Opinion
F076861
11-23-2020
THE PEOPLE, Plaintiff and Respondent, v. GONZALO OROPEZA GARIBAY, Defendant and Appellant.
Derek K. Kowata, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Stephanie A. Mitchell, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF164945A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Brian N. McNamara, Judge. Derek K. Kowata, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Stephanie A. Mitchell, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Hours after confirming that his wife was having an affair, appellant Gonzalo Oropeza Garibay strangled her to death. He claimed that her death occurred during a heated argument and mutual fight. A jury convicted him of second degree murder (Pen. Code, § 187, subd. (a)), and he was sentenced to 15 years to life in prison with the possibility of parole.
Based on alleged evidentiary and instructional errors, appellant asserts that his conviction should be reversed. We reject those arguments. We agree with appellant, however, that the trial court imposed an unauthorized criminal protective order. We direct the court to strike that order, but otherwise affirm the judgment.
BACKGROUND
Appellant had been married to his wife, Rosa, since 1994. They had three children together. Their oldest son was 21 years old at the time of Rosa's death. The other two children were under 10 years old. The family resided together in Bakersfield, California.
It was undisputed at trial that appellant strangled Rosa to death. The prosecution sought a conviction of first degree murder. In contrast, the defense argued that voluntary manslaughter was appropriate based on heat of passion. The jury rejected both of those positions.
I. The Events Leading up to the Murder
In the year prior to the homicide, appellant and Rosa's martial relationship had been very poor and deteriorating. In late 2014, Rosa went to Mexico with the two youngest children, and she remained there until appellant asked her to return home in March 2015. While in Mexico, she had liposuction and breast enhancement surgery despite appellant's objections that she did not need those procedures. After she came home, Rosa said that she wanted a separation. She indicated that she had met someone. According to appellant, she showed him no affection after she returned.
Appellant and Rosa were sleeping in separate bedrooms. Their adult son saw his mother yell at appellant on almost a daily basis, and she told appellant that she no longer loved him. The son testified that his mother was "more detached from the family" in the six months before her death, and she was often on her cell phone. Rosa had informed her sisters that she wanted a divorce. Rosa told her goddaughter that her marriage was violent.
Appellant admitted to both law enforcement and to the jury that, prior to Rosa's death, he had been dating another woman for about five months. He said that he ended his affair about two to four weeks before Rosa's death. He told the jury that he started the affair "to forget" Rosa because she was not loving him. However, he also claimed to have ended his affair because he wanted to remain married. He told police that, while he was not sure Rosa knew about his affair, he believed she may have suspected it.
Prior to Rosa's death, appellant began to suspect that she was seeing another man. She was often gone from their residence on the weekends, and she would not tell him her plans. On July 15, 2016, appellant discovered that Rosa was at a motel. Using his second cell phone, which he had placed inside Rosa's vehicle, appellant had tracked her movements. He went to the motel and confirmed that her vehicle was parked there. He rented a room at the same motel and he waited.
During that night, appellant consumed beer. He told the jury that he began imagining that she was having sex, and he became very angry. Early the following morning, he saw Rosa outside with a man. Appellant confronted them outside. A surveillance camera recorded the events, which were played for the jury. Appellant and the man had a brief fight, and Rosa tried to separate them. She was accidentally punched in her face. The other man drove away. Appellant and Rosa remained talking in the parking lot.
At trial, appellant testified that it was the other man who accidentally punched Rosa during this incident. Other witnesses, however, testified that, just after this incident, Rosa had confided to them that appellant had found her at the motel with the other man. Rosa told them that appellant had accidentally struck her during this incident. Rosa told some family members that she was going to stay with one of her sisters that night because she was afraid of appellant.
After talking for a while, appellant drove home and Rosa drove to work. While driving they continued talking to each other on their cell phones. According to appellant, Rosa told him that she did not care what he thought, and she had been with five other men. Appellant told the jury that he was very upset. He returned home and he intended to confront Rosa when she got home after work. He testified that he did not intend to harm her.
II. Appellant Murders Rosa and Hides Her Body
Appellant told police and he testified at trial that he strangled Rosa in their residence during a violent argument that occurred when she returned home from work on Saturday, July 16, 2016.
Prior to Rosa returning home that day, their oldest son found appellant at the residence upset. Appellant told the jury that he confided to his son that Rosa had been with someone else.
Sometime that afternoon, Rosa returned home and she sat in her vehicle in the garage. She refused to get out while appellant was trying to speak with her. Their son told the jury that appellant was talking in a "normal" way with Rosa at that time. After about 30 minutes, Rosa came inside the residence. She told her son to take the other children to get some food. The children left.
