People v. Cowen CA4/1 ( 2023 )

Filed 5/19/23 P. v. Cowen CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D079766
Plaintiff and Respondent,
v. (Super. Ct. No. SCN406008)
HENRY SIMON COWEN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Kelly C. Mok, Judge. Affirmed.
Benjamin Boyce Kington, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters and Charles C.
Ragland, Assistant Attorneys General, A. Natasha Cortina and Lynne G.
McGinnis, Deputy Attorneys General, for the Plaintiff and Respondent.
A jury convicted Henry Simon Cowen of first degree murder. (Pen.
Code,1 § 187, subd. (a).) The trial court found true allegations he had
1 Undesignated statutory references are to the Penal Code.
suffered a prior serious felony conviction and a prior strike conviction under
the “Three Strikes” law. (§§ 667, 668, 1170.12, 1192.7.) It sentenced him to a
total term of 55 years to life in prison as follows: 25 years to life, doubled for
the prior strike, plus 5 years for the serious felony prior.
Cowen contends the court: (1) violated his due process rights by
admitting evidence that his mother, Isela Cowen,2 obstructed the
investigation; and (2) erroneously admitted propensity evidence under
Evidence Code section 1109, thus depriving him of his due process rights
under the federal Constitution. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
As Cowen does not challenge the sufficiency of the evidence to support
his conviction, we summarize only those facts necessary to provide context for
his contentions.
On September 20, 2019, Cowen and his girlfriend, Sabrina Lukowsky
lived in a granny flat behind his mother’s home in Cardiff, California. Early
that day, a neighbor heard a fight and saw Cowen yelling angrily at a woman
and grabbing her arm. A different neighbor heard Cowen yelling and
slamming doors on September 20 and 21. Another neighbor testified that
early on the morning of September 21, Cowen had a “blank stare” and was
outside the granny flat.
On October 3, 2019, San Diego Sheriff’s Department deputies
conducted a welfare check on Lukowsky at the granny flat. Isela answered
the door and mentioned her other son, but not Cowen. Isela initially denied
knowing Lukowsky but when asked about the presence of Lukowsky’s car in
the driveway, Isela said Lukowsky sometimes delivered flowers to her. She
2 To avoid confusion, we refer to Cowen’s mother by her first name; we
intend no disrespect.
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denied the deputy sheriffs access to the property. After the deputy sheriffs
learned that Cowen and Lukowsky knew each other, they returned and
walked around Isela’s property. An odor emanated from the granny flat, and
neighbors complained it might be a dead animal. A lock on the gate appeared
to be new. Isela followed the deputies as they walked around the yard. She
told them she would file a complaint against them.
On October 4, 2019, deputy sheriffs returned as part of a missing
person investigation and asked neighbors whether they had seen Lukowsky.
The deputies saw Isela, who was “very standoffish, confrontational, and
uncooperative.” They said a “really terrible, foul smell” was in the air.
On October 6, 2019, a deputy sheriff responded to a call regarding a
foul odor at Isela’s home. Isela said the smell had been intermittent for years
and she believed it was from the neighbor’s chicken coop. The deputy ran the
plates of the car in the driveway and found out Lukowsky was the subject of a
missing person report. He returned to speak with Isela, who declined to
speak with him further.
On October 8, 2019, deputy sheriffs executed a warrant to search
Isela’s home. The smell was stronger than before, and there were flies
“everywhere.” The granny flat was locked with the doorknob and a deadbolt.
Blood was found throughout the granny flat, including on a wall, floor,
window shade, and ceiling. DNA testing showed that some of the blood was
Lukowsky’s. Lukowsky’s body was found in a bed in the granny flat. The
blood stain patterns indicated force was used. Based on a specific DNA test
used to detect DNA from males, it was determined that DNA from
Lukowsky’s fingernail scrapings was consistent with that of a Cowen male.
A supervising medical examiner who attended the autopsy testified
Lukowsky had head injuries from blunt force trauma and multiple rib
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fractures that damaged her lungs. Her hyoid bone was fractured, indicating
strangulation. The cause of death was strangulation, with blunt force
injuries to the torso as a contributing factor. The manner of death was
homicide.
A forensic entomologist testified regarding the amount of time it takes,
postmortem, for a body to begin to be colonized by insects. He testified that
the “infestation” of Lukowsky’s body by insects likely started as early as
September 24, 2019, and that the body could have been available for
“infestation” as early as September 21, 2019.
