P. v. Luster

Filed 5/2/08 P. v. Luster CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE,
Plaintiff and Respondent,
v.
RICKEY GLEN LUSTER,
Defendant and Appellant.
B194825
(Los Angeles County
Super. Ct. No. GA057712)
APPEAL from a judgment of the Superior Court of Los Angeles County.
Rafael A. Ongkeko, Judge. Affirmed.
Mark D. Greenberg, under appointment by the Court of Appeal, for Defendant and
Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Mary Sanchez and
Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________________
INTRODUCTION
A jury convicted appellant Rickey Glen Luster of the second degree murder of his

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wife, who was found beaten, strangled, and naked on the floor of their home. Luster
challenges his conviction on the grounds of instructional error, ineffective assistance of
counsel, and violation of the Confrontation Clause. First, he contends that CALCRIM
No. 220 misstates the reasonable doubt standard and dilutes the prosecution’s burden of
proof. Second, he argues that CALCRIM Nos. 375 and 852 prevented the jury from
considering for the defense theory of the case the victim’s conduct in an earlier domestic
violence incident. He also asserts that these instructions erroneously told the jury that the
preponderance of evidence standard applied to the defense’s use of the prior incident.
Third, Luster contends that CALCRIM No. 852 violated due process by permitting the
jury to convict him based on propensity evidence alone. Fourth, he argues that his trial
attorney mishandled his objections to the prosecution’s introduction of the victim’s
earlier statements to police. His lawyer, Luster says, should have argued that a 911 call
showed the victim’s later statements to police to be insufficiently trustworthy for the
hearsay exception of Evidence Code section 1370, subdivision (a) to apply. Finally,
Luster challenges the trial court’s ruling that he forfeited by wrongdoing his
Confrontation Clause objection to the admission of the victim’s statements to the police
during the earlier domestic violence incident.
We conclude that CALCRIM No. 220 properly articulates the reasonable doubt
standard. The use of CALCRIM Nos. 375 and 852 did not prevent the jury from
considering the victim’s conduct in the prior incident to support the defense’s arguments,
nor did it mislead the jury about how to apply the preponderance of evidence standard.
The instructions plainly were limited in their application to the prosecution’s use of the
prior incident evidence. Nor did CALCRIM No. 852 allow the jury to convict Luster
based on propensity evidence; the instruction explicitly told jurors that evidence of prior
domestic violence was insufficient to prove guilt and that proof beyond a reasonable
doubt of each element of an offense was required. Defense counsel’s failure to give the
court the recording of the victim’s 911 call during the earlier domestic violence incident
and to argue that Evidence Code section 1370 did not apply was not prejudicial and

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therefore did not constitute ineffective assistance of counsel. The 911 recording did not
cast doubt on the trustworthiness of the victim’s statements to police on that prior
occasion. Finally, the trial court correctly held that, by murdering the victim, Luster
forfeited his Confrontation Clause objection to the admission of her earlier statements to
the police.
BACKGROUND AND PROCEDURAL HISTORY
On June 10, 2004, Luster called his mother and said that his wife, Barbara Luster,
had stabbed him. Luster’s daughter LaTreta Luster was at her grandmother’s home with
her children when Luster called.1 LaTreta took the phone and spoke to her father. He
was angry with LaTreta and her husband because they owed him for electrical work he
had done for them. LaTreta asked to talk to Barbara. Barbara said she stabbed Luster
because she was “tired of what happened” in an altercation about a year earlier. LaTreta
took her children and Luster’s mother to the house Luster and Barbara shared. She
performed first aid on both her father, who had a bloody wound on his chest, and
Barbara, who had a small cut “on her eye” and a bruise on the side of her face. Although
Barbara had sounded alert on the telephone, she seemed weak and she mumbled, as if she
had been “knocked out” and “was coming to.” She sat on the couch as LaTreta helped
her father pack some things to move out. LaTreta saw some blood on the wall “on the
way to the bathroom.” Her father was agitated and cursed at her. At some point, LaTreta
saw him take a “handful” of pills he said were Zoloft. Eventually, everyone except
Barbara left the house, with Luster following LaTreta in his own car. However, Luster
turned his car around at some point. LaTreta drove on to her grandmother’s house
because her grandmother claimed she was having a heart attack.
About 5:00 p.m. the same day, Luster borrowed a mobile phone from Jaime
Raigoza, who was outside a neighboring house. Raigoza heard Luster say that his wife
1 For clarity, we refer to Barbara Luster and LaTreta Luster by their first names.

