People v. Morales
| Decision Date | 16 December 2021 |
| Docket Number | D079041 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. JESUS VELASCO MORALES, Defendant and Appellant. |
THE PEOPLE, Plaintiff and Respondent,
v.
JESUS VELASCO MORALES, Defendant and Appellant.
D079041
California Court of Appeals, Fourth District, First Division
December 16, 2021
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Santa Cruz County No. 16CR06619 John Steven Salazar, Judge. Affirmed.
Rudolph J. Alejo, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Eric D. Share and Karen Z. Bovarnick, Deputy Attorneys General, for Plaintiff and Respondent.
GUERRERO, J.
In an incident in a parking lot after their son's soccer game, Jesus Velasco Morales pulled a gun on his estranged wife and threatened to kill her. He subsequently sent her offensive and harassing text messages,
violating a criminal protective order precluding him from contacting her except to arrange the peaceful exchange of their son. He was charged with making criminal threats (Pen. Code, § 422), assault with a firearm (id., § 245, subd. (a)(2)), battery (id., § 243, subd. (e)(1)), and three misdemeanor counts of contempt of court for violating the criminal protective order (id., § 166, subd. (c)(1)). At trial, the jury heard evidence regarding the charged offenses as well as evidence of prior uncharged incidents of domestic violence pursuant to Evidence Code section 1109.[1] The jury convicted him on all counts.
On appeal, Morales contends the trial court should not have mentioned the three misdemeanor counts-violations of the criminal protective order- in the instruction allowing incidents of domestic violence to be used as propensity evidence pursuant to section 1109. Morales reasons that these offenses do not constitute domestic violence within the meaning of the statute because they did not involve physical force or a threat of physical force. Because these offenses fall within a broader definition of domestic violence, which is not limited to acts of physical violence or the threat of physical violence, we reject Morales's claim of error and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Jessica R. married Morales in March 2009 when they were both teenagers. They had a son together and lived with Jessica's parents. Jessica had a good relationship with her husband until she went back to school in 2012. Morales became jealous; he called and texted her constantly to ask who she was with and what she was doing.
In 2015, Morales became violent with her for the first time when she was at home with him and their son. After Jessica told Morales she did not want to spend her birthday with him, they got into a "big argument" and Morales started hitting her with the bow portion of a toy bow and arrow. He hit her legs, and after she fell to the floor, he started hitting her on her back. Jessica yelled for him to stop, but he only stopped when their son began crying. She had bruises on her arms and legs and a cut on her finger. She took photographs of the injuries; the images were shown to the jury. She told her cousin about the attack but did not call the police.
Jessica and Morales broke up but got back together after a few months. Jessica explained she thought the abuse "was just a one-time thing," and she wanted to keep the family together. Initially, things "seemed to be going well," but after several months, Morales "started to bring up his old patterns of thinking that [Jessica] was cheating on him again."
In early 2016, Morales was physically violent with Jessica again. She testified that they got into an argument and Morales got angry. He dragged her across the floor (from their bedroom to the living room); slammed her "up against things"; grabbed her again by the back of her head and let go; and then grabbed again and "smacked" her on her face with either a closed fist or a slap while she was on the floor. Jessica thought he was going to kick her, but their son came into the room and he stopped. During the attack, Morales called Jessica names like "slut," "whore," and "bitch." She had a mark on her face after the attack. She took a picture of it; the photo was shown to the jury.[2]
Jessica told Morales to leave and that she was going to file for divorce. He refused to leave, so Jessica took their son to her cousin's house. She only went home after her parents were there; she told them she "couldn't do it anymore" and asked them to ask him to leave, at which point he did.
After Morales moved out, he began to harass and threaten Jessica. Once, when they met to exchange custody of their son, Morales asked if Jessica would join him with their son to eat. When she refused, Morales became angry and called her names. Morales repeatedly showed up at Jessica's workplace unannounced. On one occasion, he questioned her about who she was seeing and accused her of leaving him for someone else. On another occasion, after she refused to speak to him, he told her that he was going to shoot her in the head.
