Filed 12/29/17 P. v. Jones CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT


THE PEOPLE,

Plaintiff and Respondent,

v.

ALVIN BERNARD JONES,

Defendant and Appellant.

F072055

(Stanislaus Super. Ct. No. 1473026)

ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING
[No Change in Judgment]

THE COURT:
It is ordered that the opinion filed herein on December 4, 2017, be modified in the following particulars:
1. On page 21, the following paragraph is inserted after the second full paragraph and before the heading “DISPOSITION.”
“Even if defendant had not forfeited the issue, we would likely reject his contention on the merits. “[A] disabling conflict does not exist simply because the district attorney and the defendant have been adversaries in other legal proceedings….” (People v. Milwee (1998) 18 Cal.4th 96, 123.) “Other evidence of overriding bias must be present to warrant disqualification. [Citations.]” (Ibid.) Though it can be argued that defendant’s malicious prosecution suit “might make [a] district attorney antagonistic,” he presents “no evidence of actual antagonism on the part of the district attorney or any attorney from [her] office.” (People v. Hamilton (1989) 48 Cal.3d 1142, 1155, 1156, italics added.) That is, defendant “points to nothing in the conduct of the [present] case which suggests bias against his client.” (Id. at p. 1156, italics added.)”
There is no change in the judgment. Appellant’s petition for rehearing filed on December 18, 2017, is denied.




POOCHIGIAN, Acting P.J.


WE CONCUR:



SMITH, J.



BLACK,† J.

Filed 12/4/17 P. v. Jones CA5 (unmodified opinion)



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

ALVIN BERNARD JONES,

Defendant and Appellant.

F072055

(Stanislaus Super. Ct. No. 1473026)


