P. v. Winslow

Filed 9/6/19 P. v. Winslow CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
VAUGHN WINSLOW,
Defendant and Appellant.
B292984
(Los Angeles County
Super. Ct. No. LA088169)
APPEAL from a judgment of the Superior Court of Los
Angeles County. Susan M. Speer, Judge. Affirmed.
Lillian Hamrick, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Michael C. Keller and John Yang, Deputy
Attorneys General, for Plaintiff and Respondent.
_________________________________

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Vaughn Winslow appeals the judgment entered following a
jury trial in which he was convicted of three counts of injury to a
person with whom he had a dating relationship (Pen. Code,
§ 273.5, subd. (f)(1); counts 1, 2, 61), one count of assault with
caustic chemicals (Pen. Code, § 244; count 4), and one count of
assault by means of force likely to cause great bodily injury (Pen.
Code, § 245, subd. (a)(4); count 5) as a lesser included offense of
assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)).
Appellant admitted a prior prison term allegation, and the trial
court sentenced appellant to a state prison term of 8 years
4 months.
Appellant contends the trial court erred in admitting
evidence of past uncharged domestic violence pursuant to
Evidence Code2 section 1109. We disagree and affirm.
FACTUAL BACKGROUND
Victor
Appellant and Victor met on-line around June 2015, and
their relationship became sexual about one month later. With no
place to live, appellant soon moved into Victor’s apartment. They
lived together for the next three years except for five months
when appellant was in jail. In the beginning of the relationship,
appellant was affectionate, but over time he became jealous and
controlling, at times forcing Victor to stay in his room and
1 On the People’s motion after the close of evidence, the
trial court dismissed count 3, which also charged a violation of
Penal Code section 273.5, subdivision (f)(1).
2 Undesignated statutory references are to the Evidence
Code.

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frequently taking Victor’s car. Eventually appellant became
physically abusive: he hit Victor, grabbed him by the neck, and
on two occasions he threatened Victor with a knife.
The October 1, 2017 incident (Count 1)
On October 1, 2017, appellant and Victor got into an
argument. Still arguing, they got into the car, and appellant
punched Victor in the face. Eventually Victor got out of the car
and called a friend who took him to the Van Nuys police station.
There, Victor made a domestic violence report, and an officer took
photographs of Victor’s injuries, which included bleeding around
his eye. Victor also had scratches on his arm, which were
consistent with his statements to police.
The October 26, 2017 incidents (Counts 2, 4, 5)
On the morning of October 26, 2017, appellant hit Victor in
the face again. Then he bit Victor’s thumb hard enough that
Victor had to hit appellant to force him to release his finger.
Appellant also bit Victor on the thigh above his knee. Victor had
not threatened or struck appellant before the attack.
Just before noon that day, Victor reported the incident at
the Van Nuys police station. Victor had abrasions and swelling
on his left cheek, a bite on his thumb that passed through the fat
layer of the skin into the muscle, and a bite mark which had
broken the skin on his knee. Police took photographs of Victor’s
injuries. During his interview, Victor was very emotional and
nervous. He cried several times and seemed embarrassed.
On the evening of October 26, 2017, Victor called 911 after
appellant had struck him again. During the call appellant
struggled with Victor, trying to take the phone away from him.
Later that night appellant sprayed insecticide in Victor’s face and
on his chest. Victor had closed his eyes but could still feel some
burning in his eyes. He wiped his face and eyes with a wet towel

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and called 911 again. Police responded to the call and found
Victor alone in the apartment. Victor made another domestic
violence report, and an officer took photographs of him.
Dr. Michael Levine testified that the insecticide appellant
sprayed on Victor contains two toxins. Depending on the amount
and route of exposure, these can cause numbness or tingling,
irritation, lung injury, and permanent corneal damage leading to
vision impairment.
The November 3, 2017 incident (Count 6)
Sometime in the morning of November 3, 2017, Victor and
appellant got into an argument at the gym and pushed each other
before returning to the car. When they got into the car, Victor
told appellant he was going to the police. Victor drove to the
police station, whereupon appellant hit him and left.
Maiesha Brown was at the West Valley police station when
she saw a car with two male occupants pull into the parking lot.
She witnessed appellant punch Victor more than five times.
Victor had his hands up to protect himself but did not fight back.
When Victor appeared to attempt to open the door, appellant
reached across and grabbed him. Eventually appellant exited the
vehicle and ran away.
Victor walked into the police station just as Brown was
reporting what she had seen. In his report of the incident, Victor
explained he had driven to the police station because appellant
was agitated and had been abusive toward Victor in the past.
Victor had redness and swelling in and around his right eye, and
it appeared a vein in his eye had burst. The officer on duty asked
Victor if he needed an ambulance, but Victor said no.
Anthony
Anthony met appellant in June 2012 through an on-line
dating app. Their relationship soon became sexual, and a month

