gno.law

People v. Zavala CA4/1

California Court of Appeal · D063004 · 2013-10-29 · Unpublished

Proceeding
appeal from a judgment
Trial court
Superior Court of San Diego County · No. SCN304721
Trial judge
Richard E. Mills
Outcome
affirmed — Affirmed.
Area
criminal
Panel
O'Rourke (author), Alex C. McDonald, Cynthia Aaron

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T06:49Z · confidence high

The trial court convicted Zavala of corporal injury on a cohabitant and vandalism, sentenced him to five years, and admitted evidence of prior domestic violence while refusing a defense of others instruction. The Court of Appeal affirmed the judgment, finding no prejudice regarding the instruction and no abuse of discretion or due process violation regarding the evidence.

Ruling reviewedStandardThe courtThe model
Refusal to instruct jury on defense of others (CALCRIM No. 3470)
“In light of our conclusion that a jury would not find Zavala's act of vandalism objectively reasonable under the circumstances of this case, the court's decision to decline instruction with CALCRIM No. 3470 was harmless beyond a reasonable doubt under the more stringent standard set forth in Chapman v. California (1967) 386 US. 18, 24.”
abuse of discretionharmless erroragree with court
The court assumed arguendo that the instruction was required but found the error harmless because the evidence showed Zavala had already neutralized the threat by taking the keys, making the defense of others claim unreasonable.
Admission of evidence of prior domestic violence (pit bull incident) under Evidence Code section 1109
“Zavala has failed to meet his burden on appeal of establishing that in permitting M.R. to testify about his uncharged acts of physical domestic violence the court abused its discretion under Evidence Code section 352.”
abuse of discretionnot reachedagree with court
The court held that the evidence was not more inflammatory than the charged offense and was probative of propensity, thus not substantially outweighed by prejudice under Evidence Code section 352.
Constitutional due process challenge to Evidence Code section 1109
“We agree with the reasoning and results in these cases and reaffirm our holding in Cabrera, supra, 152 Cal.App.4th 695.”
de novonot reachedagree with court
The court applied the reasoning from People v. Falsetta, which upheld a similar statute, to reject the facial due process challenge to section 1109, noting that the section 352 discretion satisfies due process requirements.

Authorities

  • relied: People v. Barton (1995) 12 Cal.4th 186 — Trial court must instruct on all general principles of law relevant to the issues raised by the evidence.
  • relied: People v. Salas (2006) 37 Cal.4th 967 — Substantial evidence for a defense instruction is evidence that, if believed, would be sufficient for a reasonable jury to find a reasonable doubt as to guilt.
  • relied: Chapman v. California (1967) 386 U.S. 18 — Harmless beyond a reasonable doubt standard for constitutional errors.
  • relied: People v. Poplar (1999) 70 Cal.App.4th 1129 — Evidence Code section 1109 allows introduction of prior acts of domestic violence in a criminal action charging an offense involving domestic violence.
  • relied: People v. Cudjo (1993) 6 Cal.4th 585 — Trial court has discretion to exclude evidence of prior acts of domestic violence if probative value is substantially outweighed by prejudice.
  • relied: People v. Karis (1988) 46 Cal.3d 612 — Prejudice under Evidence Code section 352 refers to evidence that evokes emotional bias, not just evidence that is damaging to the defense.
  • relied: People v. Brown (2011) 192 Cal.App.4th 1222 — Standard for reviewing abuse of discretion in admitting evidence under sections 1109 and 352.
  • relied: People v. Falsetta (1999) 21 Cal.4th 903 — Evidence Code section 1108 (analogous to 1109) does not violate due process because it allows exclusion of unduly prejudicial evidence under section 352.
  • relied: People v. Cabrera (2007) 152 Cal.App.4th 695 — Evidence Code section 1109 does not violate due process.