OPINION

APPEAL from a judgment of the Superior Court of Stanislaus County. Dawna F. Reeves, Judge.
Carlo Andreani, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and F. Matt Chen, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Defendant was charged with several crimes in connection with his false imprisonment of his girlfriend in a motel room. Before trial, the court declared a doubt as to defendant’s competency and suspended proceedings. After a psychologist evaluated defendant, the court reinstated proceedings. Shortly thereafter, the defense requested another competency hearing, but the request was denied.
At trial, evidence of two prior incidents of domestic violence were introduced. One of the incidents was an assault that allegedly occurred in 2012. The prosecutor in the present case also prosecuted the 2012 assault. Defendant was found not guilty of the 2012 assault and sued the prosecutor civilly for malicious prosecution. The civil case was dismissed about two months before the charges were filed in the present case. After he was convicted on all counts, defendant argued in a new trial motion that the prosecutor had a disabling conflict of interest arising from the civil suit.
Defendant raises several claims: (1) that the trial court erred in denying his request for a second competency hearing; (2) that the trial court erred in admitting the evidence of prior acts of domestic violence; (3) that the jury instructions concerning the evidence of prior acts of violence were prejudicially erroneous; and (4) that the court erred in denying his motion for a new trial based on the prosecutor’s purported conflict of interest. We conclude defendant forfeited his claim concerning the prosecutor’s purported conflict of interest and that while one aspect of the jury instructions on evidence of prior domestic violence was erroneous, no prejudice resulted therefrom. We reject the remainder of defendant’s claims on their merits, and affirm the judgment.
BACKGROUND
An information filed May 27, 2014, charged defendant with vehicle theft (Veh. Code, § 10851, subd. (a); count 1), battery on a spouse or “cohabitor” (Pen. Code, § 273.5, subd. (a); count 2), making a criminal threat (§ 422; count 3), false imprisonment (§ 236; count 4), possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a); count 5). As to count 2, the information alleged that defendant had suffered three prior serious felony convictions. (§ 667, subd. (a).) As to all counts, the information alleged defendant had three convictions deemed serious under sections 667, subdivision (d) and 1192.7, subdivision (c); and that defendant had served a prior prison term as a result of those convictions (§ 667.5, subd. (b).)
On May 29, 2014, the court denied a Marsden motion.
On July 7, 2014, another Marsden motion was made, but then withdrawn. The same day, defendant made a Faretta motion, which was denied. However, the court suspended criminal proceedings pursuant to section 1368.
After considering a report from a Dr. Trompetter, the court reinstated criminal proceedings on July 31, 2014. The defense again moved to suspend proceedings pursuant to section 1368, but the motion was denied on August 12, 2014.
On August 27, 2014, a jury convicted defendant on all counts and found the prior conviction allegations true.
Defendant made a Marsden motion on October 24, 2014, which the court granted. Defense counsel was relieved and replaced.
On March 27, 2015, the defense moved for a new trial and to recuse the district attorney. The court denied the motion on April 23, 2015.
The court sentenced defendant to a total of 13 years eight months. On count 3, the court sentenced defendant to an aggravated term of three years, doubled to six years for the prior conviction under section 667, subdivision (d). On count 2, the court sentenced defendant to an aggravated term of four years, stayed pursuant to section 654. On count 4, the court sentenced defendant to an aggravated term of three years, stayed pursuant to section 654. On each of counts 1 and 5, the court sentenced defendant to terms of eight months (i.e., one-third of the midterm), each doubled to 16 months for the section 667, subdivision (d) prior. For the prior serious felony conviction, the court sentenced defendant to an additional five-year term. (§ 667, subd. (a).) The court stayed the prior prison term enhancement pursuant to section 654.
FACTS
Defendant’s charges were based on events occurring in April 2014. Pursuant to Evidence Code section 1109, evidence of prior acts of domestic violence were introduced. We will describe the prior acts before proceeding to the events of April 2014.
Prior Domestic Violence Involving Gloria Robinson
Gloria Robinson was dating defendant as of July 8, 1998. That day, Robinson returned home from the store with her 11-year-old nephew, eight-year-old niece, and 13-year-old daughter. She was surprised to see defendant “down the street” four or five houses away because she was not aware he had been “released.” Robinson told defendant he could not be at her house, and then turned around to walk away. Defendant pulled Robinson’s hair and “swung [her] around.” Robinson tried to run, but defendant struck her on the left side of her face. Robinson felt a burning sensation and fell into the street. Defendant began stomping Robinson’s head and she became unconscious. She awoke in a hospital, where she stayed for about a month. She had at least 50 sutures, a broken jaw, and her mouth was wired shut. Robinson had to subsist on a liquid diet for six weeks and has a permanent scar.
Prior Domestic Violence Involving Laura Hoffman
Laura Hoffman dated defendant for about a month in “2011 to 2012.” On January 28, 2012, they went on a date at a tavern in Modesto. Hoffman had about three beers and defendant had a rum and Coke. They went back to Hoffman’s apartment. The two had a discussion about defendant not staying at Hoffman’s apartment as often. The two had consensual intercourse.
