At the heart of any debate about introducing evidence of a defendant’s prior bad acts is the issue of the prosecution implicitly introducing character evidence or evidence of a propensity to commit the charged act. The defense is usually eager to invoke Evidence Code § 1101(a), which states that evidence of a person’s character or a character trait is inadmissible if offered to prove the person’s conduct on a specific occasion.
The prosecution will seek to introduce such evidence under one of many exceptions to this general rule. In the domestic violence context, Evidence Code § 1109 permits the introduction of evidence of defendant committing other acts of domestic violence for all purposes, including to prove defendant had the propensity to commit the charged offense when such evidence is otherwise inadmissible under Evidence § 352.
Other purposes of the prior act evidence may be prove the identity of the defendant, defendant’s intent in the pending case, defendant’s motive in the pending case, defendant’s lack of mistake in the pending case, or defendant’s modus operandi. People v. Zack (1986) 184 Cal.App.3d 409, 415, 229 Cal. Rptr. 317.
Evidence Code § 352 requires a judge to engage in a careful weighing process before admitting evidence of prior acts or uncharged acts of domestic violence, including illegal sex acts that a defendant may have committed. The judge must consider six factors, which are:
- The nature, relevance and possible remoteness of the act or offense;
- The degree of certainty of its commission and the likelihood of confusing, misleading or distracting the jurors from their main inquiry;
- The similarity of the act or offense to the charged offense;
- The likely prejudicial impact of the act or offense on jurors;
- The burden on the defendant in defending against an uncharged act or offense; and
- The availability of less prejudicial alternatives to the outright admission of the past act or offense, such as admitting some but not all the defendant’s other acts or sex offenses or excluding irrelevant although inflammatory details surrounding the act or offense.
See People v. Falsetta (1999) 21 Cal.4th 903, at 916-917.
It is rather straight forward to understand how a prosecutor may seek introduction of a prior conviction for domestic violence involving the same victim and why the judge would admit such evidence. Indeed, when such is the case, for example in a case where defendant was charged with the first degree murder of his wife, the prosecutor asked the judge to introduce evidence concerning marital discord and defendant’s prior assaults against his wife. Over defendant’s objection, the court introduced evidence of prior acts to show intent, motive and identity. People v. Linkenauger (1995) 32 Cal.App.4th 1603, 38 Cal.Rptr.2d 868.
After defendant was convicted, he appealed this ruling to the appellate court, which affirmed the lower court ruling. The appellate court held that “a broader range of evidence may be presented to show motive, intent and identity where the prior misconduct and charged offense involves the same perpetrator and victim.” Id., 32 Cal.App.4th at 1613.
Evidence of other acts of domestic violence includes uncharged:
- domestic violence offenses. People v. Villatoro (2012) 54 Cal.4th 1152, 1159-1164, 144 Cal.Rptr.3d 401 (case involved Evidence Code § 1108, the parallel provision governing propensity evidence in sexual offense cases);
- burglary when defendant broke down the door of his former girlfriend’s home and repeatedly made threatening remarks to her. People v. Jones (2010) 191 Cal.App.4th 478, 482-484, 119 Cal.Rptr.3d 362.
- first -degree murder based on strangling his former girlfriend after a lengthy period of intimidation because she ended their relationship. People v. Brown (2011) 192 Cal.App. 4th 1222, 121 Cal. Rptr. 3d 828;
- criminal threats;
- vandalism of the victim’s property; and
- stalking to prove propensity to make criminal threats (People v. Ogle (2010) 185 Cal. App. 4th 1138, 1142-1145, 110 Cal. Rptr. 3d 913; but see People v. Zavala (2005) 130 Cal. App. 4th 758, 770-771, 30 Cal. Rptr. 3d 398 (trial court erred by instructing jury to consider past acts of domestic violence as propensity evidence to a stalking charge).