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was lying on the floor, he thought she might be dead, and he did not know what to do.
Luster appeared to have bloodstains on his shirt. Raigoza told Luster he should call the
police. Just then, a police patrol car drove down the street and Raigoza flagged it down.
Luster spoke to the police, then went back into his house. Raigoza told the police officer
what he had heard Luster say.
Also at about 5:00 p.m., Los Angeles County Sheriff’s Deputy Eric Sandoval
drove to the Luster home to check on Luster and Barbara. A telephone call from Dr.
Robert Model, Luster’s psychologist, prompted this welfare check. Model had become
concerned because Luster missed his 4:00 p.m. appointment. Luster and Barbara had
called Model earlier that day; Luster said he was moving out of the house and Barbara
said she was concerned about Luster.
When Sandoval arrived, he saw Luster walking outside the house. Luster was
wearing a blue jersey that appeared to be bloodstained and wet. Sandoval asked Luster if
he was Rickey Luster and Luster said yes. He said his wife was taking a bath. Luster
would not stand still; he went back in the house and closed the door. He did not answer
when deputies knocked. Sandoval and another sheriff’s deputy walked around the house
and went in through an open kitchen door. Luster was gone, but the deputies found
Barbara lying on the living room floor. Her face was bloody and swollen, and she was
not moving or breathing. A fire extinguisher lay near her body. The water was running
in the bathtub and the house was flooded. Barbara was taken to the hospital, where she
was pronounced dead.
An autopsy determined that Barbara died from asphyxia due to strangulation. Her
nonfatal wounds included a black right eye, swollen and split lips, a bruised and fractured
sternum, multiple broken ribs with bruising, bruises on her left forearm and right hand,
and deep scalp bruises, all caused by blunt force trauma.
Luster was arrested at a motel two days later. He spontaneously told the arresting
officers that it was his own blood deputies had seen on his shirt when they came to his

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house, and that his wife had stabbed him.
Luster later gave detectives a post admonition statement that was recorded and
played at trial. He insisted that Barbara took “a lot of pills and stuff she had” and fell to
the floor. He denied touching her except slapping her face repeatedly in an attempt to
revive her when she was “acting dead.”
Deputy Steven French testified that on June 29, 2003, he and his partner
responded to a “family disturbance call” at the Luster home. French saw Luster on the
porch, “staggering back and forth.” Luster told French that he and his wife had been
arguing about his drinking. Luster said his wife walked toward him during the argument,
so he pushed her to the ground to make her leave him alone. Luster had a small cut on
the top of his head. When asked what happened, Luster said, “ ‘I think the bitch did it. I
don’t know.’ ” Luster said he and his wife had consumed two bottles of wine.
French and his partner entered the home and found Barbara, crying and
intoxicated. The inside of the house “looked as if somebody had been in a fight in the
house. The items on the walls were knocked to the side. . . . Things had been thrown
about and strewn on the floor.” The bedroom mirror was cracked and lying on its side,
off of the dresser. French asked Barbara whether she had been drinking; she said she had
been drinking with Luster. She also said she and Luster had argued about Luster’s
drinking. She told French that, during the argument, Luster grabbed her by both
shoulders and shoved her against the mirror that sat atop the dresser. She said the mirror
broke when she hit it and the glass cut her left shoulder. French saw a bleeding cut on
Barbara’s left shoulder. Barbara told French that Luster had thrown the things French
had seen on the bedroom floor. Barbara also told French that Luster grabbed her neck,
threw her to the ground, got on top of her, and put his left knee on her chest to hold her
down. French saw a scratch on Barbara’s neck. Barbara declined medical treatment.
The deputies took photographs of Barbara’s injuries, the broken mirror, and the disarray
inside the Luster home. These photographs were introduced at trial.
LaTreta testified that Barbara had once told her that she would “take no shit from

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any man” and would “fuck them up.”
Luster testified that he and Barbara both had mental health issues and that there
were some problems with their marriage. But, he said, the only time there was violence
was in the June 2003 incident: Barbara pushed him into a glass, and he cut his head. It
was mutual combat. Luster initially told the police officers what Barbara had done, but
after further consideration he recanted because he did not want her to go to jail.
On June 10, 2004, Luster was upset. He wanted to move out because he believed
Barbara was being unfaithful. He bought and drank liquor and took some pills. He saw
Barbara with a bottle of pills, but did not see her take any. As Luster was packing to
move out, Barbara stabbed him with a kitchen knife. She then left the house, and he
called his mother to ask her to get him out of there. Barbara came back and Luster told
her his mother was coming. Barbara had an object in her hand that appeared to be wood
and metal, and she hit herself with it near her right eye, causing a gash. She had tried to
hurt herself before and had attempted suicide. Luster took a nap until his daughter
arrived. He remembered “fussing at” his daughter about electrical work she had not paid
him for, but otherwise he did not recall what he did when his daughter was at the house.
When she left, Luster went back to sleep. He did not remember driving away or
returning to the house, as LaTreta testified. When Luster awoke, Barbara was sitting on
the couch wearing lingerie. He told her he did not want to stay married to her. She threw
her wedding ring at him and said either that she would not need it where she was going or
that he would not need it. She then swung a blunt object at Luster, hitting him in the
back; he fell against the glass of the entertainment center and onto the floor. Barbara
lunged over him and bit his arm. Luster threw a hard elbow at her. The next thing he
knew, he woke up on the floor and found Barbara lying three to five feet away. He tried
to revive her by pouring water over her and tapping her with an open hand. He
unsuccessfully attempted to find a phone, then went outside. The police officer arrived
and Luster climbed over the backyard fence. Luster paid a neighbor to let him hide in his
attic until it was dark. Then, he left and started drinking. Luster took a bus to the home

