69 Cal.App.5th 799
Cal. Ct. App.2021Background
- On March 29, 2018 defendant forced entry into the house shared by his mother and brother; the brother saw defendant running up stairs holding a kitchen knife; a restraining order against defendant was in effect.
- Multiple prior incidents (2016–2018) involved defendant violating restraining orders, banging on doors at night, breaking into the garage, and alleged thefts of stereo equipment and shoes.
- A jury convicted defendant of first‑degree residential burglary (with a person present) and willful violation of a court order; a prior strike was found true; aggregate sentence of 13 years imposed.
- On appeal defendant challenged admission of his prior acts under Evidence Code §§1109 and 1101(b) (and §352), the trial court’s modified CALCRIM No. 852A instruction, and asserted cumulative error.
- The Court of Appeal upheld the evidentiary rulings and the instruction, rejected cumulative‑error and due‑process challenges, but found sentencing error under Penal Code §654 and remanded for imposition (then stay) of a sentence on count two.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility under §1109 (prior domestic‑violence acts) | Prior acts were domestic‑violence conduct under §1109 and admissible as propensity evidence; Family Code definitions apply to §1109. | Most prior acts are not "abuse" under Penal Code §13700; trial court improperly relied on Family Code to expand §1109; evidence prejudicial under §352. | Affirmed. §1109 incorporates Family Code §6211/§6203/§6320 definitions (within 5 years); prior acts (harassment/disturbing the peace) were domestic violence and admissible; §352 balance proper. |
| Admissibility under §1101(b) (intent, knowledge, motive) | Prior uncharged acts were relevant and sufficiently similar to prove intent to assault or to steal, and knowledge of restraining order. | Prior incidents insufficiently similar or insufficiently proven (especially thefts); prejudicial and confusing under §352. | Affirmed. Prior acts were sufficiently similar and proved by a preponderance (circumstantial corroboration); probative value outweighed prejudice. |
| CALCRIM No. 852A instruction (definition of "abuse") | The instruction correctly reflected statutory definitions (including Family Code) and properly limited use of the evidence. | Instruction improperly allowed propensity inference for burglary on an intent‑to‑steal theory because theft is not domestic violence. | Affirmed. Family Code definitions (including harassment/disturbing the peace) apply; theft‑theory burglary could disturb victims’ peace and thus fall within "offense involving domestic violence." Instruction was not erroneous or unconstitutional. |
| Cumulative error / due process | N/A (prosecution argued no reversible error) | Cumulative effect of admissions and instruction deprived defendant of fair trial and reduced burden of proof. | Rejected. No individual errors found; §352 analysis adequate; no due‑process violation. |
| Sentencing error under Penal Code §654 | N/A | Trial court failed to pronounce a sentence on count two and stay execution under §654 (it simply said it would not impose additional time). | Remanded. Trial court must select and pronounce a term on count two and then stay execution pursuant to §654; prepare amended abstract of judgment. |
Key Cases Cited
- People v. Ogle, 185 Cal.App.4th 1138 (Cal. Ct. App. 2010) (Family Code definition of domestic violence can bring offenses within §1109 even if Penal Code definition is narrower)
- People v. Zavala, 130 Cal.App.4th 758 (Cal. Ct. App. 2005) (discussed but distinguished on timing of statutory amendment)
- People v. Dallas, 165 Cal.App.4th 940 (Cal. Ct. App. 2008) (Family Code definitions may broaden the class of victims/acts considered under §1109)
- People v. James, 191 Cal.App.4th 478 (Cal. Ct. App. 2010) (burglary that places victim in reasonable apprehension of injury qualifies as an offense involving domestic violence)
- People v. Reliford, 29 Cal.4th 1007 (Cal. 2003) (upholding propensity instruction analogous to CALCRIM No. 852A)
- People v. Falsetta, 21 Cal.4th 903 (Cal. 1999) (§352 provides due‑process safeguard for admissibility of propensity evidence)
- People v. Ewoldt, 7 Cal.4th 380 (Cal. 1994) (standard for similarity when admitting uncharged acts to prove intent)