Filed 7/28/26 P. v. Allen CA5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F088796
Plaintiff and Respondent,
(Super. Ct. No. MCR079666)
v.
SCOTT LEE ALLEN, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Madera County. Dale J. Blea,
Judge.
Janice M. Lagerlof, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney
General, Kimberley A. Donohue, Assistant Attorney General, Charlotte Woodfork and
Henry J. Valle, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
A jury convicted defendant Scott Lee Allen guilty of second degree murder of his
girlfriend. He was sentenced to 30 years to life in prison.
On appeal, Allen contends the trial court prejudicially erred by denying his request
to recall the prosecution’s expert witness in forensic pathology, violating his
constitutional rights to present a defense and cross-examine a witness. He also argues the
court abused its discretion by admitting evidence of two prior domestic violence
convictions. We reject Allen’s contentions and affirm the judgment.
PROCEDURAL BACKGROUND
On May 20, 2024, the Madera County District Attorney filed an information
charging Allen with murder (Pen. Code, § 187, subd. (a), count 1).1 As to count 1, the
information also alleged that Allen had suffered a prior serious felony conviction (§§ 667,
subd. (a)(1), 245, subd. (a)(1)), which also qualified as a prior strike conviction within the
meaning of the “Three Strikes” law (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)).
On August 21, 2024, a jury found Allen guilty of second degree murder, but not
guilty of first degree murder. On the same day, at a bifurcated proceeding, the trial court
found true that Allen had suffered a prior serious felony conviction (§ 245, subd. (a)(1)).2
On October 14, 2024, the trial court sentenced Allen to an indeterminate term
of 30 years to life as follows: on count 1, 15 years to life, doubled pursuant to the
Three Strikes law, plus five years for the prior serious felony enhancement, stayed
pursuant to section 654.3
1 Undesignated statutory references are to the Penal Code.
2 Allen agreed to waive his right to a jury trial on his prior conviction allegations.
3 The trial court declined to strike Allen’s prior strike conviction under People v.
Superior Court (Romero) (1996) 13 Cal.4th 497.
2.
FACTUAL BACKGROUND
I. The Prosecution’s Case-in-Chief
In December 2023,4 M.B. and Allen were in a dating relationship and lived
together in a trailer. M.B.’s cousin, E.M., lived in her car near M.B.’s trailer.
On December 14, at about 10:30 a.m., E.M. saw M.B. sitting on the steps of her
trailer. E.M. noticed that M.B. appeared weak, upset, and was crying. M.B. also
appeared sick, clammy, and “paler than normal.” M.B. talked to E.M. for about
five minutes and told E.M. she was hungry. Allen was inside their trailer at the time.
E.M. left and went to another trailer to heat up water for an “instant noodles” soup
she was going to give M.B. After the soup was made, E.M. walked back towards M.B.’s
trailer but saw the door was shut. She stopped and talked to friends nearby for about
10 minutes. Then, E.M. saw Allen exit his trailer and point to a firetruck. He asked E.M.
to summon it. E.M. directed the firetruck to Allen and M.B.’s trailer. Allen went inside.
E.M. followed and saw M.B. lying on the floor unconscious.
Paramedics arrived at the trailer park at about 1:30 p.m. on the afternoon of
December 14. They found M.B. inside her trailer “slumped over” on the ground,
undressed, and unconscious. There was vomit on the side of M.B.’s mouth and on her
shirt. She was taken to the hospital. On the way, one of the paramedics noticed injuries
to M.B.’s hip and lower lip, and her jaw was clenched.
M.B. arrived at the hospital at about 2:15 p.m. and was provided with “life-saving
measures.” She was unresponsive and had facial swelling, and multiple cuts and bruises
on her face. At about 5:00 p.m., a nurse called law enforcement at the direction of a
doctor at the hospital.
Sheriff’s Deputy Brandon Smith arrived at the hospital at about 5:45 p.m. Smith
observed M.B. while she was intubated and sedated in the emergency room. Smith also
4 Undesignated dates are in the year 2023 unless otherwise specified.
3.
saw M.B.’s injuries, which included a swollen lip and chin, “red marks” on the left side
of her face, and a bruise to her left eye. Smith reported back to Sergeant Charlie
Robertson regarding what he observed in the hospital. Robertson drove to Allen’s trailer
to talk to him at about 6:00 p.m. When Robertson contacted Allen, he noticed Allen’s
hand had a scab and dried blood on it.
Detective Stanley Prince arrived at the hospital around 10:00 p.m. while M.B. was
in the emergency room. Prince stayed until the early hours of the next morning and
spoke to M.B.’s family members, however, Allen never came to the hospital.
Later, E.M. was with a neighbor when she saw Allen cleaning the inside of his
trailer. At about 9:00 p.m., E.M. saw Allen leave and get into a sport utility vehicle
carrying a “black duffle bag.”
P.M., a close friend of Allen, received a call that M.B. was in the hospital. P.M.
went to Allen’s trailer to talk to him. Allen told P.M. that M.B. was in the hospital
because she “wouldn’t shut the f*** up.” Allen also told P.M. that he slapped M.B. and
she must have fallen and hit her head. Allen appeared worried.
On December 15, at about 7:00 a.m., police officers went to Allen’s trailer. Allen
did not answer their repeated knocks, so they broke down the door and detained him.
Prior Uncharged Acts of Domestic Violence
Five witnesses testified at trial regarding Allen’s past acts of domestic violence.
E.M. witnessed several disagreements between M.B. and Allen prior to December 14.
On one occasion, while Allen, E.M. and M.B. played dice, Allen lifted his hand and
“smacked [M.B.] across the mouth.” M.B. appeared shocked after Allen hit her, and he
seemed angry. E.M. also saw physical injuries on M.B. approximately three different
times. On another occasion, E.M. saw M.B. with two black eyes. On two other
occasions, E.M. saw bruises on M.B.’s arm and lower face. The bruises on M.B.’s arm
were consistent with hand marks like she had been grabbed.
4.
J.H. was a friend of M.B.’s for 20 years and a foster parent to M.B.’s daughters.