Appellant and Rosa's adult son testified at trial that he had never seen his father act violently towards anyone. He described appellant as a calm person. He never saw his parents fight physically and he never saw his father act aggressively towards his mother. He claimed that he never saw his mother with any injuries or bruises to her face. He told the jury that his mother was never afraid of appellant.
The adult son testified that his parents did not appear upset when he left. The children were gone for less than an hour. When they returned, the adult son left the younger children with some food in the kitchen, and he went to his room. He did not hear anything wrong in the residence.
According to appellant, however, sometime after the children had left the residence, he and Rosa had started to argue. Appellant testified that Rosa told him that she had had a great time at the motel, and she had had "very good sex" with the man. Appellant told the jury that he was getting "madder and madder."
According to appellant, their argument turned violent, and they began to hit each other. They were fighting in the master bathroom, and he said he "snapped." During their altercation, he grabbed her neck. He claimed to have done so to stop her from hitting him. While he was squeezing her neck, they fell into the bathtub. He continued to hold onto her neck after they fell, and he eventually realized that she was unresponsive. He claimed that he tried to perform CPR for about 10 minutes. At some point he realized that she was deceased. He cleaned some blood from her body and he removed her clothes. He used bleach to clean blood around the bathtub. He left her body in the bathtub behind a closed shower curtain. At that point, his children had returned home. Appellant closed the door to the bedroom, and he went to the living room to "join the family." Later that night, he placed Rosa's body in the trunk of his vehicle. He drove out-of-town to a remote area, where he abandoned her.
When he confessed to law enforcement, appellant said there had been a lot of blood in the bathroom. He said that Rosa had been bleeding "from the blows" he had inflicted upon her before he had grabbed her neck.
When appellant returned home, he wiped down parts of the exterior of his vehicle with a bleach wipe. The next day, he took the rug out of the trunk and he scrubbed it with bleach. He took the vehicle to a car wash, where it was cleaned and vacuumed.
Appellant told the jury that he never alerted authorities about his actions because he was scared. He testified that, when he killed Rosa, he was feeling "intense emotion" and was not thinking straight at that time. He testified that he never intended to assault or kill her.
After appellant was arrested, he spoke with his brother-in-law from jail. A recording of that telephone call was played for the jury. In part, appellant said he and Rosa had fought, they slapped each other and they wrestled. He said he was "blinded by the jealousy," "lost his head," and "snapped."
III. Appellant Lies About Rosa's Whereabouts
In the days following Rosa's murder, some of her family members inquired about her whereabouts. Appellant told people that he did not know where she was, and he gave various explanations. He told one person that he had caught her with another man, and he told another that Rosa may have left with a man. At least one of Rosa's family members told appellant to call the police. He said he was going to wait until that Thursday to alert authorities.
On Monday, July 18, 2016, Rosa's sister and her brother-in-law (who was also Rosa's supervisor at work) called the police and reported that Rosa was missing. Officers searched appellant and Rosa's residence via a search warrant. Appellant informed police that he and Rosa were distant, and she spent time away from him. He said that she was no longer cooking, cleaning or taking care of the children. He told police that he did not report her missing because he thought it was too soon. Officers found Rosa's purse and cell phone in the house.
On July 20, 2016, appellant voluntarily spoke with detectives at the police station. The conversation lasted for hours, and it was recorded and played for the jury. Appellant initially denied knowing Rosa's whereabouts. Appellant, however, eventually agreed to accompany two law enforcement personnel in a vehicle. In the early morning hours of July 21, 2016, and after driving around for many hours, appellant ultimately directed them to the location of Rosa's body. He had left her naked in a steep mountain area.
That same day, law enforcement discovered human blood in the trunk of appellant's vehicle.
On July 25, 2016, a forensic pathologist performed an autopsy on Rosa's body, which was in an advanced state of decomposition. At trial, the pathologist confirmed that Rosa died due to strangulation. Due to the condition of her body, however, the pathologist could not determine bruising or external injuries.
IV. Appellant's Prior Incidents with Rosa
The jury heard about certain prior incidents involving appellant and Rosa. The majority of appellant's claims in this appeal pertain to the introduction of this evidence.
A. The Altercation with the Garage Door
Sometime before their youngest son was born, Rosa's family held a baby shower for her and appellant. Rosa told one of her sisters that appellant did not want to let her go to the shower. Appellant lowered the garage door when she tried to leave, which "scratched up" their vehicle.
B. The May 2015 Incident That Led to Appellant's Arrest in a Prior Case
In May 2015, appellant and Rosa had an argument in their master bedroom. It was overheard by their adult son. Rosa dialed 911, but appellant forced the phone from her hand. A 911 operator called back, and Rosa reported that her husband had hit her. An officer responded to the residence, and he spoke with Rosa and appellant. She had a "knot" below her right eye, and her left eye was blackened. She had an abrasion on the left side of her lip. She told the officer that appellant had forced open a bathroom door, which Rosa had held shut. According to Rosa, the door had hit her in the face.