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of his friend James McWilliams.
McWilliams testified that Luster showed up at his door and said Barbara had
killed herself with an overdose and the police were after him. He let Luster make a
phone call and drove him to his cousin’s house in Los Angeles. The next morning,
McWilliams found Luster asleep in the backseat of McWilliams’s car. He drove Luster
to his home to pick up his van, but the police were there. McWilliams took Luster to
work with him, then took him out to eat and left him at a motel.
A jury convicted Luster of second degree murder. The court sentenced him to
prison for 15 years to life.
DISCUSSION
1. CALCRIM No. 220 properly states the reasonable doubt standard.
The trial court instructed the jury with CALCRIM No. 220: “The fact that a
criminal charge has been filed against the defendant is not evidence that the charge is
true. You must not be biased against the defendant just because he has been arrested,
charged with a crime, or brought to trial. [¶] A defendant in a criminal case is presumed
to be innocent. This presumption requires that the People prove each element of a crime
beyond a reasonable doubt. Whenever I tell you the People must prove something, I
mean they must prove it beyond a reasonable doubt unless I specifically tell you
otherwise. [¶] Proof beyond a reasonable doubt is proof that leaves you with an abiding
conviction that the charge is true. The evidence need not eliminate all possible doubt
because everything in life is open to some possible or imaginary doubt. [¶] In deciding
whether the People have proved their case beyond a reasonable doubt, you must
impartially compare and consider all the evidence that was received throughout the entire
trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is
entitled to an acquittal and you must find him not guilty.”
Luster did not object to this instruction. On appeal, however, Luster contends that
CALCRIM No. 220 incorrectly states the reasonable doubt standard. He argues that it

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does not “convey the appropriate impression that proof beyond a reasonable doubt
requires on the part of the jurors a subjective certitude of the truth of the charge,” and that
the phrase “abiding conviction” in the instruction suggests “more a temporal matter than
a matter of intensity of feeling.”2
Generally, a party may not complain on appeal that a jury instruction was unclear
or incomplete unless he objected in the trial court or requested limitation, modification,
or clarification. Luster did not do so; therefore, he forfeited this claim. (People v.
Campos (2007) 156 Cal.App.4th 1228, 1236.) However, even if Luster had preserved his
objections for appeal, we would reject them.
“In determining the correctness of jury instructions, we consider the instructions as
a whole.” (People v. Campos, supra, 156 Cal.App.4th at p. 1237.) An instruction can be
found to be ambiguous or misleading only if, in the context of the entire charge, there is a
reasonable likelihood that the jury misconstrued or misapplied its words. (People v. Frye
(1998) 18 Cal.4th 894, 957.) We presume that jurors are intelligent and capable of
understanding and correlating all jury instructions given. (People v. Kegler (1987) 197
Cal.App.3d 72, 80.)
“The beyond a reasonable doubt standard is a requirement of due process, but the
Constitution neither prohibits trial courts from defining reasonable doubt nor requires
them to do so as a matter of course. [Citation.] Indeed, so long as the court instructs the
jury on the necessity that the defendant’s guilt be proved beyond a reasonable doubt
[citation], the Constitution does not require that any particular form of words be used in
advising the jury of the government’s burden of proof. [Citation.] Rather, ‘taken as a
whole, the instructions [must] correctly conve[y] the concept of reasonable doubt to the
jury.’ ” (Victor v. Nebraska (1994) 511 U.S. 1, 5.) “[T]he proper inquiry is not whether
the instruction ‘could have’ been applied in an unconstitutional manner, but whether
there is a reasonable likelihood that the jury did so apply it.” (Id. at p. 6.)
2 Oddly, respondent’s brief does not respond to any of Luster’s arguments about