J.H. observed injuries on M.B. while she was dating Allen. One time at night, J.H. saw
M.B. limping from behind the dumpster of an apartment complex. M.B. approached
J.H.’s car and put her head into the car. J.H. observed a bruise on her jaw and “knuckle
marks.” On another occasion, J.H. saw M.B.’s stomach was bruised. When the pair
arrived at M.B.’s trailer, Allen approached them and said, “ ‘What are you doing here,
b****?’ ” M.B. told Allen that she lived there too. Allen then stated, “ ‘You need to
leave, b****, or I’m going to f***ing kill you.’ ” M.B. walked into the trailer. Allen
started up his lawn mower and threw gravel at J.H.’s car so she left.
M.B.’s daughter, A.C., saw an argument between M.B. and Allen in their trailer
about a year prior to M.B.’s death. On that occasion, A.C. initially got into an argument
with Allen. However, once M.B. got involved, the argument turned into a confrontation
between M.B. and Allen. Allen told M.B., “ ‘Shut the f*** up, [M.B.], or I’ll kill you.’ ”
M.B.’s face became pale, and she left with A.C.
A.C. never saw Allen physically assault M.B. However, while M.B. lived with
Allen, A.C. saw M.B. with two black eyes on several occasions, stab wounds to her lower
bicep area of both arms, pellet wounds to her legs, bruising along her jawline, bloody
wounds to her neck, a “busted” forehead, and bumps on her head.
M.B.’s niece, A.G., recalled two incidents involving arguments between M.B. and
Allen. The first time, A.G. saw Allen raise his hands like he was going to hit M.B., but
he stopped when he saw A.G. watching. Thereafter, M.B. was “crying and scared”
because Allen told her that if she did not “ ‘shut the f*** up’ ” he would beat her up.
A.G. also saw M.B. with a black eye approximately one and a half weeks before her
death.
M.B.’s aunt, C.E., witnessed an argument between Allen and M.B. in their trailer.
Allen told M.B. to “shut up” or he would hit her. When M.B. continued talking, Allen
punched M.B. in the back of the head, hitting her on the left side. After Allen struck
5.
M.B. she cried and asked C.E. to contact the police. C.E. did not contact police. C.E.
observed M.B. with injuries on other occasions, including a time when C.E. saw M.B.
with two black eyes and a scratch on her forehead.
1. Expert Testimony
Dr. S.W. Andrews5 provided expert witness testimony in the field of forensic
pathology. A forensic pathologist is a physician who is subspecialty trained in forensics
to determine and interpret injuries to assist in determining the cause of death. Andrews
explained that the cause of death is the disease or injury that led to physiological changes
in the body that leads to death. However, the manner of death is the circumstances
surrounding the death.
Andrews conducted M.B.’s autopsy on December 20. During the external
examination, there were several injuries documented to M.B.’s body, including bruising
on her upper left eyelid, on her left lower lip that extended down to her chin, on the inner
surface of her lip, along her left jaw, on the left and right sides of her chest, on both arms,
and on both thighs. M.B. also had internal injuries to her face and head.
Andrews’s internal examination included the removal and examination of M.B.’s
brain. The left side of M.B.’s brain had a 36 gram subdural hematoma, or blood clot,
underneath the dura layer of the brain. Given M.B.’s external injuries, the subdural
hematoma was consistent with trauma. The external traumatic injuries seen on M.B.
were consistent with blunt impacts to the head that caused the subdural hematoma. A
loss of consciousness is consistent with a subdural hematoma.
Andrews determined M.B.’s death was caused by “blunt head trauma.” The
manner of death was undetermined; M.B.’s injuries could have been either inflicted or
accidental. M.B.’s injuries were not clear, and thus, Andrews could not opine as to
5 Throughout his opening brief Allen refers to the prosecution’s forensic pathologist
as “Dr. Adams.” The record shows his last name is Andrews, thus, we refer to him by
this name.
6.
exactly the circumstances that led to her death. It is not easy to recreate a scene of what
happened based on an individual’s observations during an autopsy.
An examination of M.B.’s organs revealed an enlarged heart and spleen,
fluid-filled lungs, and cirrhotic liver. M.B.’s enlarged heart is indicative of an individual
with high blood pressure. An individual with a cirrhotic liver tends to bruise and bleed
more easily with minimal impact. However, despite M.B.’s medical condition, the
bruising on her face was consistent with blunt head trauma that led to the subdural
hematoma. Hypertension caused by high blood pressure, and diabetes caused by high
blood sugar, can both affect an individual’s balance.
II. The Defense Case-in-Chief
C.E. testified that M.B.’s “legs were always hurting her” and she walked slow.
M.B. would get “diabetic ulcers” and big sores on her legs. C.E. saw M.B. trip in the
past.
J.P. was Allen’s friend for several years and knew M.B. nearly her “whole life.”
About a year prior, J.P saw M.B. with a “knot on her head” without blood spatter. While
Allen and M.B. were living together in the trailer, J.P. saw M.B. hit her head on the
refrigerator because she was upset. J.P. never saw Allen hit M.B.
Allen testified in his own defense. He denied “beating [M.B.] to death.” On
December 14, M.B. came inside their trailer and used the bathroom because she had
“messed on herself.” M.B. appeared lethargic, her demeanor was quiet and slow. Allen
was alarmed but also thought M.B. was mad at him for not going to bed with her the
previous night. M.B. then cooked Allen noodles. While he was eating the noodles, Allen
told M.B. to sit down because she looked tired. M.B. told him that she did not want to
die. M.B. then went back into the bathroom.
Then, Allen heard and felt a “big thump” coming from the bathroom. When Allen
looked up, he saw M.B. “going backwards” over the handrail towards the front of the
trailer. Allen got up from the table and found M.B. unconscious in the bathroom. M.B.’s
7.
clothes were stuck in the door jamb. Eventually, Allen was able to get M.B. moved onto
the trailer floor where he sat her up. Allen did not notice the vomit until he returned to
the trailer after calling 911.
