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F 2.50.02 n1 “Engaged In” vs. “Committed.”
(See FORECITE F 2.23.1 n1.)
F 2.50.02 n2 Evidence Of Other Domestic Violence Offenses (EC 1108/EC 1109): Informing Jury That Prior Offenses Resulted In Acquittal Or Hung Jury.
(See People v. Mullens (2004) 119 CA4th 648, 669 [reversible error to exclude acquittal for alleged prior sex offense]; see also People v. Griffin (67) 66 C2d 459.)
(See FORECITE F 2.50.02e.)
F 2.50.02 n3 Other Domestic Violence Offenses: Constitutional Challenge To Proof Of Propensity By Other Acts.
(See FORECITE F 2.50.01 n4.)
F 2.50.02 n4 Other Domestic Violence Offenses: Constitutional Challenge To Preponderance Of Evidence Standard.
(See FORECITE F 2.50.01 n5.)
F 2.50.02 n5 Uncharged Crimes To Show Propensity: Analogy To Improper Joinder As Illustrative Of Prejudice.
(See FORECITE F 2.50.01 n6.)
F 2.50.02 n6 Evidence Of Other Domestic Violence Offenses: Admissibility As To Rape Charge.
(See also People v. Poplar (99) 70 CA4th 1129, 1138-39 [83 CR2d 320] [prior acts of domestic violence held admissible under EC 1109 and PC 13700 as definition of domestic violence encompasses the definition of rape; “…rape is a higher level of domestic violence, a similar act of control”].)
F 2.50.02 n7 Prior Acts To Show Criminal Disposition: Admissibility Of Prior Acts Of Good Conduct Offered By Defendant.
Rules of evidence such as EC 1108 permit the prosecution to present prior bad acts to prove criminal propensity. However, when such propensity evidence is admitted, the defendant should have a right to defend against the prior acts indirectly by presenting evidence which would disprove the propensity such as prior acts where the defendant exhibited good conduct in similar situations. (See People v. Callahan (99) 74 CA4th 356 [87 CR2d 838].)
F 2.50.02 n8 Other Domestic Violence Offenses: Limiting Instruction Must Be Requested.
(See FORECITE F 2.50.01 n11.)
F 2.50.02 n9 Improper Instruction Regarding Substantive Use Of Prior Offense: Standard Of Prejudice.
(See FORECITE F 2.50.01 n12.)
F 2.50.02 n10 Improper Propensity Instruction May Be Prejudicial Even If Jury Considered Evidence.
(See FORECITE F 2.50.01 n13.)
F 2.50.02 n11 Uncharged Acts As Propensity Evidence.
(See FORECITE F 2.50.01 n14.)
F 2.50.02 n12 Challenge To 1999 CJ Revision.
(See FORECITE F 2.50.01 n15.)
F 2.50.02 n13 EC 1109 Does Not Apply Unless The Elements Of The Charged Offense Involve Domestic Violence.
EC 1109(a) provides that prior acts of domestic violence are admissible when the defendant “is accused of an offense involving domestic violence, . . . .” Given the quoted language, the question arises whether section 1109 is applicable when the elements of the charged offense do not include violence (e.g. false imprisonment). Under the rules of statutory interpretation, section 1109 may not be used in such a case.
Without doubt, the phrase “an offense involving domestic violence” is ambiguous. The phrase can be reasonably interpreted as referring to: (1) the elements of the charged crime; or (2) the conduct underlying the charged crime. Given the uncertainty regarding which meaning was intended by the Legislature, section 1109(a) cannot be used unless the elements of the charged offense involve domestic violence. (People v. Avery (2002) 27 C4th 49 [115 CR2d 403]; see also People v. Jones (88) 46 C3d 585, 599 [250 CR 635] [ambiguous statute must be interpreted in favor of the defendant].)
F 2.50.02 n14 When The Prosecution Presents Evidence Under EC 1108 The Defense Is Entitled To Introduce Character Evidence On Rebuttal.
See FORECITE F 2.50.01 n17.
F 2.50.02 n15 Other Domestic Violence Offenses: Duty To Request.
See FORECITE F 2.50.01 n19.
