People v. Williams CA1/2

Filed 12/10/21 P. v. Williams CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,
Plaintiff and Respondent,
A155912
v.
THOMAS WILLIAMS, (Contra Costa County
Super. Ct. No. 51705326)
Defendant and Appellant.

Thomas Williams was convicted of first degree murder in the shooting
of his ex-girlfriend at a convenience store in Antioch, and of premeditated and
deliberate attempted murder of a store clerk. There is no dispute who was
responsible for the shootings, and no dispute as to the fact of malice murder.
On appeal, defendant argues that the trial court erred in denying his
Batson/Wheeler1 challenge to the prosecutor’s exercise of a peremptory
challenge, but candidly concedes that he is “swimming against the tide” by
asking this court to decide the case contrary to binding California Supreme
Court precedent, a position he recognizes we cannot take. (See Auto Equity
Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) We readily dispose
of this argument and find it has no merit. Defendant also argues that the

Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler
1

(1978) 22 Cal.3d 258 (Wheeler).

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trial court erred in admitting evidence of prior acts of domestic violence
against his former wife under Evidence Code section 1109. We find no error
and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. Prosecution Case
Baldev Sangha owned the QuikStop on West Tragallas Road in
Antioch. The store opened out to a parking lot and had 11 surveillance
cameras. On May 2, 2016, Sangha heard a commotion and Thomas Payne, a
store clerk, hollering for help. Sangha went to the front of the store and saw
Payne on the ground bleeding, and a woman also on the ground who he
recognized as a regular customer.
Payne, the wounded store clerk, testified that Cynthia Flores-Crose, a
regular QuikStop customer, was at the store in the early morning on May 2,
purchasing her usual cigarettes and a beverage. She seemed “stressed,”
“anxious” and “noticeably shaken,” and told Payne she was having an
argument with her ex-boyfriend that she had moved to Antioch to get away
from. After Flores-Crose left the store, Payne went outside to sweep the
parking lot, and saw her sitting in her car with the door open, talking to a
man (later identified as defendant) who was in his black car. Flores-Crose
continued to appear stressed and shaken, and Payne continued to keep an
eye on her even when he went back into the store. He saw Flores-Crose try to
make her way back into the store and saw defendant drive aggressively,
accelerating and stopping his car and trying to run her over with his car.
Flores-Crose made her way back into the store and was crying. Defendant
followed her into the store, looking “[a]ngry, aggressive, irritated.” Payne
told him to leave. Defendant pushed him aside and struck Flores-Crose in
the head. Defendant immediately left the store, and Payne grabbed for a

2
baseball bat. Defendant reentered the store, this time with a .38 caliber
revolver. He fired a round aimed at Payne, and then went over to Flores-
Crose and shot her in the head, before turning around and shooting Payne in
the arm.
Payne’s 911 call was played for the jury. Photos and video footage from
the store’s surveillance cameras capturing the incident were also shown to
the jury.
Brian Schmid, who was a customer at the convenience store that
morning, testified that he saw a “quarrel between a boyfriend-girlfriend” in
the parking lot. It would turn out the people were defendant and Flores-
Crose. The woman was standing outside a car and was distressed and
scared; Schmid heard her say “please just stop.” Someone was in the car
revving the engine every time she tried to cross the parking lot; “[s]he was
trying to cross and he wasn’t allowing her.” Schmid went into the store to
buy something, and as he left, the woman entered. Then Schmid saw the
person get out of the car, which he had pulled right up to the door of the
store, go into the store and punch Flores-Crose hard in the face. The man
then left the store, went back to the car and came out with a revolver. Gun in
hand, he went back into the store and fired his gun at the store clerk.
Schmid heard shots and ran.
Wendy Chastain, Flores-Crose’s mother, testified that defendant was
her daughter’s former boyfriend. On the night before the shooting, Flores-
Crose seemed nervous and upset. She and defendant were in a dispute about
the pink slip to a car that defendant insisted on obtaining, and his emails to
Flores-Crose had scared her. Chastain testified that her daughter had said
three separate times that she feared for her life. Flores-Crose had tried to
block defendant from accessing her cell phone and social media accounts.