When the paramedics arrived, Allen told them M.B. “became unconscious and
fell.” Allen was nervous, scared, and relieved during the incident. He was relieved
because M.B. was sick, needed a lot of help, and he “got tired of helping her.” Later that
day, Allen cleaned up the vomit and tidied up the trailer. He placed M.B.’s soiled
clothing in an ice chest. Allen also fixed a broken wall inside the trailer. When law
enforcement came to the trailer the next day, Allen heard the knock but “went back to
sleep.”
Allen denied telling P.M. that he hit M.B. on December 14. However, he admitted
he hit M.B. on the head on a prior occasion when C.E. was at the trailer. He also slapped
M.B. in front of E.M.
Since Allen and M.B. began living together in March 2018, M.B.’s mobility
became increasingly worse. In the two weeks leading up to M.B.’s death, Allen saw her
fall on more than one occasion. Allen never visited M.B. in the hospital before she died.
Generally, M.B. was never quiet and Allen and M.B. got into several arguments; at times
he physically struck her. Nonetheless, Allen was not afraid of M.B.
DISCUSSION
I. Denial of Request to Recall a Witness
Allen contends the trial court prejudicially impacted his right to confront and
cross-examine the witnesses against him when it denied his request to recall Andrews to
testify regarding M.B.’s diabetic condition. He argues his constitutional rights under the
Sixth and Fourteenth Amendments were violated by the court’s ruling, which deprived
him of the ability to fully present his defense to the jury. The People maintain the court
properly exercised its discretion in denying recall, and regardless, Allen failed to
demonstrate prejudicial error even if abuse occurred. We agree with the People.
8.
A. Additional Background
1. Trial Testimony
Andrews testified on behalf of the prosecution and was cross-examined by defense
counsel. Andrews determined M.B.’s cause of death to be “blunt head trauma” but could
not opine as to the circumstances that caused the injury. There was nothing that indicated
M.B.’s injuries were inflicted; however, Andrews also could not determine if she fell.
Andrews was unable to determine how the injuries were caused and could not preclude or
confirm whether the injuries were caused by a fall, a fist, or weapon. Andrews testified
on cross-examination that M.B.’s hypertension and diabetes could have caused her to
become dizzy and fall.
Allen testified on behalf of himself. Allen stated that M.B. told him prior to
falling that she “did [not] want to die.”
2. The Parties’ Arguments
After Allen testified, defense counsel requested recall of Andrews regarding
M.B.’s diabetic condition and how it may have caused her to lose consciousness and fall,
consistent with Allen’s testimony. Defense counsel argued E.M.’s testimony also
supported recall, which showed M.B. had a diabetic episode.
The prosecutor pointed out that while M.B. was in the ambulance on the way to
the hospital, her blood sugar was in the “range of normal.” However, there was no
evidence showing M.B.’s exact blood sugar level on the day of the incident.
Upon defense counsel’s request, the trial court granted him a telephone
conversation with Andrews to explore M.B.’s diabetic condition. Thereafter, defense
counsel renewed his request to recall Andrews. He argued that Andrews would be able to
opine in more detail regarding M.B.’s diabetic condition, and specifically, whether
E.M.’s testimony regarding how M.B. appeared lethargic, pale, and hungry on the day of
the incident was consistent with an individual having a diabetic episode. Defense counsel
also wanted Andrews to comment on Allen’s testimony regarding M.B.’s “feelings of
9.
impending doom.” Defense counsel contended additional testimony from Andrews was
relevant to the defense theory that M.B.’s death was caused by a fall due to her diabetic
condition.
The prosecutor again objected on the grounds that the proposed subject matter was
speculative, not supported by evidence, and would cause confusion and delay. The
prosecutor also noted Andrews’s training and experience did not involve analysis of
diabetic conditions and he was extensively cross-examined by defense counsel.
3. The Trial Court’s Ruling
The trial court denied defense counsel’s request, finding “minimal” value in
recalling Andrews. The court reasoned that E.M.’s observations were in the record
before Andrews testified and could have been addressed on cross-examination. The court
also noted that Andrews testified that the physical conditions from which M.B. suffered,
including hypertension and diabetes, can cause dizziness. Thus, the jury heard expert
testimony that supported Allen’s theory that M.B.’s diabetes caused her to collapse.
B. Legal Standard
Evidence Code section 774 provides that “[a] witness once examined cannot be
reexamined as to the same matter without leave of the court, but he may be reexamined
as to any new matter upon which he has been examined by another party to the action.
Leave may be granted or withheld in the court’s discretion.” A court may permit a
witness to be recalled when recalling would clarify inconsistencies in the witness’s
testimony. (People v. Thomas (1992) 2 Cal.4th 489, 542.) However, if further
examination “would necessarily be cumulative and repetitious of matters already inquired
into,” a court may refuse to allow recall. (People v. Flynn (1958) 166 Cal.App.2d 501,
512.)
We review a trial court’s decision declining to allow recall of a witness for abuse
of discretion. (People v. Thomas, supra, 2 Cal.4th at p. 542.) “[W]here a trial court has
discretionary power to decide an issue, a reviewing court will not disturb that decision
10.
unless the trial court has exceeded the limits of legal discretion by making an arbitrary,
capricious, or patently absurd determination.” (Adoption of D.S.C. (1979) 93 Cal.App.3d
14, 24–25.)
C. No Abuse of Discretion in Refusing to Allow Recall
The trial court did not abuse its discretion when it refused to allow defense counsel
to recall Andrews. Defense counsel had the opportunity to cross-examine Andrews
regarding E.M.’s testimony and M.B.’s medical and diabetic conditions. When asked if
M.B. had a medical condition that would impair her “ability to balance,” Andrews
responded: “If there—if an individual’s blood pressure is too high, you can get dizzy and
certainly fall. [¶] Based on the medical records, there was a history of diabetes. High
blood sugar can cause dizziness. There were factors, yes.” The areas of additional
questioning according to the offer of proof were, at best, cumulative to defense counsel’s
prior questioning. Allen offered no explanation as to why the additional areas of inquiry
were not adequately explored during defense counsel’s extensive cross-examination of
Andrews.
