943.)
Here, the prior incident unquestionably involved an act of domestic violence. Moreover, in this case, J. was not only defendant’s “cohabitant, ” but also a “child of a party, ” namely defendant. Thus, in this case, even though defendant was technically charged with child abuse, he was “accused of an offense involving domestic violence” within the meaning of Evidence Code section 1109.
Defendant notes that Evidence Code section 1109 incorporates the definition of “domestic violence” in Family Code section 6211 only “if the act occurred no more than five years before the charged offense.” (Evidence Code § 1109, subd. (d)(3).) Here, however, the question is not whether the prior act constituted domestic violence; it did, under the definition in Penal Code section 13700. Rather, the question is whether the current charged offense “involve[d]” domestic violence. “By definition, the charged offense cannot have occurred ‘more than five years before the charged offense’....” (People v. Dallas, supra, 165 Cal.App.4that p. 954.) Accordingly, the definition of domestic violence in Family Code section 6211 applied to the charged offense.
D. Admissibility Under Evidence Code Section 352 .
Next, defendant contends that the trial court abused its discretion by admitting the prior incident of domestic violence, because it was more prejudicial than probative.
Admissibility under Evidence Code section 1109 is expressly subject to Evidence Code section 352, which 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....”
“By reason of section 110[9], trial courts may no longer deem ‘propensity’ evidence unduly prejudicial per se, but must engage in a careful weighing process under section 352. Rather than admit or exclude every [domestic violence] 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 defendant’s other [domestic violence] offenses, or excluding irrelevant though inflammatory details surrounding the offense. [Citations.]” (People v. Falsetta, supra, 21 Cal.4th at pp. 916-917 [actually discussing Evid. Code, § 1108].)
“Like any ruling under section 352, the trial court’s ruling admitting evidence under section 110[9] is subject to review for abuse of discretion. [Citations.]” (People v. Story (2009) 45 Cal.4th 1282, 1295 [actually discussing Evid. Code, § 1108].) “‘Under the abuse of discretion standard, “a trial court’s ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.” [Citation.]’ [Citations.]” (People v. Lewis, supra, 46 Cal.4th at p. 1286.)
Evidence that defendant had a propensity to commit acts of domestic violence was substantially probative. “‘In the determination of probabilities of guilt, evidence of character is relevant. [Citations.]’ [Citation.] Indeed, the rationale for excluding such evidence is not that it lacks probative value, but that it is too relevant.” (People v. Fitch, supra, 55 Cal.App.4th at p. 179.)
Defendant argues that the prior incident was not similar to the charged crime. In that incident, however, he punched C. in the face. Here, he told police he hit J.’s entire body with a pillow. Given J.’s tiny size, these are reasonably similar attacks. Moreover, from J.’s injuries, including bruising around his right eye, it was reasonably inferable that defendant struck him in the face, albeit in the course of inflicting shaking-type injuries. The jury was not required to believe that he merely hit him with a pillow.
Defendant also argues that the prior incident involved an adult victim, whereas the current offense involved a child victim. However, in the prior incident, in addition to punching C., he also slapped the hand of another infant to stop her from crying. There was evidence that he similarly hit J. to stop him from crying. This was substantially probative of a propensity to react violently to the crying of a child.
On the other hand, the evidence was not particularly prejudicial. “... ‘The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. “[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant’s case. The stronger the evidence, the more it is ‘prejudicial.’ The ‘prejudice’ referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, ‘prejudicial’ is not synonymous with ‘damaging.’” [Citation.]’ [Citation.]” (People v. Gionis (1995) 9 Cal.4th 1196, 1214.)
The evidence here was “prejudicial” only in the sense that it was relevant and probative propensity evidence. It was not particularly inflammatory; the prior incident involved only a punch and some hair-pulling. Defendant argues that this was more “overtly violent” than hitting a child with a pillow. Nevertheless, the prior incident paled by comparison to the current offense, which involved a helpless infant victim, as well as much more extensive injuries. Moreover, once again, the jury was not required to believe that defendant only hit J. with a pillow. And finally, “[t]he jury was given an effective instruction by the trial court to consider the evidence only for proper limited purposes, and we must presume the jury adhered to the admonitions. [Citation.]” (People v. Hollie (2010) 180 Cal.App.4th 1262, 1277.)