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 Others also testified about Flores-Crose’s fear of defendant. Linda
Melendez, a close friend who considered Flores-Crose like a daughter,
testified that defendant had threatened to kill Flores-Crose if he didn’t get
the pink slip to the Dodge Charger. Christina Melendez, with whom Flores-
Crose resided after she left defendant, testified that Flores-Crose was afraid
of defendant. Christina advised her to mail the pink slip to defendant and
not meet with him in person. Flores-Crose told Christina that if she ever
“went missing, you know where to look.”
On the morning she was murdered, Flores-Crose left Christina’s house
to start a care-giving job with a new company, and she seemed happy.
Christina testified that Flores-Crose had a regular morning routine of
stopping off at the QuikStop nearby to buy cigarettes and an energy drink.
Joanna Tapia Garner, defendant’s ex-wife and mother of two of his
children, testified about prior incidents of domestic violence that defendant
committed against her. They were married from 2003 to 2011.
Within the first year of their relationship, Garner tried to end it;
defendant did not want the relationship to end, and his response was to
strangle her. She called the police, but a few weeks later she got back
together with defendant and eventually they were married.
Another time around 2007, Garner and defendant were having a
conversation, and defendant became angry and strangled and kicked her.
Garner yelled out to their young son to get the phone so she could call the
police. Defendant got the phone from her so she was unable to make the call.
After Garner decided to separate from defendant, she received threats
from defendant “quite often.” He threatened that she was not going to take
his children away from him, and that she would regret the decision. They
were divorced in 2011. Once when she dropped off the children to spend the

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weekend with him, at a point when defendant knew Garner was going to
marry someone else, she rolled down the window of her vehicle thinking he
was walking over to say something to her; instead, defendant slapped her on
the face. She drove off and went immediately to the Oakland Police
Department. Shortly after this happened, she received a voicemail message
from him that said “[n]ot to be surprised if he cut my fucking head off.”
Garner testified she was “often” afraid of defendant, and got threatening
messages from him so often that she “tried not to let it get to me.” Garner
knew Cynthia Flores-Crose as defendant’s girlfriend and tried to warn her
about defendant.
B. Defense Case
Defendant offered his own testimony. Defendant had lived with Flores-
Crose for five years; their relationship ended in September 2015 due to
“stress.” Defendant denied there was any violence or verbal abuse. Flores-
Crose had a mother-like relationship with his children. Defendant continued
to see Flores-Crose about once per month after they broke up, until April
2016. In April, Flores-Crose wanted to spend the night with him but he
“couldn’t make time.” She thought he was avoiding her or seeing someone
else. He claimed he loved her.
He bought a car in 2014 and put it under her name “to build her
credit,” and made all of the payments. He wanted title to the car so he could
transfer it to his son when the son turned 16. Starting in March 2016, he
asked her about title every week or every other week. He denied being angry
about it. He admitted sending e-mails and texts about it.
On the morning of May 2, 2016, defendant stopped off at the QuikStop
convenience store to buy snacks for his kids and saw Flores-Crose in the
parking lot. He parked his car near hers. They had a conversation about

5
what was going on with work and the kids, and about reconciling. He wanted
her to go with him that day. She told him no; she wanted to leave and get to
her new job for training. Defendant told her that his kids kept asking about
her, were depressed when he had them on weekends, and that she didn’t
understand how important she was to them. Flores-Crose indicated they
were not going to get back together. She told him to leave, but he didn’t. She
said if he did not leave, she would make a “scene.” She went into the store.
He did not remember anything that happened after that. When he left
the convenience store he planned to turn himself in to the police.
On cross-examination, defendant denied driving aggressively in the
parking lot and revving his engine at Flores-Cross to block her movements;
he chalked it all up to “the transmission was slipping.” He also denied
slapping his ex-wife Garner in 2011, and said he never choked or grabbed her
by the neck. He had, however, “kicked her out,” and spit on her when
learning she had been unfaithful. He admitted telling her that he was going
to cut her head off, which he said was “out of anger.”
C. Verdict
Defendant was found guilty as charged of murder and attempted
murder (Pen. Code, §§ 187, subd. (a)), 664). The jury found true the
enhancement allegations of personal and intentional discharge of a firearm
that were charged with each count. (Id., § 12022.53, subd. (d)).
DISCUSSION
A. Batson/Wheeler Challenge
Williams argues that the trial court violated his state and federal
constitutional rights when it overruled his Batson/Wheeler objection to the