Defendant then attempted to initiate anal intercourse, but Hoffman refused. Hoffman was pushing on defendant, believing it was playful. However, defendant said, “ ‘No, you’re going to take it.’ ” Hoffman continued to push him, and defendant “smacked” her in the face with his hand. The force was strong enough to “stun” Hoffman. Defendant “slapped” Hoffman in the face again, and she tried to reach for his eye sockets because “he was not going to stop.” Hoffman “believe[s]” defendant hit her again. Hoffman squeezed defendant’s scrotum. At some point, defendant bit her, though Hoffman did not remember whether that was before or after she squeezed him. As she squeezed defendant, he bit her harder and she let go. Hoffman slid to the floor and crawled away while defendant was hitting her with his fist on her back and ribs. When she stopped crawling, defendant hit her in the back of her head “[m]any, many times” with his fist. Defendant also punched her in the face with a closed fist.
Defendant told Hoffman he should just finish her off, and that he was not going back to prison. Hoffman mentioned her daughter by name, “[t]hinking maybe that would humanize me.”
Hoffman asked for a cigarette, thinking it would allow her to get on her feet. Hoffman tried to go outside to smoke, but defendant cut in front of her and said, “ ‘No, you smoke in here.’ ” Defendant grabbed a large knife, held it “towards” her and said, “ ‘I should just cut you. I should just end you.’ ” Hoffman said, “ ‘Just do it. I don’t even care anymore.’ ”
Hoffman was able to get to her cell phone and dial 911. She whispered her address to the operator. Defendant became suspicious and came closer to Hoffman. Hoffman concealed the phone and said things like, “ ‘I can’t believe you hit me. You choked me.’ ” Defendant found the phone and threw it against the wall. Defendant then resumed “beating” Hoffman.
The police knocked on the door. Defendant was on top of Hoffman on the floor and had his hand around her throat. Defendant told Hoffman to “ ‘[s]hut up’ ” and “ ‘be quiet’ ” and threatened to kill her. Eventually, the police left.
Hoffman fell asleep. When she awoke, she said she needed to go to the hospital. Defendant wanted to accompany her. Hoffman drove defendant to his sister’s house and then drove to the emergency room.
Defendant was charged and tried in connection with this incident. A jury acquitted defendant of the charges.
Current Offense Involving Deana Thompson
Defendant had been living with Deana Thompson since December 2013. Thompson considered the two to have been in a dating relationship since January 2014. Sometime between January and April 2014, Thompson was evicted and the two began living in a motel. On April 18, 2014, defendant used the only set of car keys to leave the motel in Thompson’s 2001 Chevy Impala. He later returned. While defendant and Thompson were in the motel room, defendant locked the door from the inside. Thompson asked defendant for the car keys so she could go to “the Mission” with her “boys” so they could have two meals and a roof over their heads. Defendant said he knew Thompson had had someone in the room. Thompson felt defendant was accusing her of something. The look in defendant’s eyes was “very intimidating.” Thompson was scared and thought she was going to die.
Defendant had a fork and shook it while he spoke to Thompson. Then defendant hit Thompson, causing her to bleed. Thompson tried to leave the room, but defendant tackled her onto the bed. Thompson begged defendant to let her out of the room. She said that if he let her go, she would say someone tried to rape her, but defendant helped her. Thompson made the offer so that defendant would let her out. Defendant refused.
After two or three more hours, at around 9:00 p.m., Thompson heard a knock at the door. Thompson could see it was her brother knocking. Defendant opened the door, and Thompson yelled for her brother not to leave. Defendant told Thompson’s brother the “cops” were coming and he should leave. Thompson’s brother began to leave, but Thompson said, “ ‘Please don’t go, please don’t leave me.’ ” Thompson ran through the door and down the hallway yelling for someone to help her. She ran into the office where the front desk was and asked the employee to lock the door. The employee locked the door and they waited for the police.
Officer Austin Wilson pulled into the parking lot and saw Thompson running toward him screaming that she “had been beat up.” Thompson had a laceration on her nose, a bloody nose, and blackening eyes. Wilson requested backup and an ambulance to respond to the scene. Thompson told Wilson that defendant had kept her in the motel room for three hours against her will, threatened to kill her, and had used a plastic fork. Thompson said defendant had left in her vehicle. Several officers went to the motel room, but no suspects were there.
On April 22, 2014, at around 1:20 a.m., California Highway Patrol Officer Phillip DePrater was driving behind a silver Chevy Impala. DePrater decided to run the vehicle’s plates, which he does “randomly” to “check for stolen vehicles.” The vehicle came back as stolen, so DePrater initiated an enforcement stop. DePrater told defendant to put his hands up and to exit the vehicle. Defendant yelled, “ ‘Don’t tell me that this car’s stolen.’ ” DePrater’s partner arrested defendant. DePrater searched defendant at the jail and found a white crystal substance in a plastic bag in his pocket.
Officer DePrater called “the registered owner” who told him defendant had assaulted her and had taken her vehicle without permission.
Defense Case
The defense investigator, John Hodson, testified that he called Thompson before trial. She told him that “she knew in the police reports … there was mention of a fork, but she honestly couldn’t remember anything about a fork.” Thompson also told Hodson that defendant had consent to drive her vehicle. Hodson also testified that it is important to try to find weapons used in a crime.
On cross-examination, Hodson said he knew Thompson was hiding out of state.
The parties stipulated that “ ‘[b]efore [defendant] was arrested on April 22, 2014, [defendant] attempted to contact Deana Thompson via a cell phone call. Ms. Thompson refused to answer the call.’ ”
DISCUSSION