The jury was told that the prior incident resulted in a criminal conviction. Thus, it was not likely to “be tempted to convict the defendant simply to punish him for the other offenses....” (People v. Falsetta, supra, 21 Cal.4th at p. 917.) The prior incident, although somewhat remote, was not unduly so. (See People v. Johnson (2010) 185 Cal.App.4th 520, 535 [“‘[n]o specific time limits have been established for determining when an uncharged offense is so remote as to be inadmissible’”].) Nor did it consume an undue amount of time.
We therefore conclude that defendant has not shown that the trial court abused its discretion by admitting the prior incident.
E. Jury Instruction Regarding Evidence of Uncharged Domestic Violence.
Finally, defendant argues that CALCRIM No. 852, regarding evidence of uncharged domestic violence, violated due process by allowing the jury to find him guilty based on propensity alone.
CALCRIM No. 852, as given in this case, provided:
Defense counsel invited the asserted error by drafting the version of the instruction that was given. She did not object to the trial court giving either CALCRIM No. 375 (Evidence of Uncharged Offense to Prove Identity, Intent, Common Plan, etc.) or CALCRIM No. 852 (Evidence of Uncharged Domestic Violence), but she did object to it giving both, because that “would place too great a light on the particular evidence....” The trial court therefore asked both counsel to draft a single instruction combining the two. As it noted, “both counsel worked together... to rewrite 852, and it [wa]s a joint effort in that regard.” Defense counsel agreed that the revised instruction was “okay with [her].”
Separately and alternatively, the instruction was not erroneous, for the reasons already cogently stated in People v. Johnson (2008) 164 Cal.App.4th 731, 738-740 and People v. Reyes (2008) 160 Cal.App.4th 246, 250-253.
III
CONSCIOUSNESS OF GUILT INSTRUCTION
Defendant contends that CALCRIM No. 371, regarding fabrication of evidence, is erroneous because it is irrational to infer guilt from the creation of false evidence.
At the prosecution’s request, the trial court gave CALCRIM No. 371, which stated: “If the defendant tried to create false evidence, that conduct may show that he was aware of his guilt. If you conclude that the defendant made such an attempt, it is up to you to decide its meaning and importance. However, evidence of such an intent [sic; sc. “attempt”] cannot prove guilt by itself.”
Our Supreme Court has specifically stated that “the jury may properly be [so] instructed....” (People v. Riggs (2008) 44 Cal.4th 248, 308, fn. 27.) Moreover, it has rejected the claim that CALJIC No. 2.04, the predecessor of CALCRIM No. 371, violated due process or invited the jury to draw an irrational inference. (People v. Morgan (2007) 42 Cal.4th 593, 621; People v. Guerra (2006) 37 Cal.4th 1067, 1137, disapproved on other grounds in People v. Rundle (2008) 43 Cal.4th 76, 151.)
Defendant argues that CALJIC No. 2.04 is distinguishable, because it used the words “consciousness of guilt, ” whereas CALCRIM No. 371 uses the words “aware of his guilt.” We fail to see any meaningful distinction, and (as defendant concedes) neither did the court in People v. Hernández Ríos (2007) 151 Cal.App.4th 1154, 1158-1159 [upholding CALCRIM No. 372, which allows the jury to infer awareness of guilt from flight].)
Defendant also argues that the permissive inference involved is irrational because even an innocent person may fabricate false evidence, provided he or she is under suspicion or there is some evidence tending to implicate him or her. The Supreme Court, however, has held that “[t]he 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.) “The cautionary nature of the instruction[] benefits the defense, admonishing the jury to circumspection regarding evidence that might otherwise be considered decisively inculpatory. [Citations.]” (People v. Jackson (1996) 13 Cal.4th 1164, 1224.)
Next, defendant argues that, even assuming it is rational to infer the awareness of some kind of guilt, it is not rational to infer the awareness specifically of guilt of the crime(s) charged. Again, however, the Supreme Court has held that a reasonable juror would understand such an instruction in the manner that defendant admits is rational. (See People v. Carrington (2009) 47 Cal.4th 145, 189 [upholding CALJIC No. 2.03, which allowed jury to infer consciousness of guilt from willfully false statements].)