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CALCRIM No. 220 clearly and repeatedly told the jury that the prosecutor was
required to prove Luster’s guilt beyond a reasonable doubt. The second paragraph stated
the presumption of innocence and explained that “[t]his presumption requires that the
People prove each element of a crime beyond a reasonable doubt. Whenever I tell you
the People must prove something, I mean they must prove it beyond a reasonable doubt
unless I specifically tell you otherwise.” The final paragraph reiterated the necessity of
determining “whether the People have proved their case beyond a reasonable doubt” and
ended with an undeniably unambiguous direction: “Unless the evidence proves the
defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must
find him not guilty.” CALCRIM No. 103 gave the jury these same instructions; the court
also gave that instruction, and Luster does not challenge that instruction on appeal.3
The paragraph of CALCRIM No. 220 that defines reasonable doubt properly
conveys the correct standard. “An instruction cast in terms of an abiding conviction as to
guilt, without reference to moral certainty, correctly states the government’s burden of
CALCRIM No. 220. It addresses many other arguments, none of which Luster has made.
3 As given, CALCRIM No. 103 provides: “I will now explain the presumption of
innocence and the People’s burden of proof. The defendant has pleaded not guilty to the
charge. The fact that a criminal charge has been filed against the defendant is not
evidence that the charge is true. You must not be biased against the defendant just
because he has been arrested, charged with a crime, or brought to trial. [¶] A defendant
in a criminal case is presumed to be innocent. This presumption requires that the People
prove each element of a crime beyond a reasonable doubt. Whenever I tell you the
People must prove something, I mean they must prove it beyond a reasonable doubt
unless I specifically tell you otherwise. [¶] Proof beyond a reasonable doubt is proof that
leaves you with an abiding conviction that the charge is true. The evidence need not
eliminate all possible doubt because everything in life is open to some possible or
imaginary doubt. [¶] In deciding whether the People have proved their case beyond a
reasonable doubt, you must impartially compare and consider all the evidence that was
received throughout the entire trial. Unless the evidence proves the defendant guilty

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proof.” (Victor v. Nebraska, supra, 511 U.S. at pp. 14-15 [approving CALJIC No. 2.90,
the predecessor to CALCRIM No. 220].) In Hopt v. Utah (1887) 120 U.S. 430, the
Supreme Court explained that “abiding” in the phrase “abiding conviction” means “
settled and fixed, a conviction which may follow a careful examination and comparison
of the whole evidence.” (Id. at p. 439.) The California Supreme Court and the Courts of
Appeal in every appellate district consistently have rejected challenges to the “abiding
conviction” language in the reasonable doubt instruction. (See People v. Campos, supra,
156 Cal.App.4th at p. 1239 [listing cases and noting that the issue is “conclusively
settled”].)
Penal Code section 1096 includes the phrase “that state of the case [that] leaves
the minds of the jurors in that condition that they cannot say they feel an abiding
conviction of the truth of the charge.” Luster claims that, in failing to repeat this
language, CALCRIM No. 220 tells the jurors that they need only engage in a “rational
process of fixing the objective probabilities” rather than making a subjective decision.
We do not agree. There is no reasonable likelihood that jurors would understand
CALCRIM No. 220 to say that. The phrase “proof that leaves you with an abiding
conviction that the charge is true” clearly conveys the decision’s subjective nature and
the very high level of certainty required. The trial court also gave CALCRIM No. 3550.
It explained the subjective nature of the jurors’ analytical processes, telling them that
each “must decide the case for yourself” and that they should not change their minds
“just because other jurors” disagreed with them.
Instruction with CALCRIM No. 220 did not violate due process.
beyond a reasonable doubt, he is entitled to an acquittal and you must find him not
guilty.”

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2. CALCRIM Nos. 375 and 852 did not prevent the jury from considering
for the defense Barbara’s conduct in the June 2003 incident or mislead
the jury about application of the preponderance of evidence standard.
The prosecution introduced evidence of the June 2003 incident under Evidence
Code section 1109 to show Luster’s propensity for domestic violence. The trial court
instructed the jury on the use of the prior incident evidence with CALCRIM Nos. 375
and 852. As given, CALCRIM No. 375 stated:
“The People presented evidence that the defendant committed the offense of
battery on a spouse that was not charged in this case.
“You may consider this evidence only if the People have proved by a
preponderance of the evidence that the defendant in fact committed the offense. Proof by
a preponderance of the evidence is a different burden of proof than proof beyond a
reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude
that it is more likely than not that the fact is true.
“If the People have not met this burden, you must disregard this evidence entirely.
“If you decide that the defendant committed the offense, you may, but are not
required to, consider that evidence for the limited purpose of deciding whether or not:
“The defendant acted with the intent to kill in this case; or
“The defendant had a motive to commit the offense alleged in this case.
“Do not consider this evidence for any other purpose except as otherwise
instructed in the following instruction, Instruction # 852.
“If you conclude that the defendant committed the uncharged offense, that
conclusion is only one factor to consider along with all the other evidence. It is not
sufficient by itself to prove that the defendant is guilty of any crime in this case. The
People must still prove each element of the charge beyond a reasonable doubt.”
CALCRIM No. 852, as given at Luster’s trial, provided,
“The People presented evidence that the defendant committed domestic violence
that was not charged in this case, specifically, battery on a spouse.