The appellate opinion: sound — The opinion correctly applies the harmless error standard to the instructional claim and relies on binding precedent (Falsetta) to resolve the due process challenge. It properly analyzes the section 352 balance for the evidence admission.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:31Z · confidence medium

A San Diego jury convicted Tomas Zavala of corporal injury on a cohabitant and vandalism, the trial court found a prior prison term allegation true and imposed five years, after refusing a defense-of-others instruction (CALCRIM No. 3470) and admitting prior domestic violence evidence, including a pit bull attack, under Evidence Code sections 1109 and 352. The Court of Appeal affirmed, assuming without deciding that the instruction should have been given but finding the omission harmless beyond a reasonable doubt, finding no abuse of discretion in admitting the pit bull incident, and rejecting the due process challenge to section 1109 as foreclosed by Falsetta and Cabrera.

Ruling reviewedStandardThe courtThe model
Refusal to instruct the jury with CALCRIM No. 3470 (defense of others) as to the vandalism count
“Assuming without deciding that the testimony of Zavala's mother and niece provided sufficient basis for the court to instruct regarding defense of others, we conclude Zavala suffered no prejudice and therefore no reversal is necessary.”
de novoharmless erroragree with court
The court did not decide whether substantial evidence supported the instruction, but applied the stricter Chapman standard and found the omission harmless because Zavala had taken M.R.'s keys (eliminating any imminent danger from her driving), had just choked and beaten her and pointed a gun at her, and admitted slashing the tire to police without claiming he was protecting his children. The record quoted supports harmlessness beyond a reasonable doubt; the court's reliance on Chapman rather than Watson gave Zavala the benefit of the more favorable standard, though the opinion's statement that it was 'not reasonable to believe Zavala feared M.R.' reads partly as the appellate court weighing evidence itself rather than asking what a rational jury would do, and the opinion never addresses whether defense of others applies to a property offense like tire-slashing.
Denial of motion in limine and admission under Evidence Code sections 1109 and 352 of M.R.'s testimony about the uncharged pit bull attack and other prior domestic violence
“Although M.R. suffered more injury during the pit bull incident, the facts surrounding that incident were not more inflammatory than those involving the charged offense in the present case”
abuse of discretioncorrectagree with court
Section 1109 expressly makes prior domestic violence admissible as propensity evidence subject to section 352, and the court correctly applied Karis's definition of prejudice as evidence that uniquely evokes emotional bias with little bearing on the issues. The pit bull incident involved the same victim and the same kind of violent conduct, was not more inflammatory than the charged choking and gun-pointing, and was not likely to confuse the jury; the trial judge's on-the-record remarks show it considered similarity and prejudice. The appellate court's conclusion that no arbitrary or capricious exercise of discretion was shown is well supported.
Rejection of the federal due process challenge to admission of propensity evidence under Evidence Code section 1109
“We are bound by the Supreme Court's decision in Falsetta.”
de novocorrectagree with court
Falsetta upheld Evidence Code section 1108 against a due process challenge because section 352 screening preserves fairness, and section 1109 is materially identical in structure. Every published Court of Appeal decision cited, including this division's own Cabrera, has applied Falsetta to section 1109, and Zavala conceded he raised the point only to preserve it for federal review. The court's application of Auto Equity Sales and existing appellate authority is correct.

