People v. Ramirez CA4/1

Filed 8/15/23 P. v. Ramirez CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D079970

Plaintiff and Respondent,

v. (Super. Ct. No. SCN422740)

JOSE RAMIREZ,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County,
David L. Berry, Judge. Affirmed.
William G. Holzer, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, Melissa
Mandel and Tami Falkenstein Hennick, Deputy Attorneys General, for
Plaintiff and Respondent.
 In case No. SCN422740, a jury convicted Jose Ramirez of arson of an

inhabited structure or property (Pen. Code,1 § 451, subd. (b); count 1); and
two counts of animal abuse and neglect (§ 597, subd. (b); counts 2 and 3). In
addition, Ramirez admitted that he committed the three offenses while
released from custody on bail (§ 12022.1, subd. (b)).
The court sentenced Ramirez to prison for a total of eight years four

months.2
Ramirez appeals, contending (1) the trial court improperly instructed
the jury regarding the mental state for arson; (2) the court abused its
discretion by admitting evidence of prior acts of domestic violence; (3) his
Sixth Amendment right to confront witnesses was violated because the court
allowed a witness to testify with a surgical mask that obscured her face; and
(4) cumulative error warrants reversal. We conclude none of Ramirez’s
arguments have merit. Thus, we affirm the judgment.
FACTUAL BACKGROUND
Prosecution
K.E. and her three children, ages 15, eight and six, lived in a four
bedroom mobile home in Escondido. She also had two cats. K.E. kept a desk
that she used as a religious altar in one of the bedrooms in her home. K.E.
referred to that room as her office. K.E.’s altar contained candles, statues,
flowers, beads, oils, and incense.

1 Statutory references are to the Penal Code unless otherwise specified.

2 Ramirez’s prison sentence was based on his convictions in case
No. SCN422740 as well as him pleading guilty to one count of transportation
of heroin (Health & Saf. Code, § 11352, subd. (a)) in case No. SCN414777.
Because the instant appeal does not concern case No. SCN414777, we do not
discuss that case any further.
2
 K.E. was in a romantic relationship with Ramirez, whom she had
known for about a year. They both used drugs, including methamphetamine.
Additionally, K.E. suffered from borderline personality disorder, causing her,
at times, to be volatile and emotional.
The morning of April 1, 2021, around 9:00 a.m., K.E. and Ramirez,
along with two of Ramirez’s friends, went to a recycling center to exchange
cans for money. K.E. then went to run errands with a friend while Ramirez
remained at her home. When K.E. returned home from running errands, she
and Ramirez were “bickering” and “not getting along.” They were arguing
about money and it got “nasty.” Ramirez repeatedly said to K.E., “I’ll show
you, I’ll show you.”
Later that afternoon, K.E. called Ramirez’s mother, and said she and
Ramirez were in an argument and Ramirez was threatening to burn K.E.’s
house down. K.E. asked Ramirez’s mother to come pick up Ramirez. When
Ramirez’s mother arrived, the house was burning.
K.E. told law enforcement officers that she called Ramirez’s mother
because, “[Ramirez] was acting so crazy.” K.E. said that Ramirez came out of
her office with a torch lighter in his hand. He walked past her and said,
“[K.E.], your room’s on fire, ‘like all creepy,’ ‘proud of yourself?’ ” K.E. said
she began running around trying to save her cats, but they both died in the
fire. Ramirez did not help K.E.; he “just bolted.”
K.E. told officers that Ramirez set fire to her altar table with a torch
lighter to try to kill her. The jury saw video of K.E. telling officers,
“[Ramirez] did it. He set my room on fire. I wouldn’t let him have my car, he
set my room on fire. He goes, ‘I’ll show you.’ Oh, my babies!” K.E. continued,
“I saw him set my room on fire. Because I wouldn’t give him the goddamn

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couple hundred dollars from Recycling . . . .” K.E. said Ramirez started the
fire “with a fuckin’ torch—with a torch fuckin’ lighter . . . .”
K.E. told officers, “He lit like the—there was like some candles and
stuff that I had that had like oil and stuff in them. He fuckin lit that like all

of it and my bookshelf. And I went to go get the hose.”3
The jury heard K.E.’s statement made to responding officers about two
prior acts of domestic violence. K.E. told police that “recently” Ramirez told
her he would “kick me in the face if I didn’t like give him all my money and I
handed him my money.” In addition, K.E. informed the police that Ramirez
broke the windshield of the car she was driving.
Defense
A defense investigator testified that he interviewed K.E. on June 15,
2021. She told him that her prior statements to law enforcement were
influenced by her emotions and that she lied to the police officers because she
was angry with Ramirez. Thus, Ramirez did not actually start the fire.
DISCUSSION
I
ARSON JURY INSTRUCTION
A. Ramirez’s Contentions
Ramirez argues that the trial court improperly instructed the jury on the
crime of arson. Relying on In re V.V. (2011) 51 Cal.4th 1020 (V.V.), he claims
the court “misdirected the jury on the malicious mental state element,
because it failed to instruct that malicious requires ‘aware[ness] of facts that
would lead a reasonable person to realize that the direct, natural, and highly

3 At trial, K.E. testified that she was emotional and initially thought that
Ramirez set the fire. However, she did not see him start the fire. She
claimed that she saw him light the altar on fire because she believed he did it
at the time, and she did not want him to get away with it.
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probable consequence of’ an act would be a proscribed fire.” (Id at p. 1031.)
We disagree.
B. Background
Ramirez’s trial counsel agreed the court should instruct the jury with
CALCRIM No. 1502. The trial court asked counsel if he also wanted to
include a definition of the required mental state for arson in CALCRIM
No. 251, but counsel replied that he preferred the court provide the jury with
the mental state as defined in CALCRIM No. 1502 and not “muddy the
waters having it in there a couple times.” At the conclusion of the discussion
of jury instructions, the court clarified that CALCRIM No. “1502 is the
instruction on arson. As to arson, it appears to be correct. Anything else on
the proposed arson instruction, [defense counsel]?” Counsel replied in the
negative.
The trial court instructed the jury with CALCRIM No. 1502, in
pertinent part, as follows:
“The defendant is charged in Count One with arson that
burned an inhabited structure in violation of Penal Code
section 451(b).