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“Domestic violence in this case means abuse committed against and who is a
spouse.
“Abuse means intentionally or recklessly causing or attempting to cause bodily
injury, or placing another person in reasonable fear of imminent serious bodily injury to
himself or herself or to someone else.
“You may consider this evidence only if the People have proved by a
preponderance of the evidence that the defendant in fact committed the uncharged
domestic violence. Proof by a preponderance of the evidence is a different burden of
proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the
evidence if you conclude that it is more likely than not that the fact is true.
“If the People have not met this burden of proof, you must disregard this evidence
entirely.
“If you decide that the defendant committed the uncharged domestic violence, you
may, but are not required to, conclude from that evidence that the defendant was disposed
or inclined to commit domestic violence and, based on that decision, also conclude that
the defendant was likely to commit second degree murder, as charged here, or voluntary
or involuntary manslaughter, lesser offenses. If you conclude that the defendant
committed the uncharged domestic violence, that conclusion is only one factor to
consider along with all the other evidence. It is not sufficient by itself to prove that the
defendant is guilty of second degree murder, as charged here, or voluntary or involuntary
manslaughter, lesser offenses. The People must still prove each element of every charge
beyond a reasonable doubt.”
Luster contends that CALCRIM Nos. 375 and 852 prevented the jury from
considering Barbara’s conduct in the June 2003 incident. That conduct, he says, was
relevant to establish that he acted in self-defense or unreasonable self-defense when he
killed Barbara on June 10, 2004. Luster also argues that these instructions erroneously
told the jury that they could not consider the June 2003 incident for the defense theory of
the case unless they found it proved by a preponderance of the evidence.

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Self-defense -- a complete defense -- requires an actual and reasonable belief in
the need to defend against an imminent danger of death or great bodily injury. (People v.
Humphrey (1996) 13 Cal.4th 1073, 1082.) In contrast, one who kills or tried to kill
another person because he actually, but unreasonably, believed in the need to defend
himself from imminent death or great bodily injury is deemed to have acted without
malice. (People v. McCoy (2001) 25 Cal.4th 1111, 1116; In re Christian S. (1994)
7 Cal.4th 768, 783.) Under such an “unreasonable self-defense” theory, the crime
committed is manslaughter or attempted manslaughter, not murder or attempted murder.
(People v. McCoy, supra, 25 Cal.4th at p. 1116.)
The trial court instructed the jury on self-defense as well as voluntary
manslaughter based on unreasonable self-defense. Each instruction expressly addressed
Barbara’s prior conduct toward Luster. The self-defense instruction stated, “If you find
that Barbara Luster threatened or harmed the defendant in the past, you may consider that
information in deciding whether the defendant’s conduct and beliefs were reasonable.”
The voluntary manslaughter/unreasonable self-defense instruction similarly provided,
“If you find that Barbara Luster threatened or harmed the defendant in the past, you may
consider that information in evaluating the defendant’s beliefs.”
We conclude Luster’s claims are unfounded. The language of each of the
challenged instructions specifically limited its scope to the jury’s consideration of
inferences to be drawn from a finding that Luster committed prior uncharged acts. The
first two sentences of CALCRIM No. 375 effectively defined the scope and purpose of
the instruction: “The People presented evidence that the defendant committed the offense
of battery on a spouse that was not charged in this case. [¶] You may consider this
evidence only if the People have proved by a preponderance of the evidence that the
defendant in fact committed the offense.” (Emphasis added.) The fourth paragraph of
the instruction and its subparagraphs told the jurors that if they decided “that the
defendant committed the [uncharged] offense,” they could consider evidence of that
offense on the issues of motive and/or intent to kill. (Emphasis added.) The final

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paragraph of CALCRIM No. 375 reiterates the scope of its application: “If you conclude
that the defendant committed the uncharged offense . . . .” (Emphasis added.) These
many explicit references to commission of a prior act by “the defendant” clearly
informed jurors that they were to apply CALCRIM No. 375 to consideration of only
Luster’s behavior in the June 2003 incident, not Barbara’s.
Similarly, the first sentence of CALCRIM No. 852 defined the scope of the
instruction by referring to “evidence that the defendant committed domestic violence that
was not charged in this case . . . .” (Emphasis added.) The fourth paragraph prohibited
the jury from considering this evidence unless the prosecution proved “the defendant in
fact committed the uncharged domestic violence.” (Emphasis added.) The first two
sentences in the final paragraph of the instruction expressly conditioned jurors’
consideration of the prior domestic violence evidence on a finding that “the defendant
committed the uncharged domestic violence.” (Emphasis added.) CALCRIM No. 852
thus expressly and repeatedly limited its application to evidence of Luster’s conduct.
Nothing in the instruction suggested it pertained to evidence that Barbara committed
domestic violence against Luster.
Luster especially emphasizes this sentence in CALCRIM No. 375: “Do not
consider this evidence for any other purpose except as otherwise instructed in the
following instruction, Instruction # 852.” While this potentially was a broad prohibition,
the phrase “this evidence” must be construed in the context of the rest of the instruction.
The first sentence of CALCRIM No. 375 refers to the prosecution’s presentation of
“evidence that the defendant committed the offense of battery on a spouse.” The very
next sentence creates the shorthand formulation “this evidence” to refer to “evidence that
the defendant committed the offense of battery on a spouse.” The third paragraph repeats
the shorthand phrase “this evidence.” So, in context, the warning not to consider “this
evidence for any other purpose” obviously refers to “evidence that the defendant
committed the offense of battery on a spouse,” not evidence of the June 2003 incident in
general or Barbara’s conduct then. Moreover, the jurors were told to consider all of the