Finally, defendant argues that, by telling the jury it could decide the importance of the evidence, the instruction “allowed the jurors... to make it the determinative factor in their deliberations, so long as they also considered at least one additional piece of evidence.” However, “‘[w]hen an appellate court addresses a claim of jury misinstruction, it must assess the instructions as a whole, viewing the challenged instruction in context with other instructions, in order to determine if there was a reasonable likelihood the jury applied the challenged instruction in an impermissible manner. [Citations.]’ [Citation.]” (People v. Jennings (2010) 50 Cal.4th 616, 677.) Here, the jurors were also instructed that they had to consider “all the evidence” (CALCRIM No. 220) and that the evidence had to leave them “with an abiding conviction that the charge is true.” (CALCRIM No. 103.) Moreover, they were instructed that, if they could draw two or more reasonable conclusions from the circumstantial evidence, one pointing to innocence and one to guilt, they had to accept the one pointing to innocence. (CALCRIM No. 224.) In light of these instructions, as well as the generally cautionary nature of CALCRIM No. 371 itself, we see no reasonable likelihood that they would have given the instruction the absurd interpretation that defendant is urging.
We therefore conclude that the trial court did not err by giving CALCRIM No. 371.
IV
FAILURE TO INSTRUCT ON LESSER INCLUDED OFFENSES
Defendant contends that the trial court erred by failing to instruct on misdemeanor child abuse (Pen. Code, § 273a, subd. (b)) and simple battery (Pen. Code, § 242) as lesser included offenses.
“We... appl[y] two tests in determining whether an uncharged offense is necessarily included within a charged offense: the ‘elements’ test and the ‘accusatory pleading’ test. Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former. Under the accusatory pleading test, if the facts actually alleged in the accusatory pleading include all of the elements of the lesser offense, the latter is necessarily included in the former. [Citation.]” (People v. Reed (2006) 38 Cal.4th 1224, 1227-1228.)
“‘To warrant [an instruction on a lesser included offense], there must be substantial evidence of the lesser included offense, that is, “evidence from which a rational trier of fact could find beyond a reasonable doubt” that the defendant committed the lesser offense. [Citation.] Speculation is insufficient to require the giving of an instruction on a lesser included offense. [Citations.] In addition, a lesser included instruction need not be given when there is no evidence that the offense is less than that charged. [Citation.]’ [Citation.]” (People v. Redd (2010) 48 Cal.4th 691, 732-733.)
A. Misdemeanor Child Abuse.
Felony child abuse is committed by “[a]ny person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health is endangered....” (Pen. Code, § 273a, subd. (a).)
Misdemeanor child abuse is committed when otherwise identical conduct occurs “under circumstances or conditions other than those likely to produce great bodily harm or death....” (Pen. Code, § 273a, subd. (b), italics added.)
It could be argued that, given this statutory definition, the absence of circumstances likely to produce great bodily harm or death is an element of misdemeanor child abuse. If so, then the greater offense (felony child abuse) could be committed without also committing the lesser offense (misdemeanor child abuse). Indeed, the two would be mutually exclusive.
We do not believe, however, that this view is tenable. It would mean that, every time the prosecution charged a defendant with misdemeanor child abuse, the prosecution would have to prove, beyond a reasonable doubt, that there were no circumstances likely to produce great bodily harm or death. Moreover, if a defendant was charged, alternatively, with both felony and misdemeanor child abuse, and if the jury was not convinced beyond a reasonable doubt that the circumstances either were or were not likely to produce great bodily harm or death, it could not find the defendant guilty of either form of child abuse; it would have to acquit. This would be absurd. Accordingly, we conclude that misdemeanor child abuse is a lesser included offense of felony child abuse. (See People v. Sheffield (1985) 168 Cal.App.3d 158, 166 [conceded by People].)