Appellant was arrested. He later called Rosa from jail, and their conversation was recorded and played for the jury in this matter. Appellant told her multiple times that it was "an accident." He told her to "remove the charges or something because it is not true and if not, then we're going to be here for a while." She told him that she got a restraining order against him, and she did not want to be near him. Following this conversation, appellant attempted to telephone Rosa numerous times from jail, but she blocked those calls.
Some of Rosa's family members testified in this trial about that prior incident. Rosa told one sister that appellant had hit her with the bathroom door. The sister testified that Rosa had a black eye from that prior incident. Rosa's brother-in-law testified that Rosa told him that appellant had accidentally hit her in the eye when he was closing a door. She had a black eye at work.
The jury learned that this prior criminal matter resolved after appellant entered a conditional plea. The prosecutor eventually dismissed that case. Appellant told the jury that, sometime after this May 2015 incident, Rosa mentioned to him the idea of getting a divorce.
C. Rosa Suspects Appellant is Tracking Her Movements
One of Rosa's sisters told the jury that Rosa had been concerned that appellant always seemed to know where she was when she was away from home. Rosa thought appellant must be doing something to track her movements.
D. The Facebook Message
Sometime in 2015, Rosa sent a Facebook message to one of her sisters. It warned that "if something happens to me, then tell the police that it was Chalo." The message explained that appellant "threatens me" sometimes and he "tells me things, and that's why I want to let you all know." Rosa stated that no one else had a motive to hurt her. The sister testified that Rosa had told her the same thing in person. This sister told the jury that Rosa was afraid at first, but later she did not think appellant would hurt her because he had been afraid of the police after the May 2015 arrest.
Appellant's nickname is Chalo.
During his testimony, appellant denied that he ever threatened Rosa or said anything that would cause her concern.
DISCUSSION
I. We Decline to Hold Evidence Code Section 1109 is Unconstitutional
The prior incidents involving appellant and Rosa were introduced at trial pursuant to Evidence Code section 1109. Enacted in 1996, section 1109 applies in a criminal action in which the defendant is accused of an offense involving domestic violence. It permits admission of other uncharged acts of domestic violence if that evidence is not inadmissible under section 352. (§ 1109, subd. (a)(1); People v. Flores (2009) 176 Cal.App.4th 1171, 1175.)
All future statutory references are to the Evidence Code unless otherwise noted. As set forth in CALCRIM No. 852A, a jury may consider other uncharged acts of domestic violence if the prosecution has proved by a preponderance of the evidence that the defendant in fact committed those other acts. (See People v. Carpenter (1997) 15 Cal.4th 312, 382 [preponderance of the evidence is the proper standard for uncharged crimes], superseded on other grounds as stated in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106.)
Under section 352, a trial court may exclude otherwise admissible evidence if its probative value is substantially outweighed by its prejudicial effect; that is, if its admission would result in the undue consumption of time, a danger of undue prejudice, confusion about the issues or the danger of misleading the jury.
Appellant contends that section 1109 should be deemed unconstitutional. He maintains that it denies due process and a fair trial, and it weakens the prosecution's burden of proof. However, he also concedes that California courts have consistently upheld sections 1108 and 1109. He raises this claim to preserve it for further appellate review. He states that our Supreme Court should reexamine its holding in People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta).
Section 1108 has a similar provision regarding the admission of other sexual offenses. (§ 1108, subd. (a).) Sections 1108 and 1109 have been deemed "complementary portions" of the same statutory scheme. (People v. Brown (2000) 77 Cal.App.4th 1324, 1333.) Sections 1108 and 1109 each provide exceptions to section 1101, which prohibits the introduction of character evidence to prove a defendant's propensity to commit conduct on a specific occasion. (§ 1101, subd. (a).)
In Falsetta, our high court held that due process was not violated when evidence of a defendant's prior sexual acts was admitted under section 1108. (Falsetta, supra, 21 Cal.4th at p. 917.) Falsetta reached this conclusion, in part, by relying on a trial court's ability to exclude unduly prejudicial evidence under section 352. The Falsetta court determined that section 1108 does not improperly alter or reduce the prosecution's burden of proof. (Falsetta, supra, 21 Cal.4th at pp. 919-920.)
Appellant submits that, in the decades following Falsetta, the protections under section 352 "are nothing more than gossamer dreams." According to appellant, sections 1108 and 1109 ignore centuries of precedent barring propensity evidence. He asserts that appellate courts almost always determine that a trial court did not abuse its discretion when permitting introduction of evidence under section 1108. He concludes that our Supreme Court should reexamine whether section 352 has been the "effective filter" which Falsetta intended.
