P. v. Frizzell

Filed 2/6/07  P. v. Frizzell CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

            APPEAL from a judgment of the Superior Court of San Diego County, Frederick Maguire, Judge.  Affirmed.

            At trial, undisputed evidence established that Suzette Chalene Frizzell repeatedly stabbed Stuart Phillips in the back after they engaged in sexual intercourse on a bed they shared in a canyon where they lived.  Frizzell testified in support of her defense that she did not have an intimate relationship with Phillips, and he was raping her when she stabbed him.  The court admitted evidence of three prior acts of domestic violence that Frizzell allegedly committed.  The court also admitted evidence that Frizzell had previously committed an assault with a machete. 

            A jury convicted Frizzell of one count of assault with a deadly weapon by means of force likely to produce great bodily injury in violation of Penal Code^[1] section 245, subdivision (a)(1) (count 2), and one count of corporal injury to a cohabitant in violation of section 273.5, subdivision (a) (count 3).  As to each count the jury found true an allegation that Frizzell inflicted great bodily injury upon Phillips under circumstances involving domestic violence within the meaning of section 12022.7, subdivision (e).  As to count 3, the jury also found true an allegation that Frizzell had personally used a deadly weapon, a knife, within the meaning of section 12022, subdivision (b)(1). 

            The court sentenced Frizzell to a prison term of eight years, consisting of (1) the middle term of three years for the corporal injury to a cohabitant (count 3:  §  273.5, subd. (a)); (2) a consecutive term of four years for the true finding on the count 3 allegation under section 12022.7, subdivision (e) that she inflicted great bodily injury upon Phillips under circumstances involving domestic violence; and (3) a consecutive term of one year on the count 3 allegation under section 12022, subdivision (b)(1) that she personally used a deadly weapon. 

            Frizzell appeals, contending (1) there was insufficient evidence of cohabitation to support either her conviction of corporal injury to a cohabitant or the true finding that she inflicted great bodily injury upon Phillips under circumstances involving domestic violence; (2) the court deprived her of her due process right to a fair trial by erroneously admitting evidence under Evidence Code sections 1109 and 352 that she had committed three prior acts of domestic violence; (3) the court also deprived her of her due process right to a fair trial by erroneously admitting evidence under Evidence Code section 1101, subdivision (b) that she had assaulted a neighbor and a prior roommate with a machete; and (4) the court committed reversible error by instructing the jury on prior acts evidence under CALJIC No. 2.50.02, which permitted the jury to convict Frizzell with less than proof beyond a reasonable doubt. We reject these contentions and affirm the judgment.

FACTUAL BACKGROUND^[2]

            A.  The People's Case

            One night in early February 2005, after they had been drinking heavily, Frizzell and Phillips engaged in sexual intercourse on a makeshift bed they shared in a canyon where they lived.  When Phillips told Frizzell he had to get up to urinate, she became angry and told him she would kill him if he got off of her.  Thinking Frizzell was kidding, Phillips got off of her, walked away, and urinated.  When he returned, Frizzell pulled out a knife and repeatedly stabbed him in the back. 

            Phillips, who was having trouble breathing and could not get up, called out to Pedro Cordero, who was also living in the camp, to get Frizzell off of him, call 911 and get help.  Frizzell told Pedro to " [l]eave him there to die."

            Phillips suffered 17 stab wounds to his back.  The knife punctured his left lung, inflicting a life-threatening wound.

            B.  The Defense

            Frizzell testified that when Phillips returned to the bed after urinating, she told him to leave her alone, he " pounced" on her, covered her mouth, and tried to rape her.  She panicked and repeatedly stabbed him until he stopped when she stabbed him " real deep at the bottom of his ribs."   Frizzell indicated that, although she had sex with Phillips, she did not have an intimate relationship with him.

DISCUSSION

I.  SUFFICIENCY OF THE EVIDENCE OF COHABITATION

            Frizzell first contends the evidence is insufficient to support a finding that she and Phillips were cohabitants within the meaning of sections 273.5, subdivision (a) and 12022.7, subdivision (e).  We reject this contention.

            A.  Background

            The jury convicted Frizzell in count 3 of corporal injury on a cohabitant, in violation of section 273.5, subdivision (a), which provides in part that any person who willfully inflicts corporal injury resulting in a traumatic condition on a " cohabitant" is guilty of a felony.  The jury also convicted her of the assault charge in count 2 (§  245, subd. (a)(1)).  As to both counts, the jury found true the allegation that Frizzell inflicted great bodily injury upon Phillips under circumstances involving domestic violence within the meaning of section 12022.7, subdivision (e).  