“To prove that the defendant is guilty of this crime, the
People must prove that:

“1. The defendant set fire to or burned or caused the
burning of a structure;

“2. He acted willfully and maliciously;

“AND

“3. The fire burned an inhabited structure.

“To set fire to or burn means to damage or destroy with fire
either all or part of something, no matter how small the
part.

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 “Someone commits an act willfully when he or she does it
willingly or on purpose.

“Someone acts maliciously when he or she intentionally
does a wrongful act or when he or she acts with the
unlawful intent to defraud, annoy, or injure someone else.

The trial court also instructed the jury per CALCRIM No. 1531
(Unlawfully Causing a Fire: Inhabited Structure (Pen. Code, § 452)). That
instruction is substantially similar to CALCRIM No. 1502, except for the
mens rea element, which is not willfully and maliciously but recklessly. As
such, to be guilty under section 452, a jury would have to find that a
defendant acted “recklessly” in setting fire to, burning, or causing to burn a
structure. Moreover, CALCRIM No. 1531 describes recklessly as follows: “A
person acts recklessly when (1) he or she is aware that his or her actions
present a substantial and unjustifiable risk of causing a fire, (2) he or she
ignores that risk, and (3) ignoring that risk is a gross deviation from what a
reasonable person would have done in the same situation.”
During closing argument, the prosecutor emphasized that he had “to
prove it was [Ramirez’s] actions that was coupled with him acting maliciously
that caused the fire.” The prosecutor then explained maliciously:
“So what does ‘maliciously’ mean? There are two avenues
to get to the standard of maliciousness. ‘Maliciously’ means
either intentionally doing a wrongful act or acting with an
unlawful intent to defraud annoy or injure someone. I
think of two in my mind just acting like a jerk. You’re
either doing something, acting like a jerk and something
horrible like this happens, you’re held accountable. You’re
also held accountable if you’re intentionally burning down a
house. That would be something that is wrongful. I think
there’s evidence to support both of these avenues.”

“But I want to be clear. Even if you find that he was just
poured in oil and was goofing off in front of [K.E.], trying to
scare the daylights out of her because he’s doing this with
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 his lighter intentionally and the house goes up, because he
was acting like a jerk, he’s held accountable and it’s
considered malice and his guilty of count 1.”

The prosecutor also addressed the difference between malice and
recklessness. Therefore, he told the jury:
“Recklessness is you are aware of you’re at high risk of
causing a fire and you don’t consider that risk. I consider
that label that as you being a bone head. Different than
being a jerk. You’re just doing something stupid.

“What does that typically look like? This looks like the guy
who goes up to the wood on a windy day and ignores the
signs and just starts making that huge bonfire and some
embers take off and burn down the forest. Because he’s not
acting like a jerk. He’s not doing this to harm or annoy
anybody. He’s being a bone head. He’s not held to a malice
standard. He’s just acting recklessly. So he would be
guilty of unlawfully causing a fire as opposed to arson.

“So was [Ramirez] acting recklessly? This is where you
have to be careful. The answer is yes. But also, he was
acting maliciously, okay? So you would say, well, would
pouring oil on a table and a floor and lighting it on fire,
isn’t he aware that would cause a risk or there are risks of
causing a fire? Yes. And did he ignore that by doing that?
Yes. So isn’t he acting recklessly? Yes. He’s acting
recklessly. But not just recklessly, he’s acting with malice.
And that’s exactly why the law – the instructions tell you to
review the greater crime first, then the lower crime.
Because this is the exact same crime, except you need to
determine whether he was acting with malice or
recklessness, okay?”

During his closing argument, Ramirez’s trial counsel primarily argued
that the prosecution had not proved that Ramirez started the fire at the
altar. However, defense counsel did briefly discuss the mens rea for arson.
To this end, he stated:

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 “Arson, which is charged in Count 1 as [CALRIM No.] 1502,
requires the mental state that somebody willfully and
maliciously did something. That is the thought, the
mindset that has to be present. I’m not going to read
through that. I just want the point out so that there’s no
confusion in explaining what we mean by this is the mental
state. This applies to willfully and maliciously to the arson
charge.

“Now, there’s a second charge that’s related to arson, and
that is going to be CALCRIM 1531 where reckless is the
mental state. For my purposes, it’s just noteworthy that
it’s different than the first one, maliciously and willful.”