We reject appellant's constitutional challenge. Both sections 1108 and 1109 have already withstood numerous such claims. (See People v. Villatoro (2012) 54 Cal.4th 1152, 1160 [section 1108 satisfies due process], citing Falsetta, supra, 21 Cal.4th at p. 917; People v. Merchant (2019) 40 Cal.App.5th 1179, 1194 [section 1109 satisfies due process]; People v. Brown (2011) 192 Cal.App.4th 1222, 1233, fn. 14 [section 1109 is constitutional, citing numerous opinions].)
Moreover, our high court has continued to uphold Falsetta and reject similar due process challenges. (See People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 827.) We are bound by our high court's holdings. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455-456.) Thus, we decline to hold that section 1109 is unconstitutional.
II. The Trial Court Did Not Abuse its Discretion in Permitting Introduction of the Evidence Regarding Appellant's Prior Acts of Domestic Violence and Any Presumed Error was Harmless
In addition to his assertion that section 1109 is unconstitutional, appellant argues that, as used in his trial, this statute violated his rights to due process. He seeks reversal of his conviction.
In his opening brief, appellant states that evidence of his prior acts of domestic violence "may have been presumptively admissible" under section 1109. He contends, however, that the trial court should have excluded this evidence under section 352. He notes that the only contested issue in his trial was whether he was provoked and acted in the heat of passion when killing Rosa. He asserts that allowing the prosecution to introduce into evidence his prior acts of domestic violence lowered the burden of proof to prove the murder charge beyond a reasonable doubt. He contends that, given the "crucial role" section 352 has in preserving the constitutionality of section 1109 and in preserving the fairness of the trial proceedings, the trial court should have excluded the uncharged acts as being more prejudicial than probative. He maintains that he received a fundamentally unfair trial.
We reject appellant's arguments. The trial court did not abuse its discretion and any presumed error was harmless.
In part, respondent asserts that appellant has forfeited this claim. Respondent concedes that appellant's trial counsel objected to the admission of this evidence on multiple grounds, but respondent argues that the defense only objected under section 352 on one occasion. In contrast, appellant contends that he did enough to preserve this issue for appeal. In the alternative, appellant maintains that we should reach the merits of his claim because it raises an important question of constitutional law or a substantial right. We need not fully respond to the parties' disputed assertions regarding forfeiture. Instead, we determine that, even if this claim is not forfeited, it nevertheless fails on its merits. As such, we decline to further address the forfeiture issue.
A. The Court Did Not Abuse its Discretion
We review section 352 rulings for abuse of discretion. (People v. Rowland (1992) 4 Cal.4th 238, 264.) Under this standard, we will not disturb the trial court's decision on appeal unless " 'the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.' " (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125; see People v. Williams (1998) 17 Cal.4th 148, 162 [abuse-of-discretion review asks whether ruling in question falls outside bounds of reason under applicable law and relevant facts].)
Four factors are considered when analyzing whether prior acts are more prejudicial than probative: "(1) the inflammatory nature of the uncharged conduct; (2) the possibility of confusion of issues; (3) remoteness in time of the uncharged offenses; and (4) the amount of time involved in introducing and refuting the evidence of uncharged offenses." (People v. Branch (2001) 91 Cal.App.4th 274, 282, citing People v. Harris (1998) 60 Cal.App.4th 727, 737-741.)
Our high court has cautioned that the admission of evidence involving a defendant's prior crimes has an inflammatory and prejudicial impact on a jury, and such evidence produces a very strong tendency to believe that the defendant is guilty of the charge merely because he is likely to do such acts. (People v. Holt (1984) 37 Cal.3d 436, 450-451.) As a result, evidence of prior specific acts of misconduct is ordinarily inadmissible to attack a witness's credibility. (Id. at p. 451.) Where such evidence is relevant for another purpose, a trial court should receive it " 'with "extreme caution," its admissibility "examined with care," and in the event of uncertainty as to its connection with the offense charged "the doubt should be resolved in favor of the accused." ' " (Ibid.)
Here, the court heard extensive arguments about this disputed evidence. When issuing its evidentiary ruling, the court excluded three prior incidents involving appellant and Rosa. The court deemed that those three prohibited incidents were too remote in time. However, the court permitted into evidence the incidents which we have summarized earlier in this opinion. We conclude that the court did not abuse its discretion.
The three excluded incidents involved: (1) an allegation that appellant hit and beat Rosa when she was going to get a baby bottle when their oldest son was a baby; (2) an allegation that appellant's grandmother intervened on a different occasion when he was beating Rosa; and (3) an allegation that appellant confronted Rosa over an issue with their vehicle, and he was yelling at her.