On October 1, 2016, Jessica and her parents went to a park to watch her son's soccer game. Morales was also there. During the game, Morales "seemed fine" and Jessica did not "see anything out of the ordinary." After the game, Jessica's uncle took her son to play with his cousins, and her parents went home. Morales asked Jessica if they could "grab coffee" and talk. Jessica was hesitant, but she accepted because she "wanted to have some type of good relationship for [their] son."
Jessica wanted to take separate cars, but Morales asked to come in hers, claiming he was having car trouble. Jessica felt uncomfortable but agreed. Morales got into the car's passenger seat and began questioning Jessica, asking her who she had been talking to and who she was seeing. Jessica told him she did not want to talk about anything not concerning their son. He pulled a gun from his waist band and "pulled it back on the top." He pushed the gun into her ribs while grabbing her arm to hold onto her. He said he was going to shoot her if she did not answer his questions. Jessica
was terrified and thought he would kill her. Jessica opened her car door and cried out, hoping to draw attention in the parking lot. She cried and pleaded with Morales not to hurt her, while he told her to "get into the car and drive." Then Morales removed the magazine from the gun-Jessica said she thought he did it "to calm [her] down"-and pointed the gun toward the floor of the car. Jessica "decided to try and fight him for the gun." At some point during the struggle, they both fell out of the vehicle on the passenger's side. Morales reached back for the magazine which had fallen inside the vehicle, and Jessica got up and drove away.
Jessica drove to her cousin's house and later went to the sheriffs office to report the incident. At the sheriffs station, a deputy recorded Jessica's statement, which was played for the jury. She told the deputy she was "terrified" when it happened, and feared he was going to kill her. The deputy who took Jessica's statement testified that Jessica was "[v]isibly scared," "tearing up," and crying when she described the incident.[3]
A sheriffs deputy arrested Morales later in the evening, after taking Jessica's statement. When officers searched the house where Morales was located, they found a magazine or "clip" for a nine-millimeter pistol in or near a closet in which Morales's identification card was also found. A sheriffs deputy interviewed Morales, and an audio recording of the conversation was played for the jury. During the interview, Morales told the deputy, "I was with that chick for ten years, saving money and she fucking cheated on me," and "[s]he just fucked my life over man." He told the deputy he had gone to
soccer with his son, and that he and Jessica "got into an argument in there, like, and then after I just went for a very-very long walk." He said she made "a smart fricking comment," "like, I don't want to talk to you." He denied getting in her car, pulling out a gun, and pointing a gun at Jessica, but said, "I knew that she was [going] to say that... ."[4] He denied owning a gun. The deputy testified that Morales "was upset" when he was discussing his marital problems with Jessica.
On October 7, 2016, a boy and his mother found a nine-millimeter pistol at a park near the soccer fields and called law enforcement. A sheriffs deputy collected and impounded the weapon as evidence. Subsequent DNA analysis showed "very strong support" that Morales was the major contributor to the DNA found on the pistol, with lesser contributors being the boy and mother who found the pistol. The magazine seized from the home where Morales was arrested was determined to be compatible with the gun discovered at the park.
Jessica obtained a protective order that precluded all contact with Morales other than for peaceful exchange of their son for visitation purposes. Morales was served with the protective order on October 5, 2016. Afterward, on three occasions, he sent offensive, harassing text messages in violation of the protective order. On December 10, 2017, after Jessica sent a text message attempting to coordinate exchange of their son, Morales sent a series of text messages berating her. He called her a "selfish piece of shit" who does not "deserve to be call[ed] mom," a "bitch," a "pendeja," and "a
whore." On March 1, 2018, again after Jessica sent a text message attempting to coordinate exchange of their son, Morales responded by calling Jessica a "[s]nitch," which she understood as a reference to her report of the assault to the police. On March 29, 2018, after Jessica texted to remind Morales that child support was due soon, Morales responded using profanity, calling her a "fucking bitch piece of shit" and warned her to "[k]eep running u fucking mouth bitch [sic]." Jessica testified the...
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