C. Analysis
Below, Ramirez’s trial counsel agreed with providing the jury with
CALCRIM No. 1502 and did not request any other instruction regarding the
required intent to prove arson. Yet, on appeal, Ramirez now argues the trial
court prejudicially erred because it did not correctly instruct the jury as to
the “malicious mental state element” of arson. Because he failed to object to
or request a specific jury instruction at trial, the People contend that Ramirez
forfeited his claim on appeal. However, Ramirez argues that forfeiture is not
applicable here because the claimed error affected Ramirez’s substantial
rights. (See § 1259; People v. Flood (1998) 18 Cal.4th 470, 482, fn. 7.)
“Ascertaining whether claimed instructional error affected the substantial
rights of the defendant necessarily requires an examination of the merits of
the claim—at least to the extent of ascertaining whether the asserted error
would result in prejudice if error it was.” (People v. Andersen (1994) 26
Cal.App.4th 1241, 1249.) Therefore, he argues we must first analyze the
merits of his claim to determine if a substantial right is implicated before
considering forfeiture. We agree with that principle. In addition, although
the People argue otherwise, it appears that Ramirez essentially contends the

8
instruction incorrectly stated the law in that it “misdirected the jury on the
malicious mental state element.” Such a claim would be preserved on appeal
despite a failure to object below. (See People v. Hudson (2006) 38 Cal.4th
1002, 1011-1012.) In any event, we shall address the merits of Ramirez’s
claim of instructional error as a threshold matter.
We review a claim of instructional error de novo. (People v. Posey
(2004) 32 Cal.4th 193, 218.) “Review of the adequacy of instructions is based
on whether the trial court ‘fully and fairly instructed on the applicable law.’
[Citation.]” (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) In
determining whether error has been committed in giving jury instructions,
we consider the instructions as a whole and assume jurors are intelligent
persons, capable of understanding and correlating all jury instructions which
are given. (Ibid.) “ ‘Instructions should be interpreted, if possible, so as to
support the judgment rather than defeat it if they are reasonably susceptible
to such interpretation.’ [Citation.]” (Ibid.) “The crucial assumption
underlying our constitutional system of trial by jury is that jurors generally
understand and faithfully follow instructions.” (People v. Mickey (1991) 54
Cal.3d 612, 689, fn. 17.)
A person is guilty of arson when he or she “willfully and maliciously”
sets fire to any structure or property. (§ 451.) The term “willfully” means
with a purpose or willingness to commit the act; it does not require any intent
to violate the law, injure another, or acquire any advantage. (V.V., supra, 51
Cal.4th at p. 1027.)
The term “maliciously” refers to either “[m]alice in fact” or “[m]alice in
law.” (V.V., supra, 51 Cal.4th at p. 1028.) “Malice in fact” means actual ill
will or intent to injure. (Ibid.) “Malice in law” means an intent to do a
wrongful act, established either by proof or presumption of law. (Ibid.) For

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arson, malice in law will be presumed or implied from the deliberate and
intentional ignition or act of setting a fire without a legal justification,
excuse, or claim of right. (Ibid.)
The “willful and malice” requirement for arson “ensures that the
setting of the fire must be a deliberate and intentional act, as distinguished
from an accidental or unintentional ignition or act of setting a fire; ‘ “in short,
a fire of incendiary origin.” ’ ” (People v. Atkins (2001) 25 Cal.4th 76, 88
(Atkins); see V.V., supra, 51 Cal.4th at p. 1029.) However, arson is a general
intent crime; the specific intent to burn the relevant structure or property is
not required. (V.V., at p. 1027; Atkins, at p. 84.) Rather, it is sufficient to
prove malice by showing that a defendant possesses “a general intent to
willfully commit an act of setting on fire under such circumstances that the
direct, natural, and highly probable consequences would be the burning of the
relevant structure or property.” (V.V., at p. 1029.)
In V.V., supra, 51 Cal.4th 1020, a minor lit a large firecracker, which
was then thrown by another minor onto a brush-covered hillside. (Id. at
p. 1024.) The firecracker exploded, causing a brush fire. (Ibid.) Our high
court concluded that substantial evidence supported the juvenile court’s
finding that the minors committed arson of forest land (§ 451, subd. (c)).
(V.V., at pp. 1026-1033.) It mattered not that the minors “did not intend to
set the hillside on fire and tried to avoid such a consequence.” (Id. at
p. 1030.) The Supreme Court concluded that “[a] defendant may be guilty of
arson if he or she acts with awareness of facts that would lead a reasonable
person to realize that the direct, natural, and highly probable consequence of
igniting and throwing a firecracker into dry brush would be the burning of
the hillside” and that minors “were aware of such facts.” (Ibid.)

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 Here, Ramirez argues that the arson instruction given by the trial
court was erroneous because it failed to provide “a technical description of the
malice element of arson,” which is set forth in V.V., supra, 51 Cal.4th 1020.
Therefore, relying on V.V. at page 1030, Ramirez asserts that CALCRIM
No. 1502 did not correctly instruct the jury regarding malice because “it did
not require a reasonable person to be aware that a structure fire was a
‘direct, natural, and highly probably consequence[ ]’ of his actions.” We
disagree.
The applicable arson statute does not include the “direct, natural and
highly probable consequence” language Ramirez deems essential. Rather,
section 451 states that “[a] person is guilty of arson when he or she willfully
and maliciously sets fire to or burns or causes to be burned or who aids,
counsels, or procures the burning of, any structure, forest land, or property.”
CALCRIM No. 1502, as given by the trial court here, tracked the
statutory language and included all elements of the offense by instructing
that the prosecution was required to prove that (1) “defendant set fire to or
burned or caused the burning of a structure or property;” and (2) defendant
“acted willfully and maliciously.” In addition, the instruction provided
correct definitions of “willfully and maliciously.” It explained that “[s]omeone
commits an act willfully when he or she does it willingly or on purpose.” This
comports with the statutory definition that “ ‘willfully,’ when applied to the
intent with which an act is done . . . , implies simply a purpose or willingness
to commit the act[.]” (§ 7, subd. (1).) The instruction also explained that
“[s]omeone acts maliciously when he or she intentionally does a wrongful act
or when he or she acts with the unlawful intent to defraud, annoy, or injure
someone else.” This is consistent with the statutory definition that
“ ‘[m]aliciously’ imports a wish to vex, defraud, annoy, or injure another