On this record, however, there was no substantial evidence that the circumstances were not likely to produce great bodily harm or death. “Likely, ” in this context, does not mean that great bodily harm or death was more likely than not to result; it only means that there was “a substantial danger, i.e., a serious and well-founded risk, of great bodily harm or death.” (People v. Wilson (2006) 138 Cal.App.4th 1197, 1204.) J.’s injuries were devastating — bleeding on the surface of the brain, both subdural and subarachnoid, on both sides; retinal hemorrhages “literally everywhere”; and an apparent choroid rupture. Dr. Murray testified that the latter, in particular, showed that “a great deal of force” was used. And it must be remembered that J. was only four months old.
At trial, defense counsel conceded that the trial court was not required to instruct on misdemeanor child abuse: “[B]ased on the that evidence we’ve heard — the medical evidence..., I don’t believe that... misdemeanor child abuse is supported by the evidence....” Defendant contends, however, that this constituted ineffective assistance. (See part VI.B, post.)
Defendant relies on his own statement to the police that he merely hit J. with a pillow. He also stated, however, that he hit J. twice, that he used nearly all of his strength, and that the blow caused J. to bounce six inches up off the couch. Dr. Murray testified that J.’s injuries could have been caused by a blow with a pillow. Thus, the mere fact that defendant’s weapon was a pillow fell short of showing that, under the circumstances, death or great bodily harm was not likely to result.
Because the evidence showed that defendant inflicted injury directly, the applicable mens rea was general criminal intent. The statute did not require defendant to know that there was a risk of great bodily harm or death; it did not even require that a reasonable person would have known that there was a risk of great bodily harm or death. It only required that there be, in fact, a risk of great bodily harm or death. (People v. Sargent (1999) 19 Cal.4th 1206, 1221-1223.) Even assuming, however, that the applicable mens rea was criminal negligence (as it would have been if defendant inflicted injury indirectly), the statute still would not require defendant to be subjectively aware of the risk of great bodily harm or death. (See People v. Valdez (2002) 27 Cal.4th 778, 790-791.)
We therefore conclude that there was no substantial evidence that defendant was guilty only of misdemeanor child abuse and not of felony child abuse. Hence, the trial court did not err by failing to instruct on felony child abuse.
If only out of an excess of caution, however, we note that, for the reasons already discussed, even assuming that defendant’s claim that he used a pillow rose to the level of substantial evidence of misdemeanor child abuse, the evidence that the crime was actually felony child abuse was overwhelming. There was no reasonable probability that, even if the jury had been instructed on misdemeanor child abuse, it would have found defendant guilty only of this lesser crime. “[T]he failure to instruct sua sponte on a lesser included offense in a noncapital case... is not subject to reversal unless an examination of the entire record establishes a reasonable probability that the error affected the outcome. [Citations.]” (People v. Breverman (1998) 19 Cal.4th 142, 165.) Hence, the failure to instruct on misdemeanor child abuse, if error at all, was harmless.
B. Battery.
“[A] battery is defined as a harmful or offensive touching. [Citation.]” (People v. Puckett (1975) 44 Cal.App.3d 607, 614-615, fn. & italics omitted.)
Felony child abuse “‘can occur in a wide variety of situations: the definition broadly includes both active and passive conduct, i.e., child abuse by direct assault and child endangering by extreme neglect.’ [Citation.]” (People v. Sargent, supra, 19 Cal.4th at pp. 1215-1216.) One can commit felony child abuse without necessarily committing a battery — for example, by inflicting mental suffering on or by merely endangering a child. Accordingly, under the elements test, battery is not a lesser included offense of felony child abuse.
When we apply the accusatory pleading test, however, we come to a different conclusion. The information alleged that defendant “[1] did... cause and permit a child... to suffer, and inflicted thereon unjustifiable physical pain and mental suffering, and... [2] did wilfully cause and permit the person and health of said child to be injured and [3] did wilfully cause and permit said child to be placed in such a situation that their person and health was [sic] endangered.” (Italics added.) If defendant was guilty of the italicized allegations, then he was also guilty of a battery.
Nevertheless, for the reasons already stated in part IV.A, ante, there was no substantial evidence that defendant was not guilty of felony child abuse but guilty only of battery. Thus, the trial court was not required to instruct on battery. Moreover, for the same reasons, the failure to instruct on battery was harmless error, at most.
V
PROSECUTORIAL MISCONDUCT IN CLOSING ARGUMENT
Defendant contends that the prosecutor committed misconduct by suggesting in closing argument that the testimony of defendant’s children would have supported the prosecution.