            B.  Standard of Review

            In determining the sufficiency of the evidence, " the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Jackson v. Virginia (1979) 443 U.S. 307, 318-319.)  " [T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence¾that is, evidence which is reasonable, credible, and of solid value¾such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt."   (People v. Johnson (1980) 26 Cal.3d 557, 578 (Johnson).)

            C.  Analysis

            Section 13700, subdivision (b) provides in part that the term " domestic violence" means " abuse committed against [a]  .  .  .  cohabitant."   (Italics added.)  That subdivision also provides that " [f]or purposes of this subdivision, 'cohabitant' means two unrelated adult persons living together for a substantial period of time, resulting in some permanency of relationship.  Factors that may determine whether persons are cohabiting include, but are not limited to, (1) sexual relations between the parties while sharing the same living quarters, (2) sharing of income or expenses, (3) joint use or ownership of property, (4) whether the parties hold themselves out as husband and wife, (5) the continuity of the relationship, and (6) the length of the relationship."

            The term " cohabitant" has been interpreted broadly to refer to those " 'living together in a substantial relationship¾one manifested, minimally, by permanence and sexual or amorous intimacy.'"   (People v. Moore (1996) 44 Cal.App.4th 1323, 1333 (Moore), quoting People v. Holifield (1988) 205 Cal.App.3d 993, 1000.)  " The element of 'permanence' in the definition refers only to the underlying 'substantial relationship,' not to the actual living arrangement."   (Moore, supra, 44 Cal.App.4th at p. 1334.)  Permanence does not require exclusivity in either the relationship or the living arrangement.  (Id. at pp. 1334-1335.)  " [F]or purposes of criminal liability under section 273.5, a defendant may cohabit simultaneously with two or more people at different locations, during the same time frame, if he maintains substantial ongoing relationships with each and lives with each for significant periods."   (Moore, supra, at p. 1335.)

            In People v. Ballard (1988) 203 Cal.App.3d 311, although the defendant and the victim had been " living together" for two years, the defendant maintained his own separate apartment.  (Id. at p. 314.)  The Court of Appeal held that evidence the two were " 'together a lot'" and " 'lived together in one bed'" demonstrated they had a " significant relationship" and was sufficient to establish cohabitation.  (Id. at pp. 314, 317-318; see Moore, supra, 44 Cal.App.4th at p. 1334.)

            Here, viewing the record in the light most favorable to the judgment as we must (Johnson, supra, 26 Cal.3d at p. 578), we conclude that substantial evidence supports the jury's finding that at the time Frizzell committed the offenses in this matter, she and Phillips had the requisite substantial relationship characterized by permanence and sexual intimacy.  Phillips testified he met Frizzell in late 2004 when he was living in an " attachment" (or shed) on the side of his uncle's garage.  They developed romantic feelings for one another and became " close and real good friends."   Frizzell moved in with him about a month after they met.  They kissed, had sex, and were intimate.  They lived together in the uncle's shed for six to eight weeks until the uncle " kicked [them] out" because of Frizzell's loud and " obnoxious" behavior. 

            Phillips invited Frizzell to live with him in an old van.  She refused, but suggested they live in a canyon across from Clairemont Square and then took Phillips down into the canyon.  Phillips testified that they took all their belongings from the room next to the uncle's garage, moved down into the canyon, and " set up camp."   There they slept on a single foam mattress on which they put sheets and sleeping bags, and they considered themselves boyfriend and girlfriend.  Phillips stated that Frizzell " hung out" with him " all the time," they kissed and had sex " once in a while."   Phillips would get jobs in the neighborhood, and he supported Frizzell by sharing his earnings with her. 

            Substantial evidence shows they continued their relationship in Mexico.  Phillips indicated that at some point he got a job in Mexico, and Frizzell went with him.  He testified they slept together and had sex there. 

            Frizzell and Phillips returned to the canyon when they returned from Mexico.  They were intimate and once they talked about marriage.  As already discussed, Frizzell and Phillips engaged in sexual intercourse on their bed in the canyon shortly before she stabbed him.