11
person, or an intent to do a wrongful act[.]” (§ 450, subd. (e); see § 7,
subd. (4).)
Our high court in V.V., supra, 51 Cal.4th 1020 did not add an element
to the crime of arson or find the statutory definitions of willfully and
maliciously inapplicable. Instead, it explained that the element of malice can
take two forms—malice in fact and malice in law. (Id. at p. 1028.) As we
discussed ante, Malice in fact is “ ‘a wish to vex, annoy, or injure’ [citation]—
consist[ing] of actual ill will or intent to injure”—while malice in law is “ ‘an
intent to do a wrongful act . . . [,]’ ” which “may be ‘presumed’ or ‘implied’
from the intentional doing of the act without justification or excuse or
mitigating circumstances.” (Ibid.) In the specific case of arson, malice in law
“will be presumed or implied from the deliberate and intentional ignition or
act of setting a fire without a legal justification, excuse, or claim of right.”
(Ibid.)
In Atkins, supra, 25 Cal.4th 76, the Supreme Court had previously held
that arson requires only “a general intent to willfully commit the act of
setting on fire under such circumstances that the direct, natural, and highly
probable consequences would be the burning of the relevant structure or
property.” (Id. at p. 89.) In V.V., supra, 51 Cal.4th 1020, the Supreme Court
stated that the phrase “ ‘ . . . under such circumstances that the direct,
natural, and highly probable consequences would be the burning of the
relevant structure or property[ ]’ ” “describes arson’s malice requirement, i.e.,
that the willful and intentional act is committed under circumstances that
create an obvious fire hazard.” (Id. at p. 1031, fn. 6.)
The language regarding a direct, natural, and highly probable
consequence does not add an element to the crime of arson but rather
provides an amplification of the statutory definition of malice conveyed in the

12
instruction given to the jury at Ramirez’s trial. Because the trial court’s
instruction was an accurate statement of the law, conforming to the statutory
language, the court had no sua sponte duty to instruct on the amplification of
the malice requirement provided in V.V. and Atkins. (People v. Turner (2019)
37 Cal.App.5th 882, 887-888.) Ramirez’s failure to ask for “ ‘ “ . . . additional,
amplified, explanatory, fuller, or more complete, elaborate, comprehensive,
definite, specific or explicit instructions . . . [ ]” ’ ” forfeited his claim of error
on appeal. (Id. at p. 888; see People v. Rangel (2016) 62 Cal.4th 1192, 1223
[where jury instruction was legally correct, the “defendant’s failure to propose
any modification to the instruction forfeit[ed] the claim of instructional
error”].)
II
PRIOR BAD ACTS EVIDENCE
A. Ramirez’s Contentions
Ramirez maintains that the trial court abused its discretion in
admitting two prior acts of domestic violence, arguing the prior uncharged
acts were not probative and were likely to confuse or mislead the jury. We
disagree.
B. Background
The prosecution sought to introduce three prior acts of domestic
violence: (1) Ramirez threatened to kick K.E. in the face if she did not give
him money; (2) Ramirez smashed the windshield of K.E.’s car; and (3) in
2014, Ramirez was involved in an incident of domestic violence with another
individual. The court ruled that the two incidents involving K.E. were
admissible under Evidence Code section 1109, explaining that one purpose of
admitting prior acts of domestic violence is to show escalating violence, and
the two subject events indicated a “spiral” in the relationship. Moreover, the

13
court underscored that the incidents were relevant because at least one of
them stemmed from an argument about money, and Ramirez and K.E. were
arguing about money when Ramirez set fire to K.E.’s home. Additionally, the
court determined that the incidents were not “necessarily prejudicial” and
that their admission would not consume “a lot of time.” However, the court
excluded evidence of the 2014 incident under Evidence Code section 352.
At trial, the prosecution offered evidence of a picture of K.E.’s car with
a broken windshield. The court admitted the evidence. In addition, the
prosecution played a recording of K.E. wherein she told the police that
“recently” Ramirez told her he would “kick me in the face if I didn’t . . . give
him all my money and I handed him my money,” and that “he did break the
windshield of the car I was driving.”
The trial court properly instructed the jury regarding how to use the
prior bad acts of evidence.
During closing argument, the prosecutor referred to K.E. as a victim of
domestic violence.
C. Analysis
“Ordinarily, propensity evidence—evidence that a defendant committed
an uncharged offense—is inadmissible to prove the defendant’s disposition to
commit the charged offense. ([Evid. Code,] § 1101, subd. (a).) Evidence that
the defendant committed uncharged crimes or other acts, however, is
admissible to prove relevant facts other than disposition, such as motive,
intent, and absence of mistake or accident. ([Evid. Code,] § 1101, subd. (b).)”
(People v. Kerley (2018) 23 Cal.App.5th 513, 531 (Kerley).) Evidence Code
section 1109 is yet another legislative carveout to this general rule against
admitting propensity evidence and provides an exception in domestic violence
cases. It states: “[I]n a criminal action in which the defendant is accused of

