Filed 1/21/20 P. v. Migoya CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Yolo)

—-

THE PEOPLE,

Plaintiff and Respondent,

v.

HEDER LEISING MIGOYA,

Defendant and Appellant.

C087345

(Super. Ct. No. CRF-17-5834)

After midnight on September 29, 2017, defendant Heder Leising Migoya stabbed and killed his estranged wife’s boyfriend after entering her residence unannounced and finding them sleeping together. Following a jury trial, defendant was found not guilty of first degree murder but guilty of the lesser included offense of second degree murder. (Pen. Code, § 187, subd. (a).) The jury also found that he personally used a deadly or dangerous weapon in the commission of the murder. (Pen. Code, § 12022, subd. (b)(1).) The trial court sentenced him to an aggregate term of 16 years to life in state prison.

On appeal, defendant contends the judgment must be reversed because the trial court prejudicially erred in admitting evidence of his prior uncharged acts of domestic violence, and in failing to instruct the jury on the lesser included offense of involuntary manslaughter. Defendant alternatively contends that the cumulative effect of the evidentiary and instructional errors requires reversal. Finally, defendant contends that, pursuant to the holding in People v. Dueñas (2019) 30 Cal.App.5th 1157, 1168, 1172 (review on own motion declined and request for depublication denied Mar. 27, 2019, S254210) (Dueñas), the trial court erred by imposing certain fines and assessments without first making a determination of his ability to pay in violation of his due process rights. We affirm the judgment.

FACTUAL BACKGROUND

We summarize only the facts necessary to the disposition of this appeal. Additional background information relevant to the claims raised on appeal is discussed below.

Prosecution Evidence

Defendant and L.S. met in Los Angeles in the winter of 2012. They began dating shortly thereafter. By the summer of 2013, they had both moved to Calaveras County to work on a farm. In November 2013, they got married. Their son, B., was born in the spring of 2014.

After B. was born, the couple’s relationship deteriorated. Defendant’s violent explosions and verbal abuse occurred more frequently and escalated into physical abuse.

In October 2016, defendant and L.S. separated. Thereafter, L.S. and B. moved into a doublewide trailer on a farm in Davis. Defendant and L.S. informally agreed to share custody of B. L.S. filed for divorce in late 2016 or January 2017.

In February 2017, L.S. met Dustin Dougherty. They became friends and eventually started dating. In August 2017, Dougherty moved in with L.S. and her roommates. At some point after L.S. and Dougherty began dating, defendant asked L.S. to have dinner with him. She refused, explaining that she had plans with a male friend. While defendant was at L.S.’s residence, he saw Dougherty, who was standing by his truck. After confirming with L.S. that she was planning on having dinner with Dougherty, defendant drove toward him really fast, “eyeballing him . . . up and down.” Defendant did a “crazy three point [turn]” and then sped off. Dougherty did not say anything to defendant.

In mid-September 2017, defendant took B. to visit his paternal grandmother in Los Angeles. After extending the trip beyond the agreed-upon length several times, defendant told L.S. that he intended on dropping B. off at her residence on September 28, and that he would let her know if his plan changed.

Around 3:00 p.m. on September 28 defendant called L.S. but she did not answer. He did not leave a voice message or send a text message indicating when he intended on dropping B. off.

That night, Dougherty parked his truck in the front of the trailer. He fell asleep in L.S.’s bedroom around 9:45 p.m. L.S. went to bed about an hour and a half later.

After midnight, L.S. was awakened by defendant after he entered her residence and bedroom unannounced and quietly said her name. At that moment, Dougherty made a really soft “sleeping noise,” a “soft breath or moan.” L.S. told defendant to “get the hell out” of her bedroom and close the door. When he failed to respond, she repeated her request two more times. After she heard the door close, L.S. covered Dougherty with a blanket and turned the light on. At that point, she discovered that defendant and B. were in her bedroom. L.S., who was only wearing underwear, quickly turned the light off and told defendant to leave B. and get the “hell out” of her home. She then escorted B. to the bedroom door and told him to go wait on the couch. As she was doing so, she did not hear any arguing or sounds of a struggle. Instead, she heard “a loud punching noise.” She immediately rushed to the bed and attempted to pull defendant off Dougherty. Defendant was on his knees on the bed “leaning all the way over” Dougherty. During the struggle, defendant’s shirt collar ripped, causing him to fall forward. He then quickly got off the bed, ran out of the trailer, and sped away in his vehicle.

After defendant fled the scene, L.S. turned her bedroom light on and ran to Dougherty. He sat up, pulled himself to the edge of the bed, and fell to his knees. He looked confused and shocked. He told L.S. that defendant “had a knife” and then fell forward onto the floor. When L.S. looked around the room, she saw a bloody knife on the floor, which she recognized as belonging to defendant.

L.S. called 911 and attempted to stop the bleeding. When officers arrived at the scene around 12:40 a.m., Dougherty was unconscious and there was a large amount of blood. The officers attempted to resuscitate him but were unsuccessful. He was subsequently pronounced dead at the scene by medical personnel.

During the ensuing police investigation, officers found a six-inch knife on the floor in L.S.’s bedroom. The blade was two and a quarter inches long. In addition to the knife, officers found a small piece of torn blue cloth on the floor that appeared to have bloodstains on it and a hat between the wall and mattress. There were red stains on the wall next to the bed that appeared to be blood.

Using cellular phone data, the police determined that defendant had driven toward Davis after the altercation. A review of surveillance video footage revealed that he had gone to a gas station in Davis around 1:42 a.m. The video footage showed that he was wearing a blue shirt.