A. Additional Factual and Procedural Background.
In closing argument, defense counsel stated: “Think about the evidence we didn’t hear from. And there’s a jury instruction in your packet that says neither party is required to call all the witnesses.... [The prosecutor] may stand up and tell you that I have the subpoena power that he has. That is true. That is also the law. What is also true and what is also the law is I do not have the burden of proof. I am not required to prove anything to you.... [¶] We didn’t get to hear from any of the other Williams children.”
In rebuttal, the prosecutor stated: “[Defense counsel] is right. One of the instructions does say neither side is required to call all witnesses, and she’s just as right when she says I have the burden of proof.... But if you think for a second those kids would have said something different, she would have called them to the stand....
“[DEFENSE COUNSEL]: Objection, your Honor. Improper argument. [¶]... [¶]
“[PROSECUTOR]: Your Honor, I prefaced that.
“THE COURT: I’ll overrule and ask you to preface it again.
“[PROSECUTOR]: I have the burden of proof.... She does not have that burden. But come on, if those kids were going to say something different happened, you don’t think that they would have been brought in[?] Or should I bring in additional kids and victimize them and put them on the stand to say the same thing?... Is the fact that I didn’t bring in those kids, that points to reasonable doubt?
B. Analysis.
“‘“‘The applicable federal and state standards regarding prosecutorial misconduct are well established. “‘A prosecutor’s... intemperate behavior violates the federal Constitution when it comprises a pattern of conduct “so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.”’” [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves “‘“the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.”’”’” [Citations.]’ [Citation.]” (People v. Redd, supra, 48 Cal.4th at pp. 733-734.)
“It is generally not necessary for the defendant to show the prosecutor acted in bad faith because the prosecutor’s conduct is evaluated in accordance with an objective standard. [Citation.]” (People v. Barnett (1998) 17 Cal.4th 1044, 1133.)
“When the claim focuses on the prosecutor’s comments to the jury, we determine whether there was a reasonable likelihood the jury construed or applied the remarks in an objectionable fashion. [Citation.]” (People v. Brady (2010) 50 Cal.4th 547, 583-584.)
“‘While counsel is accorded “great latitude at argument to urge whatever conclusions counsel believes can properly be drawn from the evidence [citation], ” counsel may not assume or state facts not in evidence [citation]....’” (People v. Tafoya (2007) 42 Cal.4th 147, 181.) However, a prosecutor may comment “on the failure of the defense to introduce material evidence or to call logical witnesses. [Citation.]” (People v. Brady, supra, 50 Cal.4th at p. 566.)
Here, it was defense counsel who had already argued that defendant’s children were logical witnesses; she had also argued that the prosecution had failed to call them. It was reasonable for the prosecutor to counter this by pointing out that the defense, too, had failed to call the children.
Defendant argues that the prosecutor, in effect, stated a fact not in evidence. However, every time a prosecutor points out that the defendant has failed to call a logical witness, the prosecutor, in effect, implies that that witness would have supported the prosecution’s case. This is different from stating or implying that the absent witness would have testified to some particular fact.
Defendant relies on People v. Gaines (1997) 54 Cal.App.4th 821. There, in closing argument, the prosecutor commented on the fact that the defense had not called a potential alibi witness, Ray Hicks, even though Hicks had been sitting in the courtroom at one point during the trial: “‘Where is Mr. Hicks? We know about Mr. Hicks. Mr. Hicks was sitting in this courtroom. Mr. Hicks didn’t testify. That decision was made after the defendant testified, because the defendant slipped and he told some untruths. And Mr. Hicks was going to testify to the contrary. Mr. Hicks would have impeached the defendant, and it was the defense that got Mr. Hicks out of here before he could damage them. It was the People that were trying to find Mr. Hicks at that point.’” (Id. at p. 824.)