14
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.” (Evid. Code, § 1109, subd. (a)(1).) “As a result,
[Evidence Code] section 1109 ‘permits the admission of defendant’s other acts
of domestic violence for the purpose of showing a propensity to commit such
crimes.’ ” (Kerley, at p. 531.)
“[T]he California Legislature has determined the policy considerations
favoring the exclusion of evidence of uncharged domestic violence offenses are
outweighed in criminal domestic violence cases by the policy considerations
favoring the admission of such evidence.” (People v. Johnson (2000) 77
Cal.App.4th 410, 420.) Evidence Code section 1109 thus “ ‘reflects the
legislative judgment that in domestic violence cases . . . similar prior offenses
are “uniquely probative” of guilt in a later accusation.’ ” (Kerley, supra, 23
Cal.App.5th at p. 531.)
Under Evidence Code section 352, the court must first determine
whether the “probative value [of the evidence 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.” (Evid. Code, §§ 352, 1109.) The trial judge
is in the best position to evaluate the evidence. (People v. Hernandez (2011)
200 Cal.App.4th 953, 966 (Hernandez).)
“We review a challenge to a trial court’s decision to admit [this]
evidence for abuse of discretion.” (People v. Johnson (2010) 185 Cal.App.4th
520, 531 (Johnson).) “A trial court’s exercise of its discretion under [Evidence
Code] section 352 ‘ “must not be disturbed on appeal except on a showing that
the court exercised its discretion in an arbitrary, capricious or patently

15
absurd manner that resulted in a manifest miscarriage of justice.” ’ ”
(People v. Brown (2000) 77 Cal.App.4th 1324, 1337.)
In applying Evidence Code section 352, “ ‘prejudicial’ ” is not
synonymous with “ ‘ “damaging.” ’ ” (People v. Karis (1988) 46 Cal.3d 612,
638.) Rather, evidence is unduly prejudicial under Evidence Code section 352
only if it “uniquely tends to evoke an emotional bias against the defendant as
an individual and . . . has very little effect on the issues” (Karis, at p. 638), or
if it invites the jury to prejudge “ ‘a person or cause on the basis of extraneous
factors.’ ” (People v. Harris (1998) 60 Cal.App.4th 727, 737.) “Painting a
person faithfully is not, of itself, unfair.” (Ibid.; Johnson, supra, 185
Cal.App.4th at p. 534.)
Here, Ramirez argues that his threat to kick K.E. and the damaging of
K.E.’s car window were not probative because they lacked the frequency,
regularity, and severity of the uncharged domestic violence offenses in Kerley,
supra, 23 Cal.App.5th at pages 534 through 536. We reject this contention.
“ ‘The principal factor affecting the probative value of an uncharged act
is its similarity to the charged offense.’ ” (People v. Hollie (2010) 180
Cal.App.4th 1262, 1274; Hernandez, supra, 200 Cal.App.4th at p. 966 [a
significant factor in determining the probative value of the evidence is
“ ‘whether the uncharged conduct is similar enough to the charged behavior
to tend to show the defendant did in fact commit the charged offense’ ”].)
“[P]roponents of the bill that became [Evidence Code] section 1109 argued for
admissibility of such evidence because of the ‘typically repetitive nature’ of
domestic violence,” a “pattern” that “suggests a psychological dynamic not
necessarily involved in other types of crimes.” (Johnson, supra, 185
Cal.App.4th at p. 532.)

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 Thus, the probative value of a defendant’s uncharged abusive acts
arises primarily from the similarity between the uncharged act and the
charged conduct. The repetition of similar abusive behavior suggests the
defendant has a pattern of engaging in particular forms of domestic violence
under particular circumstances. For example, in Johnson, supra, 185
Cal.App.4th 520, an attempted murder case in which the defendant was
alleged to have shot his girlfriend, the Court of Appeal determined that the
trial court properly admitted evidence of two prior instances in which the
defendant had shot other girlfriends. (Id. at pp. 532-533.) Although the
shootings occurred more than 10 years before the charged crime, their
probative value was great because they demonstrated a pattern of the
defendant using guns against his domestic partners to exact revenge when he
felt rejected by them. (Ibid.)
In the instant action, Ramirez’s two acts of domestic violence within a
year of the charged offenses revealed a behavior pattern consistent with his
setting fire to K.E.’s home. Regarding the first act of domestic violence,
Ramirez threatened to kick K.E. in the face if she did not give him money.
Before Ramirez committed arson, he and K.E. were in an argument about
money, and he warned her, “I’ll show you, I’ll show you.” Further, Ramirez
was willing to destroy K.E.’s property as he damaged her car windshield and
then later set fire to her home. Therefore, contrary to Ramirez’s arguments
here and below, we agree with the trial court that these two previous acts of
domestic violence were probative of Ramirez’s escalating violence toward
K.E.
Ramirez’s reliance on Kerley does not persuade us to conclude
otherwise. That case involved facts and issues quite different from those
presented here. In Kerley, the defendant was accused of murdering his

17
girlfriend. She went missing, and her decomposed body was discovered and
identified more than a decade later. (Kerley, supra, 23 Cal.App.5th at
pp. 521-526.) The cause of death, including whether it had resulted from an
assaultive act, was disputed, and revolved around competing expert
interpretations of fractures in the ribcage of the deceased victim. (Id. at
pp. 525-527.)
During the prosecution’s case-in-chief, “[t]he jurors learned that, over a
period of 10 years, Kerley regularly punched and kicked [the decedent],
slapped her, threw her to the ground when she was pregnant, punched and
kicked her in the stomach when she was pregnant, restrained her from
leaving the home, stalked her, beat her in the back with a two-by-four, kicked
her in the eye, mopped the floor with her face and hair, stomped on her hand
and foot, and repeatedly threatened to kill her.” (Kerley, supra, 23
Cal.App.5th at p. 540.) The appellate court concluded the trial court did not
err by admitting this evidence under Evidence Code section 1109. (Kerley, at
pp. 539-540.) It reasoned that evidence of Kerley’s prior assaults was
“directly relevant” because “the fact that [he] regularly assaulted the victim
is evidence the jury can use to conclude, along with other evidence, that [he]
assaulted the victim in committing the charged crime.” (Id. at p. 539.)
Rejecting Kerley’s argument that the evidence was inflammatory and
prejudicial under Evidence Code section 352, the appellate court reasoned
that Kerley’s behavior represented “compelling evidence” of his propensity to
beat his partner, that “[t]he frequency and regularity with which Kerley beat
[the decedent] provided vivid proof he would likely beat [her] again,” and that
“[t]he severity and viciousness with which [Kerley] assaulted [the decedent]
was probative of the intensity and depth of his willingness to harm her.”
(Kerley, supra, 23 Cal.App.5th at p. 540.) The court explained, “this type of