Authorities

  • relied: People v. Barton (1995) 12 Cal.4th 186 — Trial court must instruct sua sponte on general principles of law and on defenses supported by substantial evidence.
  • relied: People v. Salas (2006) 37 Cal.4th 967 — Substantial evidence for a defense instruction means evidence which, if believed, would be sufficient for a reasonable jury to find reasonable doubt.
  • relied: People v. Watson (1956) 46 Cal.2d 818 — State-law harmless error standard: reversal only if reasonably probable a more favorable result would have been reached absent the error.
  • relied: People v. Wharton (1991) 53 Cal.3d 522 — Instructional error warrants reversal only on a showing of a miscarriage of justice under Watson.
  • relied: Chapman v. California (1967) 386 U.S. 18 — Federal constitutional error must be shown harmless beyond a reasonable doubt.
  • relied: People v. Poplar (1999) 70 Cal.App.4th 1129 — Evidence Code section 1109 permits prior domestic violence as propensity evidence; admission reviewed for abuse of discretion.
  • relied: People v. Johnson (2000) 77 Cal.App.4th 410 — Section 1109 propensity evidence is admissible subject to section 352 and does not violate due process.
  • relied: People v. Cudjo (1993) 6 Cal.4th 585 — Trial court has discretion under section 352 to exclude evidence whose probative value is substantially outweighed by undue prejudice.
  • relied: People v. Karis (1988) 46 Cal.3d 612 — Section 352 'prejudice' means evidence that uniquely tends to evoke emotional bias with little effect on the issues, not merely damaging evidence.
  • relied: People v. Brown (2011) 192 Cal.App.4th 1222 — Section 352 rulings are disturbed only if arbitrary, capricious, or patently absurd and resulting in a manifest miscarriage of justice.
  • relied: People v. Falsetta (1999) 21 Cal.4th 903 — Evidence Code section 1108 does not violate due process because section 352 screening safeguards fairness.
  • relied: Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450 — Lower courts are bound by decisions of the California Supreme Court.
  • relied: People v. Cabrera (2007) 152 Cal.App.4th 695 — Falsetta's reasoning applies to Evidence Code section 1109, which does not violate due process.
  • relied: People v. Jennings (2000) 81 Cal.App.4th 1301 — The constitutionality of section 1109 under federal and state due process clauses is settled.

The appellate opinion: sound with gaps — The opinion correctly states the governing law on sua sponte defense instructions, section 1109/352 propensity evidence, and the Falsetta line, and its harmlessness conclusion is well grounded in Zavala's taking of the keys, his unprompted admission, and the surrounding violence. It leaves gaps by assuming rather than deciding whether defense of others can apply to a property crime like tire-slashing, by framing part of its Chapman analysis as its own assessment of reasonableness rather than what a rational jury must have found, and by not discussing whether the trial court's terse in limine remarks reflected an actual section 352 weighing.

How this analysis was made · dispute it

Opinion

Filed 10/29/13 P. v. Zavala 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 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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D063004

Plaintiff and Respondent, v. (Super. Ct. No. SCN304721)

TOMAS ZAVALA,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Richard E.

Mills, Judge. Affirmed.

Arielle Bases for the Defendant and Appellant, under appointment by the Court of Appeal.

Kamala D. Harris, Attorney General, Dane R. Gillette and Julie L. Garland, Assistant Attorneys General, Kristine A. Gutierrez and Lynne G. McGinnis, Deputy Attorneys General for the Plaintiff and Respondent. A jury convicted Tomas Zavala of corporal injury on a cohabitant (Pen. Code,1 § 273.5, subd. (a)) and vandalism (§ 594, subds. (a),(b)(2)(A)). In bifurcated proceedings, the court found true an allegation Zavala had served one prior prison term within the meaning of section 667.5, subdivision (b). The court sentenced him to a total of five years in prison.

Zavala contends the court (1) erroneously refused to instruct the jury regarding the defense of others; and (2) abused its discretion under Evidence Code section 352 by admitting evidence that he committed prior acts of domestic violence against his former cohabitant, M.R.; further, that evidence rendered his trial fundamentally unfair and deprived him of due process. We affirm the judgment.

FACTUAL BACKGROUND

Prosecution Case M.R. and Zavala have two children. On April 18, 2012, she took them to his mother's house, where M.R. saw Zavala with the son of his then girlfriend. M.R. became upset and argued with Zavala. He grabbed her neck and slammed her against the kitchen wall. He took M.R.'s purse, cell phone and ATM card and refused to return them to her.