The appellate court held that “a prosecutor commits misconduct when he purports to tell the jury why a defense witness did not testify and what the testimony of that witness would have been.” (People v. Gaines, supra, 54 Cal.App.4th at p. 822.) “Although ‘a prosecutor may argue to a jury that a defendant has not brought forth evidence to corroborate an essential part of his defensive story’ [citation], the comments here were not so limited.... [T]he prosecutor[] state[d] that (1) Hicks’s testimony would have impeached defendant’s version, (2) the defense had somehow ‘got Mr. Hicks out of here, ’ and (3) the People had tried to get Mr. Hicks on the stand once it had become clear Hicks would not be called by the defense. All three of these subjects were matters concerning which there was no ‘evidence in this case’ as defense counsel asserted. But to say only that the prosecutor got ahead of his evidence is far too benign. The prosecutor was in plain effect presenting a condensed version of what he was telling the jury would have been Mr. Hicks’s testimony.” (Id. at p. 825.)
Here, by contrast, the prosecutor merely argued that defendant had not brought forth logical witnesses to corroborate his story. He did not state or imply what testimony those witnesses, if called, would have given. The mere implication that they would generally have supported the prosecution’s case did not rise to the level of stating a fact not in evidence.
VI
MOTION FOR NEW TRIAL BASED ON INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant contends that the trial court erred by denying his motion for new trial, which was based on ineffective assistance of counsel.
A. Additional Factual and Procedural Background.
On the date set for sentencing, defendant made a Marsden motion. Although the trial court purported to deny the motion, it did appoint new counsel to determine whether to file a motion for new trial based on ineffective assistance of counsel.
A “Marsden motion” is a motion to discharge existing appointed counsel, based on ineffective assistance, and to appoint new counsel. (People v. Marsden (1970) 2 Cal.3d 118.)
New counsel then filed such a motion. It included a declaration by defendant. However, it did not include a memorandum of points and authorities; rather, it indicated that new counsel would file a memorandum once he had received a trial transcript.
According to defendant’s declaration, during the trial, his counsel had endured “personal problems” arising out of a divorce. During a move, some of her belongings had been stolen; also, at one point, her husband had “called CPS on her.” As a result, according to defendant, she had rendered ineffective assistance, as follows:
“... She neither filed nor argued any Evidence Code [s]ection 402 motions;
“... She was not prepared to cross-examine prosecution witnesses. Finally, in desperation, I prepared questions for her to use. She took the questions I had written out... and read my questions to the witnesses;
“... Well in advance of trial I gave her the names of potential witnesses. She failed to contact them....;
“... Throughout the trial she was texting on her cell phone while witnesses were on the stand;
“... When she came to the jail to prepare me for testimony we spent most of the time talking about her personal problems and I was thus not properly prepared to testify;
“... She didn’t use any of the information and photos that the public defender investigator had collected. I had to bring photos from my cell to be utilized at trial even though she had them on disk;
“... She did not request any lesser[s] although [the judge] kept asking her about them;
“... She did not prepare anything in writing for closing argument, not even an outline. Instead, she just jotted down some things while the [d]istrict [a]ttorney was giving his opening argument[.]”
Defendant had already raised most of these allegations at the Marsden hearing. His trial counsel was present at the Marsden hearing and disputed his allegations. For example, she explained that she had, in fact, prepared a closing, in the form of “a series of slides.” During the prosecution’s closing, she had been writing down points she wanted to make in response. Defendant, seeing this, had leaped to the erroneous conclusion that she was belatedly writing her entire closing.
At the hearing on the motion, defendant’s new counsel stated: “... I said there would be subsequent points and authorities after I read the transcript where I’d be able to look in the transcript and see examples of some of this.... [T]exting during testimony and maybe preparing a written closing argument..., some of the things that [defendant] indicated, seemed to me like it certainly could have amounted to ineffective representation, but then I read the entire transcript and I wasn’t able to verify in the transcript. I didn’t see examples of, you know, faulty cross-examination....
“What I would say is the Court saw the trial. All I could read was black and white here. I didn’t see the demeanor of [trial counsel].... I’m just going to submit it on [defendant’s] declaration and I couldn’t substantiate these things based on my reading of the transcript, so I’m going to submit it.”
The trial court denied the motion. It explained that, despite trial counsel’s acknowledged personal problems, it had not observed any instances of ineffective assistance — “I thought she did a fine job.”
Thus, trial counsel continued to represent defendant at sentencing.