18
‘prejudice’ is not the ‘prejudice’ envisioned by [Evidence Code] section 352.”
(Ibid.)
Returning to the case at hand, Ramirez argues that his acts of domestic
violence were not probative because they were not as frequent, regular, or
severe as in Kerley. This comparison misses the point. That particularly
egregious acts of violence were admitted in Kerley does not, on its own,
establish a general rule requiring evidence of domestic violence to be just as
egregious to be admissible in other cases. The probative value of a
defendant’s prior domestic violence incidents comes from the defendant’s
tendency to engage in a particular pattern of abuse. The probative value of
this evidence is in the similarity of defendant’s later conduct to his own
earlier behavior, not the similarity of the defendant’s abusive acts to those of
another defendant, particularly another defendant accused of a dissimilar
offense. Ramirez, unlike the defendant in Kerley, was not on trial for
murdering his partner by crushing her ribcage. Ramirez’s uncharged
misconduct did not need to be similar in kind or frequency to the uncharged
acts admitted in Kerley to be probative here.
Next, Ramirez claims that his prior acts of domestic violence were not
probative because of a lack of corroboration. Thus, he contends those acts
lacked probative value because K.E. was the only source of information for
both acts, and the prosecution did not establish how much time passed
between the prior acts and the arson. These arguments lack merit.
At the outset, Evidence Code section 1109 does not mandate
corroboration. The relevant part of the statute states: “Subject to a hearing
conducted pursuant to [Evidence Code] Section 352, which shall include
consideration of any corroboration and remoteness in time, ‘domestic violence’
has the further meaning as set forth in Section 6211 of the Family Code, if

19
the act occurred no more than five years before the charged offense.” (§ 1109,
subd. (d)(3).) “Consideration of a factor such as corroboration does not
mandate the existence of that factor.” (People v. Mani (2022) 74
Cal.App.5th 343, 373.) Thus, under Evidence Code section 1109,
“corroboration is not a requirement.” (Mani, at p. 372.) Accordingly, the fact
that K.E. was the only source of information regarding the prior acts did not
render evidence of those acts inadmissible at trial.
Moreover, Ramirez’s argument regarding the timing of the two prior
bad acts is similarly unpersuasive. Evidence Code section 1109,
subdivision (e) limits the admission of prior bad acts that occurred more than
10 years before the charged offense unless “the court determines that the
admission of this evidence is in the interest of justice.” Here, it is undisputed
that the prior acts occurred within a year of the charged offense because K.E.
had only known Ramirez for about a year. Therefore, the fact that the
prosecution did not prove precisely when the two prior acts occurred is
insignificant to our analysis here.
Additionally, Ramirez, in rather cursory fashion, asserts that the jury
may have felt compelled to punish him for the prior bad acts because those
acts did not result in any previous criminal convictions. This argument is
pure speculation. Further, Ramirez concedes that the trial court correctly
instructed the jury in the proper use and consideration of the prior bad acts
evidence. And we must presume that the jury followed the court’s
instructions. (People v. Mooc (2001) 26 Cal.4th 1216, 1234.)
Finally, we disagree with Ramirez’s final argument that the evidence of
the prior acts of domestic violence distracted and confused the jury. The
admission of those acts took very little time at trial, constituted minute
evidence against Ramirez, and did not require the testimony of additional

20
witnesses. On this record, we cannot contemplate how the evidence of prior
acts of domestic violence confused or distracted the jury. Also, the acts were
far less inflammatory than the charged offenses against Ramirez.
In short, against this backdrop, we conclude the trial court did not
abuse its discretion in admitting the prior acts of domestic violence under
Evidence Code sections 1109 and 352.
III
WEARING OF A SURGICAL MASK WHILE TESTIFYING
A. Ramirez’s Contentions
Ramirez maintains that his Sixth Amendment right to confront witnesses
was violated when the trial court allowed K.E. to testify while wearing a
surgical mask instead of a clear, plastic mask (referred to as a “ghost shield”
in the record). We disagree.
B. Background
Ramirez’s trial occurred during the COVID-19 pandemic. As such, it
was conducted under various emergency orders and a mask mandate. Before
the first witness testified, the court broached the subject of witnesses wearing
masks. In doing so, the court noted that the prosecution had “come up with
what’s called a ghost mask, which is a plastic shield that goes on the nose of
the individual.” It further explained that it found it acceptable if K.E. was
willing to wear the ghost mask.
Ramirez’s trial counsel indicated that, although he preferred “any
witness in this trial be subject to full scrutiny and that involves the jury’s
ability to see their facial expressions and demeanor while testifying,” he felt
“that this mask affords us the closest to a normal ability to observe a witness
in non-Covid times as possible, and that would be acceptable to me.” In
response, the court indicated that it would not make K.E. wear the ghost

21
mask if she was not willing to wear it. Further, the court stated that K.E.
had to wear a mask, and it would allow her to wear whatever mask she
wanted. Defense counsel did not object to any other witness wearing a
surgical mask.
When K.E. began to testify at trial, she was wearing the ghost mask.
Around 45 minutes into K.E.’s testimony, the trial court noted that the ghost
mask appeared to be uncomfortable to her. K.E. stated that the ghost mask
was “making [her] breathe [her] own oxygen.” The court then commented:
“Let me establish what the record is. She’s expressed
ghost—the ghost mask does not appear to be comfortable.
It has a metal band that closes down on your nose, almost
like one of those strips. It does appear to be uncomfortable.
She’s expressed discomfort. She’s trying to hold it in front
of her face and still talk. [K.E.] has been on the stand now
since approximately 9:15. It’s now approximately a few
minutes to 10:00.”