Defendant was arrested later that morning at his residence in Calaveras County. He had no visible injuries, except for a small abrasion on his left thumb. When he was interviewed by the police later that same day, he admitted that he was wearing a hat during the altercation with Dougherty and said that it was probably on L.S.’s bed. He also said that he was wearing a different shirt at the time of the altercation and that it was in a suitcase at his residence.

Officers searched the property where defendant resided pursuant to a search warrant but did not find any bloody clothes or other evidence related to the stabbing, except for an apparent blood stain on the driver-side armrest of defendant’s vehicle.

An autopsy revealed that Dougherty suffered seven “sharp-force” injuries (i.e., injuries caused by a sharp object such as a knife) to his torso, one of which was fatal. Five of the wounds were located on the front of his torso and the other two were located on his back. The fatal injury was a stab wound to the chest that pierced Dougherty’s heart. It was about three inches long by five and a half inches deep. In addition to the injuries to his torso, Dougherty suffered sharp-force injuries to his right cheek, left ear, left temple, and left arm. He also had what appeared to be a bruise on his left cheek. The injury to his left arm was consistent with a defensive wound—i.e., a wound suffered when a person attempts to defend himself from an attack.

Defense Evidence

Defendant’s Testimony

Defendant testified on his own behalf. He claimed that he stabbed Dougherty in self-defense during a violent struggle. He maintained that he did not intend to kill Dougherty.

Defendant gave the following account of his altercation with Dougherty. He arrived at L.S.’s residence sometime between 12:00 and 12:30 a.m. He entered the residence with B. after he knocked twice and nobody answered. Once inside, he knocked on L.S.’s bedroom door. As he was doing so, he heard a noise that sounded like people having sexual intercourse. Defendant ignored the sound and entered the room. Shortly thereafter, L.S. got out of bed and turned the light on. L.S., who was naked, got very upset. She told defendant to “get out” and snatched B. out of his arms. As L.S. was moving quickly to turn the light off, defendant saw a silhouette of a person (Dougherty) throw a jacket or sheet at him right before the light went off. Dougherty then grabbed defendant’s knife, which was hanging on a hook outside his pocket. A struggle ensued, during which defendant regained control of the knife after he and Dougherty fell onto the bed. When Dougherty kicked defendant in the face, defendant became very angry. He “threw [himself] on [Dougherty] with all of [his] strength.” Thereafter, his “mind went blank” and “everything [went] white.” He “started to attack” but did not know what he was doing. He wanted to stab Dougherty in the leg but he did not know where he was stabbing because “everything was white.”

When L.S. turned the light on, defendant saw blood on the bed and got scared. He fled the scene after Dougherty jumped off the bed at him and knocked the knife out of his hand.

Defendant claimed that he had no memory of his actions after he “saw all white” until the light was turned on.

Expert Testimony

Dr. Linda Bernard, a licensed marriage and family therapist, testified as a defense expert on, among other things, trauma assessment and the effects of trauma. She testified that defendant had been the victim of multiple traumatic situations, including a childhood in war-torn Guatemala, multiple gang attacks in Guatemala, and witnessing a murder in Los Angeles. Dr. Bernard explained that the trauma defendant had experienced caused him to have a “heightened sense of danger”; he would “see white” and become overwhelmed when he was confronted by traumatic events. He “would feel like time stood still, or [that] time was moving very slowly, or that he wasn’t connected to it.” She opined that his past trauma led him to believe that he needed to use force to defend himself on the night of the stabbing.

Rebuttal Evidence

In rebuttal, the prosecution called a detective to testify about the statements defendant made to the police on the day of the killing. In his police interview, defendant mentioned that he had “los[t] his mind” but did not claim that he had any “gaps” in his memory or that he was “seeing white” during the altercation with Dougherty. Instead, defendant said that he felt hate, anger, and rage when he found L.S. in bed with Dougherty. Defendant indicated that he attacked Dougherty first, explaining that he felt like L.S. was “play[ing] [him] for a fool” because she was asking him for a lot of money while sleeping with another man. He explained that he was angry because he had specifically told L.S. not to have sexual intercourse on the bed he had purchased for L.S. and their son. Defendant said that he hit Dougherty five times fast with “a lot of anger,” and that he only became scared after realizing what he had done in anger. He also repeatedly said that he had suspected for some time that L.S. had been sleeping with other men, and that his anger and rage caused him to take “actions further than he should have taken them.”

When defendant was informed that Dougherty had died and was asked to explain his intention with respect to the altercation, he said: “[J]ust to defend myself, to defend my father’s pride and my children’s too, that they wouldn’t just take me for a fool, to defend my pride as [a] man.” In response to a question asking why he did not call the police even though he knew Dougherty had been stabbed, defendant said: “[W]ell, I had been the . . . guilty one, the one that did it.”

DISCUSSION

1.0 Evidentiary Error

Defendant contends the judgment must be reversed because the trial court prejudicially erred in admitting evidence of his prior uncharged acts of domestic violence. We disagree.

1.1 Additional Background

The People filed a pretrial motion seeking to introduce evidence showing that defendant had committed prior acts of domestic violence against L.S. The People argued that this evidence was admissible under Evidence Code sections 1101, subdivision (b) and 1109, subdivision (a)(1) to show that defendant had a propensity to commit acts of domestic violence against a romantic partner, and to prove his intent and motive regarding the charged crime of murder. The People maintained that the evidence was admissible under section 352 because its probative value was not substantially outweighed by the danger of undue consumption of time or prejudicial effect. The People asserted that the evidence was highly probative because it showed defendant’s controlling, domineering, jealous, aggressive, and violent nature. According to the People, the evidence demonstrated that defendant was a severely jealous person who attempted to exert power and control over L.S. through physical violence and emotional and physical abuse. Defendant filed a written opposition, objecting to the admission of the evidence on various grounds. The trial court ruled that the evidence was admissible under section 1101 and section 1109.