B. Analysis.
“[I]neffectiveness of counsel may be argued in a new trial motion.” (People v. Smith (1993) 6 Cal.4th 684, 693.)
“‘To establish a violation of the constitutional right to effective assistance of counsel, a defendant must show both that his counsel’s performance was deficient when measured against the standard of a reasonably competent attorney and that counsel’s deficient performance resulted in prejudice to defendant in the sense that it “so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.”’ [Citation.]” (People v. Thompson (2010) 49 Cal.4th 79, 122.) “Defendant thus bears the burden of establishing constitutionally inadequate assistance of counsel. [Citations.]” (People v. Gamache (2010) 48 Cal.4th 347, 391.) The same standard applies to an ineffective assistance of counsel claim when it is raised in a motion for new trial as when it is raised on appeal. (See People v. Dyer (1988) 45 Cal.3d 26, 53-54.)
Defendant argues that his declaration was unrebutted and therefore that he established that his trial counsel’s performance was deficient. Of course, this ignores the fact that, when he made many of the same complaints in the form of a Marsden motion, his trial counsel was present and was able to argue, convincingly, that her performance was not deficient.
In any event, most of defendant’s complaints fell short of demonstrating deficient performance. For example, we cannot say that the failure to file any motions in limine was deficient, in the absence of a showing that there were any meritorious motions in limine to be filed. Likewise, the fact that defense counsel asked questions that defendant had written out for her does not show that her own examination was deficient. The failure to contact witnesses whose names defendant had given her was not necessarily deficient, because those witnesses may have been immaterial, unhelpful, or otherwise strategically unwise to call. Defendant claimed that trial counsel did not prepare him properly to testify, but he never explained how his testimony would have been any different if he had been properly prepared. Defendant’s new counsel virtually conceded that he had been unable to find any instances of deficient performance.
For similar reasons, defendant also failed to show prejudice. There was no evidence that, in the absence of the assertedly deficient performance, the result would have been any different.
Indeed, in this appeal, defendant does not even argue that any of the instances of assertedly deficient performance was prejudicial, with one exception: He claims that his trial counsel’s cross-examination of the prosecution witnesses was “minimal, ” as (supposedly) shown by the fact that their cross-examinations were much shorter than their directs. Once again, however, on this record, we cannot say that longer cross-examinations would have been any more effective, much less that they would have produced a more favorable result.
Defendant specifically complains that his trial counsel never asked Dr. Murray “whether striking a young child with a pillow would likely result in great bodily harm or death.” In light of her actual testimony, however, that J.’s injuries could have been caused by being hit with a pillow, her answer might well have been, “Yes, indeed.” Moreover, this assumes the jury believed defendant’s testimony that he merely hit J. with a pillow. It did not have to.
Finally, as we held in part IV, ante, the trial court was not required to instruct on any lesser included offenses. Accordingly, defense counsel’s failure to request any such instructions was neither deficient performance nor prejudicial.
We therefore conclude that the trial court did not err by denying defendant’s motion for new trial.
VII
THE DENIAL OF DEFENDANT’S ROMERO MOTION
Defendant contends that the trial court abused its discretion by denying his Romero motion.
A. Additional Factual Background.
Defendant had one prior juvenile adjudication:
June 1995: First degree burglary (Pen. Code, § 459), a felony. He was sentenced to 14 days in jail. This was the strike prior.
He also had the following prior adult convictions (excluding minor vehicular offenses):
December 1995: Burglary (Pen. Code, § 459), a felony. He was placed on probation for three years, on conditions including a 180-day jail term.
In August 1997, he violated his probation. His probation was reinstated, on conditions including a 240-day jail term.
September 2000: Infliction of a corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a)), a felony. He was placed on probation for three years, on conditions including a 150-day jail term.
November 2000: Resisting an officer (Pen. Code, § 148), a misdemeanor. He was sentenced to 180 days in jail. This offense also constituted a violation of his probation, for which he was sentenced to two years in prison.
August 2001: Infliction of a corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a)), a misdemeanor. He was sentenced to 150 days in jail.
March 2003: Petty theft with a prior (Pen. Code, § 666), a felony. He was sentenced to two years in prison. In April 2004, he was released on parole. In August 2004, he violated his parole and was returned to prison. In April 2005, he was released on parole again.