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prosecutor’s peremptory challenge of prospective Juror S., an African
American woman.2 We are not persuaded.
1. Additional Facts
The trial court generally questioned the first group of 21 jurors
following up, where applicable, on each juror’s responses to the jury
questionnaire. When the judge came to Juror S., the judge noted that in her
response to the jury questionnaire she had “mention[ed]” that she “kn[e]w
law enforcement people.” Juror S. said her uncle and aunt were “retired San
Quentin,” but they had “not really” shared work stories. The judge then
asked the following, apparently referring to the jury instruction about
witnesses:
“[THE COURT]: How do you feel about that witness instruction? Can
you follow that instruction?
“[JUROR S.]: Yes.
“[THE COURT]: Okay. Then you said on this form that you had an
opinion or attitude about the criminal justice system which would make it
difficult for you to be fair to both sides.
“[JUROR S.]: Well—
“[THE COURT]: What did you mean by that?
“[JUROR S.]: I have opinions.
“[THE COURT]: Okay. What opinion?
“[JUROR S.]: That they all don’t tell the truth and they’re not fair.
“[THE COURT]: Okay. I wasn’t—you sort of dropped your voice so I
didn’t quite hear what you were saying. Did you say that you had a negative
opinion of law enforcement?
“[JUROR S.]: Some cases, yes, by my own interactions.

2 We use the juror’s initial for confidentiality.

7
 “[THE COURT]: Okay. And that’s what you were referring to when
you said you had an opinion or attitude about the criminal justice system?
“[JUROR S.]: Yes.”
The court referred to questions it had asked other jurors on the topic,
and asked whether “given that you have negative opinions” Juror S. thought
law enforcement witnesses are “going to start off from the same point or are
they going to be behind all the other witnesses that testify in the case?”
Juror S. replied, “[t]hey’ll start from the same point,” and answered “yeah”
when the court asked whether she could “check that [negative feeling] at the
door.”
Then the judge asked whether her negative opinion was based on what
she had read or on personal experience. She replied in response to questions
that it was based on “[m]y own personal interactions,” most recently about 10
years ago in Contra Costa County. The agency involved was “RPD”—
presumably Richmond Police Department, in the city where Juror S. said she
lived. The court asked for details and context. The juror responded:
“[JUROR S.]: They assumed that I was in a drive-by shooting, pulled
me over, guns drawn, everything.
“[THE COURT]: So you were just driving on your way to some place?
“[JUROR S.]: I was picking my sister up from high school.
“[THE COURT]: Minding your own business?
“[JUROR S.]: Minding my own business.
“[THE COURT]: So you felt that you were treated very unfairly in that
last incident?
“[JUROR S.]: And the ones before that, yes.”
The prosecutor followed up on Juror S.’s experience with police officers
in Richmond, asking how she felt about police officers today. Juror S. replied,