As an initial matter, we note that appellant was the only witness to Rosa's death. As such, appellant's propensity evidence was especially compelling in this case because Rosa could not testify. (See People v. Avila (2014) 59 Cal.4th 496, 515 [holding that the need for propensity evidence in a sexual assault case was "especially compelling" because the sexual assault victim was killed], citing People v. Story (2009) 45 Cal.4th 1282, 1293.)
Appellant's prior incidents with Rosa were relevant to the charge of first degree premeditated murder. The prior incidents tended to suggest that appellant held an ongoing intent to injure Rosa. This evidence also suggested that appellant held animosity towards her that went far beyond the anger he felt on the day he discovered her affair and killed her. Thus, appellant's prior acts with Rosa had probative value.
However, the facts and circumstances surrounding appellant's prior incidents with Rosa paled in comparison with her homicide. When compared to how appellant killed Rosa, treated her body, and then lied about her whereabouts, the prior incidents were not at all inflammatory or likely to cause the jury to want to punish appellant. In addition, the prior incidents were not likely to confuse the issues or mislead the jury. Appellant's prior incidents were very dissimilar from the murder.
Based on this record, we cannot declare that introduction of the evidence about appellant's prior conduct with Rosa was more prejudicial than probative. (§ 352.) As such, the court did not exercise its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. The court's evidentiary ruling did not fall outside the bounds of reason under the applicable law and relevant facts. Thus, an abuse of discretion did not occur. (See People v. Rodrigues, supra, 8 Cal.4th at pp. 1124-1125; People v. Williams, supra, 17 Cal.4th at p. 162.) Consequently, reversal is not required for an alleged abuse of discretion. In any event, we also conclude that any presumed error was harmless.
B. Any Presumed Error was Harmless
Even if evidentiary error occurred, we hold that prejudice did not occur. Appellant contends that prejudice should be analyzed under the federal standard of Chapman v. California (1967) 386 U.S. 18, 24. We disagree. Due process is not offended by the admission of relevant evidence unless it is so prejudicial as to render the criminal trial fundamentally unfair. (People v. Jablonski (2006) 37 Cal.4th 774, 805.) We cannot state that the introduction of this disputed evidence rendered appellant's trial fundamentally unfair. In the absence of fundamental unfairness, the harmless error test of People v. Watson (1956) 46 Cal.2d 818, 836 is used to analyze an alleged evidentiary error that involves state law. (People v. Partida (2005) 37 Cal.4th 428, 439.) The question is "whether it is reasonably probable the verdict would have been more favorable to the defendant absent the error." (Ibid.)
In this matter, the trial court made it clear to the jurors that appellant was presumed innocent, and the prosecution was required to prove his guilt beyond a reasonable doubt. Regarding the prior uncharged incidents, the court told the jurors that, if they decided that appellant committed those acts, they could, but were not required to, conclude from the evidence that appellant was disposed or inclined to commit violence. Based on that decision, the jurors could conclude that appellant was likely to commit and did commit the charged offense or a lesser included offense. However, the jurors were told that this conclusion was "only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that [appellant] is guilty of the charged offense or lesser included offense as charged here." We presume the jurors understood these instructions and followed them. (People v. Gonzales (2011) 51 Cal.4th 894, 940.)
It was undisputed that appellant killed Rosa. The only issue the jury had to determine was whether the murder should be elevated to first degree or reduced to voluntary manslaughter. Although appellant informed the jury that he had acted in a heat of passion when he strangled his wife to death, it is clear that the jury rejected that portion of his defense.
The jury knew that appellant had learned of Rosa's affair earlier that morning and had hours to think about her infidelity before he killed her. Although he claimed that, once Rosa was nonresponsive, he had tried to perform CPR for about 10 minutes, he never called 911 on her behalf or otherwise attempted to summon authorities to render aid to her. Moreover, he tried to hide evidence of his crime, and he lied about her whereabouts for a number of days. We reject his assertion that his murder conviction was "guaranteed" because the jury heard about his prior incidents with Rosa. To the contrary, appellant fails to explain convincingly how jurors would have interpreted the instructions to permit them to find him guilty of murder without basing their verdict on the evidence surrounding her homicide.
Based on this record, it is not reasonably probable that appellant would have received a more favorable verdict had the alleged evidentiary errors not occurred. Consequently, any presumed evidentiary error is harmless. Therefore, reversal of appellant's conviction is not required, and this claim fails.
III. Reversal is Not Required Based on the Jury Instruction Provided Under CALCRIM No. 852A
Appellant contends that his murder conviction must be reversed because of CALCRIM No. 852A, which was used to instruct the jury regarding his prior incidents with Rosa. According to appellant, this instruction is flawed. He argues it allowed the jurors to infer his guilt based on propensity, it confused and misled the jury about the burden of proof, and it violated his due process rights.