At trial, L.S. testified that defendant was controlling, jealous, and abusive. He would suddenly get very angry; he would “flip on a dime” and verbally and physically abuse her. He frequently degraded and yelled at her and accused her of cheating on him, including anytime she talked to another man. Although she made more money than defendant and paid for most of their expenses, he took control over all of their finances. He did not respect her knowledge about farming and refused to take direction from her in that regard. He forced her to cut off all contact with a close male friend and tried to manage her behavior by telling her what she should be doing and when she should be doing it. He also tried to manage who she talked to and what she said to them, insisting that she not tell people certain things. L.S. explained that defendant would act terrible one moment and then quickly apologize and act sweet, telling her how wonderful she was and how lucky he was to have her in his life.

During her testimony, L.S. recounted various instances of abuse perpetrated against her by defendant. She explained that defendant raped her the first time they had sexual intercourse. He penetrated her in her parent’s garage after she told him not to. He stopped after she started crying. At a wedding several months later, defendant became very angry at her after a male friend “smacked [her] ass.” On another occasion, he became angry at L.S. while they were staying at her friend’s house. When her male friend unexpectedly returned home, defendant got really mad and yelled at her. During the conversation, he told her that she needed to get used to his behavior because it was a part of who he was.

When L.S. was pregnant with B., she and defendant got into a “horrible” fight after she indicated that he was wrong for carving their names into a fallen tree. He called her crazy and got so mad that she was afraid to be around him. She got out of his truck and walked away. She explained that there was “a lot of yelling.”

Defendant’s abusive behavior toward L.S. worsened after B. was born. They moved from the farm they were working on partly because defendant had a “major issue” with the way the property owner looked at her while she was breast-feeding. When L.S. drove away from their new residence one day without him, he chased her down in his vehicle. After he threatened to break her window, she screamed for help. He then broke a window, causing glass to cut B.’s face. When L.S. opened the door, he dragged her out of the vehicle and attacked her while she was holding B. He threatened to break all her teeth and then threw her on the ground and shoved her. Her head hit a rock and her glasses broke. She eventually ran away with B. and hid.

L.S. explained that she would always run away from defendant when they argued, and that, on at least three occasions, he chased her down from behind and pushed her to the ground. On one of those occasions, he shoved her really hard from behind while she was running to her truck with B. in her arms, causing her to fall to the ground and B. to hit his back on the truck’s bumper. L.S. noted that there were many times when defendant would stand in front of her truck to prevent her from driving away. On one occasion, she called the police because he was threatening her and would not leave her alone or let her drive away in her truck, which was packed with her belongings.

Defendant did not respect L.S.’s boundaries after she informed him that she was no longer interested in him because of his abusive behavior. He got angry with her for not having feelings for him and refusing to have sex with him. On numerous occasions, he entered her room in the middle of the night and pressured her to have sex with him. He would get really angry if she refused his demand for sex. She explained that she did not “put up a fight” because she believed it was better to have sex with him than for him to get angry and violent in front of B.

According to L.S., defendant often broke things when he became angry. He broke her computer after he found her crying while looking at old pictures of them. He also broke her cell phone multiple times, including on one occasion when she attempted to call the police. During an argument, he broke the bathroom door after she had “barricaded” herself and B. inside. He also broke her truck’s windshield wiper once and door handle twice.

In another incident, defendant punched L.S. in the nose three times in front of B. because she did not have lunch prepared. The attack caused her to bleed. He became angry when she failed to clean the blood up fast enough.

On the day L.S. left defendant in October 2016, he threw her against a bus as she was attempting to pack her truck. He also removed two items from her truck and broke them. A few months later, defendant pushed her from behind as she was running away and ran toward her truck while holding a piece of rebar after she refused to leave B. with him for the weekend.

When defendant testified and was asked about specific instances of abuse recounted by L.S., he indicated that her testimony was not truthful.

On appeal, defendant argues, as he did in the trial court, that evidence of his prior uncharged acts of domestic violence was inadmissible under section 1101, subdivision (b) because it was not relevant to prove his motive or intent. Defendant additionally argues that the evidence was inadmissible under section 1109, subdivision (a)(1) because the charged crime of murder was not “an offense involving domestic violence.” Finally, defendant argues that, even if the evidence was admissible under section 1101, subdivision (b) and/or section 1109, subdivision (a), it was inadmissible under section 352.

1.2 General Legal Principles

Character or propensity evidence, including evidence of a defendant’s prior conduct, is generally inadmissible to prove the defendant’s conduct on a specified occasion. (§ 1101, subd. (a); People v. Villatoro (2012) 54 Cal.4th 1152, 1159 (Villatoro).) However, evidence that the person committed an uncharged crime or other act of misconduct, is admissible when it is relevant to prove some material fact other than the person’s disposition to commit that crime or act, such as motive or intent. (§ 1101, subd. (b); Villatoro, at p. 1159.)