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after they had met, Anthony let appellant move in with him
because appellant told him he had nowhere to live. At the start of
the relationship there were no problems, but appellant gradually
became verbally and then physically abusive. Appellant choked,
punched, and bit Anthony multiple times over the course of their
relationship and would sometimes block him from leaving a room
when Anthony tried to walk away from an argument. Appellant
also threatened to harm members of Anthony’s family and his
dogs.
During an argument on August 12, 2012, Anthony told
appellant he would have to move out. Appellant began choking
Anthony while telling Anthony he loved him and begging
Anthony not to throw him away. Anthony realized he was not
safe in the apartment and decided to leave, but appellant grabbed
a knife and threatened to hurt himself as he pointed the knife at
Anthony to keep him from leaving. The neighbors called the
police, and responding officers arrested appellant. Appellant
suffered a conviction based on the incident and spent time in an
inpatient drug rehabilitation program.
Appellant came back into Anthony’s life in early January
2013, and the abuse resumed in August 2013, with appellant
punching and choking Anthony again. On that occasion, Anthony
questioned appellant about not attending his rehab program, and
appellant became violent. Appellant struck Anthony on the knee
with an air purifier, he punched Anthony in the face, splitting his
lip open, he head-butted and punched Anthony in the head, and
he swung a small table at Anthony. Appellant also tried to strike
Anthony with a lamp but missed. Police arrived and took
photographs of the injuries to Anthony’s face and knee.

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Defense evidence
Appellant testified in his own behalf. He denied ever
pulling a knife on Victor. He also denied having a fight with
Victor on October 1, 2017, asserting that he was with his friend
Jonathan that day. Appellant testified that he was living with
Jonathan3 on October 26, 2017. Although he did not specifically
recall what he did that day, he denied hitting, biting, or spraying
Victor with insecticide. Appellant also denied involvement in any
incident with Victor on November 3, 2017, averring that he was
in New York for a funeral on that day.
Appellant explained that when he used the knife in the
August 2012 incident with Anthony, he was threatening to kill
himself. Appellant also testified that although their arguments
sometimes got “physical,” appellant would punch and choke
Anthony only in self-defense because Anthony was “almost twice
[his] size.” Appellant’s conflicts with Anthony centered around
appellant’s drug use. After his arrest in August 2013, appellant
accepted another offer for drug rehabilitation, but he failed the
program and was sentenced to prison.
DISCUSSION
Admission of Evidence of Prior Acts of
Domestic Violence Under Section 1109
1. Relevant background
Over defense objection, the trial court admitted evidence of
uncharged prior incidents of domestic violence involving Anthony
3 The parties entered a stipulation that for seven to 14 days
in October 2017, appellant stayed at the residence of Jonathan
Garcia in Northridge.