I. The Court Did Not Err in Denying the Defense Request for a Second Competency Hearing
Defendant contends the court erred in denying the request for a second competency hearing.
On July 7, 2014, defense counsel conveyed that he and his investigator doubted whether defendant could assist the defense at trial due to his mental state. Defense counsel’s doubts were based on discussions he had with defendant. Defense counsel said, “We have been on the borderline. I have had difficulty communicating with him ….” The court concluded that, based on counsel’s statements and the court’s own observations, there was a doubt as to whether defendant had the ability to understand the nature and object of the proceedings against him and whether he was capable of assisting counsel. As a result, the court suspended criminal proceedings, referred the matter to Dr. Philip Trompetter, and set a hearing for July 31, 2014.
Dr. Trompetter interviewed defendant face-to-face on July 23, 2014. Defendant reported depression and occasional auditory hallucinations, but there was no evidence of “loose associations, thought blocking, racing thoughts, flight of ideas or any form of thought disorganization.” Dr. Trompetter concluded despite the episodic auditory hallucinations, defendant did “not present with evidence of a severe mental disorder that is substantially disabling.”
Dr. Trompetter observed defendant was aware of the charges against him, understood the seriousness of the charges, knew he could be sentenced to a lengthy prison term, accurately described the role of prosecuting and defense attorneys, knew the purpose and nature of a trial, demonstrated knowledge of Marsden and Faretta motions and constitutional rights, and accurately described a plea bargain. Defendant argued the evidence against him was rebuttable, but he acknowledged there was a risk he could be convicted. Defendant believed he was not being represented well in court. Dr. Trompetter concluded, “[a]fter a lengthy discussion” that defendant “displays no evidence that a severe mental disorder is reducing his capacity to make rational decisions regarding his own defense.”
At the July 31, 2014, hearing, the defense (and prosecution) submitted on Dr. Trompetter’s report. The court found that defendant was currently capable of understanding the nature and object of the proceedings against him and that he is capable of assisting counsel in his defense. The court reinstated criminal proceedings.
In early August, defense counsel stated in a filing, “I have a belief that the defendant is unable to assist counsel.” At a hearing on August 12, 2014, defense counsel claimed defendant “was making statements worse than he had ever made before.” Defense counsel also said that his investigator believed defendant’s condition had deteriorated. Defense counsel also had defendant speak with another attorney, who was “very emphatic that [defendant] was unable to assist Counsel.”
The court said that Dr. Trompetter had concluded defendant was able to assist counsel. The court concluded that defense counsel had not articulated a “significant change in circumstances which would require the Court to, again, suspend criminal proceedings and vacate our jury trial date.”
Defendant challenges the court’s August 12, 2014, denial of the second motion to suspend criminal proceedings.
A. Analysis
“A defendant who, as a result of mental disorder or developmental disability, is ‘unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner,’ is incompetent to stand trial. (§ 1367.) When the accused presents substantial evidence of incompetence, due process requires that the trial court conduct a full competency hearing. [Citation.] Evidence is ‘substantial’ if it raises a reasonable doubt about the defendant’s competence to stand trial. [Citation.]” (People v. Jones (1991) 53 Cal.3d 1115, 1152.)
“Once a defendant has been found competent to stand trial, a second competency hearing is required only if the evidence discloses a substantial change of circumstances or new evidence is presented casting serious doubt on the validity of the prior finding of the defendant’s competence. [Citations.]” (People v. Medina (1995) 11 Cal.4th 694, 734.)
The court ruled that defendant failed to articulate a significant change in circumstances justifying a second competency hearing. Defendant challenges this conclusion by pointing to his counsel’s claim that the defense investigator heard defendant make statements that were “off track and more bizarre than they had been before he went to see Dr. Trompetter.” But a defendant can make bizarre statements and nonetheless be able to assist the defense. Indeed, Dr. Trompetter noted that defendant reported auditory hallucinations, identified the wrong date at his interview, expressed a “belief that he is frequently the victim of the malevolence of others,” and could sometimes “ ‘hear people ‘talking to [him].’ ” In spite of these arguably bizarre comments, Dr. Trompetter concluded defendant could nonetheless assist counsel because he understood the nature and seriousness of the charges against him, acknowledged the possibility of conviction, and could offer “a plausible rebuttal to each of the issues listed in the crime report.” Dr. Trompetter’s competency conclusion was not based on the absence of sufficiently “bizarre” statements, but instead on defendant’s affirmative demonstrations of competency. Consequently, the vague assertion that defendant’s comments subsequently became “more bizarre” – even if true – does not undermine Dr. Trompetter’s initial conclusion. In other words, absent evidence that defendant no longer understood the nature and seriousness of the charges against him, or showed signs that he could no longer relate his version of events, there were no sufficient grounds for doubting Dr. Trompetter’s prior conclusions.
Defendant also notes that another attorney had unequivocally opined that he was not competent to assist counsel. However, a second competency hearing is not required merely because defense counsel asserts that a third party “could testify to defendant’s claimed incompetence.” (People v. Jones, supra, 53 Cal.3d at p. 1153.) Such assertions by defense counsel, without detailed explanation, are insufficient to “cast serious doubt on the results of the earlier competency determination.” (Ibid.) Here, there was no “explicit description of the testimony” the third party attorney “could offer in this regard.” (Ibid.) Consequently, “counsel’s representations did not cast serious doubt on the result of the earlier competency determination.” (Ibid.)
The court did not err in denying the request for a second competency hearing.