In addition, the Legislature has created a specific exception to the rule against admitting propensity evidence in cases involving domestic violence. (§ 1109, subd. (a)(1); Villatoro, supra, 54 Cal.4th at p. 1159.) Section 1109 provides, in relevant part, “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 Section 1101 . . . .” (§ 1109, subd. (a)(1).) In enacting section 1109, “ ‘[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. Brown (2011) 192 Cal.App.4th 1222, 1232 (Brown).) As a result, section 1109 “ ‘permits the admission of defendant’s other acts of domestic violence for the purpose of showing a propensity to commit such crimes [Citation.]’ ” (Brown, at p. 1233.) “ ‘[T]he statute reflects the legislative judgment that in domestic violence cases, as in sex crimes, similar prior offenses are “uniquely probative” of guilt in a later accusation. [Citation.] Indeed, proponents of the bill that became section 1109 argued for admissibility of such evidence because of the “typically repetitive nature” of domestic violence. [Citations.] This pattern suggests a psychological dynamic not necessarily involved in other types of crimes.’ ” (People v. Megown (2018) 28 Cal.App.5th 157, 168 (Megown); see Brown, at p. 1233 [“ ‘[I]t is apparent that the Legislature considered the difficulties of proof unique to the prosecution of these crimes when compared with other crimes where propensity evidence may be probative but has been historically prohibited.’ ”].)

“ ‘[T]he legislative history of [section 1109] recognizes the special nature of domestic violence crime, as follows: “The propensity inference is particularly appropriate in the area of domestic violence because on-going violence and abuse is the norm in domestic violence cases. 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. Without the propensity inference, the escalating nature of domestic violence is likewise masked. If we fail to address the very essence of domestic violence, we will continue to see cases where perpetrators of this violence will beat their intimate partners, even kill them, and go on to beat or kill the next intimate partner. Since criminal prosecution is one of the few factors which may interrupt the escalating pattern of domestic violence, we must be willing to look at that pattern during the criminal prosecution, or we will miss the opportunity to address this problem at all.” ’ ” (Brown, supra, 192 Cal.App.4th at pp. 1235-1236.)

Evidence admissible under section 1101, subdivision (b) or section 1109, subdivision (a)(1) is subject to exclusion under section 352. (People v. Kerley (2018) 23 Cal.App.5th 513, 534; § 1109, subd. (a)(1).) Thus, before admitting such evidence, the trial court must exercise its discretion to 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.” (§ 352.)

“[U]ndue prejudice,” as used in section 352, does not mean evidence that is harmful to the defendant’s case. “ ‘ “ ‘[T]he prejudice which exclusion of evidence under . . . section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. “[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant’s case. The stronger the evidence, the more it is ‘prejudicial.’ The ‘prejudice’ referred to in . . . section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues.” ’ ” ’ ” (People v. Fruits (2016) 247 Cal.App.4th 188, 205.) “ ‘[E]vidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors’ emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose.’ ” (People v. Doolin (2009) 45 Cal.4th 390, 439.)

“Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. [Citation.] Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion ‘must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]’ ” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)

1.3 Section 1101

Defendant contends the trial court erred in admitting evidence of his prior uncharged acts of domestic violence under section 1101, subdivision (b) because the evidence was not relevant to prove his motive or intent, since there was no direct relationship or nexus between the charged crime of murder and the prior acts. According to defendant, the requisite nexus was not satisfied because Dougherty was not a victim of the prior acts and was not a member of L.S.’s family. We disagree.

Evidence of prior uncharged acts of misconduct may be admitted if the acts are logically, naturally, and by reasonable inference, relevant to prove some fact at issue, such as motive or intent. (People v. Fuiava (2012) 53 Cal.4th 622, 667.) “A ‘motive’ is defined as a ‘[c]ause or reason that moves the will and induces the action[,]’ ‘[a]n inducement, or that which leads or tempts the mind to indulge a criminal act.’ [Citation.] Motive is an intermediate fact which may be probative of such ultimate issues as intent [citation], identity [citation], or commission of the criminal act itself [citation].” (People v. Scheer (1998) 68 Cal.App.4th 1009, 1017-1018; see People v. Spector (2011) 194 Cal.App.4th 1335, 1383 (Spector) [“ ‘ “Motive is itself a state-of-mind or state-of-emotion fact. Motive is an idea, belief, or emotion that impels or incites one to act in accordance with his state of mind or emotion.” ’ ”].) “[E]vidence of motive makes the crime understandable and renders the inferences regarding defendant’s intent more reasonable. ‘Motive is not a matter whose existence the People must prove or whose nonexistence the defense must establish. [Citation.] Nonetheless, “[p]roof of the presence of motive is material as evidence tending to refute or support the presumption of innocence.” ’ ” (People v. Roldan (2005) 35 Cal.4th 646, 707, disapproved on another ground in People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22.)

Evidence of prior uncharged acts of misconduct “is admissible to establish two different types or categories of motive evidence. In the first category, ‘the uncharged act supplies the motive for the charged crime; the uncharged act is cause, and the charged crime is effect.’ [Citation.] ‘In the second category, the uncharged act evidences the existence of a motive, but the act does not supply the motive. . . . [T]he motive is the cause, and both the charged and uncharged acts are effects. Both crimes are explainable as a result of the same motive.’ ” (Spector, supra, 194 Cal.App.4th at p. 1381.) The prior uncharged acts of misconduct in this case fall into the latter category. California case law allows the admission of such evidence to prove the second kind of motive. (Id. at pp. 1381-1382.)

