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Domestic Violence: When Prior Acts are Propensity Evidence

The Gist of this Article: While there is a general principal that evidence of prior acts is inadmissible to show criminal disposition to imply conduct in a particular case, evidence of prior acts may be admissible to show defendant’s propensity for certain conduct.  While some may argue this is completely unfair, it is the law, as the following summary exemplifies.         
Gustavo Medina Flores was in a relationship with Doe.  In July 2018, Doe and her five-year-old daughter were passengers in a car driven by Flores in Madera County.  Flores and Doe began to argue.  Flores threatened Doe and began driving erratically. 

Eventually, Flores stopped the car and Doe exited the car with her daughter and the two tried to run away.  Flores pursued Doe on foot and told her, “You fucking bitch.  Get back in the car.”  Flores then hit Doe in her face twice, put her in a chokehold and ordered Doe’s daughter to get back in the car and the child complied.  Eventually, Doe also re-entered the car and Flores drove away.

A witness saw the incident and called 911 and police pursued the car.  Flores stopped and police observed Doe had a bloody upper lip.  She described to police how Flores had threatened to kill her in the past if she left him.

The Madera County District Attorney’s Office filed a complaint against Flores charging him with felony domestic violence (Penal Code § 273.5(a)), felony assault with force likely to produce great bodily injury (Penal Code § 245(a)(4)), felony criminal threats (Penal Code § 422) and felony false imprisonment (Penal Code § 236) as against Doe and her daughter.

The information also charged that Flores had a prior conviction for burglary, which constituted a prior strike under the “Three Strikes Law” (Penal Code § 667(b) – (i), former 1170.12), a prior serious felony under Penal Code § 667(a)(1) and that Flores had served a prior prison term (Penal Code § 667.5).

During trial, Flores’ parole officer testified regarding three prior uncharged incidents of Flores’ violence toward a former girlfriend, V.Z.  In one incident in January 2017, he hit her head against a car window.  In another incident, V.Z. was sleeping and awoke to find Flores, who did not live with her, climbing into her bed.  V.Z. asked him to leave, but he did not and climbed on top of her, choking her and telling her, “Bitch, I’m going to choke the fuck out of you.”  V.Z. fought back and escaped.  In November 2017, Flores unexpectedly appeared at V.Z.’s apartment and threatened to break her windows if she did not let him in.  She let him in and then he attempted to choke her and threatened to kill her.  V.Z. called the police.

In the trial with Doe and her five-year-old daughter as victims, the jury found Flores guilty of false imprisonment on Doe and her daughter, domestic violence on Doe, assault by means likely to produce great bodily injury and criminal threats. 

The judge found true all three special allegations true regarding priors convictions and a prior prison term and sentenced Flores to 18 years and 8 months in state prison.

Flores appealed the verdict and the sentence to the First Appellate District on various grounds, but this article will narrow its scope to just his argument that the trial court erred by admitting into evidence testimony from the parole officer about prior incidents of domestic violence against V.Z.

The First Appellate District rejected this argument.  It explained that in general, evidence of prior criminal acts is inadmissible to show defendant’s criminal disposition to commit the charged offense.  Evidence Code § 1101.

However, in actions involving domestic violence, under Evidence Code § 1109(a)(1), “evidence of defendant’s commission of other domestic violence is not made inadmissible by § 1101 if the evidence is not otherwise inadmissible under Evidence Code § 352."

Under Evidence Code § 352, a court must determine if the probative value of the evidence is “substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) created substantial danger of undue  prejudice, of confusing the issues, or misleading the jury.”  People v. Kerley (2018) 23 Cal. App. 5th 513, 532.

Here, the First Appellate District found the trial court’s admission of the parole officer’s testimony was not an abuse of discretion because the conduct was substantially similar and more inflammatory than his charged offense.  It showed that when Flores was mad at his dating partners, he threatened, struck and choked them.  Moreover, they occurred within a year of the incident with Doe and thus were not unduly remote in time.
In addition, the witness’ testimony regarding these events was brief, taking only nine pages of testimony (the appellate court cited to People v. Cabrera (2007) 152 Cal. App. 4th 695, 706 (testimony taking 97 pages of reporter’s transcript no unnecessarily time consuming)).  Lastly, the judge ordered that the parties not identify the witness describing such events as Flores’ parole officer, so the prejudice to Flores by confusing the issues was minimized.

We present this summary because it seems to present what is a common issue in domestic violence cases and reminds us of the fundamental rules covering whether such evidence can be admitted.

The citation for the First Appellate District Court ruling discussed above is People v. Gustavo Mendina Flores (1st App. Dist., 2022) 75 Cal. App. 5th 495, 290 Cal. Rptr. 3d 517.

For more information about admissibility of prior acts of domestic violence as evidence of propensity to commit domestic violence, please click on the following articles:
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