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instructions together. Given the language in CALCRIM No. 375 limiting its application
to “evidence that the defendant committed the offense of battery on a spouse” and the
express reference to Barbara’s past threatening or harmful conduct toward Luster in the
self-defense and voluntary manslaughter instructions, jurors would not understand the
“do not consider” language in CALCRIM No. 375 to mean they could not consider
Barbara’s conduct in the June 2003 incident with respect to self-defense and
unreasonable self-defense.
Luster also argues that the jury would understand the preponderance of evidence
standard in CALCRIM Nos. 375 and 852 to apply as well to consideration of Barbara’s
conduct in the June 2003 incident. This contention fails for a similar reason. Each of the
challenged instructions defined its scope in its first sentence: “[t]he People presented
evidence that the defendant committed” spousal battery or uncharged domestic violence.
Each challenged instruction then told jurors they could “consider this evidence only if the
People have proved by a preponderance of the evidence that the defendant in fact
committed” “the offense” or “the uncharged domestic violence.” (Emphasis added.)
In context, “this evidence” clearly referred to “evidence that the defendant committed”
spousal battery or other domestic violence. Similarly, each instruction’s warning to
“disregard this evidence entirely” (emphasis added) if “the People [had] not met this
burden of proof” necessarily referred to “evidence that the defendant committed” spousal
battery or the like. The express language limiting the scope of CALCRIM Nos. 375 and
852 to evidence of Luster’s commission of domestic violence restricted application of the
preponderance of evidence standard to the prosecution’s use of Luster’s conduct.
Furthermore, every mention of the preponderance standard in these instructions
expressly tied that standard to the prosecution: “only if the People have proved by a
preponderance of the evidence . . . .” and “[i]f the People have not met this burden . . . .”
It is not reasonably likely the jury misconstrued explicit references to the People’s burden
of proof in this context as saying that standard also applied to the defense when the jurors
considered evidence of the June 2003 incident in connection with self-defense.

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In addition, the self-defense instruction specifically told the jury the relevant
burden of proof: “The People have the burden of proving beyond a reasonable doubt that
the killing was not justified. If the People have not met this burden, you must find the
defendant not guilty of second degree murder.” Similarly, the voluntary
manslaughter/unreasonable self-defense instruction concluded by specifying, “The
People have the burden of proving beyond a reasonable doubt that the defendant was not
acting in imperfect self-defense. If the People have not met this burden, you must find
the defendant not guilty of second degree murder.”
For all of these reasons, Luster’s claims of error have no merit.
3. CALCRIM No. 852 does not violate due process.
In a related contention, Luster argues that CALCRIM No. 852 violated his right to
due process because it gave jurors “the impression that proof beyond a reasonable doubt
of guilt for a charged crime can be based on propensity evidence alone . . . .” Luster
acknowledges that the California Supreme Court effectively rejected identical
contentions about a predecessor instruction, CALJIC No. 2.50.02, in People v. Reliford
(2003) 29 Cal.4th 1007 (Reliford) [addressing comparable instruction CALJIC No.
2.50.01]. The pertinent portions of CALJIC No. 2.50.02 provided, “If you find that the
defendant committed a prior offense involving domestic violence, you may, but are not
required to, infer that the defendant had a disposition to commit [another] [other]
offense[s] involving domestic violence. If you find that the defendant had this
disposition, you may, but are not required to, infer that [he] was likely to commit and did
commit the crime [or crimes] of which [he] is accused. [¶] However, if you find by a
preponderance of the evidence that the defendant committed a prior crime or crimes
involving domestic violence, that is not sufficient by itself to prove beyond a reasonable
doubt that [he] committed the charged offense[s]. If you determine an inference properly
can be drawn from this evidence, this inference is simply one item for you to consider,
along with all other evidence, in determining whether the defendant has been proved
guilty beyond a reasonable doubt of the charged crime.”