The probativeness of prior uncharged acts of misconduct on the issue of motive does not necessarily depend on similarities between the charged crime and uncharged misconduct, so long as there is a direct logical nexus between the charged crime and uncharged misconduct. (People v. Demetrulias (2006) 39 Cal.4th 1, 15; see People v. Pertsoni (1985) 172 Cal.App.3d 369, 374.) In Pertsoni, the defendant was charged with shooting and murdering a man he believed to be a member of the Yugoslav secret police. The defendant claimed he acted in self-defense. At trial, the court admitted evidence of an uncharged prior violent act: the defendant shooting at a man he thought was the Yugoslav Ambassador. (Pertsoni, at pp. 372-373.) Although the acts were not similar in the circumstances of their commission, the uncharged misconduct evidence was held admissible to show the defendant’s motive of “passionate hatred of anyone connected with the Yugoslav government.” (Id. at p. 374.) This motive was in turn relevant to show the defendant acted “to kill an agent of the detested government, rather than to protect himself against a perceived danger.” (Id. at p. 375.) “Evidence of his motive thus was critically important in showing a reason for his criminal behavior and in rebutting his claim of self-defense.” (Ibid.)

We conclude the trial court did not err in admitting evidence of defendant’s prior uncharged acts of domestic violence against L.S. under section 1101, subdivision (b). The prosecution’s theory of guilt was that defendant flew into a jealous rage and attacked Dougherty with the intent to kill after finding him sleeping with L.S., whereas defendant asserted that he acted in self-defense during a violent struggle with Dougherty and did not intend to kill. Evidence of defendant’s motive was relevant to the disputed issues of self-defense and malice aforethought. The prior acts evidence, which demonstrated that defendant was a jealous person who exerted power and control over L.S. through physical violence and verbal and emotional abuse, was admissible because it showed a reason for his behavior and his state of mind at the time of the killing. The evidence logically tended to prove that defendant acted with a motive and intent to kill and negated his claim of self-defense. On this record, the requisite direct logical nexus between the charged murder and the prior acts of domestic violence was satisfied. Accordingly, the prior acts evidence was not improperly admitted under section 1101, subdivision (b).

1.4 Section 1109

We conclude defendant has failed to demonstrate that the evidence was improperly admitted under section 1109, subdivision (a). According to defendant, the trial court erroneously admitted the prior acts evidence under this provision because the charged crime of murder was not “ ‘an offense involving domestic violence.’ ” While defendant concedes that L.S. is within the protected class of persons to whom section 1109 applies, he argues that reversal is required because section 1109 does not apply to Dougherty under the circumstances of this case. He further argues that the charged crime of murder did not amount to “abuse” for purposes of being “ ‘an offense involving domestic violence’ ” because his behavior did not place L.S. in fear of imminent serious bodily injury to herself or Dougherty. We disagree.

Section 1109 provides, in relevant part, “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 Section 1101 . . . .” (§ 1109, subd. (a)(1), italics added.) Section 1109 does not contain a list of offenses which are defined as those “involving” domestic violence. Instead, section 1109 incorporates the definition of domestic violence in Penal Code section 13700 and, under certain circumstances, the broader definition in Family Code section 6211. Specifically, “ ‘Domestic violence’ has the meaning set forth in Section 13700 of the Penal Code. 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 the act occurred no more than five years before the charged offense.” (§ 1109, subd. (d)(3).)

Penal Code section 13700, subdivision (b), defines “ ‘[d]omestic violence’ ” to mean “abuse committed against an adult or a minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship.” Family Code section 6211 defines “ ‘[d]omestic violence’ ” as “abuse” perpetrated against a spouse or former spouse, a cohabitant or former cohabitant, a person with whom the respondent is having or has had a dating or engagement relationship, a person with whom the respondent has had a child, a child of a party, and any other person related by consanguinity or affinity within the second degree.

“ ‘Abuse’ ” is defined as “intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another.” (Pen. Code, § 13700, subd. (a).)

Here, the evidence presented at trial showed that defendant entered L.S.’s residence unannounced in the middle of the night and brutally attacked and killed Dougherty in her presence, including inflicting numerous injuries with a knife. There was also evidence that defendant continued to attack Dougherty as L.S. attempted to physically stop him. Under these circumstances, defendant “abused” L.S. by placing her in reasonable apprehension of imminent serious bodily injury to herself and Dougherty. Therefore, defendant was “accused of an offense involving domestic violence” within the meaning of section 1109, subdivision (a)(1). (See Megown, supra, 28 Cal.App.5th at p. 166 [concluding that defendant’s crimes against mother of his cohabitant, which stemmed from incident in which defendant threatened to kill mother in cohabitant’s presence while holding a gun, involved domestic violence because cohabitant was reasonably apprehensive of imminent injury to her mother].) Defendant offers no case law or legal analysis supporting a contrary conclusion.

1.5 Section 352

Defendant contends that, even if prior acts evidence was admissible under section 1101 and/or section 1109, the trial court erred in admitting the evidence under section 352. We disagree.

In determining whether evidence of uncharged acts of domestic violence was properly admitted under section 352, the law requires that “ ‘the probative value of the evidence must be balanced against four factors: (1) the inflammatory nature of the uncharged conduct; (2) the possibility of confusion of issues; (3) remoteness in time of the uncharged offenses; and (4) the amount of time involved in introducing and refuting the evidence of uncharged offenses.’ ” (People v. Culbert (2013) 218 Cal.App.4th 184, 192.) “ ‘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.)