            Based on the foregoing substantial evidence, we conclude that any rational trier of fact could reasonably find beyond a reasonable doubt that Frizzell and Phillips had a substantial relationship during which they lived together, shared income and expenses, and engaged in sexual intimacy for a significant period of time, resulting in some permanency of relationship, such that they were cohabitants within the meaning of sections 273.5, subdivision (a), 12022.7, subdivision (e), and 13700, subdivision (b), at the time Frizzell stabbed Phillips. 

            Frizzell's claim that she was not sexually attracted to Phillips, is belied by substantial evidence (discussed, ante) showing they were sexually intimate with one another in the shed, in the canyon, and in Mexico.

            Frizzell's contention that the evidence was insufficient to show that she and Phillips were cohabitants because " [t]hey did not sleep in any structure or private space" and " [t]here were no tents, shacks, crates or caves that a person could claim as his or her 'home,'" is unavailing.  She asserts that " [t]ypically, the term 'cohabitation' or 'living together' refers to two people sharing a residence such as a house or an apartment.  For example, in [Moore, supra, 44 Cal.App.4th 1323], the defendant lived part-time with the victim in her apartment."   However, Frizzell has cited no authority that supports her novel proposition that two people cannot be cohabitants unless they sleep in a " structure or private space."   Her reliance on Moore is misplaced.  The issue in that case was whether a defendant may cohabit simultaneously with two or more people, not whether cohabitation requires a showing that defendant lived with another person in a structure such as a house or apartment.  (Moore, supra, 44 Cal.App.4th at pp. 1331-1332, 1335.)  Moore held that " as a matter of law  .  .  .  for purposes of criminal liability under section 273.5, a defendant may cohabit simultaneously with two or more people at different locations, during the same time frame, if he maintains substantial ongoing relationships with each and lives with each for significant periods."   (Moore, supra, 44 Cal.App.4th at p. 1335.)

II.  ADMISSION OF DOMESTIC VIOLENCE PROPENSITY EVIDENCE

            Frizzell next contends the court deprived her of her due process right to a fair trial by erroneously admitting evidence under Evidence Code sections 1109 and 352 that she had committed three prior acts of domestic violence.  We reject this contention.

            A.  Background

            In a pretrial motion, the prosecution requested that the court admit under section 1109 evidence of eight acts of prior domestic violence involving Frizzell and her former boyfriend, Mark Goerner.  The court granted the motion as to three of those acts. 

            At trial, Goerner indicated that he met Frizzell in Sacramento in about 1997 and stated that he began to have a relationship with her that was " almost like boyfriend and girlfriend."  A month later, they moved to San Diego, where they lived together.  Over the years, Frizzell became violent with Goerner 10 or 12 times, and she was always the aggressor.  On one occasion, after they had been drinking, they got into an argument over something small.  Frizzell became so angry that she started breaking things, punched a hole in the wall, broke a mirror, and cut him under his nose with a knife. 

            On another occasion, in September 2000, Frizzell and Goerner were moving out of their condominium because they were splitting up.  Frizzell became angry and started screaming and yelling.  When Goerner said, " Please be quiet," because the landlord lived next door, Frizzell became angrier, went into the kitchen, broke dishes and glasses by throwing them on the floor, and broke the front window and a wind chime.  Goerner had to call the police because Frizzell continued this behavior. 

            Later that month, Frizzell became violent again when, after she had been drinking whiskey, she demanded more whiskey and Goerner told her she did not need any more.  Frizzell became angry, started screaming, and broke a flashlight.  Goerner ordered her to leave, called the police, and obtained a restaining order against her.  

            B.  Applicable Legal Principles

            " 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, subdivision (a)(1) of Evidence Code section 1109 provides in part (with exceptions not applicable here):  " [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] Section 1101, if the evidence is not inadmissible pursuant to [Evidence Code] Section 352." ^[3]

            Evidence Code section 1109 creates an exception to the general rule codified in Evidence Code section 1101, subdivision (a) (see fn. 3, ante) precluding admission of uncharged misconduct to show that the defendant had a propensity to commit crimes.  (See People v. Johnson (2000) 77 Cal.App.4th 410, 417.)

            The admissibility of evidence of domestic violence is subject to the sound discretion of the trial court and the exercise of that discretion will not be disturbed on appeal absent a showing of an abuse of discretion.  (People v. Poplar, supra, 70 Cal.App.4th at p. 1138.) 