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In Reliford, the Supreme Court concluded the comparable parts of CALJIC No.
2.50.01 did not tell the jury that it could convict the defendant if it found an uncharged
sexual offense true by a preponderance of the evidence: “The problem with the
defendant’s argument is that the instruction nowhere tells the jury it may rest a conviction
solely on evidence of prior offenses. Indeed, the instruction’s next sentence says quite
the opposite: ‘if you find by a preponderance of the evidence that the defendant
committed a prior sexual offense . . . , that is not sufficient by itself to prove beyond a
reasonable doubt that he committed the charged crime.’ ” (Reliford, supra, 29 Cal.4th at
p. 1013.) The Court concluded, “[T]he instructions could not have been interpreted to
authorize a guilty verdict based solely on proof of uncharged conduct.” (Ibid.) People v.
Brown (2000) 77 Cal.App.4th 1324, rejected a similar argument challenging an earlier
version of CALJIC No. 2.50.02. (Id. at p. 1335.)
Luster nonetheless argues that the substitution of “conclude” in CALCRIM No.
852 in place of “infer” in CALJIC No. 2.50.02 should lead to a different result. He
argues that “conclude” evokes the concept of the “ultimate conclusion,” i.e., the verdict.
The pertinent part of CALCRIM No. 852 provides: “If you decide that the
defendant committed the uncharged domestic violence, you may, but are not required to,
conclude from that evidence that the defendant was disposed or inclined to commit
domestic violence and, based on that decision, also conclude that the defendant was
likely to commit second degree murder, as charged here, or voluntary or involuntary
manslaughter, lesser offenses. If you conclude that the defendant committed the
uncharged domestic violence, that conclusion is only one factor to consider along with all
the other evidence. It is not sufficient by itself to prove that the defendant is guilty of
second degree murder, as charged here, or voluntary or involuntary manslaughter, lesser
offenses. The People must still prove each element of every charge beyond a reasonable
doubt.”

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We are not persuaded that jurors would understand the word “conclude” in the
first and second sentences of CALCRIM No. 852 to mean the ultimate conclusion of
whether Luster was guilty of the crime. None of the instructions referred to the verdict as
the “ultimate conclusion.” Jurors likely would understand “conclude” in these sentences
to mean “infer.” Moreover, the final two sentences of CALCRIM No. 852, quoted
above, unequivocally negated the interpretation of the instruction Luster argues. In short,
despite the altered wording, Reliford applies equally to CALCRIM No. 852. It is not
reasonably likely the jury misconstrued or misapplied this instruction.
4. Defense counsel’s failure to proffer the recording of a 911 call and to
argue an additional ground for opposing the admission of the victim’s
statements to police during the June 2003 incident did not constitute
ineffective assistance of counsel.
The prosecutor sought to introduce the testimony of Deputy French and a 911 tape
to prove the June 2003 incident. Defense counsel objected to admission of Barbara’s
statements to French as a violation of the Confrontation Clause under Crawford v.
Washington (2004) 541 U.S. 36 (Crawford). The prosecutor argued the statements were not
testimonial or, in the alternative, the theory of forfeiture by wrongdoing mentioned in
Crawford, 541 U.S. at page 62, and Davis v. Washington (2006) 547 U.S. 813, 815
applied. Defense counsel argued that Barbara’s statements to French were testimonial and
that forfeiture by wrongdoing did not apply. The court found the incident relevant under
Evidence Code sections 1101(b) and 1109 and admissible under Evidence Code section 352,
but deferred ruling on the Confrontation Clause issue. It later ruled that Barbara’s
statements were testimonial, but it reserved ruling on the forfeiture by wrongdoing issue.
After discussing the issue with counsel several more times, the trial court
ultimately ruled that forfeiture by wrongdoing applied, and it allowed French to testify to
Barbara’s statements to him when he responded to the June 2003 incident. In its
meticulous explanation of its reasoning, the trial court noted that it assumed the
prosecutor was offering the statements under the hearsay exception in Evidence Code

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section 1370. The court explained that it found section 1370’s requirements satisfied.
On trustworthiness, the court stated, “That is probably the largest issue here. Again, that
would be subject to proof, but I would find for purposes of this ruling at this
time, . . . that there appears to be sufficient indicia of trustworthiness here.” The court
noted that the photographs of Barbara’s injuries corroborated her statements to French,
further suggesting trustworthiness. Defense counsel did not argue that section 1370 did
not apply, but contended that its constitutionality was in doubt under Crawford and its
progeny.
Luster asserts his trial attorney rendered ineffective assistance by failing to
“marshal the proper evidence and argument to defeat the application of” Evidence Code
section 1370. He argues that the 911 tape4 showed that Barbara’s statements to French
were not made under circumstances that would indicate their trustworthiness. He notes
that on the tape Barbara lied about drinking alcohol, failed to mention her own injuries
while asking for an ambulance for her husband, and defensively told the 911 dispatcher
that her husband was accusing her of causing his injuries. Although the tape later was
played at trial, the trial court apparently had not heard it or seen a transcript of it when it
ruled on the admissibility of Barbara’s statements to French.
A claim that counsel was ineffective requires a showing, by a preponderance of
the evidence, of objectively unreasonable performance by counsel and a reasonable
probability that, but for counsel’s errors, appellant would have obtained a more favorable
result. (People v. Ledesma (1987) 43 Cal.3d 171, 216-218.)
Evidence Code section 1370, subdivision (a) provides a hearsay exception for a
statement that satisfies the following conditions: “(1) The statement purports to narrate,
describe, or explain the infliction or threat of physical injury upon the declarant. [¶]
(2) The declarant is unavailable as a witness pursuant to Section 240. [¶] (3) The
statement was made at or near the time of the infliction or threat of physical injury.