We conclude that the trial court did not abuse its discretion in admitting evidence of defendant’s prior uncharged acts of domestic violence against L.S. under section 352. The prior acts evidence was probative to show a larger regime of dominance and control that escalated in frequency and intensity over time. The past acts of domestic violence recounted by L.S. showed that, just like with the current murder, defendant engaged in a pattern of resorting to domestic violence as a means of exercising power and control over L.S. when he was angered by perceived slights, jealousy, and/or rejection. As for prejudice, the past acts were not more inflammatory than the charged crime of murder and were not remote in time. Defendant has not directed us to any portion of the record showing that the prior acts evidence confused the issues or distracted the jury with respect to defendant’s culpability for Dougherty’s death. Finally, contrary to defendant’s contention, the presentation of the prior acts evidence was not unduly time consuming. In all, there were about 70 pages of prior acts testimony elicited from L.S. compared with approximately 850 pages of other trial testimony. On this record, we cannot conclude the trial court’s decision to admit the evidence was arbitrary, capricious, or patently absurd such that it resulted in a manifest miscarriage of justice.

2.0 Instructional Error

Defendant contends the trial court prejudicially erred in failing to instruct the jury sua sponte on the lesser included offense of involuntary manslaughter. According to defendant, the trial court had a duty to instruct on this offense “based on imperfect self-defense, brandishing the knife, or simple or felonious assault.” We disagree.

When there is substantial evidence showing a defendant committed a lesser-included offense, the trial court has a duty to instruct the jury on it. (People v. Cook (2006) 39 Cal.4th 566, 596 (Cook).) “The court must, on its own initiative, instruct the jury on lesser included offenses when there is substantial evidence raising a question as to whether all the elements of a charged offense are present [citations], and when there is substantial evidence that the defendant committed the lesser included offense, which, if accepted by the trier of fact, would exculpate the defendant from guilt of the greater offense.” (Ibid.) We review the trial court’s failure to instruct on a lesser included offense de novo, considering the evidence in the light most favorable to the defendant. (People v. Millbrook (2014) 222 Cal.App.4th 1122, 1137.)

The People charged defendant with first degree murder, alleging that he willfully and unlawfully killed Dougherty with malice aforethought in violation of Penal Code section 187, subdivision (a). At the close of trial, the trial court instructed the jury on first degree murder based on premeditation and deliberation (CALCRIM No. 521), implied malice second degree murder (CALCRIM No. 520), and voluntary manslaughter based on sudden quarrel or heat of passion (CALCRIM No. 570) or imperfect self-defense (CALCRIM No. 571). The trial court denied defendant’s request to instruct the jury on the offense of involuntary manslaughter, finding that the “involuntary manslaughter scenario just doesn’t present itself in this case.” Defendant claims this ruling was error. We disagree.

“Murder is the unlawful killing of a human being . . . with malice aforethought.” (Pen. Code, § 187, subd. (a).) “Second degree murder is the unlawful killing of a human being with malice aforethought but without the additional elements, such as willfulness, premeditation, and deliberation, that would support a conviction of first degree murder.” (People v. Knoller (2007) 41 Cal.4th 139, 151.) “[M]alice may be express or implied. [¶] . . . [It] is express when there is manifested a deliberate intention to unlawfully take away the life of a fellow creature.” (Pen. Code, § 188, subd. (a).) It is “implied when the killing is proximately caused by ‘ “an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.” ’ [Citation.] In short, implied malice requires a defendant’s awareness of engaging in conduct that endangers the life of another—no more, and no less.” (Knoller, at p. 143.) Implied malice has “ ‘both a physical and a mental component. The physical component is satisfied by the performance of “an act, the natural consequences of which are dangerous to life.” [Citation.] The mental component is the requirement that the defendant “knows that his conduct endangers the life of another and . . . acts with a conscious disregard for life.” [Citation.]’ ” (People v. Chun (2009) 45 Cal.4th 1172, 1181.)

Voluntary manslaughter and involuntary manslaughter are both lesser included offenses of murder. (People v. Thomas (2012) 53 Cal.4th 771, 813.) “The lesser included offense of manslaughter does not include the element of malice, which distinguishes it from the greater offense of murder.” (Cook, supra, 39 Cal.4th at p. 596.)

“When a homicide, committed with malice, is accomplished in the heat of passion or under the good faith but unreasonable belief that deadly force is required to defend oneself from imminent harm, the malice element is ‘negated’ or . . . ‘mitigated’; and the resulting crime is voluntary manslaughter, a lesser included offense of murder.” (People v. Brothers (2015) 236 Cal.App.4th 24, 30 (Brothers).)

In contrast to murder and voluntary manslaughter, involuntary manslaughter is an unlawful killing of a human being without malice or mitigated malice. (Pen. Code, § 192, subd. (b).) “One commits involuntary manslaughter either by committing ‘an unlawful act, not amounting to [a] felony’ or by committing ‘a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.’ ” (Cook, supra, 39 Cal.4th at p. 596; see Pen. Code, § 192, subd. (b).) Involuntary manslaughter may also occur when a noninherently dangerous felony is committed without due caution and circumspection. (People v. Butler (2010) 187 Cal.App.4th 998, 1007.) Finally, involuntary manslaughter may be based on an unlawful killing in the course of an inherently dangerous assaultive felony without malice (i.e., without the intent to kill and without conscious disregard for life). (Brothers, supra, 236 Cal.App.4th at pp. 33-34; see People v. Bryant (2013) 56 Cal.4th 959, 970 [killing “without malice in the commission of an inherently dangerous assaultive felony . . . cannot be voluntary manslaughter because voluntary manslaughter requires either an intent to kill or a conscious disregard for life”].) Similarly, in the scenario of a shooting that occurs while the defendant is engaged in the misdemeanor brandishing of a weapon, the defendant is guilty of involuntary manslaughter only if he or she acts without malice and the killing was accidental. (People v. Thomas, supra, 53 Cal.4th at pp. 814-815.)