            C.  Analysis

            1.  Insufficiency of the evidence

            We first reject Frizzell's primary contention that " [b]ecause there was insufficient evidence that [Frizzell] and Phillips were in a substantial relationship or living together within the meaning of the domestic violence statutes, the court erred in permitt[ing] the prosecution to admit evidence of [Frizzell's] prior bad acts of domestic violence under Evidence Code section 1109."   This contention is premised on Frizzell's prior contention (discussed, ante) that the evidence was insufficient to support a finding that she and Phillips were cohabitants within the meaning of sections 273.5, subdivision (a), and 12022.7, subdivision (e). 

            For reasons already discussed, we have concluded that sufficient evidence supports the jury's implied finding that Frizzell and Phillips were cohabitants at the time she committed the current offenses, and thus sufficient evidence supports her conviction of corporal injury to a cohabitant (§  273.5, subd. (a)), and the jury's true findings that she inflicted great bodily injury upon Phillips under circumstances involving domestic violence (§  12022.7, subd. (e)).  Accordingly, we reject Frizzell's claim that there was insufficient evidence that her offense involved domestic violence.

            2.  Evidence Code section 352

            Frizzell also contends the court abused its discretion in admitting the Evidence Code section 1109 propensity evidence over defense counsel's Evidence Code section 352 objection.  We reject this contention.

            Frizzell asserts the evidence of the three prior acts of domestic violence involving Goerner was " highly inflammatory," the acts were " remote in time," and the evidence had no probative value.  These assertions are unavailing.  The evidence was highly probative and not unduly inflammatory.  Goerner's testimony was relevant in that it tended to show that Frizzell had a propensity for becoming enraged during an argument with a cohabitant, even over small matters, and that she would become violent toward him.  Although Goerner's testimony showed that she had used a knife while enraged to cut Goerner under his nose, such testimony is not unduly inflammatory compared to the evidence showing that in committing the current offenses, she stabbed Phillips 17 times in the back and punctured his left lung because their sexual intercourse in the canyon was interrupted by Phillip's need to urinate.

            Conceding that she and Goerner " had 10-12 domestic violence incidents during their long-term, intimate relationship," Frizzell also complains that " [t]he prosecution presented no evidence to show that [she] had a similarly intimate relationship with Phillips, or that [she] had demonstrated a similar pattern of violence during their brief friendship."   Frizzell disregards the substantial evidence (discussed, ante) showing that she and Phillips did have a similarly intimate relationship.  Frizzell's act of cutting Goerner under his nose during an argument was sufficiently similar to her act of repeatedly stabbing Phillips in the back after she threatened to kill him if he interrupted their act of sexual intercourse.

            Frizzell's assertion that she and Phillips " did not share a residence, nor did they share belongings," is unavailing because it disregards substantial evidence (discussed, ante) showing that, at her request, they shared a living space in a camp they built in the canyon, they shared the makeshift bed, and Phillips shared his earnings with her to support her. 

III.  ADMISSION OF PRIOR ASSAULT EVIDENCE

            Frizzell also claims the court deprived her of her due process right to a fair trial by erroneously admitting evidence under Evidence Code section 1101, subdivision (b) (see fn. 3, ante) that she had assaulted a neighbor and a prior roommate with a machete.  We reject this claim of error.

            A.  Background

            In a pretrial proceeding under Evidence Code section 402, the court ruled that procecution evidence showing Frizzell had attacked a neighbor and her roommate Mark Renko with a machete in December 2000 was admissible under Evidence Code section 1101, subdivision (b) on the issue of Frizzell's intent during the commission of the current charged crimes. 

            At trial, Timothy Pacheco testified that in December 2000 he was a neighbor of Renko, who was living with Frizzell.  Pacheco stated that as his wife was parking her car in front of Renko's car one evening, Frizzell started banging on his wife's car window, and said, " Don't hit the car, or I'll kick your ass."   Pacheco's wife drove away and told Pacheco what had happened.  Pacheco and his cousin went to Renko's apartment to speak with Renko about the incident.  Frizzell answered the door and became agitated as Pacheco and Renko discussed the incident outside.  Renko told Pacheco he would take care of things and went back inside.

            Pacheco testified he immediately heard the sounds of a fight inside the apartment.  Frizzell, who was enraged, ran out of the apartment toward Pacheco and his cousin, waving a machete in a threatening way and yelling, " Look what you made me do."   Frizzell threatened Pacheco, waving the machete and saying, " I'm going to kill you."   Pacheco stated that he and his cousin were afraid and ran away. 