In late September 2019, Cowen went to the Israeli consulate in Los
Angeles to seek a visa in order to travel to Israel quickly. However, he
learned the visa process would take approximately six months. For several
days after the murder, the sheriff’s department did not know Cowen’s
whereabouts. They finally arrested him in Riverside, California on October
11, 2019.
Cowen testified at trial regarding an altercation he had with Lukowsky
starting on the night of September 20, 2019, and continuing into the next
day. He stated Lukowsky drank two bottles of wine and became upset
because he was planning to travel to Los Angeles the next day. He stated she
threatened to kill him for leaving her, and repeatedly hit him in the head
with a wine bottle. In response, he “started throwing defensive strikes.” At
one point, Lukowsky threatened to kill him and reached to cut his throat
with a broken champagne bottle. Cowen “threw a right-hand punch.
Immediately deadly force.” His blow landed on her neck. She collapsed on
him and he lost consciousness for a while. When he recovered, Lukowsky
never said anything further to him. He did not check on her before leaving
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for Los Angeles on the afternoon of September 21, 2019. He did not try to
contact her from Los Angeles.
I. Testimony About Isela’s Statements and Conduct
Cowen contends the challenged evidence of Isela’s statements and
conduct that impeded the investigation were irrelevant: “The bare assertion
that [Isela’s] actions caused the ‘investigation [to take] the course that it did’
does not demonstrate relevance.” He adds that even if minimally relevant,
under Evidence Code section 352, the evidence was substantially more
prejudicial than probative. Cowen contends the court’s instruction to the jury
did not cure the court’s error, and that the prosecutor’s argument in a
pleading emphasized that Isela’s behavior was “highly suspicious.” He
concludes, “If a trained prosecutor could not properly compartmentalize the
evidence, neither could the jurors.”
A. Background
Before trial, the prosecution moved to admit Isela’s “multiple odd
statements that affected the law enforcement listeners, and influenced the
direction of the investigation”; specifically, that Isela initially denied knowing
who Lukowsky was, said the foul odor was chicken feces from the neighbor’s
house, denied law enforcement entry to the property, and “her general
uncooperative demeanor.” The prosecutor argued the statements were not
inadmissible hearsay because they were not admitted for the truth of the
matter: “[Isela’s] statements and behavior towards the deputies was highly
suspicious, many of her statements were demonstrably false, and therefore
not offered for the truth. [Her] statements to law enforcement as well as her
uncooperative and suspicious conduct is not offered for the truth either, but
for the effect on the listener law enforcement officers that caused the
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direction of the investigation that culminated in a search warrant being
executed at [her] home.”
Defense counsel objected that Isela’s statements were hearsay and
inadmissible because she was unavailable to testify.
The trial court admitted the evidence as “relevant for the jury to hear
why this investigation, when it started October 3rd, took so long to actually
obtain a warrant to actually get into the house.” The court explained, “And
the officers and detectives, they didn’t go in and obtain any warrant to
actually go into the house, even with the smell, but then the fact that [Isela]
said it was the chicken coop or the chicken feces, and to go to that state of
mind regarding how they proceeded in their investigation. But it would be
very limited in terms of what [Isela] said.”
Defense counsel conceded: “I think that [Isela’s] statements and
conduct did contribute to possibly a delay in investigation, so I understand
that. My primary concern is that since she is his mother, that her adverse
behavior would be somehow interpreted as implying guilt to my client [sic].
[¶] . . . I understand that’s connected to the investigation. I think that a
curing instruction that all of that should not impugn [sic] guilt to my client.”
Before the first law enforcement witness testified about Isela’s
behavior, the trial court instructed the jury as follows: “[Y]ou may hear some
testimony regarding statements and conduct of Isela [ ]. If it is presented to
you, . . . it is presented to you solely to explain the delays in the investigation
of this case. [¶] You are not to consider [Isela’s] statements or conduct when
evaluating [Cowen’s] innocence or guilt in this case.”
B. Standard of Review and Applicable Law
“ ‘ “A trial court has ‘considerable discretion’ in determining the
relevance of evidence. [Citation.] Similarly, the court has broad discretion
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under Evidence Code section 352 to exclude even relevant evidence if it
determines the probative value of the evidence is substantially outweighed by
its possible prejudicial effects.” ’ [Citation.] Evidence is relevant when it
‘ “ ‘tends “logically, naturally, and by reasonable inference” to establish
material facts such as identity, intent, or motive.’ ” ’ [Citation.] We review
the trial court’s evidentiary decision for abuse of discretion, disturbing it only
if we conclude that the trial ‘ “ ‘ “ ‘court exercised its discretion in an
arbitrary, capricious or patently absurd manner that resulted in a manifest
miscarriage of justice.’ ” ’ ” ’ ” (People v. Parker (2022) 13 Cal.5th 1, 53;
People v. Young (2019) 7 Cal.5th 905, 931.)