During the argument, Zavala threw M.R. on a bed, got on top of her and choked her. He slapped her face and hit her with his fist, telling her she had ruined his life. He also pointed a gun at her head. Afterwards, Zavala left in his mother's vehicle. M.R. put her children in her vehicle and followed him. After she lost sight of him, she returned to his 1 All statutory references are to the Penal Code unless otherwise stated. 2 mother's home, where he also eventually returned. M.R. was holding the door of Zavala's vehicle while she again asked him for her belongings. He refused to give them to her and drove off, causing her to fall and injure her shoulder and scrape her knees. Zavala took the key to M.R.'s vehicle out of the ignition. Afterwards, he slashed one of her tires with a knife. M.R. telephoned her father for help and he, in turn, contacted police.

Police responded to the neighborhood based on reports Zavala was running with a knife. Police saw him enter a stranger's house, and detained Zavala as he was leaving the house. Police found a knife near where they had seen Zavala drop an object. When police arrested Zavala, he said without prompting something to the effect of, "I did it. I admit I popped the tire with a knife. I told her to stop following me, leave me alone, she wouldn't."

At trial, over Zavala's objections, the court admitted into evidence Zavala's uncharged prior domestic violence incidents against M.R., including one in which Zavala ordered his pit bull to attack M.R. It bit her arm, and she required plastic surgery. Zavala went to the hospital, took M.R.'s phone, and called one of her contacts. That person told hospital authorities that a restraining order was in place banning Zavala from contacting M.R.

M.R. testified regarding Zavala's other uncharged domestic violence incidents:

Almost daily he used to hit, slap, and choke her in front of their children. He threatened to kill her. She had obtained a restraining order against him because he took money from her bank account and threatened to take their children from her and burn her house down.

Zavala punched and broke a window to her house because M.R. refused to let him inside.

3 For the same reason, he put a knife through a metal screen door at her house. During other arguments with M.R., Zavala punched holes through the walls in the children's room and in a bedroom closet.

Defense Case Zavala's mother and his 13-year old niece testified regarding the April 18, 2012 incident as follows: After Zavala and M.R. had argued, Zavala drove away, followed by M.R. They both returned, and Zavala said he was scared because M.R. had followed him. Zavala again drove off and M.R. followed him with her children in the vehicle. She drove fast, running a red light. The niece and Zavala's mother later saw Zavala slash M.R.'s tire. He said that M.R. had endangered their children by following him. Zavala's niece and mother testified M.R. had said she got her injuries that day from jumping on Zavala's truck and falling off while trying to stop him and talk to him.

DISCUSSION

I.

Zavala contends the trial court erroneously declined his request to instruct the jury with CALCRIM No. 3470 regarding defense of others. He argues that his mother and niece presented sufficient circumstantial evidence that he slashed M.R.'s tire in order to prevent M.R. from endangering their children's lives through her reckless driving.

CALCRIM No. 3470 states that a defendant acts in a lawful manner in defense of another if the defendant reasonably believes he or someone else was in imminent danger of suffering bodily injury; the defendant reasonably believes that the immediate use of force was necessary to defend against that danger; and the defendant uses no more force 4 than is reasonably necessary to defend against that danger. Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. The instruction continues: "When deciding whether the defendant's beliefs were reasonable, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed. If the defendant's beliefs were reasonable, the danger does not need to have actually existed." (CALCRIM No. 3470.)

The trial court must instruct the jury on all general principles of law relevant to the issues raised by the evidence, whether or not the defendant makes a formal request. The obligation also applies, with reservations not applicable here, to instruction on defenses when they are supported by substantial evidence. (People v. Barton (1995) 12 Cal.4th 186, 195.) In this context substantial evidence means evidence of a defense, which, if believed, would be sufficient for a reasonable jury to find a reasonable doubt as to the defendant's guilt. (People v. Salas (2006) 37 Cal.4th 967, 982-983.) We will not set aside a judgment on the basis of instructional error unless, after an examination of the entire record, we conclude the error has resulted in a miscarriage of justice. (Cal. Const., art. VI, § 13.) A miscarriage of justice occurs only when it is reasonably probable that the jury would have reached a result more favorable to the appellant absent the error.