            A responding City of San Diego police officer, Ronald Featherly, testified that Renko's apartment had been " totally trashed" ; Renko had numerous cuts on his face, right ear, foot and hand; and Frizzell was uninjured. 

            B.  Applicable Legal Principles

             Evidence of other crimes or bad acts is inadmissible when it is offered to show that a defendant had the criminal disposition or propensity to commit the crime charged.  (§  1101, subd. (a), see fn. 3, ante.)  However, evidence of other crimes or misconduct by a defendant is admissible to prove a fact (e.g., motive, intent, absence of mistake or accident) other than a disposition to commit such acts (§  1101, subd. (b), see fn. 3, ante) and may be admissible to negate a claim of good faith belief or other innocent mental state.  (People v. Ewoldt (1994) 7 Cal.4th 380, 402 (Ewoldt).)

            Similarity between the charged and uncharged offenses is often a factual predicate necessary to " bridge the gap between other crimes evidence and the material fact sought to be proved."   (People v. Thompson (1980) 27 Cal.3d 303, 319, fn. 23, disapproved on another ground in People v. Rowland (1992) 4 Cal.4th 238, 260.)  To prove such facts as identity, common plan, or intent, the charged and uncharged misconduct must be sufficiently similar to support a rational inference of these material facts.  (People v. Kipp (1998) 18 Cal.4th 349, 369.)  The least degree of similarity is required to prove intent; the uncharged misconduct need only be sufficiently similar to support the inference that the defendant probably harbored the same or similar intent in each instance.  (Ewoldt, supra, 7 Cal.4th at p. 402; see People v. Memro (1995) 11 Cal.4th 786, 864-865 [defendant's uncharged conduct of possessing child pornography admissible to show intent to molest young boy].)

            If the trial court determines that uncharged misconduct is admissible under Evidence Code section 1101, subdivision (b), it must then determine whether the probative value of the evidence is substantially outweighed by the probability that its admission would create substantial danger of undue prejudice, confusing the issues, or misleading the jury.  (Ewoldt, supra, 7 Cal.4th at p. 404; Evid. Code, §  352, see fn. 3, ante.)  The fact that evidence of other crimes or misconduct is inherently prejudicial simply " means the court must exercise its discretion, not that it must always exclude the evidence."   (People v. Steele (2002) 27 Cal.4th 1230, 1245.)

            We review the trial court's rulings under Evidence Code sections 1101 and 352 for an abuse of discretion (People v. Lewis (2001) 25 Cal.4th 610, 637) and will not reverse an evidentiary ruling unless the appellant demonstrates a manifest abuse of that discretion.  (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)

            C.  Analysis

            As already discussed, Frizzell did not dispute that she repeatedly stabbed Phillips in the back.  In her defense, Frizzell testified that Phillips was attempting to rape her, she panicked and stabbed him until he stopped.  Thus, Frizzell claimed she stabbed Phillips without the requisite criminal intent or mental state, and in self-defense. 

            Because Phillips's testimony showed that Frizzell stabbed him after she became angry that he interrupted their sexual intercourse in order to urinate, and Frizzell's testimony placed at issue her intent and mental state at the time she stabbed him, we conclude the court did not abuse its discretion in permitting the prosecution to present the prior crime evidence to show that she had previously reacted to small or trivial incidents with extreme anger and violent conduct, and thereby negate Frizzell's claim that she had acted with an innocent mental state.  (See Ewoldt, supra, 7 Cal.4th at p. 402.)  We reject Frizzell's assertion that " the evidence of prior misconduct lacked sufficient probative value to overcome its inherently prejudicial nature."   Frizzell's mental state was a critical issue at trial, and the evidence of prior misconduct was highly probative in that it tended to show that she becomes violent after becoming angry over trivial matters.

IV.  CALJIC NO. 2.50.02

            Last, Frizzell contends the court committed reversible error by instructing the jury on prior acts evidence under CALJIC No. 2.50.02, which she asserts violated her constitutional rights to due process of law and to trial by jury by permitting the jury to convict her with less than proof beyond a reasonable doubt.  We reject this contention.