“Evidence is not prejudicial, as that term is used in [the Evidence Code]
section 352 context, merely because it undermines the opponent’s position or
shores up that of the proponent. The ability to do so is what makes evidence
relevant. The code speaks in terms of undue prejudice.” (People v. Doolin
(2009) 45 Cal.4th 390, 438-439.) Evidence is unduly prejudicial when “it is of
such nature as to inflame the emotions of the jury, motivating them to use
the information, not to logically evaluate the point upon which it is relevant,
but to reward or punish one side because of the jurors’ emotional reaction.”
(Id. at p. 439.) “ ‘ “The ‘prejudice’ which [Evidence Code] section 352 seeks
to avoid is that which ‘ “ ‘uniquely tends to evoke an emotional bias against
the defendant as an individual and which has very little effect on the
issues.’ ” ’ ” ’ ” (People v. Parker, supra, 13 Cal.5th at p. 54.)
C. Analysis
The relevance of testimony regarding Isela’s statements and conduct
was that it filled gaps in the evidence regarding the sheriff department’s
investigation. Deputy sheriffs went to Isela’s home at different times before
gaining access to the granny flat. Despite the offensive odor that emanated
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from the property, and the complaints of neighbors about it, Isela offered
them an explanation for it and told them she would report them for walking
around her property. The exclusion of the challenged testimony could have
left doubts in the jurors’ minds about the deputy sheriffs’ competence in
conducting the investigation.
Under Evidence Code section 352, the challenged testimony was more
probative than prejudicial. It was not the kind of evidence that would
inflame the jury against Cowen. Moreover, this case did not turn on the
statements or actions of Isela in the weeks after the murder, but rather on
Cowen’s actions around the estimated date of her murder, as the evidence
from Cowen, the neighbors and the medical examiner showed. Cowen’s own
testimony placed him at the scene of the crime at the relevant time, and
implicated him in Lukowsky’s death. The jury could easily separate Isela’s
obstruction of the sheriff’s department’s investigation from Cowen’s actions in
killing Lukowsky. We point out defense counsel conceded at trial that Isela’s
statements and conduct did contribute to possibly a delay in investigation,
and counsel sought a limiting instruction, which the court gave. “Any
prejudice that the challenged information may have threatened must be
deemed to have been prevented by the court’s limiting instruction to the jury.
We presume that jurors comprehend and accept the court’s directions.
[Citation.] We can, of course, do nothing else. The crucial assumption
underlying our constitutional system of trial by jury is that jurors generally
understand and faithfully follow instructions.” (People v. Mickey (1991) 54
Cal.3d 612, 689, fn. 17.) We conclude the trial court’s decision to admit
testimony regarding Isela’s statements and conduct was not arbitrary,
capricious, or patently absurd.
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II. Propensity Evidence
Cowen contends the court erroneously admitted evidence of prior acts
of domestic violence under Evidence Code section 1109.
A. Applicable Law
Evidence Code section 1109 expressly incorporates Evidence Code
section 352, so evidence of past domestic violence is inadmissible only if the
court determines that “its probative value is substantially outweighed” by its
prejudicial impact. (Evid. Code, § 352.)
“[A] defendant’s propensity to commit domestic violence against a
former girlfriend who was murdered . . . is relevant and probative to an
element of murder, ‘namely, [a defendant’s] intentional doing of an act with
malice aforethought that resulted in the victim’s death.’ [Citation.] A
defendant’s pattern of prior acts of domestic violence logically leads to the
inference of malice aforethought and culpability for murder.” (People v.
Brown (2011) 192 Cal.App.4th 1222, 1237.)
B. Background
Over Cowen’s objection, the trial court admitted evidence of Cowen’s
prior acts of domestic violence under Evidence Code section 1109.
Specifically, the court ruled: “All those incidents that allege to have occurred
between [ ] Cowen and [Lukowsky] I do believe [are] relevant and admissible
to show the circumstances surrounding their relationship . . . those incidents
can go to motive. However, the 2008 incident [involving strangulation of
N.G.] will not be argued for either motive or identity, but it may be argued for
propensity.”
Based on the court’s ruling, two individuals testified that in September
2019, they saw Lukowsky was wearing dark glasses and makeup around her
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eyes, apparently to cover bruising. She also was quiet and did not engage
with anyone.