Moreover, Andrews’s opinion regarding whether M.B. fell because she harbored
feelings of “impending doom” was irrelevant and speculative (see Evid. Code, §§ 774,
350). Andrews testified he did not know the exact circumstances that led to M.B.’s
death. Thus, the trial court’s decision to deny Allen’s request was well within the
boundaries of its discretion in controlling the presentation of evidence at trial. (Pen.
Code, § 1044 [“It shall be the duty of the judge to control all proceedings during the trial,
and to limit the introduction of evidence and the argument of counsel to relevant and
material matters, with a view to the expeditious and effective ascertainment of the truth
regarding the matters involved”].)
Allen argues that the trial court erred by not providing the statutory authority that
it was relying on when it denied his request. Allen further contends the court erred when
11.
it excluded the testimony under Evidence Code section 352 because it did not discuss
potential prejudice or undue time consumption. We disagree.
Any erroneous reasoning of the trial court in reaching the correct ruling at a
hearing regarding the admissibility of evidence does not warrant reversal on appeal. (See
People v. Turner (2020) 10 Cal.5th 786, 807 [we “review the trial court’s ruling, not its
reasoning”]; see also People v. Dickens (2005) 130 Cal.App.4th 1245, 1254.) The court
also acted within its discretion under Evidence Code section 352 to exclude marginally
relevant testimony, cumulative to the testimony already produced, which was likely to
necessitate undue consumption of time. (Kessler v. Gray (1978) 77 Cal.App.3d 284, 291
[“reasonable exercise of trial court discretion pursuant to Evidence Code section 352
requires that the trial judge balance the probative value of the offered evidence against its
potential of prejudice, undue consumption of time, and confusion”].) Defense counsel
told the court he wanted to recall Andrews to ask additional questions regarding M.B.’s
diabetic condition and her feelings of doom on the day of the incident. The court
reasonably concluded that this topic was already extensively discussed and not
sufficiently significant to justify recalling him. This ruling was not error. (Evid. Code,
§§ 350, 352.)
Allen recognizes his motion for recall was not a request to reopen because
Andrews was not excused. (See Evid. Code, § 778 [once a witness has been excused in
the action, he cannot be recalled without leave of court].) Nonetheless, Allen contends
we should use the factors for analyzing a request to reopen here. Evidence Code
section 778 limits the ability to recall a witness by vesting the trial court with the
discretion to allow recall or not, and thus, the analysis is the same. The issue in this case
is why the court refused the request. The court found Allen had ample opportunity to
present and elicit evidence regarding M.B.’s diabetic condition, and further questioning
regarding the topic added little value to his case.
12.
In sum, the trial court did not abuse its discretion in denying defense counsel’s
request to recall Andrews because (1) he had ample opportunity to cross-examine
Andrews regarding M.B.’s diabetic condition; (2) further examination “would necessarily
be cumulative and repetitious of matters already inquired into” (People v. Flynn, supra,
166 Cal.App.2d at p. 512); and (3) defense counsel’s offer of proof was highly
speculative and irrelevant.
D. The Trial Court Did Not Violate Allen’s Constitutional Right to Confront
Adverse Witnesses Nor Is There Prejudice On This Record
A criminal defendant is guaranteed the right to confront the prosecution’s
witnesses under both the federal and state Constitutions. (U.S. Const., 6th Amend.; Cal.
Const., art. I, § 15; see Crane v. Kentucky (1986) 476 U.S. 683, 690.) The right,
however, is not absolute. (See, e.g., People v. Gray (2023) 15 Cal.5th 152, 173; see also
People v. Williams (2008) 43 Cal.4th 584, 618.) “ ‘As a general matter, the ordinary
rules of evidence do not impermissibly infringe on the accused’s right to present a
defense. Courts retain, moreover, a traditional and intrinsic power to exercise discretion
to control the admission of evidence in the interests of orderly procedure and the
avoidance of prejudice.’ ” (People v. Jones (1998) 17 Cal.4th 279, 305.) “Although
completely excluding evidence of an accused’s defense theoretically could rise to this
level, excluding defense evidence on a minor or subsidiary point does not impair an
accused’s due process right to present a defense. [Citation] If the trial court misstepped,
‘[t]he trial court’s ruling was an error of law merely; there was no refusal to allow
[defendant] to present a defense, but only a rejection of some evidence concerning the
defense.’ [Citation.] Accordingly, the proper standard of review is that announced in
People v. Watson (1956) 46 Cal.2d 818, 836, and not the stricter
beyond-a-reasonable-doubt standard reserved for errors of constitutional dimension
(Chapman v. California (1967) 386 U.S. 18, 24).” (People v. Fudge (1994) 7 Cal.4th
1075, 1103.)
13.
Considering our conclusion the trial court did not abuse its discretion, we further
conclude that the court’s refusal to allow the additional examination of Andrews did not
violate Allen’s constitutional right to confront adverse witnesses. (See, e.g., People v.
Quartermain (1997) 16 Cal.4th 600, 623 [“notwithstanding the confrontation clause, a
trial court may restrict” examination of witnesses on the grounds stated in Evidence Code
section 352]; see also People v. Jones, supra, 17 Cal.4th at p. 305.) Allen was not
precluded from trying to prove the cause of M.B.’s death was a fall due to her diabetic
condition. Rather, defense counsel was precluded from attempting to prove it through
cumulative, speculative testimony that was not particularly probative.
Even if we presume the trial court erred in denying Allen’s request to recall
Andrews as a witness, the denial could not possibly have affected the outcome. Defense
counsel cross-examined Andrews regarding M.B.’s medical conditions, and the
likelihood that those conditions may have caused her to fall. Both E.M. and Allen
testified regarding M.B.’s physical appearance and feelings on the day of the incident,
which defense counsel urged was consistent with a diabetic episode. As Allen concedes
on appeal, defense counsel argued extensively to the jury that M.B.’s cause of death was
from an accidental fall. We also point out that there was other significant evidence that
was not consistent with M.B. suffering from a fall. This included P.M.’s testimony, the
testimony from witnesses revealing turmoil and domestic violence in M.B.’s and Allen’s
relationship, and Allen’s actions after the incident occurred.