II. The Court Did Not Err in Admitting the Evidence of Prior Domestic Violence
The prosecution moved in limine to admit evidence of defendant’s prior instances
of alleged domestic violence with respect to Robinson and Hoffman. The defense filed its own motion in limine seeking to exclude evidence of the alleged prior incidents involving Robinson and Hoffman. The court held a hearing under Evidence Code section 402, during which Robinson and Hoffman testified. Robinson and Hoffman’s testimony at the hearing largely tracked what they would later say at trial.
At the conclusion of the hearing, the defense emphasized that the 1998 incident involving Robinson was more than 10 years old, and the prosecution of the incident involving Hoffman resulted in an acquittal.
The prosecutor proferred that defendant had been sentenced to 13 years in prison for the 1998 incident, was paroled in 2009, violated his parole and was re-released in 2011. The court determined that the “remoteness factor” was mitigated by the fact that defendant had been in custody for at least 10 years between the 1998 incident and the current offense. The court also noted that the various incidents had similarities, including short-term relationships, hits to the head, and a quick escalation of violence. Moreover, Hoffman said she was unable to leave her residence, which is similar to the current offense. The court concluded that the evidence of the prior incidents was admissible under section 1109. However, the court said it was “prepared to sanitize” the evidence concerning the sexual nature of the Hoffman incident.
A. Analysis
Defendant contends the trial court erred in allowing evidence of the prior incidents under Evidence Code section 1109.
Evidence Code section 1109 “ ‘permits the admission of defendant’s other acts of domestic violence for the purpose of showing a propensity to commit such crimes. [Citation.]’ [Citations.]” (People v. Brown (2011) 192 Cal.App.4th 1222, 1232–1233.) However, the statute does not permit evidence of acts occurring more than 10 years before the charged offense “unless the court determines that the admission of this evidence is in the interest of justice.” (Evid. Code, § 1109, subd. (e).) This provision “sets a threshold of presumed inadmissibility, not the outer limit of admissibility.” (People v. Johnson (2010) 185 Cal.App.4th 520, 539.) “It clearly anticipates that some remote prior incidents will be deemed admissible and vests the courts with substantial discretion in setting an ‘interest of justice’ standard.” (Ibid.) We review the court’s ruling in this regard for abuse of discretion. (Ibid.)
Here, the court identified several similarities between the prior incidents and the present offense: They involved relatively short-term relationships, “hits to the head, [and] an escalation of violence that moved very quickly, not slow and simmering over time ….” From these factors, the court reasonably concluded that the 1998 incident was substantially probative of defendant’s propensity to commit acts of domestic violence.
On the other side of the scale is the consideration that “[r]emote prior conduct is, at least theoretically, less probative of propensity than more recent misconduct. [Citation.]” (People v. Johnson, supra, 185 Cal.App.4th at p. 534.) Here, the court concluded the impact of that consideration was lessened by the fact that defendant had been incarcerated for most of the time after the 1998 incident. We agree. It was reasonable for the trial court to conclude the prosecution’s reliance on an older incident of domestic violence was more likely due to defendant’s involuntary physical restraint in prison, rather than a lack of propensity to commit acts of domestic violence.
For these reasons, we find no abuse of discretion.
III. ISSUES REGARDING JURY INSTRUCTIONS CONCERNING UNCHARGED DOMESTIC VIOLENCE