N.G., Cowen’s previous girlfriend, testified he strangled her in 2008:
“[H]e jumped on top of me, and so I fell backwards. And I couldn’t get him off
of me. He’s much larger than I am. He had both hands on my neck, and I
couldn’t get him off. I couldn’t make any noise. And so I started banging on
the wall to try to get my roommate’s attention.”
The court instructed the jury that if the People proved these prior acts
by a preponderance of the evidence, it could “consider that evidence and
weigh it together with all other evidence received during the trial to help you
determine whether [Cowen] committed [m]urder [.]”
The prosecutor argued in closing that Cowen was simply the type of
person who commits domestic violence: “I’m not the kind of person who
quotes and cites people because I’m just not that smart, but I like this one:
When someone shows you who they are, believe them the first time. It’s
Maya Angelou. [N.G.] did.” The prosecutor added, “There’s one more piece of
proof this was strangulation. He’s done it before.”
C. Analysis
Cowen contends that the court’s use of propensity evidence under
Evidence Code section 1109 violated his due process rights under the federal
Constitution; however, he concedes the California Supreme Court rejected his
position in People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta). He raises the
issue to preserve it for review in federal court.
In Falsetta, supra, 21 Cal.4th 903, the California Supreme Court
rejected a constitutional due process challenge to Evidence Code section 1108,
a parallel statute to Evidence Code section 1109, which applies to prior
sexual offenses rather than prior domestic violence. The reasoning in
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Falsetta has been applied by appellate courts to reject similar constitutional
due process challenges to Evidence Code section 1109. (See People v. Brown
(2000) 77 Cal.App.4th 1324, 1329; see also People v. Hoover (2000) 77
Cal.App.4th 1020, 1024; People v. Johnson (2000) 77 Cal.App.4th 410, 412;
People v. Jennings (2008) 81 Cal.App.4th 1301, 1310 [“In short, the
constitutionality of [Evidence Code] section 1109 under the due process
clauses of the federal and state constitutions has now been settled”]; People v.
Price (2004) 120 Cal.App.4th 224, 240-241; People v. Reyes (2008) 160
Cal.App.4th 246, 249-253.)
As recognized in caselaw, the legislative history of Evidence Code
section 1109 acknowledges the special nature of domestic violence crime:
“ ‘The propensity inference is particularly appropriate in the area of domestic
violence because on-going violence and abuse is the norm in domestic violence
cases. Not only is there a great likelihood that any one battering episode is
part of a larger scheme of dominance and control, that scheme usually
escalates in frequency and severity. Without the propensity inference, the
escalating nature of domestic violence is likewise masked. If we fail to
address the very essence of domestic violence, we will continue to see cases
where perpetrators of this violence will beat their intimate partners, even kill
them, and go on to beat or kill the next intimate partner. Since criminal
prosecution is one of the few factors which may interrupt the escalating
pattern of domestic violence, we must be willing to look at that pattern
during the criminal prosecution, or we will miss the opportunity to address
this problem at all.’ (Assem. Com. Rep. on Public Safety (June 25, 1996) pp.
3-4.) Moreover, the special nature of domestic violence cases is legislatively
recognized in enactments such as the Law Enforcement Response to
Domestic Violence, sections 13700 through 13731. [¶] Based on the
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foregoing, the California Legislature has determined the policy
considerations favoring the exclusion of evidence of uncharged domestic
violence offenses are outweighed in criminal domestic violence cases by the
policy considerations favoring the admission of such evidence.” (People v.
Johnson, supra, 77 Cal.App.4th at pp. 419-420.)
Cowen has not explained how the propensity evidence introduced at
trial was more prejudicial than probative so as to constitute an abuse of
discretion. As stated, it is well established that “prejudice” is not
synonymous with “damaging.” (People v. Chhoun (2021) 11 Cal.5th 1, 29.)
Further, “[t]he potential for prejudice is decreased, . . . when testimony
describing the defendant’s uncharged acts is no stronger or more
inflammatory than the testimony concerning the charged offense.” (People v.
Tran (2011) 51 Cal.4th 1040, 1047.) In light of the fact that the propensity
evidence introduced was probative, and neither as strong or more
inflammatory than the testimony concerning Lukowsky’s death by
strangulation, and in light of the court’s curative instructions to the jury
regarding propensity evidence, we conclude the trial court did not abuse its
discretion in admitting the challenged evidence under Evidence Code sections
1109 and 352.
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DISPOSITION
The judgment is affirmed.
O’ROURKE, Acting P. J.
WE CONCUR:
DATO, J.
DO, J.
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