Thus, the evidence was more than sufficient to lead a reasonable jury to convict
Allen. Under any standard of review, the evidentiary ruling was harmless. (Chapman v.
California, supra, 386 U.S. at p. 24; People v. Watson, supra, 46 Cal.2d at p. 836.)
II. Prior Convictions Admitted Pursuant to Evidence Code Section 1109
Allen argues the trial court abused its discretion when it admitted evidence of his
prior domestic violence convictions under Evidence Code section 1109. He contends the
14.
evidence should have been excluded under Evidence Code section 352, and the court’s
error requires reversal. The People respond that the court properly exercised its
discretion when it admitted Allen’s prior convictions because they were highly probative
of his propensity to commit the current crime, and notwithstanding, any error was
harmless. We agree with the People.
A. Additional Background
Prior to trial, the parties filed competing motions in limine regarding Allen’s prior
domestic violence convictions (§ 273.5, subd. (a)) in 2007 and 2012 and prior uncharged
acts of domestic violence against M.B.
At the Evidence Code section 402 hearing on the motions, the trial court heard
testimony from five witnesses.6 After the witnesses’ testimony, the prosecutor asked to
admit Allen’s 2007 felony and 2012 misdemeanor convictions. He argued that while
they were more than 10 years old, the convictions were admissible in the interest of
justice because there is a “clear pattern” of domestic violence. The prosecutor noted that
he did not intend to introduce the facts underlying the convictions. The prosecutor
further argued the witnesses’ testimony should be admissible because it is direct evidence
of prior domestic violence.
Defense counsel opposed the request because of the age gap between Allen’s prior
convictions and the current offense, and the fact that the convictions were against a
different victim. Defense counsel also opposed introducing testimony from the witnesses
regarding the prior uncharged acts of domestic violence against M.B. on the grounds that
it was speculative, not relevant, and would confuse the jury.
The trial court found Allen’s two prior domestic violence convictions admissible.
The court also concluded that the five witnesses were able to testify at trial regarding
6 The five witnesses who testified at the hearing regarding M.B. and Allen’s
relationship were as follows: E.M., J.H., A.C., A.G., and C.E. These were the same
witnesses who testified at trial as set forth above.
15.
Allen’s past acts of domestic violence against M.B. The court’s reasoning, in full, is as
follows:
“The two incidents which led to [Allen’s] prior domestic violence
convictions are similar to the circumstances of the present matter .… Each
case involved [Allen] becoming frustrated with different domestic partners
and striking … the partners.… In the instant matter, [Allen] indicated …
that [M.B.] ‘just wouldn’t shut up,’ implying that this was the cause of her
injury.
“Each of these incidents suggest[s] that [Allen] has a difficult time
coping with and addressing interpersonal conflict between himself and his
intimate partners without resorting to violence. Evidence of each of these
… assaults came from … different sources … eliminating the possibility of
fabrication. Because the 2007 and 2012 assaults resulted in criminal
convictions[,] it is unlikely that [Allen] could produce evidence to rebut the
testimony of witnesses to those prior incidents. This reduces potential
unfairness ….
“Because each of the incidents is separated in time and involve[s]
different victims and witnesses, it is unlikely that the evidence of the earlier
convictions would unduly confuse the jury. The presentation of evidence
of the prior uncharged acts will not consume an unreasonable amount of
time as the [prosecution] intend[s] to offer [Allen]’s records of conviction
in those matters as the only evidence.
“While evidence of the prior acts may be inflammatory, the injuries
suffered by the victims were relatively minor. The 2012 incident resulted
in a misdemeanor conviction.… [I]t cannot be disputed that the past
conduct is less egregious and inflammatory than the conduct involved in
the present matter which is alleged to have resulted in [M.B.’s] death.
“The remoteness of the prior uncharged acts, occurring 11 and
16 years prior to the instant matter, is certainly a factor to consider in
evaluating the probative value of the evidence of those earlier acts. The
remote nature of a prior conviction becomes more significant when it is
followed by a period during which the convicted person refrains from
committing additional acts of domestic violence. The significance of the
passage of time wains … when, as here, a person continues to assault his
intimate partners. Still, subdivision (e) of [Evidence Code] [s]ection 1109
requires that evidence of acts, including convictions, occurring more than
10 years before the charged offense [is] inadmissible absent a specific
finding that the interest of justice demands [its] admission.
16.
“[T]here is evidence of ongoing domestic violence perpetrated by
[Allen] against [M.B.] The evidence … [of] violence was in the form of
actual physical abuse such as [Allen] slapping [M.B.], striking her in the
mouth with the back of his hand and punching her in the temple with his
fist. Each of the witnesses …, with the exception of [E.M.], testified to
observing injuries to [M.B.] that are consistent with those sustained during
incidents of domestic violence. Each of the witnesses … testified that they
personally, on different occasions, heard [Allen] threaten to kill [M.B.]
The credibility of these threats and the reasonableness of [M.B.]’s
apprehension that the threats would result in imminent bodily injury is
amplified by the times when [Allen] … struck her.
“The evidence received … suggests that [Allen] has failed to
reevaluate and alter his conduct toward his domestic partners following his
2007 and 2012 convictions. To exclude evidence of the prior convictions
and the prior acts of domestic violence by [Allen] against [M.B.] would, in
substance, permit [Allen] to represent to the jury that his admission to
slapping [M.B.] one or two days before her death was an isolated incident
and not part of a much longer history of domestic violence perpetrated by
[Allen] against his domestic partners. It is clear to the court that this would
be a misrepresentation and would mislead the jury. Accordingly, the court
finds that it is in the interest of justice, within the meaning of [Evidence
Code] [s]ection 1109[, subdivision ](e), to permit the [prosecution] to
present evidence of [Allen]’s 2007 and 2012 convictions for violations of
… section 273.5[, subdivision ](a), as well as the testimony of witness[es]
who observed past acts of domestic violence committed by [Allen] against
[M.B.]”