(People v. Wharton (1991) 53 Cal.3d 522, 571-572, fn. 10; People v. Watson (1956) 46 Cal.2d 818, 836.)

Applying the above principles, we reject Zavala's claim of prejudice. Assuming without deciding that the testimony of Zavala's mother and niece provided sufficient 5 basis for the court to instruct regarding defense of others, we conclude Zavala suffered no prejudice and therefore no reversal is necessary. Based on the evidence, it was not reasonable to believe Zavala feared M.R. for any reason, including that she had endangered the children. In fact, a short while before Zavala slashed M.R.'s tire, he had choked, beaten and threatened M.R. with a gun. He also had taken her phone and other belongings. M.R. testified he grabbed the keys to her vehicle before slashing her tire. By taking her keys, Zavala impeded her from driving with the children, and therefore eliminated any imminent harm to them. Finally, upon his arrest, Zavala willingly admitted to police that he had slashed the tire; but at that time he never claimed he had sought to defend his children. Considering all the circumstances, Zavala could have avoided M.R.'s purported reckless driving by simply returning her belongings, and a jury would have reasonably so concluded.

In light of our conclusion that a jury would not find Zavala's act of vandalism objectively reasonable under the circumstances of this case, the court's decision to decline instruction with CALCRIM No. 3470 was harmless beyond a reasonable doubt under the more stringent standard set forth in Chapman v. California (1967) 386 US. 18, 24.

II.

A.

Zavala contends the court erred by admitting testimony about the pit bull incident because such testimony was more prejudicial than probative under Evidence Code section 352.

6 At trial, defense counsel moved in limine to exclude testimony regarding the pit bull incident, arguing it was not similar to his other prior uncharged acts. But the court denied the motion, saying: "No, I'm going to let it in. It's all the same if the jury believes it. It's aggressive, violent, physical contact and conduct, intent by the defendant against the female. For whatever reason it occurred. [¶] I am concerned about keeping out what I need to keep out but we'll work on it."

"Evidence Code section 1109 allows the introduction of evidence of [a]

defendant's commission of prior acts of domestic violence in a criminal action charging [the] defendant with an offense involving domestic violence." (People v. Poplar (1999)

70 Cal.App.4th 1129, 1138.) Specifically, with exceptions not applicable here, subdivision (a)(1) of Evidence Code section 1109 provides in part: "[I]n a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant's commission of other domestic violence is not made inadmissible by [Evidence Code s]ection 1101 if the evidence is not inadmissible pursuant to [Evidence Code s]ection 352." (See also People v. Johnson (2000) 77 Cal.App.4th 410, 417.)

Under Evidence Code section 352, the trial court has discretion to exclude evidence of prior acts of domestic violence if its probative value is substantially outweighed by the probability its admission would necessitate undue consumption of time or create a substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. (Evid. Code, §§ 1109, subd. (a)(1), 352; People v. Cudjo (1993) 6 Cal.4th 585, 609.)

7 "The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. '[All] 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 Evidence Code 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. In applying [Evidence Code]

section 352, "prejudicial" is not synonymous with "damaging." ' " (People v. Karis (1988) 46 Cal.3d 612, 638.) Thus, in cases involving the proffering of evidence of prior acts of domestic violence under Evidence Code section 1109, we decide whether there is a likelihood the evidence will so inflame the jurors that they base their verdict not on the evidence regarding the charged offenses, but on their emotional response to the defendant's commission of the uncharged prior acts or crimes.

A trial court's decision to admit evidence of prior acts of domestic violence as propensity evidence under Evidence Code sections 1109 and 352 is reviewed for abuse of discretion. (People v. Poplar, supra, 70 Cal.App.4th at p. 1138.) "[T]he court's exercise of discretion will not be disturbed on appeal except upon a showing that it was exercised in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Brown (2011) 192 Cal.App.4th 1222, 1233.)