Defendant’s continued contact with C. constituted a violation of his parole.
B. Additional Procedural Background.
Defendant filed a written Romero motion. In it, he argued that the strike prior was remote, that the circumstances of the current offense were not aggravated, and that he had acted as caregiver for his children.
The trial court denied the motion. It explained that defendant’s current offense was “particularly egregious, ” that he had “stayed in the system, ” and that his caring for his children had been a violation of his parole.
C. Analysis.
In Romero, the Supreme Court held that a trial court has discretion to dismiss a three-strikes prior felony conviction allegation under Penal Code section 1385. (People v. Superior Court (Romero), supra, 13 Cal.4th at pp. 529-530.) The focus of the analysis must be on “‘whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.’ [Citation.]” (People v. Carmony (2004) 33 Cal.4th 367, 377.)
“[A] trial court’s refusal or failure to dismiss or strike a prior conviction allegation under section 1385 is subject to review for abuse of discretion.” (People v. Carmony, supra, 33 Cal.4th at p. 375.) “[W]e are guided by two fundamental precepts. First, ‘“[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve the legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.”’ [Citation.] Second, a ‘“decision will not be reversed merely because reasonable people might disagree. ‘An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’”’ [Citation.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (Id. at pp. 376-377.)
“[T]he three strikes law... creates a strong presumption that any sentence that conforms to [its] sentencing norms is both rational and proper.” (People v. Carmony, supra, 33 Cal.4th at p. 378.) “Because the circumstances must be ‘extraordinary... by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack’ [citation], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary. Of course, in such an extraordinary case — where the relevant factors... manifestly support the striking of a prior conviction and no reasonable minds could differ — the failure to strike would constitute an abuse of discretion.” (Ibid.)
There are no extraordinary circumstances in this case. Defendant had a recidivist history of serious or violent crimes, accentuated by probation and parole violations. As the trial court correctly observed, “He has not remained crime[ ]free, and although maybe young men as they grow older mature and stay out of the system, Mr. Williams appears to have not learned his lessons at all....”
Defendant argues that the strike prior was remote and was committed when he was a teenager. “The argument that [strike priors] are remote in time is without merit where, as here, the defendant has led a continuous life of crime. [Citation.]” (People v. Pearson (2008) 165 Cal.App.4th 740, 749.) He also argues that his intervening offenses were “de minimis.” Not so. Even though they were not new strikes, three of them were felonies, and at least two of them — for infliction of a corporal injury of a cohabitant — featured violence resulting in the actual infliction of injury.
Defendant also argues that his “attempt[] to fulfill his responsibilities as a parent mi[lit]ates in favor of his stability and prospects for the future, despite the fact that in doing so, he violated the terms of his parole.” It takes a lot of nerve to argue this in a case where defendant’s “attempt to fulfill his responsibilities as a parent” ended up in his inflicting crippling injuries on his child. That is to say nothing of the fact that it was, as he concedes, a parole violation, which invokes the spirit of the three strikes law.
Defendant compares himself to the defendant in People v. Williams (1998) 17 Cal.4th 148, arguing that he has “a much more limited adult criminal history, ” as well as a more favorable “background and prospects.” This argument misses the mark. In Williams, the Supreme Court held that the trial court abused its discretion by striking a strike prior. (Id. at pp. 162-164.) The mere fact that defendant’s circumstances are arguably less egregious does not mean that the trial court was therefore required to strike his prior.
For all these reasons, we conclude that the trial court did not abuse its discretion by denying defendant’s Romero motion.
VIII
DISPOSITION
The judgment is affirmed.
We concur: McKINSTER Acting P.J., MILLER J.
“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 former spouse or cohabitant or former cohabitant, a person with whom the defendant has had a child, or a person who has dated or is dating the defendant, or a person who was or is engaged to the defendant.
“Domestic violence means abuse committed against the child of the defendant.
“Abuse means intentionally or recklessly causing or attempting to cause bodily jury [sic] or placing another person in reasonable fear of [im]minent 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 purpose 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, 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 the instant offense 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 the instant offense. The People must still prove the charge and allegation beyond a reasonable doubt.”