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under section 1109. In admitting evidence of the August 2013
incident, the court explained:
“It’s alleged that the defendant attacked [Anthony]. He
threw an air purifier at him, a table lamp, punched him, he
threatened to kill him, result[ing] in injuries that I believe were a
laceration only, bruises. [¶] I don’t see how that’s substantially
more prejudicial than probative. It’s very similar to the facts, as I
understand them, in this case. His conviction was for a [Penal
Code section] 273.5 felony. It’s of the same magnitude and
seriousness [as] the current offenses or less so. It certainly shows
a pattern of conduct. I think it’s prejudicial, but it is more
probative than prejudicial.”
In ruling the evidence of the August 12, 2012 incident
admissible under section 1109, the trial court declared:
“All right. Again, this is within the 10-year period of 1109.
The court has found there was proper discovery as required by
the code. It’s alleged in this incident with the same victim,
[Anthony], that there was an argument. He attempted to choke
the victim, punch him. There were threats. He did retrieve a
knife, although there was no stabbing. He head-butted the
victim. [¶] The court will make the same findings. This is no
more serious than the current alleged offenses. In fact, it’s less
serious. It was a misdemeanor conviction. It’s within 10 years.
It is prejudicial, but it is probative under 1109 to show a pattern
of conduct. The court finds under 352 it is more probative than
prejudicial.”
2. Legal principles
Ordinarily, evidence of prior criminal conduct is
inadmissible to show a defendant’s predilection to commit other
criminal acts. (Evid. Code, § 1101, subd. (a).) However, in cases
involving sexual offenses and domestic violence, the Legislature

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has created exceptions to the general prohibition against
propensity evidence. (Evid. Code, §§ 1108, 1109; People v. Brown
(2011) 192 Cal.App.4th 1222, 1232; People v. Reyes (2008) 160
Cal.App.4th 246, 251.) In domestic violence cases, section 11094
“ ‘permits the admission of defendant’s other acts of domestic
violence for the purpose of showing a propensity to commit such
crimes.’ ” (Brown, at p. 1232.)
The rationale underlying this exception is that by admitting
evidence of a defendant’s other acts of domestic violence to show a
disposition to commit acts of domestic violence, the statute
eliminates any presumption that “the charged offense was an
isolated incident, an accident, or a mere fabrication.” (Assem.
Com. on Public Safety, Analysis of Sen. Bill No. 1876 (1995–1996
Reg. Sess.) June 25, 1996, p. 3 (Assembly Analysis of Senate Bill
1876); see People v. Falsetta (1999) 21 Cal.4th 903, 916–917
(Falsetta) [“[b]y reason of section 1108, trial courts may no longer
deem ‘propensity’ evidence unduly prejudicial per se”].) “Thus,
the 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.]
4 Section 1109 provides in relevant part: “(a)(1) Except as
provided in subdivision (e) or (f), 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 if the evidence is not
inadmissible pursuant to Section 352.” Under subdivision (e),
“[e]vidence of acts occurring more than 10 years before the
charged offense is inadmissible under this section, unless the
court determines that the admission of this evidence is in the
interest of justice.”

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Indeed, proponents of the bill that became section 1109 argued for
admissibility of such evidence because of the ‘typically repetitive
nature’ of domestic violence.” (People v. Johnson (2010) 185
Cal.App.4th 520, 532 (Johnson); Assem. Analysis of Sen. Bill
1876, supra, at pp. 6–7.)
“ ‘ “The principal factor affecting the probative value of an
uncharged act is its similarity to the charged offense.” ’ ”
(Johnson, supra, 185 Cal.App.4th at p. 531.) Thus, before a trial
court may admit evidence of other acts of domestic violence it
must, by balancing the factors set forth in Evidence Code section
352, 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.’ ” (People v. Williams (2013) 58 Cal.4th
197, 270 (Williams); People v. Fruits (2016) 247 Cal.App.4th 188,
202 (Fruits).)
“ ‘ “ ‘[P]rejudicial’ ” ’ ” in the context of the court’s section
352 analysis “ ‘ “is not synonymous with ‘damaging.’ ” ’ ”
(Williams, supra, 58 Cal.4th at p. 270; Johnson, supra, 185
Cal.App.4th at p. 534.) “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. ‘[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.” ’ ”
(People v. Karis (1988) 46 Cal.3d 612, 638; People v. Poplar (1999)
70 Cal.App.4th 1129, 1138.) Rather, evidence subject to exclusion
under section 352 as unduly prejudicial is evidence “ ‘ “which
uniquely tends to evoke an emotional bias against defendant as