The parties stipulated Allen was convicted of felony domestic violence in 2007,
and misdemeanor domestic violence in 2012. No facts underlying these convictions were
admitted into evidence.
The five witnesses testified as described above, and no further objections were
made as to the admissibility of their testimony under Evidence Code section 1109 at trial.
B. Relevant Law and Standard of Review
Evidence of a defendant’s conduct is generally inadmissible when offered to prove
his or her conduct on a specified occasion. (Evid. Code, § 1101, subd. (a).) However,
Evidence Code section 1109 creates an exception to this rule in cases involving domestic
violence, which allows admission of evidence of the defendant’s commission of other
17.
domestic violence to show he has a propensity to commit such offenses.7 (Evid. Code,
§ 1109, subd. (a)(1); see People v. Hoover (2000) 77 Cal.App.4th 1020, 1024.) The
statute reflects the Legislative intent that in domestic violence cases, prior offenses are
uniquely probative of a defendant’s guilt on a later occasion. (People v. Johnson (2010)
185 Cal.App.4th 520, 532 (Johnson).) “The admission of prior acts as propensity
evidence encompasses both charged and uncharged acts.” (People v. Brown (2011) 192
Cal.App.4th 1222, 1233 (Brown).)
Admissible evidence under Evidence Code section 1109 is nonetheless still subject
to the weighing process under Evidence Code section 352, which “makes evidence of
past domestic violence inadmissible only if the court determines that its probative value
is ‘substantially outweighed’ by its prejudicial impact.”8 (Johnson, supra, 185
Cal.App.4th at p. 531; Evid. Code, § 1109, subd. (a)(1).) “The prejudice that [Evidence
Code] section 352 is designed to avoid is not the damage that naturally results from
highly probative evidence, but rather the prospect of leading the jury to prejudge a person
or focus on extraneous factors.” (People v. Merchant (2019) 40 Cal.App.5th 1179,
1192.)
Moreover, subdivision (e) of Evidence Code section 1109 contains an exception to
subdivision (a)’s rule of admissibility. Under subdivision (e), evidence of domestic
violence occurring more than 10 years before the charged offense is inadmissible, “unless
the court determines that the admission of this evidence is in the interest of justice.” (Id.,
7 Evidence Code section 1109, subdivision (a)(1) provides: “Except as provided in
subdivision (e) …, in 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 [Evidence Code] [s]ection 1101 if the evidence is
not inadmissible pursuant to [Evidence Code] [s]ection 352.”
8 Evidence Code section 352 provides: “The court in its discretion may exclude
evidence if its probative value is substantially outweighed by the probability that its
admission will (a) necessitate undue consumption of time or (b) create substantial danger
of undue prejudice, of confusing the issues, or of misleading the jury.”
18.
at subd. (e); italics added.) “Thus, while evidence of past domestic violence is
presumptively admissible under subdivision (a)(1), subdivision (e) establishes the
opposite presumption with respect to acts more than 10 years past.” (Johnson, supra, 185
Cal.App.4th at p. 537, fn. omitted.) Subdivision (e) does not prohibit evidence of such
remote acts, rather it “clearly anticipates that some remote prior incidents will be deemed
admissible and vests the courts with substantial discretion in setting an ‘interest of
justice’ standard.” (Johnson, at p. 539.) The inquiry is similar to the inquiry under
Evidence Code section 352, and “the ‘interest of justice’ exception is met where the trial
court engages in a balancing of factors for and against admission … and concludes
… that the evidence was ‘more probative than prejudicial.’ ” (Johnson, at pp. 539–540.)
The trial court has broad discretion to weigh the relevant factors because it is in
the best position to evaluate the evidence. (People v. Falsetta (1999) 21 Cal.4th 903,
917–918.) “[T]he court’s exercise of discretion will not be disturbed on appeal except
upon a showing that it was exercised in an arbitrary, capricious or patently absurd manner
that resulted in a manifest miscarriage of justice.” (Brown, supra, 192 Cal.App.4th at
p. 1233.)
C. Analysis
Allen claims evidence regarding his prior convictions for domestic violence
should have been excluded pursuant to Evidence Code section 352 because the evidence
was cumulative to the witnesses’ testimony regarding domestic violence and remote.
Thus, according to Allen, evidence of his prior convictions was more prejudicial than
probative.
We first turn to the probative value of the prior convictions. “ ‘ “The principal
factor affecting the probative value of an uncharged act is its similarity to the charged
offense.” ’ ” (Johnson, supra, 185 Cal.App.4th at p. 531.) By enacting Evidence Code
section 1109, the Legislature intended to make a prior incident admissible that is
“ ‘similar in character to the charged domestic violence crime, and which was committed
19.
against the victim of the charged crime or another similarly situated person.’ (Assem.
Com. on Public Safety, Analysis of Sen. Bill No. 1876 (1995–1996 Reg. Sess.) June 25,
1996, p. 5.)” (Johnson, at p. 532.)
Both the prior convictions and the circumstances in this case began during an
argument between Allen and his domestic partner. In the prior incidents, Allen struck the
different victims because he was upset. In the instant case, the evidence showed that
Allen was physically violent toward M.B. because she would not be quiet. Weighing in
favor of admissibility, the trial court found that the prior domestic violence convictions
were like the circumstances in the instant case because they both showed Allen struggled
with addressing interpersonal conflict with his domestic partners without resorting to
violence.
The trial court also found the evidence of the prior convictions would not confuse
or mislead the jury, particularly because the 2007 and 2012 convictions involved
different victims and were separated by time. (See People v. Ewoldt (1994) 7 Cal.4th
380, 404–405 [the probative value of uncharged conduct increased where independent
evidence of additional instances of similar misconduct committed pursuant to a common
design or plan were produced].)