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Evidence of statements made more than five years before the filing of the current action
or proceeding shall be inadmissible under this section. [¶] (4) The statement was made
under circumstances that would indicate its trustworthiness. [¶] (5) The statement was
made in writing, was electronically recorded, or made to a physician, nurse, paramedic,
or to a law enforcement official.” Section 1370, subdivision (b)(3) provides that the
existence of corroborating evidence is a relevant factor in evaluating the trustworthiness
of the statement at issue.
We assume for argument’s sake that defense counsel should have challenged the
trustworthiness element of section 1370 and supported this argument by playing the 911
tape for the trial court or giving the court a transcript. Nonetheless, Luster has not shown
a reasonable probability of a more favorable result had his attorney done so. Counsel’s
failure to make a futile or unmeritorious objection or argument is not ineffective
assistance. (People v. Price (1991) 1 Cal.4th 324, 387.)
The 911 call does not cast doubt on the trustworthiness of what Barbara later told
French. There are some minor differences, but Barbara’s statements to French at the
scene are largely consistent with her statements in the 911 call. In the call, Barbara told
the dispatcher that Luster “kept throwing things” at her, had hit her, and had knocked
over the dresser and broken it. French’s description of his conversation with Barbara
tracked this fairly closely: he testified Barbara told him Luster had shoved her against
the dresser, so that she broke the mirror, and that he had thrown the things French saw on
the bedroom floor. French’s observations and the police photographs also corroborated
Barbara’s statements: the broken mirror was lying on its side, off of the dresser,
Barbara’s shoulder was cut, and objects French thought would have been on the dresser
were strewn about the bedroom floor. That Barbara did not mention her own injuries
during the 911 call was entirely consistent with both her stated purpose of getting an
ambulance to help Luster and French’s testimony that she refused the officers’ offer to
4 The 911 recording was played at trial. The appellate record contains a transcript

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get her medical treatment. Barbara’s statement to French that Luster had been drinking
was consistent with her statement to this effect to the 911 dispatcher and with Luster’s
own admission to French. Barbara’s denial to the 911 operator that she had been
drinking apparently was false, but the question before the trial court was the
trustworthiness of her statements to French, not the trustworthiness of her statements to
the 911 operator. Barbara admitted to French that she had also been drinking. Luster’s
own admission to French that he pushed Barbara down during the argument effectively
corroborated Barbara’s statement to the deputies that Luster shoved her into the mirror
during the argument. Finally, although it did not detract from her statements to French,
Barbara’s “defensive” reference in the 911 call to her husband’s accusation against her
was consistent with Luster’s own cryptic statement to French to the effect that Barbara
caused the laceration on his head. It also was consistent with Luster’s trial testimony that
he and Barbara were engaged in mutual combat. Luster’s scalp laceration itself tended to
corroborate Barbara’s statement to the 911 dispatcher that her husband was bleeding
from the back of his head.
Accordingly, it is not reasonably probable that the trial court would have
concluded Barbara’s statements to French were not made under circumstances indicating
their trustworthiness if it had heard the 911 recording or read the transcript. Counsel’s
failure (1) to give the court the recording and/or transcript during the consideration of the
admissibility of French’s statements and (2) to argue that the trustworthiness element of
Evidence Code section 1370 was not satisfied therefore was not prejudicial. Luster’s
ineffective assistance of counsel claim thus has no merit.
5. The trial court correctly applied the forfeiture by wrongdoing doctrine.
Luster contends the trial court erroneously applied the doctrine of forfeiture by
wrongdoing in admitting Barbara’s statements to deputies during the June 2003 incident.
He argues, in essence, that there should be no forfeiture without an intent to subvert the
of the recording.

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judicial process. Because there was no evidence he acted with that intent in killing
Barbara, he argues, the doctrine is inapplicable.
As Luster concedes, the California Supreme Court has rejected this argument.
In People v. Giles (2007) 40 Cal.4th 833, the Court concluded that the forfeiture by
wrongdoing doctrine may be applied where the defendant’s intentional criminal act
rendered the witness unavailable to testify, whether or not the defendant specifically
intended to prevent the witness from testifying. (Id. at p. 849.) Giles forecloses our
review of Luster’s claim. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d
450, 455.) We acknowledge that the United States Supreme Court has granted certiorari
in Giles. (__ U.S. __; 128 S.Ct. 976.) Until and unless that Court reverses our high court
in Giles, the decision remains the controlling law in this state.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.*
We concur:
COOPER, P. J.
RUBIN, J.
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.

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