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“Ten years ago, I was really upset then. Do I look like I was just in a shoot
out? No. I just picked my sister up from school. Did I drive a ’74—let a
boyfriend drive my car. No, no, no. So, yeah, I was mad then. I haven’t had
any since then. But, yeah, I was upset.”
The discussion continued:
“[PROSECUTOR]: But it sounds like even today when you talked to
the Court, that you still held a residual frustration because you have that; is
that fair to say?
“[JUROR S.]: Yes and no.”
When Juror S. was asked to explain her response, she said, “I do feel
like police lie, yeah. Do I feel like they be wrong? Yes.”
The prosecutor asked a series of questions about everyone having the
potential to lie and be wrong and asserted that police officers are “people like
we are,” to which the prospective juror seemed to respond affirmatively.
Then the prosecutor asked whether Juror S.’s “beliefs and knowledge that
[police officers] lie and that they . . . take advantage, or . . . whatever they do,
is so strong that you’re going to look at them skeptically from the beginning
. . . with no other basis except for the fact” that they are a police officer.
Juror S. responded no. She also answered affirmatively when the prosecutor
sought agreement that Juror S. would “look at them objectively and listen to
them equal as any other witness” and “won’t give them any discount.”
The prosecutor then asked about Juror S.’s planned vacation trip (a
concern she expressed earlier in voir dire). Juror S. replied, “Well, I got
clarification going to be done before August 16th.” The prosecutor alluded to
Juror S. having conveyed there was a sense of real anxiety on her part about
the trip. Juror S. interjected, “Unforeseen stuff happens. We didn’t come to
court on Friday. Friday should have been a regular working business day

9
court on Friday. And, you know, something else could happen. I just wanted
to let you all know I didn’t pay for this trip for a whole year—just wanted to
let you know and make sure that I was going to be out here by August 16th.”
The prosecutor followed up with more questions about the planned vacation,
stating “we want someone that cannot have something going on in their own
personal life distracting them from their ability to deliberate,” and that she
needed “to make sure if you are selected, you can sit here and listen to the—
during the time of trial.” Juror S. responded, “Up to August 12th, yes.”
The next day the prosecutor exercised its first peremptory challenge
against Juror S., and at sidebar and off the record, defense counsel made a
Batson/Wheeler challenge. The court later recounted the sidebar conference
for the record:
“THE COURT: [Juror S.] was number nine. That was the first
challenge . . . that the People used. And at side-bar . . . you felt that she had
explained herself adequately, that this was not race neutral, and was used for
an improper purpose, and I denied that at the side-bar.
“My reason for denying it at the side-bar was I didn’t feel like you had
made a prima facie case. Because while she is a member of a protected
group, she had through the questioning with me, before we even get to the
prosecution’s question, behaved in a strange way, some of which I had put on
the record.
“In seeking a hardship, for example, she repeatedly refused to accept
the assurance that the Court gave her about the completion date of the trial.
I always understand why they won’t do that the first time, maybe. But then
we were on at least the third time and she was still rolling her eyes at me
about my assurances.

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 “Then in my questioning of her, she was—I felt like I was wrestling the
answers out of her. So I didn’t feel like there was anything surprising when
that challenge was used. And it was the first challenge that the People have
used.
“And so while in principle there’s nothing preventing the exercise of a
first challenge on, you know, [a] member of a protected class rising to the
level of a prima facie case, I just didn’t think the facts here were such that
they did.
“But I said I would let you make a record and let you both make a
record. So why don’t you do so?”
Defense counsel responded that he “had nothing more to add. I think
the Court accurately summarized my position during side-bar discussion. I
have nothing more to add. I’ll submit.”
The prosecutor then spoke:
“[PROSECUTOR]: . . . I actually think that there really hasn’t been an
articulation of [defense counsel’s] objection. It’s highly inflammatory to
accuse, on the very first peremptory, that the People are improperly, with no
basis, except for a record that we had with the Court immediately putting a
record of her anger and her upset.
“I think that there needs to be a little bit more as to the basis of his
allegations against the People. . . . There was no pattern. . . .”
The court interjected that the exercise even of a first peremptory
challenge could theoretically be improper. The prosecutor agreed, but
asserted that there needed to be a record as to the “explicit objection” made,
not just a generalized one.
The prosecutor wanted to make a record as to why she struck the juror,
even though the court said that she need not do so because it had not found