The probative value of the evidence of the 2007 and 2012 convictions was not
“substantially outweighed” by its prejudicial effect. (Evid. Code, § 352.) The primary
factors affecting the prejudicial effect of uncharged acts are whether the evidence of
uncharged acts is stronger or more inflammatory than the evidence of the charged
offenses, and whether the uncharged acts resulted in criminal convictions, thus
minimizing the risk the jury would be motivated to punish the defendant for the
uncharged offense. (People v. Ewoldt, supra, 7 Cal.4th at p. 405.) As the court noted,
the evidence in the prior convictions was far less inflammatory than the circumstances in
the current case. The evidence that Allen stuck his domestic partners in 2007 and 2012
was very unlikely to have a significant impact compared to the evidence here, which
20.
resulted in serious physical injuries and death. (See, e.g., People v. Escobar (2000) 82
Cal.App.4th 1085, 1097.)
Nor do we believe that any motivation to punish Allen for the prior convictions
was a substantial issue. The parties stipulated Allen suffered a felony conviction in 2007
and a misdemeanor conviction in 2012 for domestic violence, and the jury could infer
that Allen was punished accordingly.9 (People v. Falsetta, supra, 21 Cal.4th at p. 917
[“the prejudicial impact of the evidence is reduced if the uncharged offenses resulted in
actual convictions and a prison term”].) The underlying facts related to those convictions
were not offered by the prosecutor, thus preventing confusion. Likewise, the court found
presentation of the evidence would not consume an inordinate time because it was
offered by stipulation, which took up one page of transcript.
The crux of Allen’s argument is that the prior convictions were too remote to be
probative of his disposition to engage in current domestic violence. However,
subdivision (e) of Evidence Code section 1109 “sets a threshold of presumed
inadmissibility, not the outer limit of admissibility.” (Johnson, supra, 185 Cal.App.4th at
p. 539.) There is no specific time limit for establishing when a prior offense is so remote
as to be deemed inadmissible. (People v. Pierce (2002) 104 Cal.App.4th 893, 900.) The
prior convictions here occurred approximately 12 and 17 years before trial, which is not
per se remote. (See People v. Branch (2001) 91 Cal.App.4th 274, 284 (Branch)
[evidence of a prior sex offense that was 30 years old was properly admitted].)
We acknowledge that a substantial gap between the prior acts and the charged
offense is, in theory, less probative that the defendant was predisposed to commit the
current offense. (See Branch, supra, 91 Cal.App.4th at p. 285.) This is certainly true if
9 Specifically, the parties stipulated that Allen was “convicted of inflicting corporal
injury resulting in a traumatic condition on a spouse or former spouse, cohabitant or
former cohabitant, fiancé or former fiancé, or someone with whom he was involved in a
dating or former dating relationship” pursuant to section 273.5, subdivision (a).
21.
the defendant has led a “blameless life in the interim.” (People v. Harris (1998) 60
Cal.App.4th 727, 739 [noting the “ ‘staleness’ of an offense is generally relevant … only
if the defendant has led a blameless life in the interim”].)
Allen, however, did not lead a blameless life. The five witnesses’ testimony
focused on Allen’s prior acts of domestic violence against M.B. during the eight years
they were in a dating relationship. E.M. and C.E. testified they witnessed Allen
physically abuse M.B. J.H. and A.C. testified Allen threatened to kill her. These
witnesses also noticed M.B. with multiple physical injuries, including bruises and stab
wounds, just weeks prior to the murder.
The trial court expressly addressed the remoteness of the prior convictions, applied
the presumption of inadmissibility (Evid. Code, § 1109, subd. (e)) but nonetheless
concluded the probative value was high because the prior acts evidence revealed a much
longer history of domestic violence perpetrated by Allen against M.B.10 (People v.
Kerley (2018) 23 Cal.App.5th 513, 535 (Kerley) [“ ‘ “Not only is there a great likelihood
that any one battering episode is part of a larger scheme of dominance and control, that
scheme usually escalates in frequency and severity” ’ ”].) For the reasons set forth
above, we also conclude that the similarities between Allen’s two prior convictions and
the instant case balance out any remoteness. (Branch, supra, 91 Cal.App.4th at p. 285;
People v. Pierce, supra, 104 Cal.App.4th at p. 900.) The court’s reasoning was sound.
Relying on People v. Disa (2016) 1 Cal.App.5th 654, Allen argues that
inflammatory details from the prior convictions were unduly prejudicial. In Disa, the
defendant admitted he killed his girlfriend by putting her in a chokehold, but denied the
murder was premeditated. (Id. at p. 657.) The defendant was convicted of premeditated
first degree murder. (Ibid.) The trial court admitted evidence of a prior domestic
10 The trial court further noted that Allen “has failed to reevaluate and alter his
conduct toward his domestic partners following his 2007 and 2012 convictions.”
22.
violence incident that the court acknowledged involved “ ‘totally different’ ” acts,
including a bloody knife attack on a former girlfriend that involved planning and hours of
waiting. (Id. at pp. 671–673.) The evidence was admitted under Evidence Code
section 1109 to show propensity to commit domestic violence but not premeditation and
deliberation. (Disa, at p. 673.)
The First District found there was a “serious risk” the jury would improperly use
the evidence of the defendant’s past conduct, which included extensive planning and
waiting, to find premeditation and deliberation in the current case. (People v. Disa,
supra, 1 Cal.App.5th at p. 673.) The Disa court found admission of the evidence of the
defendant’s past conduct “was highly inflammatory and was not specifically relevant to
the purpose for which the past incident of domestic violence was admitted, that is, to
show a propensity to do violence to a partner or former partner.” (Id. at p. 674.) The
court further held that the admission of the prior acts prejudiced the defendant, especially
because the evidence of premeditation and deliberation of the victim’s killing in the
charged case was underwhelming. (Id. at pp. 674–675.)
The facts in Disa are inapposite. The prior uncharged acts were less inflammatory
than the charged offense. The prior domestic violence convictions pale in comparison to
the murder committed here. Moreover, the evidence is directly relevant to Allen’s
propensity to commit violence against M.B., as well as a pattern of escalating
violence. The details of Allen’s prior conduct and convictions were not unduly
prejudicial merely because the evidence was damaging to his case—rather the
“prejudice” discussed in Evidence Code section 352 refers to evidence that “uniquely
tends to evoke an emotional bias against the defendant as an individual and which has
very little effect on the issues.” (People v. Poplar (1999) 70 Cal.App.4th 1129, 1138; see
Johnson, supra, 185 Cal.App.4th at p. 534.) In applying Evidence Code section 352, the
term “ ‘ “ ‘prejudicial’ is not synonymous with ‘damaging.’ ” ’ ” (Poplar, at p. 1138.)