Appellant acknowledges that our Supreme Court has approved "substantially similar instructions," and we are required to follow that precedent. However, he raises this issue to preserve it for possible future appellate review.
A. The Jury Instruction Given in This Matter
Based on CALCRIM No. 852A, the trial court instructed the jury that the prosecution had presented evidence about the following acts which had not been charged in this matter: (1) the May 12, 2015, incident (which led to appellant's prior arrest); (2) appellant's use of GPS to track Rosa; (3) appellant closing the garage door on Rosa's vehicle; (4) the incident at the motel on the morning of Rosa's death; and (5) Rosa's Facebook message indicating that appellant had threatened her. The jurors were told that they could consider this evidence only if the prosecution had proven by a preponderance of the evidence that appellant had committed these uncharged acts of domestic violence. The jurors were told to disregard this evidence entirely if the People had not met this burden.
The court informed the jurors that, if they decided appellant committed the uncharged acts, they could (but were not required to) conclude from the evidence that appellant was disposed or inclined to commit violence. Based on that decision, the jurors were permitted to also conclude that appellant was likely to commit and did commit the charged offense or lesser included offense. The jurors were told, if they concluded that appellant 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 [appellant] is guilty of the charged offense or lesser included offense as charged here. [The] People must still prove that charge beyond a reasonable doubt. Do not consider this evidence for any other purpose except for the limited purpose of intent and motive."
B. California Courts Have Upheld the Language of This Instruction
Appellant contends that CALCRIM No. 852A "confuses and misleads the jury about the burden of proof and what must be proved in order to find the defendant guilty of the charged offense." For instance, he notes that with CALCRIM No. 223 the jury was told that, before it could rely on circumstantial evidence to conclude a fact necessary to find him guilty, the People had to prove each fact essential to that conclusion beyond a reasonable doubt. Appellant asserts that CALCRIM No. 852A contradicts this instruction because jurors are permitted to use facts which are proven only by a preponderance of the evidence to infer his disposition to engage in domestic violence.
Our Supreme Court has already rejected similar claims to the one appellant advances here. In People v. Reliford (2003) 29 Cal.4th 1007 (Reliford), the 1999 version of CALJIC No. 2.50.01 (which involved evidence of uncharged sex crimes) was upheld. (Reliford, at pp. 1012-1016.) In relevant part, the instruction in Reliford told the jurors that, if they found that the defendant committed a prior sexual offense involving the victim, "you may, but are not required to, infer that the defendant had a disposition to commit the same or similar type sexual offenses. If you find that the defendant had this disposition, you may, but are not required to, infer that he was likely to commit and did commit the crime of which he is accused." (Id. at p. 1012.) The jury was also told, however, that such evidence was "not sufficient by itself to prove beyond a reasonable doubt that he committed the charged crime. The weight and significance of the evidence, if any, are for you to decide." (Ibid.) The jury was told not to consider this evidence for any other purpose. (Ibid.)
It is undisputed that appellant's trial counsel did not object to the jury instruction based on CALCRIM No. 852A. As such, respondent contends, in part, that appellant has forfeited this claim. Appellant, however, asserts that forfeiture is not appropriate because this alleged instructional error impacted his substantial rights. Because appellant contends this jury instruction is erroneous and it impacts his substantial rights, we will review this claim despite his failure to object below. (See Pen. Code, § 1259; People v. Coffman and Marlow (2004) 34 Cal.4th 1, 103, fn. 34.)
Appellant notes that "the precise distinctions" between sections 1108 and 1109 are not pertinent to the issues he raises in this appeal, and these statutes "can properly be read together as complementary portions of the same statutory scheme."
Reliford explained, when a defendant commits other sex offenses, that evidence is at least circumstantially relevant to the issue of his disposition or propensity to commit the charged sexual offenses. (Reliford, supra, 29 Cal.4th at p. 1012.) The jury instruction, however, informs the jurors that they may, but are not required to, infer from this evidence that the defendant was likely to commit, and did commit, the charged offense. The Reliford court found this "a legitimate inference." (Id. at p. 1013.)
Reliford rejected a claim that the 1999 version of CALJIC No. 2.50.01 lessened the prosecution's burden of proof. (Reliford, supra, 29 Cal.4th at p. 1013.) The instruction did not tell the jury that "it may rest a conviction solely on evidence of prior offenses." Instead, jurors were told, if they found by a preponderance of the evidence that the defendant committed a prior sexual offense, " 'that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged crime.' " (Ibid.)
The Reliford court noted that the jurors were told to consider the instructions as a whole. Moreover, a guilty verdict requires a union or joint operation of act with the requisite intent. For each offense charged, the jurors were told that "a conviction required proof of 'each' of those elements." (Reliford, supra, 29 Cal.4th at p. 1013.) Reliford agreed with other courts that "a conviction based solely on the uncharged conduct is 'a logical impossibility.' " (Id. at p. 1014.)