11
that there was a prima facie showing. The court permitted her to do so. She
stated that she had “passed” the jury “multiple different times,” that Juror S.
was an African American woman, and that there are two other African
American women sitting on the jury panel that she had “passed multiple
times,” as well as the fact that there were “lots of women that are seated
currently.”
The prosecutor then stated what she believed had been the “specific
objections” made by defense at side-bar. “My understanding . . . is that he
said that [Juror S.] did indicate she had some issues with law enforcement,
but then she said she could set it aside and be fair. [¶] If that were the
standard, I could have Wheeler or Johnson objected to every single
peremptory the defense counsel made [giving names of jurors]. [¶] And so
that’s why I think it needs to be a little bit more clear. Because when a juror
tells somebody in a courtroom that she was pulled over. She . . . doesn’t like
the police because she’s pulled over . . . with guns drawn at her in a car with
her sister. And she had the reaction that she had ten years later that she
had in court here, where she was very upset about that. . . . [S]he’s implied
bias. She says she’s going to set it aside. Her demeanor demonstrated that
she’s unwilling to do that, or incapable.”
The court asked if there was anything anyone wanted to add. The
prosecutor continued that “the specific objection should be laid so that if later
there is something else that comes up, the Court has the ability to make that
comparative analysis.” The court replied, “Well, I think that’s true. I think
to complete the record, also, on Juror [S.’s] . . . form, she did check off that
she had an opinion about the criminal justice system which would make it
difficult for her to be fair.”
Defense counsel responded, “I’m submitting.”

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 2. Applicable Law and Standard of Review
“Both the United States and California Constitutions prohibit
discriminatory use of peremptory strikes.” (People v. Reed (2018) 4 Cal.5th
989, 999.) “A three-step procedure applies at trial when a defendant alleges
discriminatory use of peremptory challenges. First, the defendant must
make a prima facie showing that the prosecution exercised a challenge based
on impermissible criteria. Second, if the trial court finds a prima facie case,
then the prosecution must offer nondiscriminatory reasons for the challenge.
Third, the trial court must determine whether the prosecution’s offered
justification is credible and whether, in light of all relevant circumstances,
the defendant has shown purposeful race discrimination. (People v. Lenix
(2008) 44 Cal.4th 602, 612.) ‘The ultimate burden of persuasion regarding
[discriminatory] motivation rests with, and never shifts from the [defendant].’
(Id. at pp. 612-613.)” (People v. Manibusan (2013) 58 Cal.4th 40, 75.)
A defendant makes a prima facie case by showing that “the totality of
the relevant facts ‘ “gives rise to an inference of discriminatory purpose.” ’ ”
(People v. Scott (2015) 61 Cal.4th 363, 384 (Scott), quoting Johnson v.
California (2005) 545 U.S. 162, 168.) Whether a prima facie case exists
depends upon “the entire record of voir dire as of the time the motion was
made,” and “certain types of evidence may prove particularly relevant.”
(Scott, supra, 61 Cal.4th at p. 384.) “Among these are that a party has struck
most or all of the members of the identified group from the venire, that a
party has used a disproportionate number of strikes against the group, that
the party has failed to engage these jurors in more than desultory voir dire,
that the defendant is a member of the identified group, and that the victim is
a member of the group to which the majority of the remaining jurors belong.
[Citation.] A court may also consider nondiscriminatory reasons for a

13
peremptory challenge that are apparent from and ‘clearly established’ in the
record [citations] and that necessarily dispel any inference of bias.” (Ibid.)
When a trial court finds that the defendant failed to establish a prima
facie case of purposeful discrimination, we review the record, including voir
dire and any jury questionnaires, to determine whether substantial evidence
supports the ruling. (People v. Griffin (2004) 33 Cal.4th 536, 555 (Griffin),
disapproved on another ground as recognized in People v. McDaniel (2021) 12
Cal.5th 97, 142.) “We sustain the ruling when the record discloses grounds
upon which the prosecutor properly might have exercised the peremptory
challenge[ ] against the prospective juror[ ] in question.” (Griffin at p. 555.)
If the trial court finds that no prima facie case has been made, the court may
nevertheless offer the prosecution an opportunity to state its reasons for
dismissing the challenged juror, as happened here. (Scott, supra, 61 Cal.4th
at p. 388.) And even if the prosecution provides nondiscriminatory reasons
and the trial court determines that the reasons are genuine, the reviewing
court begins its analysis of the denial of the challenge with a review of the
first-stage finding that no prima facie case was made. (Id. at p. 391.) If the
reviewing court determines that the trial court’s finding on the first-stage
issue is supported by substantial evidence, the claim is resolved without
consideration of the third-stage ruling. (Ibid.) If the reviewing court
determines that the first-stage ruling was in error, it proceeds to review the
third-stage ruling without the need for a remand to the trial court. (Ibid.)
3. Analysis
Substantial evidence supports the trial court’s finding that defendant
did not make a prima facie showing that the prosecution dismissed Juror S.
for the improper reason that she was an African American woman. (See
Scott, supra, 61 Cal.4th at p. 384.)