The trial court then allowed K.E. to testify in a surgical mask that
covered her nose and mouth. In doing so, the court noted that “[t]he jury has
had an opportunity to see her, watch her face, get a feel for how she speaks.
She’s clearly in discomfort and not happy with wearing the ghost mask.”
Ramirez’s trial counsel then noted his objections for the record,
incorporating his earlier comments. After which, the court explained:
“The jury has had an opportunity to be able to observe
[K.E.] and her facial expressions. You’ll be able to continue
to observe her, but I’m not going to make someone continue
to be uncomfortable. And, in fact, she’s at the point now
where she’s taking the mask off and it’s no longer serving
any protect[ive] purposes. It is unfortunate, but the courts
are still under emergency orders. The Covid pandemic,
although we all wish it ended by now, the emergency orders
are still in place and individuals on the inside of enclosed
environments are to be wearing facial masks.

22
 “Okay. Wear it over your nose, though, please. If you’re
wearing it, it has to cover everything, including your nose
and mouth.

“All right. Thank you. Over the objection of defense, I am
going to allow her to wear a surgical mask at this point.”

K.E. then finished testifying while wearing a surgical mask.
C. Analysis
Ramirez argues the trial court violated his Sixth Amendment right to
confrontation by allowing K.E. to testify wearing a surgical mask when the
clear, ghost mask was available, and she had begun her testimony wearing

the ghost mask.4 We reject this claim, following the trio of cases concluding
that trial court orders requiring witnesses to wear face coverings during the
early months of the pandemic did not violate the confrontation clause.
(People v. Edwards (2022) 76 Cal.App.5th 523, 525-527 (Edwards); People v.
Lopez (2022) 75 Cal.App.5th 227, 232-236 (Lopez); People v. Alvarez (2022) 75
Cal.App.5th 28, 34-39 (Alvarez).)
In Alvarez, the trial occurred during the COVID-19 pandemic. Before
trial, defense counsel expressed his concern that allowing witnesses to wear
masks while testifying to protect them from the spread of the virus would
violate the defendant’s constitutional right to confrontation. The judge who
presided over this hearing responded that the witnesses “might be able to
drop their masks below their mouths while testifying behind a plastic shield,
which had been installed on the witness stand following the COVID-19
outbreak, and return the masks to cover the tip of their nose and mouths

4 The People argue that Ramirez forfeited this issue by failing to object
below. The record does not support the People’s position. Ramirez’s trial
counsel clearly objected to the trial court allowing K.E. to wear a surgical
mask while testifying.
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when not speaking.” (Alvarez, supra, 75 Cal.App.5th at p. 34.) However,
when a different judge presided over the trial, and defense counsel raised the
same concern, requesting that witnesses testify without face masks, the judge
required the witnesses to wear masks but allowed them to remove the masks
“ ‘momentarily’ ” so they could be seen. (Ibid.)
The court determined that a compelling public policy, the protection of
the health and safety of the trial participants and members of the public who
may attend the trial, justified the trial court’s mask requirement. The court
noted requiring individuals while testifying to wear masks covering their
mouth and lower part of the nose during the pandemic “served an important
state interest in protecting the public from a contagious, and too often, lethal
disease.” (Alvarez, supra, 75 Cal.App.5th at p. 36.) As to less restrictive
alternatives, such as face shields and plexiglass screens, the court reasoned,
“ ‘The CDC [(Centers for Disease Control and Prevention)] also makes a
distinction between “masks” and “face shields,” which is what the
Government recommends here. The CDC finds that face shields are not as
effective as masks, and it does not recommend substituting face shields for
masks. [Citation.] Given the CDC recommendations, which are based on the
best available science in this area,’ ” the court concluded the CDC’s “ ‘social
distancing and mask protocols are necessary and essential to protect the
courtroom participants during a trial.’ ” (Id. at p. 37.) Ultimately, the court
found “face shields and plexiglass screens are not an adequate substitute and
standing alone do not provide reasonable protection for the trial
participants.” (Ibid.)
Finally, the court found all elements inherent in the confrontation
clause, as set out in Maryland v. Craig (1990) 497 U.S. 836 (Craig), were

24
satisfied.5 (Alvarez, supra, 75 Cal.App.5th at pp. 37-38.) The witnesses were
physically in the courtroom in the presence of the defendant, under oath, and
they were subject to “rigorous cross-examination.” (Id. at p. 38.) Even
though face masks covered their mouths and the lower part of their noses,
the court observed “significant aspects of their appearance, including the
eyes, tops of the cheeks, and the body, were readily observable as was
posture, tone of voice, cadence and numerous other aspects of demeanor:
‘Demeanor includes the language of the entire body [and] jurors will be able
to observe most facets of the witnesses’ demeanor.’ ” (Ibid.)
In sum, the court in Alvarez concluded that as long as all procedural
safeguards for ensuring reliability were present, “despite some minimal
limitation on a jury’s ability to assess witness demeanor,” the confrontation
clause was not violated. (Alvarez, supra, 75 Cal.App.5th at pp. 38-39.)
Likewise, in Lopez, the court held the mask requirement did not violate
the defendant’s right to confrontation. There, during pretrial proceedings,
the defendant requested to be relieved of the requirement to wear a mask and