“Painting a person faithfully is not, of itself, unfair.” (People v. Harris, supra, 60
23.
Cal.App.4th at p. 737.) The extent of the evidence relating to Allen’s prior acts of
domestic violence was squarely within the trial court’s “ ‘ “ ‘ “broad discretion” ’ ” ’ ” to
admit. (See Kerley, supra, 23 Cal.App.5th at p. 532.)
Viewing the evidence in the context of the trial as a whole, including the jury
instructions, witness testimony, and closing arguments, we conclude the charged offense
was “the primary focus of the trial.” (See Kerley, supra, 23 Cal.App.5th at p. 539
[evaluating whether the charged offense was the “primary focus” of the trial].) The
stipulation relating to the prior convictions was brief. Although Allen’s history of
abusing M.B. was comprised of five witnesses, it only took up one half day of trial
testimony and was not cumulative to the convictions, which involved different victims.
A greater amount of evidence was devoted to proving M.B.’s murder. Thus, because the
evidence of Allen’s prior convictions was presented to the jury by stipulation, not
inflammatory, and was highly probative of whether Allen had a propensity to batter his
partners, the trial court did not abuse its discretion in admitting them under Evidence
Code sections 352 and 1109.11 (See Johnson, supra, 185 Cal.App.4th at pp. 539–540
[“the ‘interest of justice’ exception is met where the trial court engages in a balancing of
factors for and against admission under [Evidence Code] section 352 and concludes
… that the evidence was ‘more probative than prejudicial’ ”].)
Finally, Allen argues the trial court erred in failing to provide a definition for the
term “traumatic condition” contained in CALCRIM No. 852A, and that CALCRIM
11 For the same reasons, we reject Allen’s argument that the admission of his
two prior convictions violated his right to due process and a fair trial. “Courts have
consistently rejected [the] claim … that the admission of propensity evidence under
[Evidence Code] section 1109 violates due process.” (People v. Merchant, supra, 40
Cal.App.5th at p. 1194; see Brown, supra, 192 Cal.App.4th at p. 1233, fn. 14 [noting
numerous courts have held “the admission of evidence pursuant to [Evidence Code]
section 1109 … does not violate a defendant’s rights to due process”].)
24.
No. 840 should also have been provided to the jury.12 Allen stipulated to his two prior
convictions (§ 273.5, subd. (a)). He further did not object to the jury instruction or
otherwise direct the court to provide an alternative instruction, and this failure forfeits
any state law instructional error. (People v. Mitchell (2019) 7 Cal.5th 561, 579.) While
we may review any instruction given despite the lack of objection if the substantial rights
of the defendant were affected, we see no reason to do so here, where Allen does not
make such claim.13 (Id. at p. 579; § 1259.)
D. Any Assumed Error in the Admission of Evidence was Harmless
There is also no prejudice on this record. Although the defense theory was that
M.B. suffered an accidental fall, as we discussed above, there was strong evidence
showing this was not the case. Allen and M.B. had been domestic partners for about
eight years. He had a history of engaging in physical violence and threatening M.B. On
the day of the murder, M.B. appeared upset and wanted food. When E.M. returned with
the food, M.B. was inside her trailer with Allen. Not long after, Allen came out and
began directing emergency personnel to the trailer. There is no denying Allen was the
only person with M.B. inside the trailer at the time she suffered an impact to her head that
caused her death. Moreover, Allen told P.M. that he physically abused M.B., which
caused her to fall because she would not “shut … up.”
Allen’s testimony to the contrary is comparatively weak. He testified M.B. simply
became unconscious and fell, hitting her head. However, he gave no explanation for the
other injuries M.B. sustained on the day of the fall, including those to her hip, lower lip,
and multiple cuts and bruises on her face. Allen admitted he was physically violent
12 We point out that the jury was instructed with the term “domestic violence,” which
includes abuse against a girlfriend or cohabitant. (Evid. Code, § 1109, subd. (d)(3); Pen.
Code, § 13700, subd. (b).)
13 Allen’s claim is insufficiently developed and lacks legal authority. Thus, we also
reject his argument on these alternative grounds. (See People v. Freeman (1994) 8
Cal.4th 450, 482, fn. 2; People v. Hardy (1992) 2 Cal.4th 86, 150.)
25.
towards M.B. and was “relieved” during the incident because he was tired of helping her.
Based on his own testimony, it would not be unreasonable for a jury to perceive that
Allen’s behavior was inconsistent with his account of M.B.’s demise. He never visited
M.B. in the hospital or checked on her welfare. He also cleaned up the trailer after the
incident and gave an absurd explanation as to why law enforcement had to break down
his door to detain him. Considering the foregoing evidence, the defense theory that M.B.
simply became unconscious and fell was implausible.
The jury was also instructed on the presumption of innocence, informed they were
not required to conclude that Allen was disposed to commit domestic violence by the
evidence, and cautioned not to presume Allen was a “bad person” because of the prior
domestic violence. The prosecutor still bore the burden of proving each element beyond
a reasonable doubt. The prosecutor did not focus on Allen’s past convictions or incidents
of domestic violence but emphasized the strong evidence supporting the current charges.
Defense counsel also urged the jury not to convict Allen based on his prior misconduct.
There is no reasonable possibility of a verdict more favorable to Allen, even in the
absence of evidence of the prior convictions. Thus, even assuming the evidence was
inadmissible, the error in admitting it was harmless. (Chapman v. California, supra, 386
U.S. at p. 24; People v. Watson, supra, 46 Cal.2d at p. 836.)
DISPOSITION
The judgment is affirmed.
GUERRA, J.
WE CONCUR:
HILL, P. J.
LEVY, J.
26.