F 2.50.02 n16 Other Sexual Offenses: Subsequent Sexual Offenses.
(See FORECITE F 2.50.01 n20.)
F 2.50.02 n17 Other Domestic Violence Incidents: Definition Of Dating Relationship (EC 1109).
(See also FORECITE F 2.50.02d.)
F 2.50.02a
Evidence Of Other Domestic Violence Offenses (EC 1109):
Jury Must Find Defendant Guilty Of Charged Offense
Beyond A Reasonable Doubt
*Re: CJ 2.50.02:
See FORECITE F 2.50.01a.
F 2.50.02b
Uncharged Domestic Violence: Defects In 1999 Revision
*Replace ¶ 5 and ¶ 6 of CJ 2.50.02 with the following:
You’ve heard testimony about other offenses involving domestic violence that are not charged in this case. I will refer to those as “uncharged offenses” because they are not charged in this case. Before you can consider evidence of any uncharged offense, the prosecution must prove by a preponderance of the evidence that the defendant committed that offense. “Preponderance of the evidence” means evidence that has more convincing force than that opposed to it. If the evidence is so evenly balanced that you are unable to find that the evidence on either side of an issue preponderates, your finding on that issue must be against the party who had the burden of proving it. If the prosecution has failed to meet this burden by a preponderance of the evidence, you may not use that evidence for any purpose, and you must disregard it entirely.
If you conclude the defendant committed an uncharged offense, you may consider that evidence and weigh it together with any other evidence received during the trial to help you determine whether the defendant is guilty of the charged crime. The weight and significance of any evidence are for you to decide. However, if you find the defendant committed an uncharged offense, that is not sufficient, by itself, to prove he committed the charged crime. You may not convict the defendant of the charged crime unless the prosecution has proven it beyond a reasonable doubt.
Points and Authorities
See FORECITE F 2.50.01b.
F 2.50.02c
Uncharged Act Proven By Preponderance Of
Evidence Insufficient To Convict
*Modify CJ 2.50.02, ¶ 5 as follows [deleted language is between << >>]:
However, if you find <<by a preponderance of the evidence>> that the defendant committed a prior crime or crimes involving domestic violence, that is not sufficient by itself to prove beyond a reasonable doubt that [he] [she] committed the charged offense[s]. The weight and significance, if any, are for you to decide.
Points and Authorities
See FORECITE F 2.50.01c.
F 2.50.02d
The Jury Is Entitled To Disregard Prior Domestic Violence
Evidence Unless The Prosecution Proves A “Dating Relationship”
With The Alleged Victim
*Add to CJ 2.50.02:
*NOTE: CJ 2.50.2 defining the preponderance standard should be given with this instruction:
The prosecution has the burden of proving by a preponderance of the evidence the existence of the preliminary fact that defendant and [__________ (name of alleged victim)] [___________ (name of alleged victim of prior abuse)] had a “dating relationship.” If, and only if, the prosecution meets this burden, you may consider the alleged prior domestic violence in your deliberations. However, you may not rely upon this evidence, in whole or part, to convict the defendant unless the prosecution has proven the existence of the required “dating relationship” beyond a reasonable doubt.
[Add one of the following definitions of “dating relationship”]:
ALTERNATIVE 1:
“Dating relationship” means frequent, intimate associations primarily characterized by the expectation of affection or sexual involvement independent of financial considerations.
[Fam. Code 6210; PC 243(f)(10); People v. Rucker (2005) 126 CA4th 1107, 1116.]
ALTERNATIVE 2:
For purposes of this instruction a “dating relationship” is defined as serious courtship.
[Source: Oriola v.Thaler (2000) 84 CA4th 397, 412; but see People v. Rucker (2005) 126 CA4th 1107, 1117 [Oriola definition “unduly narrow”].]
ALTERNATIVE 3:
For purposes of this instruction a “dating relationship” is defined as:
A social relationship between two individuals who have or have had a reciprocally amorous and increasingly exclusive interest in one another, and shared expectation of the growth of that mutual interest, that has endured for such a length of time and stimulated such frequent interactions that the relationship cannot be deemed to have been casual.