5 In Craig, the United States Supreme Court recognized “that face-to-
face confrontation enhances the accuracy of factfinding by reducing the risk
that a witness will wrongfully implicate an innocent person.” (Craig, supra,
497 U.S. at p. 846.) The high court, nonetheless, also recognized that
“[a]lthough face-to-face confrontation forms ‘the core of the values furthered
by the Confrontation Clause,’ [citation], we have nevertheless recognized that
it is not the sine qua non of the confrontation right.” (Id. at p. 847; accord,
People v. Wilson (2021) 11 Cal.5th 259, 290.) Rather, “ ‘the Confrontation
Clause reflects a preference for face-to-face confrontation at trial,’ [citation], a
preference that ‘must occasionally give way to considerations of public policy
and the necessities of the case.’ ” (Craig, at p. 849.) Although the “face-to-
face confrontation requirement is not absolute,” it cannot be “easily dispensed
with,” and may be denied only when “necessary to further an important
public policy and only where the reliability of the testimony is otherwise
assured.” (Id. at p. 850.)
25
that all witnesses be allowed to testify without masks. The trial court denied
the defendant’s motion. (Lopez, supra, 75 Cal.App.5th at p. 231.) Mirroring
the same rationale as in Alvarez, the appellate court upheld the trial court’s
decision requiring the defendant and witnesses to wear masks. (Id. at
pp. 232-236.) Unlike Alvarez, however, the defendant in Lopez focused on a
handful of orders from courts in other counties allowing witnesses during
trial to testify maskless. The appellate court determined the lack of
adherence to identical procedures during the pandemic only “underscores the
need for deference to a trial court’s inherent authority and discretion to
control the proceedings before it.” (Lopez, at p. 235.) Accordingly, the court
declined to adopt a rule infringing on the trial court’s inherent authority to
“promulgate procedures best suited for their particular courtrooms as they
confront the challenges presented by the global pandemic.” (Id. at p. 236.)
Shortly after the Lopez opinion, the appellate court in Edwards, supra,
76 Cal.App.5th 523, in a succinct opinion, held the trial court properly denied
the defendant’s motion to bar witnesses from testifying through a mask. In
upholding the trial court’s ruling, the court explained: “The trial court in this
case was not trying to hide or obscure identities or the truth. It was following
national safety guidelines and court orders in response to a deadly and
worldwide pandemic. This pandemic potentially affects everyone. The
disease spreads through social contact. This pandemic has been long and
unpredictable.” (Id. p. 527.) Importantly, as discussed in more detail post,
the appellate court also rejected the alterative use of clear masks or face
shields.
Here, we agree with the reasoning of Alvarez and Lopez, and reject
Ramirez’s claims for the reasons expressed in both cases. In view of the
ongoing and persistent COVID-19 pandemic, we believe the trial court’s

26
masking order was justified by the strong interest in safeguarding the health
and safety of everyone in the courtroom. The masking order still allowed the
jury to assess the reliability and credibility of the witnesses by taking into
consideration such factors as their demeanor, appearance, tone of their voice,
recollection, and consistency and inconsistencies in their testimony, and
accordingly, did not violate the confrontation clause.
Nonetheless, Ramirez argues the trial court instead could have ordered
K.E. to continue to wear the ghost mask. However, citing to the CDC
recommendations, the court in Alvarez discounted the face shield or
plexiglass screen alternatives because the CDC concluded face shields were
not as effective as face masks and consequently did not recommend
substituting face shields for face masks. (Alvarez, supra, 75 Cal.App.5th at
p. 37.) The court in Edwards also rejected proposed alternatives to face
masks—clear masks or face shields—because the defendant “offered no
evidence an objective authority appraised these alternatives to be effective in
combatting the disease’s spread.” (Edwards, supra, 76 Cal.App.5th at
p. 527.)
Here, too, Ramirez failed to provide the trial court with any objective
authority suggesting clear masks or face shields were a safe alternative to
opaque masks. However, we note a slight difference in this matter as
compared to Alvarez and Edwards is that the trial court indicated a
willingness to allow K.E. to testify in the ghost mask if she was willing to do
so. Yet, by allowing K.E. to begin to testify in the ghost mask, the trial court
was able to witness firsthand the safety issues the CDC flagged in using a
face shield. To wit, the trial court initially allowed K.E. to testify in the ghost
mask but observed that K.E. was uncomfortable. Further, the court explicitly
noted that the ghost mask was not effectively serving its protective function

27
as K.E. pulled it away from her face to testify. Thus, the factual record here
supports the conclusions reached in Alvarez and Edwards that face shields
would be less effective than face masks. Accordingly, we reach the same
conclusion as many other courts that face masks covering the nose and mouth
do not violate the confrontation clause. Ramirez’s Sixth Amendment rights
were not violated.
IV
CUMULATIVE ERROR
Ramirez maintains that, taken together, the multiple errors constitute
cumulative error that warrants reversal. We disagree. We found no merit to
any of Ramirez’s claims of error. “A predicate to a claim of cumulative error
is a finding of error.” (People v. Sedillo (2015) 235 Cal.App.4th 1037, 1068.)
Because we do not find any error, we also do not find any cumulative error
that warrants reversal. (Ibid.; see People v. Duff (2014) 58 Cal.4th 527, 562
[“In the absence of error, there is nothing to cumulate.”].)
DISPOSITION
The judgment is affirmed.

HUFFMAN, J.

WE CONCUR:

McCONNELL, P. J.

DATO, J.

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