“ ‘[T]he existence of “any evidence, no matter how weak” will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is “substantial enough to merit consideration” by the jury. [Citations.] “Substantial evidence” in this context is “ ‘evidence from which a jury composed of reasonable [persons] could . . . conclude[]’ ” that the lesser offense, but not the greater, was committed.’ ” (People v. Moye (2009) 47 Cal.4th 537, 553.)

We find no error in the trial court’s refusal to instruct the jury on involuntary manslaughter. There was insufficient evidence to support the instruction. On this record, a reasonable jury could not have concluded that defendant was guilty of the lesser offense of involuntary manslaughter but not the greater offense of second degree murder. Even viewing the evidence in the light most favorable to defendant, a rational jury could not have entertained a reasonable doubt as to whether Dougherty’s death was accomplished by implied malice during an inherently dangerous assaultive felony. As discussed above, the evidence presented at trial showed that defendant violently and brutally attacked Dougherty in a state of rage after he entered his estranged wife’s residence in the middle of the night and found her sleeping with Dougherty. The evidence showed that defendant intentionally inflicted numerous injuries with a knife, including the fatal stab wound. Defendant plunged his knife five and a half inches deep into Dougherty’s chest, piercing his heart. Such a forceful attack to a particularly vulnerable area of Dougherty’s body showed that defendant “deliberately engaged in a type of aggravated assault the natural consequences of which are dangerous to human life, thus satisfying the objective component of implied malice as a matter of law . . . .” (Brothers, supra, 236 Cal.App.4th at pp. 34-35 [assault with large wooden broom handle]; Cook, supra, 39 Cal.4th at pp. 596-597 [assault with a board].)

Contrary to defendant’s contention, a reasonable jury could not have concluded that he lacked a subjective awareness of the danger his conduct posed to human life. Although defendant testified that his “mind went blank” and that he “started to attack” but did not know what he was doing or where he was stabbing because “everything was white,” the trial court reasonably found that this evidence was insufficient to refute that he acted deliberately with the intent to kill or in subjective conscious disregard for human life. The number of injuries inflicted by defendant to a vulnerable area of the victim’s body and the amount of force required to cause the fatal stab wound precluded a finding that he lacked a subjective awareness of the danger his conduct posed to human life. Further, the statements defendant made to the police on the day of the killing demonstrate that he was fully aware of what he was doing. During his police interview, defendant stated that he felt hate, anger, and rage when he found L.S. in bed with Dougherty. He indicated that he attacked Dougherty first, explaining that he felt like L.S. was “play[ing] [him] for a fool” because she was asking him for a lot of money while sleeping with another man. He explained that he was angry because he had specifically told L.S. not to have sexual intercourse on the bed he had purchased for her and their son. Defendant said that he hit Dougherty five times fast with “a lot of anger” and only became scared after he realized what he had done in anger. He also repeatedly said that his anger and rage caused him to take “actions further than he should have taken them.” When defendant was informed that Dougherty had died and was asked to explain his intention with respect to the altercation, he said: “[J]ust to defend myself, to defend my father’s pride and my children’s too, that they wouldn’t just take me for a fool, to defend my pride as [a] man.” In response to a question asking why he did not call the police even though he knew that Dougherty had been stabbed, defendant said: “[W]ell, I had been the . . . guilty one, the one that did it.”

As in Brothers, an involuntary manslaughter instruction was not warranted because the evidence left no room for reasonable doubt that the defendant acted with intent to kill or conscious disregard for human life, and he knew the risk involved to Dougherty when he violently attacked him with a knife. (Brothers, supra, 236 Cal.App.4th at p. 34; see People v. Guillen, supra, 227 Cal.App.4th at p. 1028 [involuntary manslaughter instruction unwarranted when the evidence leaves no room for reasonable doubt that the defendant acted with intent to kill or conscious disregard for human life].) We are not persuaded by defendant’s characterization of his testimony as constituting substantial evidence that he acted without malice. Under defendant’s version of events, there was a violent struggle during which Dougherty took his knife from him and kicked him in the face. According to defendant, he stabbed Dougherty after regaining control of the knife but did not know where he was stabbing and did not intend to kill. He claimed that he intended only to stab Dougherty in the leg. Even if the jury believed defendant’s testimony that he intended to only stab Dougherty in his leg (which did not happen), the amount of injuries he inflicted and the force with which he executed the fatal stab wound to Dougherty’s chest indisputably showed he acted with a conscious disregard for human life.

Finally, we reject defendant’s contention that the trial court should have instructed the jury on involuntary manslaughter based on imperfect self-defense. To the extent this claim is predicated on the theory that defendant committed a lawful act (self-defense) with criminal negligence, we find that it lacks merit. The trial court instructed the jury on both complete and imperfect self-defense. (See CALCRIM No. 505 [complete self-defense]; CALCRIM No. 571 [“A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed a person because he acted in imperfect self-defense.”].) Defendant asserts the death of Dougherty was an unintentional killing, relying on his testimony that he did not intend to kill Dougherty. But a homicide based on imperfect self-defense is voluntary manslaughter even when it is an unintentional killing if the defendant acts in conscious disregard for life. “[W]hen a defendant, acting with conscious disregard for life, unintentionally kills in unreasonable self-defense, the killing is voluntary, not involuntary, manslaughter.” (People v. Blakeley (2000) 23 Cal.4th 82, 88-89.)

3.0 Cumulative Error

Defendant contends that the cumulative effect of the evidentiary and instructional errors requires reversal. Having rejected each of defendant’s claims of error on the merits, we also reject his claim of cumulative error. (Cook, supra, 39 Cal.4th at p. 608.)