Zavala has failed to meet his burden on appeal of establishing that in permitting M.R. to testify about his uncharged acts of physical domestic violence the court abused its discretion under Evidence Code section 352. Although M.R. suffered more injury 8 during the pit bull incident, the facts surrounding that incident were not more inflammatory than those involving the charged offense in the present case, in which Zavala choked M.R., slammed her against a wall, threw her on the bed, and threatened her with a gun. Further, the jury would not be confused by the two incidents. Finally, the proffered evidence was probative to show Zavala had a propensity to use physical violence against a cohabitant on the date he committed corporal injury on M.R.

B.

Zavala also contends that the court's application of Evidence Code section 1109 to admit M.R.'s testimony regarding prior acts of domestic violence rendered his trial fundamentally unfair, thereby depriving him of his federal constitutional right to due process of law and a fair trial. He adds that permitting evidence of prior incidents to show propensity dilutes the beyond a reasonable doubt standard of proof.

Zavala acknowledges that in People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta), the California Supreme Court rejected a similar attack on analogous provisions of Evidence Code section 1108, subdivision (a), which permit evidence of prior sex offenses to be admitted when a defendant is charged with a sexual offense. Zavala states he raises the issue here "to preserve the question for federal exhaustion purposes."

The Falsetta court upheld Evidence Code section 1108 against a due process challenge in part because that statute allows trial courts to exclude evidence that is unduly prejudicial under Evidence Code section 352. (Falsetta, supra, 21 Cal.4th at pp. 917- 918.) This discretion given to trial courts under Evidence Code section 352 satisfies the requirements of due process. (Falsetta, at p. 918.) We are bound by the Supreme Court's 9 decision in Falsetta. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

Evidence Code sections 1108 and 1109 are virtually identical, except that the former addresses the admissibility of evidence of sexual offenses while the latter addresses evidence of domestic violence.2 Although the California Supreme Court has not addressed the issue, the intermediate appellate courts have consistently applied the reasoning in Falsetta to reject facial federal and state constitutional due process challenges regarding the admission of propensity evidence under Evidence Code section 1109. (See People v. Cabrera (2007) 152 Cal.App.4th 695, 703-704; People v. Rucker (2005) 126 Cal.App.4th 1107, 1120; see also People v. Williams (2008) 159 Cal.App.4th 141, 147; People v. Price (2004) 120 Cal.App.4th 224, 240; People v. Escobar (2000) 82 Cal.App.4th 1085, 1095-1096; People v. Jennings (2000) 81 Cal.App.4th 1301, 1309- 1310; People v. Brown (2000) 77 Cal.App.4th 1324, 1331-1334; People v. Hoover (2000)

77 Cal.App.4th 1020, 1026-1027; People v. Johnson, supra, 77 Cal.App.4th at p. 417.)

We agree with the reasoning and results in these cases and reaffirm our holding in Cabrera, supra, 152 Cal.App.4th 695. As the Jennings court observed: "[T]the 2 Evidence Code section 1108, subdivision (a) provides: "In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by [Evidence Code s]ection 1101, if the evidence is not inadmissible pursuant to [Evidence Code s]ection 352." Evidence Code section 1109, subdivision (a)(1) provides in part: "[I]n a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant's commission of other domestic violence is not made inadmissible by [Evidence Code s]ection 1101 if the evidence is not inadmissible pursuant to [Evidence Code s]ection 352." 10 constitutionality of [Evidence Code] section 1109 under the due process clauses of the federal and state constitutions has now been settled." (Jennings, at p. 1310.)

DISPOSITION

The judgment is affirmed.

O'ROURKE, J.

WE CONCUR:

McDONALD, Acting P. J.

AARON, J.

Cites, in this corpus