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 This was a first stage challenge; the court explicitly found there was no
prima facie case, and although it permitted the prosecutor to make a record,
the court did not rule on the prosecutor’s reasons for her challenge. That the
trial court noted the juror’s response on a questionnaire in order “to complete
the record” did not transform this into a third stage ruling.
Defendant’s counsel permitted the court to make the record of his
Batson/Wheeler motion and did not disagree with the court’s description. The
court characterized the Batson/Wheeler motion as “you felt [Juror S.] had
explained herself adequately, that this was not race neutral, and was used for
an improper purpose.” Given the opportunity to add to the record, defense
counsel agreed that this “adequately summarized my position” and said no
more.
The trial court did not err. This was the prosecutor’s first peremptory
challenge and there were apparently two other African American jurors on
the panel who, at the time the Batson/Wheeler challenge was memorialized,
the prosecutor had not challenged. Defendant is not African American, nor
were his victims.3 The prosecution’s voir dire of Juror S. was not desultory;
to the contrary, the prosecutor probed whether the prospective juror could set
aside her possible bias and decide the case fairly to both sides. Despite Juror
S.’s statement at the end of questioning by the prosecutor that she could
listen to witnesses fairly, this came after she had expressed in her jury
questionnaire that she could not be fair and after she had disclosed a painful
incident at the hands of the Richmond Police Department. In addition, there
was another nondiscriminatory reason that was apparent on the record:

Although there is no cite to the record, defendant does not dispute the
3

Attorney General’s assertion that neither defendant nor the victims (Flores-
Croses and Payne) were members of a cognizable group.

15
Juror S.’s concern and reluctance, which the prosecutor probed, about serving
on a jury with her long-standing paid-for vacation coming close after the
anticipated end of the trial. Juror S. appeared to criticize the court for not
having been in session the previous Friday (a “regular working business
day”), as if the court was squandering valuable time that might affect her
planned vacation, just as other “unforeseen stuff” might. Juror S.’s
reluctance to serve on the jury is a nondiscriminatory reason for challenging
her. (See Griffin, supra, 33 Cal.4th at p. 555.)
Defendant now argues on appeal that the prosecution’s “stated reason”
for exercising the challenge did not rise to the level of a “specific bias.” We
find this argument without merit. Under Scott, in a first stage ruling, the
trial court does not evaluate the prosecutor’s stated reason for the challenge.
(Scott, supra, 61 Cal.4th at pp. 382-383.)4 The trial court may find the non-
existence of a prima facie case without ever asking the other side for a
reason. Moreover, defendant’s argument that “police witnesses had no role to
play at this trial” and thus distrust of police could not be an actual specific
bias in this case is unsupported by any cite to the record. Nor is it accurate.
Our review shows the prosecution called at least five witnesses affiliated with
law enforcement agencies, and they testified about topics including the crime
scene, recovery of evidence, cell and text records, and 911 calls. When the
trial court read the list of prospective witnesses to see if the prospective
jurors were familiar with any of the names, it included many persons

4 Defendant asserts our Supreme Court “should reconsider” its ruling in
Scott, and by extension the cases that rely on Scott, such as People v. Krebs
(2019) 8 Cal.5th 265. We do not address this argument. In his reply brief on
appeal, defendant also notes that in September 2020 the Legislature passed
Assembly Bill No. 3070 to enact a new Code of Civil Procedure section 231.7
which will apply, by its terms, to trials where jury selection begins on or after
January 1, 2022.