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an individual and which has very little effect on the issues.” ’ ”
(Williams, at p. 270; Fruits, supra, 247 Cal.App.4th at p. 205.)
Other factors relevant to the section 352 analysis include:
whether the prior act of domestic violence is more inflammatory
or egregious than the current offense; whether the presentation of
the evidence would consume inordinate time at trial; the
likelihood that the jury might confuse the prior incident with the
charged offense; whether the prior domestic violence occurred
recently or is remote in time; and whether the defendant was
convicted and punished for the prior offense. (People v. Rucker
(2005) 126 Cal.App.4th 1107, 1119; Johnson, supra, 185
Cal.App.4th at pp. 533–535; see Falsetta, supra, 21 Cal.4th at
p. 917.)
We review the trial court’s exercise of discretion in
admitting or excluding evidence under section 352 for abuse and
will not disturb the court’s ruling “except on a showing the trial
court exercised its discretion in an arbitrary, capricious, or
patently absurd manner that resulted in a manifest miscarriage
of justice.” (People v. Rodriguez (1999) 20 Cal.4th 1, 9–10; Fruits,
supra, 247 Cal.App.4th at p. 202.)
3. The trial court did not abuse its discretion in
admitting evidence of appellant’s prior acts of
domestic violence.
We conclude that the trial court’s decision in this case to
admit the evidence of appellant’s past acts of domestic violence
was neither arbitrary, capricious, nor patently absurd.
Appellant challenges the probative value of the prior
domestic violence evidence on the ground that it lacked similarity
to the offenses charged in this case. In so arguing, appellant
attempts to distinguish the nature of the relationships he had
with Anthony and Victor, contrasting the romantic and intimate

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qualities of his more stable relationship with Anthony with the
platonic roommate relationship he had with Victor. But section
1109 requires only that the propensity evidence be another act of
domestic violence, and trivial differences between the
relationships out of which the domestic violence arose are
irrelevant to the analysis of similarity of the acts under section
352.
Appellant also asserts that the alleged acts of violence in
his relationship with Anthony—punching, hitting, choking,
biting, throwing things—are so common to all domestic violence
cases as to lack any probative value in this case. However,
neither section 1109 nor 352 calls for the prior and current
incidents of domestic violence to share unique characteristics as a
prerequisite for admission.
Characterizing the evidence in the case as weak and
claiming that the jury likely credited the defense in convicting on
the lesser included offense to assault with a deadly weapon and
failing to reach a verdict on count 3,5 appellant argues that the
trial court erred in admitting the propensity evidence because it
was unduly prejudicial. We disagree.
5 Appellant states that the jury “did not reach a verdict on
Count 3” (injury of a person with whom he had a dating
relationship in violation of Penal Code section 273.5,
subdivision (f)(1)). While technically true, this statement is
highly misleading. In fact, the jury had no occasion to reach a
verdict on count 3 because the trial court dismissed the count
pursuant to Penal Code section 1385 on the People’s motion
before the case was submitted to the jury.

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All of the factors which might have justified exclusion of the
evidence as more prejudicial than probative were notably absent
in this case. Appellant’s violent conduct toward Anthony was less
inflammatory than the current offenses. Indeed, the acts
Anthony described were more benign than appellant’s attacks on
Victor, which included spraying Victor in the face with a caustic
chemical.6 Anthony’s testimony also consumed relatively little
time at trial⎯just under 20 pages of a trial transcript consisting
of nearly 200 pages. Further, given the fact that the two victims
testified separately about entirely different incidents, the
likelihood that the jury might confuse the prior incidents with the
charged offenses was negligible. Finally, as the trial court found,
the prior incidents of domestic violence were recent in time,
occurring within 10 years of the current charged offenses.
Indeed, appellant’s abusive relationship with Victor began only
two years after his abuse of Anthony had ended.
In short, Anthony’s testimony about appellant’s violence
toward him in the course of their prior relationship provided the
clearest possible showing of appellant’s propensity for domestic
violence without causing undue prejudice. The trial court
properly exercised its discretion in admitting the evidence
6 In this regard, appellant overstates the significance of the
jury’s conviction on the lesser included offense of assault by
means of force likely to cause great bodily injury rather than
assault with a deadly weapon. Contrary to appellant’s
interpretation, the verdict merely indicates the jury found that
the insecticide appellant sprayed in Victor’s face is not a deadly
weapon, not that Victor’s injuries were exaggerated.

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pursuant to section 1109 by carefully weighing its probative value
against any possible prejudicial effect.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
CHAVEZ, J.
HOFFSTADT, J.

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