[Source: Oriola v.Thaler (2000) 84 CA4th 397, 412; but see People v. Rucker (2005) 126 CA4th 1107, 1117 [Oriola definition “unduly narrow”].]
ALTERNATIVE 4:
A “dating relationship” for purposes of domestic violence statutes does not include “a casual relationship or an ordinary fraternization between [two] individuals in a business or social context.”
[Source People v. Rucker (2005) 126 CA4th 1107, 1117 [agreeing with Oriola‘s conclusion to this effect].]
Points and Authorities
Pursuant to EC 403, the proponent of evidence must establish a sufficient foundation in four areas: (1) relevancy; (2) the personal knowledge of the witness; (3) the authenticity of a writing; and (4) whether or not a hearsay statement was actually made by the declarant alleged to have made it. Compare EC 405. If the judge finds that the jury could reasonably find the preliminary fact then it must submit the question to the jury for actual determination. (SeePeople v. Kronemyer (87) 189 CA3d 314, 351 [234 CR 442]; People v. Humphries (86) 185 CA3d 1315, 1334 [230 CR 536].) Compare EC 405 relating to other preliminary facts such as competence where the judge’s determination is final. (Kronemyer 189 CA3d at 352.) When a preliminary fact is submitted to the jury, the defendant is entitled to an instruction which advises the jury that it must find a sufficient foundation before considering certain evidence. In this regard, EC 403(c) provides:
“If the court admits the proffered evidence under this section, the court: (1) May, and on request shall, instruct the jury to determine whether the preliminary fact exists and to disregard the proffered evidence unless the jury finds that the preliminary fact does exist.”
Because EC 1109 makes a “dating relationship” a prerequisite to admission of evidence of alleged prior “domestic abuse” (see People v. Rucker (2005) 126 CA4th 1107, 1117 [finding substantial evidence in the record to support the “predicate finding” of a “dating relationship”], the preliminary finding provisions of EC 403 should apply.
Burden of Proof. While no case has decided what standard of proof applies to EC 403, normally a foundational fact for admission of evidence need only be proved beyond a preponderance of the evidence. (E.g., People v. McClellan (69) 71 C2d 793, 804 [80 CR 31] [other crimes evidence].) However, in a criminal trial the defendant must be proven guilty beyond a reasonable doubt. (E.g., Mullaney v. Wilbur (75) 421 US 684 [44 LEd2d 508].) Hence, to avoid implicating federal constitutional due process principles (14th Amendment) in an EC 403(c) situation the jury should be clearly instructed upon the distinction between the determination of whether the evidence is admissible and the actual use of that evidence to convict the defendant. (Cf., People v. Younger (2000) 84 CA4th 1360; Gibson v. Ortiz (9th Cir. 2004) 387 F3d 812, 822 [Former CJ 2.50.02 unconstitutionally permitted finding of guilt based on a preponderance of the evidence].) (Conceptually this distinction is analogous to a court trial where the judge determines both admissibility and guilt.)
Moreover, the reasonable doubt standard applies to “each fact which is essential to complete a chain of circumstances that will establish the defendant’s guilt.” (See People v. Watson (56) 46 C2d 818, 831 [299 P2d 243]; see also CJ 2.01.) (See also FORECITE F 2.50d.)
F 2.50.02e
Evidence Of Other Domestic Violence Offenses (EC 1109):
Informing Jury That Prior Offenses Resulted In Acquittal Or Hung Jury
*Add to CJ 2.50.02 when appropriate:
To assist you in your assessment of this evidence pertaining to the testimony of ________, you are instructed that at another time and place a duly constituted jury charged with the very issue of determining the defendant’s guilt or innocence of this alleged conduct concluded that he was not guilty of that conduct.
[Source: People v. Mullens (2004) 119 CA4th 648, 664.]
Points and Authorities
When a defendant has been acquitted of a prior conviction offered by the prosecution the defense has the right to inform the jury of the acquittal. (See People v. Mullens (2004) 119 CA4th 648, 669 [reversible error to exclude acquittal for alleged prior sex offense]; see also People v. Griffin (67) 66 C2d 459.) Moreover Mullens suggested the above instruction in cases involving an acquittal. (Mullens, 119 CA4th at 664.)