16
identified as affiliated with the Antioch Police Department who were not
called to testify.
In sum, the court did not err in denying the Batson/Wheeler challenge
in this case.
B. Admission of Evidence of Prior Domestic Violence
Defendant asserts the trial court erred in admitting his ex-wife
Garner’s testimony about his prior acts of domestic violence from 2003 and
2011 on the ground that this testimony was not relevant, and that the
admission of these acts violated his due process rights. As we have
summarized, these uncharged acts consisted of strangulation, threats of
violence, slapping and kicking. We find no prejudicial error in the admission
of this evidence.
1. Applicable Law and Standard of Review
Although character or propensity evidence, including evidence of a
person’s prior conduct, is generally inadmissible to prove the person’s conduct
on a specific occasion (Evid. Code,5 § 1101, subd. (a)), the Legislature has
created a specific exception to the rule where a defendant is charged with an
offense involving domestic violence. (People v. Villatoro (2012) 54 Cal.4th
1152, 1159.) In that case section 1109 provides that evidence that the
defendant committed other domestic violence is not made inadmissible by
section 1101 so long as it is not inadmissible under section 352. In other
words, subject to weighing the factors called out in section 352, evidence of
other domestic violence may be admissible to show a defendant’s propensity
to commit the charged offense.
There is an additional hurdle to admissibility for evidence of acts
occurring more than 10 years before the charged offense. That evidence is

5 All further unspecified statutory references are to the Evidence Code.

17
inadmissible, unless the court also determines that the “admission of this
evidence is in the interest of justice.” (§ 1109, subd. (e).)
Under section 352, a trial court may exclude relevant evidence when its
probative value is substantially outweighed by concerns of undue prejudice.
For purposes of section 352, evidence is unduly prejudicial if it “uniquely
tends to evoke an emotional bias against a party as an individual, while
having only slight probative value with regard to the issues.” (People v.
Carter (2005) 36 Cal.4th 1114, 1168.) “Evidence is not prejudicial, as that
term is used in a section 352 context, merely because it undermines the
opponent’s position or shores up that of the proponent.” (Vorse v. Sarasy
(1997) 53 Cal.App.4th 998, 1008.)
We review the trial court’s ruling on the admissibility of evidence for
abuse of discretion. (People v. Disa (2016) 1 Cal.App.5th 654, 672.)
2. Additional Facts
The prosecution filed a motion in limine to allow admission of three
prior uncharged acts of domestic violence, dating from 2000, 2003, and 2011.
The prosecutor argued they were admissible under section 1109 and also
under section 1101, subdivision (b) as relevant to show defendant’s intent,
lack of mistake, identity, and common scheme or plan. Defendant filed a
motion in limine seeking to exclude the 2000 and 2003 incidents because they
were over 10 years old and inadmissible under section 1109, subdivision (e),
and the 2011 incident because it was more prejudicial than probative.
The court conducted three separate hearings on the issue over the
course of three days.
The trial court ruled Garner could testify about the 2003 and 2011
incidents, but excluded testimony from another witness about an incident in
2002.

