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Evidence Code § 1109 – Can It Apply to Burglary?

Under Evidence Code § 1109, a judge may admit evidence of prior uncharged acts of domestic violence to prove defendant’s propensity to commit the pending charge of domestic violence.  The jury is then instructed that it may consider such evidence to show defendant had the propensity to commit the charged crime because he had done so in the past.
The Gist of this Article: Under Evidence Code § 1109, prior evidence of domestic violence, as broadly defined by Family Code § 6211, can be admissible in a case involving first degree residential burglary.         
On the evening of March 29, 2018, Defendant Ashneel Mani broke into the house where his mother and his brother lived in Sacramento County.
After hearing a loud noise, defendant’s brother opened his bedroom door at the top of the stairs inside the house.  Defendant’s brother then saw defendant running up the stairs toward him holding a kitchen knife.  Scared, defendant’s brother went back into his room and locked the door and defendant’s mother called 911.  At that time, defendant’s brother had a restraining order against his brother. 

After a short car chase, police arrested Ashneel Mani.  The Sacramento District Attorney’s office then charged Mani with first degree residential burglary (Penal Code § 459), willfully disobeying a court order in a family law civil restraining order (Penal Code § 166(a)(4)), and drawing or exhibiting a dangerous weapon in a rude, angry, or threatening manner (Penal Code § 417).  It was also alleged that in the commission of the burglary, Mani personally used a deadly and dangerous weapon, a knife, within the meaning of Penal Code § 12022(b)(1).  A prior serious felony and a prior strike conviction were also alleged (Penal Code §§ 667(a), 667(b) – (i), 1170.12).

During trial, Mani’s brother and mother testified that in the past, they each had restraining orders against Mani and he violated the restraining orders on a number of occasions.  The prosecutor also introduced evidence of police finding Mani in violation of a restraining order on April 29, 2016.  The brother also testified how his brother violated the restraining orders in place on March 14, 2017, July 11, 2017,  January 10, 2018, January 23, 2018, and February 21, 2018.  On the January 23, 2018, incident, Mani stole his brother’s running shoes from the house.

The jury found Mani guilty of burglary in the first degree and willfully disobeying a court order, but not guilty of drawing or exhibiting a weapon in a rude, angry or threatening manner.  The judge found true that Mani had previously been convicted of violating Penal Code § 245(a)(1), a strike.

The judge sentenced Mani to 13 years in state prison, based on the midterm of four years for first degree residential burglary, doubled because of the prior strike, plus five years for the prior serious felony conviction under Penal Code § 667(a).  The court did not impose a sentence on violation of a restraining order because of Penal Code § 654.

On appeal to the Third Appellate District Court in Sacramento, Mani argued that the judge erred in admitting evidence of the January 23, 2018, incident under Evidence Code § 1109 where Mani stole his brother’s running shoes from the family house because stealing running shoes is not a prior act of domestic violence.

The appellate court noted that under Evidence Code § 1109, domestic violence is defined according to Family Code § 6211 and Family Code § 6203 defines abuse. 

Mani argued that “abuse” be defined by Penal Code § 13700, which was not as broad as the § 6203 definition.

The appellate court rejected Mani’s argument that Penal Code § 13700 controlled because Evidence Code § 1109(d)(3) specifically states that domestic violence has the meaning set forth in Evidence Code § 13700, but adds “[s]ubject to a hearing conducted pursuant to Evidence Code § 352 [for undue prejudice outweighing probative relevance], shall include consideration of any corroboration and remoteness in time, ‘domestic violence’ has the further meaning as set forth in Section 6211 of the Family Code, if the act occurred no more than five years before the charged offense.”  Included within the 6211 definition, we note that it includes disturbing the peace as “conduct which destroys the mental or emotional calm of the other party.”

Thus, under the circumstances of the prior incidents involving Mani committing theft here, residential burglary, grounded on a theft theory, was an offense involving domestic violence, so it was admissible.

We offer this summary as somewhat of a warning of how broad Evidence Code § 1109 evidence can be for anyone facing domestic violence charges.

The citation for the Third Appellate District Court ruling discussed above is People v. Ashneel Mani (3d App. Dist., 2021) 74 Cal. App. 5th 343, 289 Cal. Rptr. 3d 452.

For more information about Evidence Code § 1109 and domestic violence cases, please click on the following articles:
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