            A.  Background

            The record shows that the court gave a modified version of CALJIC No. 2.50.02 (2005 rev.) regarding evidence of other domestic violence.  The instruction stated in part:

" Evidence has been introduced for the purpose of showing that the defendant engaged in an offense involving domestic violence on one or more occasions other than that charged in the case.  [¶]  'Domestic violence' means abuse committed against an adult, cohabitant, former cohabitant or person with whom the defendant is having or has had a dating or engagement relationship.  [¶]  .  .  .  [¶] 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 other offenses involving domestic violence.  If you find that the defendant had this disposition, you may, but are not required to, infer that she was likely to commit and did commit the crimes of which she 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 she committed the charged offenses.  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 crimes.  [¶]  Unless you are otherwise instructed, you must not consider this evidence for any other purpose."   (Italics added.) 

            B.  Analysis

            In People v. Reliford (2003) 29 Cal.4th 1007, 1012-1016 (Reliford), the California Supreme Court approved the 1999 version of CALJIC No. 2.50.01, an instruction similar to CALJIC No. 2.50.02, which addresses admission of evidence of a defendant's prior uncharged sexual offenses.  Noting that CALJIC No. 2.50.01 incorporates the admonition that the jury is not to convict defendant solely in reliance on the evidence that he committed prior sex offenses, the Supreme Court in Reliford determined that CALJIC No. 2.50.01 does not " authorize a guilty verdict based solely on proof of uncharged conduct," and thus does not allow the jury to convict based only upon prior bad acts proven by a preponderance of the evidence.  (Reliford, supra, 29 Cal.4th at p. 1013.)

            Although the Reliford court found no constitutional error in the 1999 version of CALJIC No. 2.50.01, it recognized that the instruction " could be improved" and noted with approval that the 2002 revision to CALJIC No. 2.50.01 inserted the following cautionary statement:  " 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."   (Reliford, supra, 29 Cal.4th at p. 1016.) 

            In People v. Pescador (2004) 119 Cal.App.4th 252, which involved a constitutional challenge to the 2000 version of CALJIC No. 2.50.02, the Court of Appeal stated that " [f]or the purposes of evaluating the constitutional validity of the instructions, there is no material difference between CALJIC No. 2.50.01 and CALJIC No. 2.50.02."   (Pescador, supra, 119 Cal.App.4th at p. 261.)  The Pescador court rejected a defendant's claim that CALJIC No. 2.50.02 unconstitutionally permits the jury to infer guilt based on prior acts proven by a preponderance of the evidence, thereby undermining the requirement of proof beyond a reasonable doubt.  (Pescador, supra, 119 Cal.App.4th at p. 261.)  The Court of Appeal reasoned in part that the 2000 version of CALJIC No. 2.50.02, like the version of CALJIC No. 2.50.01 upheld in Reliford, supra, 29 Cal.4th 1007, contained an admonition that defendant's commission of prior crimes was " not sufficient by itself to prove beyond a reasonable doubt that he committed the charged offense."   (Pescador, supra, 119 Cal.App.4th at p. 261.)

            We agree with the reasoning and conclusions in Pescador and Reliford and conclude that the trial court did not err in instructing the jury with CALJIC No. 2.50.02 as no constitutional instructional error is shown.  The version of that instruction given by the court in this matter, like the instructions given in Pescador and Reliford, explicitly admonished the jury that Frizzell's commission of prior crimes was not sufficient by itself to prove beyond a reasonable doubt that she committed the charged offenses.  Furthermore, the version of CALJIC No. 2.50.02 given in this matter, like the 2002 revision to CALJIC No. 2.50.01 that the Supreme Court quoted with approval in Reliford, supra, 29 Cal.4th at page 1016, contained the cautionary statement:  " 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."  

DISPOSITION

            The judgment is affirmed.

NARES, J.

WE CONCUR:

                   HUFFMAN, Acting P. J.

                                         AARON, J.

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^[1]           All further statutory references are to the Penal Code unless otherwise specified.

^[2]           Because Frizzell challenges both the sufficiency of the evidence showing cohabitation, and the court's admission of her alleged prior acts of domestic violence and assault, the pertinent factual background regarding these issues will be presented in greater detail in the discussion portion of this opinion.

^[3]           Evidence Code section 1101 provides:  " (a) Except as provided in this section and in Section[]  .  .  .  1109, evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.  [¶] (b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act.  [¶] (c) Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness."   (Italics added.)

            Evidence Code section 352 provides:  " The court in its discretion may exclude evidence if its probative value 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."