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 As to the 2003 incident, the court acknowledged it was over 10 years
old but found admission of evidence of the incident was in the interest of
justice, reasoning: “[o]n the interest of justice analysis, it seems to me that
since [Garner] is testifying already and is already testifying to an incident
that the Court is determining is admissible for the reasons that I will discuss,
to exclude her testimony from her earlier incident [referring to 2003] based
on the fact that it is time barred by the ten-year rule seems to me would be
ignoring the very purpose of the statute, and would not be in the interest of
justice.
“It would, for example, give a completely false impression to the jury
that the incident that is being related by [Garner] more recently [referring to
2011] is the only incident that is involved, and it would twist the character of
the description that she would give either of the incident itself or of her fear
of the defendant.
“And so it seemed to me that it would definitely be contrary to the
interests of justice to exclude the first [2003], and to allow the more recent
event [2011]. So turning to the more recent event, it seems to me, as I said,
they both are admissible under 1109 and also 1101(b), based on motive, based
on identity, based on the similarity in the method that was employed, and on
the ever-escalating pattern that the People allege has occurred.”
As to both the 2011 and 2003 incidents, the court rejected defendant’s
objections under section 352: “As to the more recent event, including the
earlier event [2003], the analysis under 352, it was not really argued by the
defense that there would be an undue consumption of time. And having read
the police reports that were identified on the record, it doesn’t appear to me
that in relation to the trial as a whole, that there will be an undue
consumption of time.

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 “It really seems to me that the only factor that’s involved here is the
probative value versus its prejudicial effect. And, of course, there’s no dispute
about its probative value . . . .” The court rejected defense counsel’s
suggestion that a stipulation as to the fact of the crime would make Garner’s
testimony irrelevant.
The court explained, “[I]n this case the stipulation does fall far short
because motivation and intent and some of the key elements in the alleged
crime and lesser includeds are not stipulated to, and so it seems to me that
that path is not persuasive to the Court.”
In sum, the court determined, “The standard is that it has to be unduly
prejudicial. And in my view, the evidence of the [2003] incident . . . is not
unduly prejudicial. The probative value far exceeds its prejudicial effect.
3. Analysis
Defendant contends that the trial court erred in admitting this
evidence because it was “insufficiently probative under section 1101,
subdivision (b), and insufficiently relevant for the purposes for which
‘disposition’ evidence” should be admissible under section 1109. Defendant
contends that because the jury was going to see a video of the shootings
themselves, the jury did not need to know about these incidents to refute a
claim of heat of passion, to support the credibility of Garner, or to establish
any of the section 1101, subdivision (b) factors of identity, motive, intent, and
common plan and design. The Attorney General contends that there was no
error, given that the uncharged acts by defendant against Ms. Garner were
“triggered by her decisions to leave or abandon [defendant]” and were similar
in character to what happened to Flores-Crose in this case. When Garner
said she wanted to end her relationship with defendant, he committed
domestic violence against her. When he felt rejected, he lashed out with

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increasing vitriol and violence. While the probative value is not
overwhelming, we do not find the trial court abused its discretion in
concluding that the uncharged acts of domestic violence were similar enough
to have probative value to the charged crimes.
When the section 352 factors are weighed, the issue is not close. The
testimony from Garner did not confuse the issues in the case; the incidents
were separated by time and victim. Garner’s testimony was relatively short
and took up a very small portion of the jury’s time. Nor was it more
prejudicial than probative. Garner lived to tell the story of defendant’s
kicking, slapping, strangulation and threats, which caused fear but no injury.
Flores-Crose did not.
The trial court gave the jury a full set of instructions on how to deal
with the issue so that defendant would not be prejudiced. The jury was
specifically instructed on how to consider uncharged offenses and uncharged
acts of domestic violence. They were also instructed more generally on how
to evaluate evidence, including evaluating conflicting evidence (CALCRIM
No. 302), and cautioned that they must not let sympathy or prejudice
influence their decision (CALCRIM No. 200). We presume that jurors
understood these instructions and followed them. (People v. Pearson (2013)
56 Cal.4th 393, 414.)
Finally, defendant’s assertion that the due process clause was violated
on account of the court’s admission of this evidence is not supported by
reasoned argument or citation to the record. Ordinarily, the “ ‘routine
application of state evidentiary law does not implicate [a] defendant’s
constitutional rights.’ ” (People v. Hovarter (2008) 44 Cal.4th 983, 1014.)
Defendant has not shown that this case is any exception.

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 DISPOSITION
The judgment is affirmed.

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 _________________________
Miller, J.

WE CONCUR:

_________________________
Kline, P.J.

_________________________
Richman, J.

A155912, People v. Williams

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