A. The Trial Court Committed Harmless Error in Providing the Jury an Overly Restrictive Definition of Domestic Violence
1. Relevant Instructions
The court instructed the jury as follows:
“The People presented evidence that the defendant committed domestic violence that was not charged in this case; specifically, evidence of Laura Hoffman and Gloria Sonders Robinson.
“Domestic violence means abuse committed against an adult who is a former cohabitant.…”
The court later instructed the jury that if the People did not carry the burden of proving the defendant in fact committed the uncharged domestic violence, “you must disregard this evidence entirely.”
2. Analysis
As noted above, the court’s actual instruction indicated that “domestic violence” means abuse committed against a “former cohabitant.”
CALCRIM No. 852A, on which the court’s instruction was based, sets forth several additional categories of victims of domestic violence: a spouse, former spouse, cohabitant, person with whom the defendant has had a child, person who dated or is dating the defendant, and person who was or is engaged to the defendant. (CALCRIM No. 852A.) None of these alternative categories of victims provided in CALCRIM No. 852A (and the relevant statute) were included in the court’s actual instruction. Both parties agree this was error because no evidence was adduced at trial that Robinson was a former cohabitant of defendant.
However, Robinson did testify that she and defendant had dated for four years. And “domestic violence” under Evidence Code section 1109 includes abuse against a “person with whom the suspect … has had a dating … relationship.” (§ 13700; Evid. Code, § 1109, subd. (d)(3); see also CALCRIM No. 852A.) Thus, defendant’s abuse of Robinson was a proper subject of Evidence Code section 1109 evidence. The issue here is that the court’s version of CALCRIM No. 852A improperly restricted the definition of “domestic violence” to abuse against “former cohabitants” when it also should have included people who, like Robinson, “dated or is dating the defendant.” (See CALCRIM No. 852A.)
We conclude the error was harmless beyond a reasonable doubt. The court’s instructions made clear that if the jury concluded defendant had not committed the uncharged act of domestic violence, it was to “disregard” that evidence “entirely.” At most, the court’s erroneously restrictive definition of domestic violence would have led the jury to wrongly conclude that defendant’s abuse of Robinson was not domestic violence. But such a conclusion would have merely triggered the court’s instruction to disregard the evidence entirely – an outcome that benefits defendant. Consequently, we find no prejudice.
B. There Was Sufficient Evidence Hoffman Had Cohabitated With Defendant to Support the CALCRIM No. 852A Instruction as to Her
Defendant further alleges that there was insufficient evidence Hoffman cohabitated with defendant.
For our purposes, “cohabitant” means two unrelated adult persons living together for a substantial period of time, resulting in some permanency of relationship.” (§ 13700, subd. (b).) “Facts 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 spouses, (5) continuity of the relationship, and (6) the length of the relationship.” (§ 13700, subd. (b).)
He first argues that he and Hoffman were not living together. But domestic violence can be committed against a current or “former cohabitant.” (§ 13700, subd. (b).)
Defendant also argues that he only dated Hoffman for about a month and that “certainly, no permanency of relationship resulted.” (Internal quotation marks removed.) But, again, the statute clearly embraces former cohabitants. The fact that a cohabiting relationship has ended does not preclude someone from being a former cohabitant. The question is whether there was “some permanency” to the relationship while they were living together. Hoffman and defendant had been dating for around a month by January 28, 2012. During their dating relationship they had sexual intercourse several times. While they were dating, defendant would stay at her house and kept a toothbrush there. One reasonable inference from this evidence is that as of January 28, 2012, they were “two unrelated adult persons living together for a substantial period of time, resulting in some permanency of relationship.” (§ 13700, subd. (b).) In other words, they were cohabitants at the time, and were former cohabitants by the time of trial. The court did not err in giving the CALCRIM No. 852A instruction as to Hoffman.
C. The Court’s Instruction Did Not Improperly Remove an Issue from the Jury
Finally, defendant contends the court erred in saying, “The People presented evidence that the defendant committed domestic violence” because the question of whether or not the uncharged conduct constituted domestic violence was for the jury decide. We agree the issue was for the jury to decide. But the instruction did not state otherwise. The first sentence merely conveyed that the People presented evidence of domestic violence. But the instructions continued on and made clear that whether that evidence actually established domestic violence was for the jury to decide:
“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…. 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.”
We find no error.