Here, the instruction under CALCRIM No. 852A was substantially similar to the instruction upheld in Reliford. The jurors were told that appellant's uncharged acts of domestic violence were insufficient, without more, to prove his guilt in this matter. The jurors were instructed that the prosecution was still required to prove appellant's guilt beyond a reasonable doubt, and they could not consider his acts of uncharged domestic violence for any purpose except for intent and motive.
We reject appellant's assertions that reversal is required because CALCRIM No. 852A is both allegedly "internally inconsistent" and inconsistent with other instructions given to the jury. To the contrary, our high court has emphasized that a jury may be instructed on multiple standards of proof in the same case, even when the different standards must be applied to the same evidence for the purpose of making different determinations. Our Supreme Court presumes that "jurors can grasp their duty—as stated in the instructions—to apply the preponderance-of-the-evidence standard to the preliminary fact identified in the instruction and to apply the reasonable-doubt standard for all other determinations." (Reliford, supra, 29 Cal.4th at p. 1016.) In any event, appellant does not direct us to anything in this record that reasonably suggests the jurors may have been confused by the instructions given to them. Instead, we presume the jurors understood the instructions, and they applied them appropriately. (People v. Gonzales, supra, 51 Cal.4th at p. 940.)
California appellate courts have upheld the instruction under CALCRIM No. 852A. (See People v. Johnson (2008) 164 Cal.App.4th 731, 739-740 [examining CALCRIM No. 852, the predecessor to CALCRIM No. 852A]; People v. Reyes (2008) 160 Cal.App.4th 246, 253 [same].) Moreover, our high court has continued to follow its holding from Reliford. (See People v. Lewis (2009) 46 Cal.4th 1255, 1297-1298.)
We disagree with appellant that CALCRIM No. 852A is "fatally flawed" because it allows jurors to infer commission of the charged offense based on prior acts which are established by a preponderance of the evidence. Moreover, and contrary to appellant's suggestions, CALCRIM No. 852A does not tell jurors that they may ignore the general presumption of innocence and infer guilt based upon prior behavior. Finally, appellant's due process arguments are without merit because the prosecution was required to prove each element of the murder charge beyond a reasonable doubt. (See In re Winship (1970) 397 U.S. 358, 364 [the Due Process Clause protects against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime].)
Based on how our Supreme Court has handled similar challenges to the jury instruction for section 1108, we decline to hold that CALCRIM No. 852A misstates the law. Consequently, instructional error did not occur, and this claim fails.
Because CALCRIM No. 852A does not misstate the law, we do not address appellant's arguments regarding prejudice.
IV. The Trial Court Shall Strike in Its Entirety the Criminal Protective Order
At sentencing, and over defense objection, the trial court issued a 32-year criminal protective order pursuant to Penal Code section 136.2. The order prohibited appellant from having contact with 14 members of Rosa's family.
Appellant notes that the handwritten list of protected persons attached to the order "is not exactly the same as the list recited by the court." We agree that some of the names differ in spelling. In addition, some of the names on the handwritten list are difficult to read. However, substantial similarities exist between the written list and the names which the court recited.
Appellant asserts that the entire protective order must be stricken. Respondent concedes that error occurred. According to respondent, the order is improper for 13 of the named family members, and any such order may not last longer than 10 years. Respondent, however, asserts that the protective order should remain in place for one person, appellant's sister-in-law, T.F.
A. The Background Facts
At the sentencing hearing, the prosecutor read a letter from T.F., which had been attached to the probation report. T.F. was present at sentencing, and she had asked the prosecutor to read her statements.
T.F. wrote that appellant should receive a prison sentence without the chance of parole. She wrote that he was a danger to society, a danger to his children, "and especially, a danger to me and my family." T.F. explained in her letter that appellant had never shown remorse for his "heinous crime and instead did the contrary as he casted [sic] vengeful stares at me after my testimony in court. I'm not sure if the jury took notice of this and I'm scared for my life."
After the prosecutor submitted the matter, the judge told the prosecutor that it had found "certain comments" made by T.F. "disturbing to the court," and the judge asked the prosecutor if she thought "anything needs to be done based on the fear at this time." The prosecutor suggested a protective order. The judge said he would "put that together . . . on behalf of [T.F.] and her family."
After a recess following the imposition of sentence, the court stated for the record that the prosecutor had talked to Rosa's family members and they wanted a protective order. Defense counsel objected that an "insufficient basis" existed for such an order. The defense also requested that any orders or rulings be subject to any visitation rights established in family law court.
The court noted that appellant's children were not among the listed people on the request for a protective order. The court stated that it would not prohibit contact between appellant and his family members to the extent it related to "the family law issue."