4.0 Dueñas-based Challenge

At sentencing, the trial court imposed a $300 restitution fund fine, suspended a matching parole revocation fine, and imposed a $40 court operations assessment fee and a $30 criminal conviction assessment fee.

Defendant challenges the trial court’s imposition of the restitution fines as well as the assessments for court operations and facilities. (Pen. Code, §§ 1202.4, 1202.45, 1465.8; Gov. Code, § 70373.) Citing Dueñas, supra, 30 Cal.App.5th 1157, defendant argues that the imposition of these fines and assessments without express consideration of his ability to pay is a violation of his due process rights. He asserts that the matter must be remanded for the trial court to conduct an ability to pay hearing. We disagree.

Although it is defendant’s burden to establish an inability to pay (accord, People v. Kopp (2019) 38 Cal.App.5th 47, 96 review granted Nov. 13, 2019, S257844 (Kopp); People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154, review den. July 17, 2019, S255714), defendant neither objected to the restitution fines and assessments generally nor asserted his inability to pay them (to refute the presumption that defendants capable of working who are serving a lengthy prison term will be able to pay assessments from prison wages (People v. Johnson (2019) 35 Cal.App.5th 134, 139, review den. Aug. 14, 2019, S256281)). As a result, existing authority would hold that defendant has forfeited the issue on appeal (Frandsen, at pp. 1154-1155), although there is also authority to the contrary (Johnson, at pp. 137-138; People v. Castellano (2019) 33 Cal.App.5th 485, 489, review den. July 17, 2019, S255551). There is also settled law that failure to object to the amount of a restitution fine on the ground of inability to pay forfeits that issue on appeal. (People v. Nelson (2011) 51 Cal.4th 198, 227; People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033, (Gutierrez) review den. Sept. 18, 2019, S256881 [failure to object to maximum restitution fine on ground of inability to pay forfeits Dueñas issue].)

Here, we decline to find forfeiture and turn to the merits. Subsequent published authority has called the reasoning of Dueñas into question. As digested in People v. Hicks (2019) 40 Cal.App.5th 320, review granted November 26, 2019, S258946 (Hicks), Dueñas is premised on authority involving a right under due process of access to the courts, and a bar against incarceration for an involuntary failure to pay fees or fines. (Hicks, at p. 325.) However, a postconviction imposition of fees and fines does not interfere in any respect with the right of access to either the trial or appellate court. (Id. at p. 326.) The postconviction imposition of fees and fines also does not result in any additional incarceration, and therefore a liberty interest that due process would protect is not present. (Ibid.) Since the stated bases for the conclusion in Dueñas do not support it, the question is whether due process generally otherwise compels the same result. (Hicks, at p. 327.) The People have a fundamental interest in punishing criminal conduct, as to which indigency is not a defense (otherwise, defendants with financial means would suffer discrimination). It would also be contrary to the rehabilitative purpose of probation if a court were precluded at the outset from imposing the payment of fees and fines as part of educating a defendant on obligations owed to society. (Id. at pp. 327-328.) “For the reasons set forth above, we conclude that due process does not [generally] speak to this issue and that Dueñas was wrong to conclude otherwise.” (Id. at p. 329.) Kingston, supra, 41 Cal.App.5th at page 279, agreed with Hicks.

Aviles also found Dueñas to be wrongly decided, finding the only proper limit on fees and fines is the constitutional prohibition against excessive fines under the Eighth Amendment to the federal Constitution. (Aviles, supra, 39 Cal.App.5th at pp. 1061, 1067, 1069-1072; accord, Kopp, supra, 38 Cal.App.5th at p. 96, rev.gr.)

Therefore, given the absence of any valid claim under due process in connection with the restitution fines and assessments, we conclude defendant is not entitled to a remand for the trial court to consider his ability to pay these fines and assessments.

DISPOSITION

The judgment is affirmed.

/s/

Butz, J.

I concur:

/s/

Hoch, J.

ROBIE, J., Concurring and Dissenting.

I concur in all parts of the Discussion except section 4.0 relating to the imposition of the fines and assessments regarding defendant’s ability to pay. Defendant believes Dueñas calls into question the imposition of the $300 restitution fine, $300 stayed parole revocation fine, $40 court operations assessment, and $30 criminal conviction assessment without a determination of his ability to pay. (People v. Dueñas (2019) 30 Cal.App.5th 1157.) I concur with the majority’s finding that defendant did not forfeit the ability to pay argument but disagree with their conclusion on the merits.

I agree with Dueñas that principles of due process would preclude a trial court from imposing the fines and assessments at issue if a defendant demonstrates he or she is unable to pay them. (People v. Dueñas, supra, 30 Cal.App.5th at p. 1168.) I do not find the analysis in Hicks to be well-founded or persuasive and believe the majority has it backwards — it is Hicks that was wrongly decided, not Dueñas. (People v. Hicks (2019) 40 Cal.App.5th 320, review granted Nov. 26, 2019, S258946.) I further do not agree with Aviles that the only proper limit on fees and fines is the constitutional prohibition against excessive fines under the Eighth Amendment to the federal Constitution. (People v. Aviles (2019) 39 Cal.App.5th 1055, 1061, 1067, 1069-1072.)

I believe a limited remand under Dueñas is appropriate to permit a hearing on defendant’s ability to pay the challenged fines and assessments because his conviction and sentence are not yet final. (See People v. Castellano (2019) 33 Cal.App.5th 485, 490-491.)

/s/

Robie, Acting P. J.