IV. DEFENDANT FORFEITED THE CLAIM PRESENTED IN HIS NEW TRIAL MOTION THAT THE PROSECUTOR SHOULD HAVE BEEN DISQUALIFIED
Finally, defendant contends the court erred in denying his motion for a new trial.
A. Background
Defendant initiated a civil action seeking punitive damages against the District Attorney Birgit Fladager and Deputy District Attorney Elizabeth Owen (De Jong) for malicious prosecution. Both parties acknowledge that defendant’s malicious prosecution claim was based on the charges brought in connection with the 2012 assault on Hoffman, for which defendant was acquitted.
Owen (De Jong) was the prosecutor in both the 2012 case and the present case. Defendant “believe[s] [Owen] threatened and intimidated the complaining witness which led to my false imprisonment in 2012.” The district attorney’s opposition to the new trial motion stated:
“Based on a discussion with jury members following the [2012 Hoffman assault] trial, jury members stated the acquittal was based on a lack of corroborating evidence at the location where victim was beaten by Defendant. Law enforcement investigators did not go to the location of the victim’s beating, but only met with her at the hospital where she was being treated for multiple injuries.”
Fladager and Owen filed a demurrer to defendant’s complaint, which the civil court sustained with leave to amend. Defendant did not file an amended pleading within the allotted time. As a result, on April 1, 2014, the court dismissed the lawsuit and entered judgment in favor of Fladager and Owen.
In his motion for a new trial in the present case, defendant claimed he was unable to continue handling the malicious prosecution because he was arrested in April 2014. Defendant claimed he never intentionally abandoned the civil lawsuit, and attended at least 3 court dates in early 2014. Defendant claimed a mediation date had been set but was withdrawn for unknown reasons. He also said he was still seeking legal assistance to continue his civil case against Fladager and Owen.
B. Prosecutorial Disqualification
A defendant may move to disqualify a district attorney. (§ 1424.) “The motion may not be granted unless the evidence shows that a conflict of interest exists that would render it unlikely that the defendant would receive a fair trial.” (§ 1424, subd. (a)(1).) Under the statute, the mere appearance of impropriety is not an independent ground for prosecutorial disqualification. (People v. Eubanks (1996) 14 Cal.4th 580, 592.)
“ ‘[A] prosecutor need not be disinterested on the issue whether a prospective defendant has committed the crime with which he is charged.’ ” (People v. Eubanks, supra, 14 Cal.4th at p. 590.) “ ‘True disinterest on the issue of such a defendant’s guilt is the domain of the judge and the jury – not the prosecutor.’ ” (Ibid.) Instead, a prosecutor has a conflict of interest if he or she “ ‘has, or is under the influence of others who have, an axe to grind against the defendant, as distinguished from the appropriate interest that members of society have in bringing a defendant to justice with respect to the crime with which he is charged.’ [Citation.]” (Ibid.)
C. Forfeiture
The Attorney General contends defendant forfeited the issue by failing to raise it before or during trial.
“The forfeiture rule generally applies in all civil and criminal proceedings. [Citations.] The rule is designed to advance efficiency and deter gamesmanship. …‘ “ ‘ “The purpose of the general doctrine of waiver [or forfeiture] is to encourage a defendant to bring errors to the attention of the trial court, so that they may be corrected or avoided and a fair trial had ....” ’ [Citation.] ‘ “No procedural principle is more familiar to this Court than that a constitutional right,” or a right of any other sort, “may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.” …’ [Citation.]” (Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 264, original italics.) Indeed, “[c]ritical defenses may be forfeited even before trial begins ….” (People v. Smith (1993) 6 Cal.4th 684, 694.)
“ ‘ “ ‘The law casts upon the party the duty of looking after his legal rights and of calling the judge’s attention to any infringement of [his or her rights]. If any other rule were to obtain, the party would in most cases be careful to be silent as to his objections until it would be too late to obviate them, and the result would be that few judgments would stand the test of an appeal.’ ” ’ [Citation.]” (Fn. omitted; [citations].)’ [Citation.]” (Keener v. Jeld-Wen, Inc., supra, 46 Cal.4th at pp. 264–265, fn. omitted.)
Applying the forfeiture rule to the present context, we hold that a defendant must raise any known claim that the prosecutor has a disabling conflict of interest before trial. The primary purpose of requiring timely objections is to give the trial court an opportunity to correct the error or mitigate prejudice. (People v. Williams (1997) 16 Cal.4th 153, 254.) That purpose cannot be realized if a defendant is permitted to wait to raise a known disqualification claim until after trial.
Here, defendant knew of the grounds for seeking disqualification of the district attorney (i.e., the civil malicious prosecution lawsuit) from the outset. Yet, defendant first raised the issue after he had lost at trial. Such gamesmanship is not permitted under the rule of forfeiture.
Because defendant failed to raise the issue of prosecutorial disqualification before trial, he cannot do so after.
DISPOSITION
The judgment is affirmed.



______________________
POOCHIGIAN, Acting P.J.
WE CONCUR:


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SMITH, J.


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BLACK,† J.