The prosecutor said that the people on the protected list were "victims in this case as defined by law because they are directly related with Rosa Garibay, and brutally murdering someone, close relative does qualify as cause and of concern with the court, and as well, . . . the other contact observed and reported by [T.F.]"
In imposing the protective order, the court stated that it had considered the "overall emotion and what transpired throughout this whole case," and "the concerns of the family, particularly, [T.F.] . . . ." The court stated that T.F.'s statements had been concerning. The court said, "I did notice a reaction. It was genuine and it does extend, the court does feel in terms of the big picture here to protect the family and to make sure that there is no further development, whatever that may be, depending on what happens legally from this point forward." The court issued a criminal protective order pursuant to Penal Code section 136.2. The order was dated January 5, 2018. It prohibited appellant from having contact with 14 individuals, including T.F., until January 21, 2050.
B. Analysis
Penal Code section 136.2 authorizes a trial court, in part, to issue a protective order either for victims of domestic violence and/or for percipient witnesses of domestic violence after a defendant has been convicted of a crime involving domestic violence. (Pen. Code, § 136.2, subd. (i)(1) & (2).)
To issue a protective order for a percipient witness in a domestic violence case, clear and convincing evidence must establish that the witness has been "harassed" by the defendant. (Pen. Code, § 136.2, subd. (i)(2).) For purposes of this statute, the term "harassment" is defined as "unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose. The course of conduct must be that which would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the petitioner." (Code Civ. Proc., § 527.6, subd. (b)(3); see Pen. Code, § 136.2, subd. (i)(2).)
The " 'clear and convincing' " evidentiary standard " 'requires a finding of high probability.' " (In re Angelia P. (1981) 28 Cal.3d 908, 919.) The evidence must be " 'so clear as to leave no substantial doubt' " and it must be " 'sufficiently strong to command the unhesitating assent of every reasonable mind.' " (Sheehan v. Sullivan (1899) 126 Cal. 189, 193; accord, In re Angelia P., at p. 919.)
Respondent concedes that Rosa's family members do not qualify for a protective order as victims of appellant's domestic violence. In addition, respondent concedes that, other than T.F., there is no evidence that any of these individuals had been "harassed" by appellant. Respondent, however, argues that T.F. would qualify for a protective order as a witness in this domestic violence case.
Apart from a lack of evidence showing harassment, respondent notes that 11 of the 14 individuals named in the protective order did not testify in this matter.
We agree with respondent that none of Rosa's family members qualify for a protective order as victims of appellant's domestic abuse. (See Pen. Code, § 136.2, subd. (i)(1).) We also agree with respondent that, setting T.F. aside, there is no evidence establishing or even suggesting that appellant had harassed the individuals named in the protective order. Thus, it was improper for the court to issue a protective order as to those 13 individuals. (See Pen. Code, § 136.2, subd. (i)(2).) At a minimum, they must be stricken from the order. We focus our analysis to the only disputed issue: whether T.F. must also be stricken from the protective order.
Respondent concedes that any protective order issued for T.F. may only last 10 years and not the 32 years which the court imposed. (Pen. Code, § 136.2, subd. (i)(1).)
Respondent contends that clear and convincing evidence established that appellant harassed T.F. because he gave her "vengeful stares" during her testimony in court. In contrast, appellant asserts, even if he gave her such a stare, that was not legally sufficient to constitute harassment. We find that appellant has the better argument.
We have no doubt that T.F. suffered substantial emotional distress stemming from appellant's horrific actions with Rosa. However, nothing in this record demonstrates or even reasonably suggests that appellant committed violence or made a credible threat of violence directed at T.F. Moreover, even if appellant stared at T.F. in court, nothing demonstrates how many times he did so, how long such behavior occurred, or over what time period this behavior continued. It is unknown whether or not appellant's behavior was limited to a single day or extended over a period of days. It is impossible to determine how long appellant looked at T.F. on any given occasion. Moreover, it is impossible to discern how appellant looked at her in a way that expressed supposed vengefulness.
Although T.F. stated that she was afraid of appellant, this record does not demonstrate with clear and convincing evidence that appellant had engaged in a course of conduct directed at her that would cause a reasonable person to suffer substantial emotional distress. As such, we agree with appellant that, based on the record before us, T.F. was not "harassed" as that term is used in Penal Code section 136.2, subdivision (i)(2). Thus, T.F. does not qualify for a protective order under this statute as a percipient witness of domestic violence. Accordingly, the protective order was unauthorized for all the named individuals, and it must be stricken in its entirety.
DISPOSITION
The trial court shall strike the January 5, 2018, protective order it issued pursuant to Penal Code section 136.2. In all other respects, the judgment is affirmed.
DE SANTOS, J. WE CONCUR: HILL, P.J. DETJEN, J.