In light of a recent decision released by the Court of Appeal for the Fifth District of California, criminal defense attorneys in California will have to be careful when it comes to propensity evidence
Generally, evidence of prior criminal acts is inadmissible to show the defendant’s disposition to commit the criminal act charged. However, under California Evidence Code section 1109, evidence that a defendant committed prior acts of domestic violence can be admitted when the defendant is accused of “an offense involving domestic violence.”
In the recent decision of People v. James, the defendant allegedly broke down the door of his former girlfriend. At his trial, the trial court admitted evidence of a prior instance of domestic violence against the former girlfriend and of a prior act of domestic violence against another former girlfriend. The defendant was subsequently convicted of first-degree burglary.
The Court of Appeal faced the issue of whether evidence of domestic violence is admissible even if the crime charged does not involve domestic violence (i.e. burglary). There, the court found that under these circumstances, the offense of burglary involved domestic violence. As defined under California Penal Code section 13700, domestic violence is abuse (“intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another”) against another.
The defendant in that case had broke down the woman’s door and made repeated threatening remarks, thus placing her in apprehension of serious bodily injury. Because the court found that in this scenario, the defendant’s offense of burglary involved domestic violence, evidence of the defendant’s prior domestic violence was therefore admissible to show the defendant’s propensity to commit the charged offense.
The court focussed particularly on the intent to commit the act of domestic violence in the course of committing the burglary. The court referenced People v. Story, where that court found that prior sexual offenses were admissible for a murder prosecution because the burglary was based on an intent to commit rape. Because the intent to commit the offense was the underlying felony, the burglary was considered a sexual offense for the purposes of the statute (California Evidence Code section 1108).
People v. Story (2009) 45 Cal.4th 1282, 1289.
Thus criminal defense attorneys will need to be aware that even if not specified in the statute, the conduct involved in the underlying offense may still open the door for the prosecution to admit propensity evidence.
Unless otherwise noted, all citations taken from People v. James, 2010 WL 5393834 (Cal.App. 5 Dist)
Scott Hughes is a criminal defense lawyer in Newport Beach, California practicing in State and Federal Court.