SERIES 800 ASSAULTIVE AND BATTERY CRIMES
F 852 Evidence Of Uncharged Domestic Violence (EC 1109(a)(1)) (Case Law Discussing This Instruction)
TABLE OF CONTENTS
F 852.1 Titles And Identification Of Parties
F 852.1 Inst 1 Evidence of Uncharged Domestic Violence—Title
F 852.1 Inst 2 Identification Of Prosecution And Defendant
F 852.2 Evidence of Uncharged Domestic Violence: Additional Issues
F 852.2 Inst 1 Revised Inference Language
F 852.2 Inst 2 Improper Comment On The Evidence
F 852.2 Inst 3 Evidence of Uncharged Domestic Violence—If An Essential Fact—Must Be Proved Beyond A Reasonable Doubt
F 852.2 Inst 4 Failure To Prove Uncharged Prior As Evidence That Defendant Is Not Disposed Or Inclined To Commit Domestic Violence—Reverse Instruction
F 852.2 Inst 5 Evidence Of Other Domestic Violence Offenses (EC 1109): Informing Jury That Prior Offenses Resulted In Acquittal Or Hung Jury
F 852.2 Inst 6 (a & b) The Jury Is Entitled To Disregard Prior Domestic Violence Evidence Unless The Prosecution Proves A “Dating Relationship” With The Alleged Victim—Preliminary Fact Instructions
Return to Series 800 Table of Contents.
F 852.1 Titles And Identification Of Parties
F 852.1 Inst 1 Evidence of Uncharged Domestic Violence—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 852.1 Inst 2 Identification Of Prosecution And Defendant
See generally FORECITE F 100.2 Note 1and CALCRIM Motion Bank # CCM-005 and CALCRIM Motion Bank # CCM-006.
F 852.2 Evidence of Uncharged Domestic Violence: Additional Issues
F 852.2 Inst 1 Revised Inference Language
*Replace 852, paragraph 9, beginning with “If you decide …” with the following:
If you decide that the defendant committed the uncharged domestic violence, you may consider that evidence and weigh it together with all the other evidence received during the trial to help you determine whether the defendant committed ________ <insert charged offense involving domestic violence>. Remember, however, that evidence of uncharged domestic violence is not sufficient [alone] [by itself] to find the defendant guilty of ________ <insert charged offense involving domestic violence>. The prosecution must still prove each element of ________ <insert charged offense involving domestic violence> beyond a reasonable doubt.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
The CALCRIM Deficiency: Argumentative Instruction On Specific Evidence—It is improperly argumentative to instruct the jurors on inferences to be drawn from specific evidence. (See People v. Wright (1988) 45 C3d 1126; see also FORECITE F 416.3 Inst 4.) Hence, CALCRIM 852 should be modified as set forth above. (See People v. James (2000) 81 CA4th 1343, 1357, fn. 8; CALCRIM 852, Commentary.)
No Reference To “The People”—The defendant objects to use of the term “the People” in this instruction and throughout this trial. [See FORECITE F 100.2 Note 1; CALCRIM Motion Bank # CCM-006.]
Use Of The Term “Defendant”—The defense requests that the defendant be referred to by name throughout this trial and in the jury instructions. [See CALCRIM Motion Bank # CCM-005.] By using the term “defendant” in this instructional request, the defense does not withdraw the request.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.5 [Right To Present Evidence And Fair Opportunity To Defend]
FORECITE CG 5.1 [Highly Prejudicial Or Inflammatory Evidence]
FORECITE CG 5.4.1 [Instructions That Suggest An Opinion As To An Essential Fact, An Element Or Guilt]
FORECITE CG 5.4.2 [Argumentative Instructions Not Suggesting Opinion On Guilt]
FORECITE CG 5.4.3 [Undue Emphasis Of Specific Evidence]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 852.2 Inst 2 Improper Comment On The Evidence
*Modify CC 852, paragraph 1, as follows [added language is underlined; deleted language is stricken]:
The People presented evidence prosecution contends that the defendant committed domestic violence that was not charged in this case[, specifically: ___________ <insert other domestic violence alleged>.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
“Presented Evidence” Vs. “Contents”—An instruction which purports to state what the evidence shows is argumentative and an improper comment on the evidence. (See FORECITE F 416.3 Inst 4; compare CC 3400 [alibi evidence described by instructing that “the defendant contends …”].)
Use Of The Term “Defendant”—The defense requests that the defendant be referred to by name throughout this trial and in the jury instructions. [See CALCRIM Motion Bank # CCM-005.] By using the term “defendant” in this instructional request, the defense does not withdraw the request.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 852.2 Inst 3 Evidence of Uncharged Domestic Violence—If An Essential Fact—Must Be Proved Beyond A Reasonable Doubt
*Add to CC 852 as follows:
The prosecution must prove every essential fact beyond a reasonable doubt. Therefore, if you consider the _____________ <uncharged domestic violence> as an essential fact, then you may not rely on it to convict the defendant unless you find beyond a reasonable doubt that the defendant committed the _____________ <uncharged domestic violence>.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
All Essential Facts Must Be Proved Beyond A Reasonable Doubt—See In re Winship (1970) 397 US 358 [25 LEd2d 368; 90 SCt 1068]; see also CC 376, paragraph 4; FORECITE F 103.2 Inst 1.
No Reference To “The People”—The defendant objects to use of the term “the People” in this instruction and throughout this trial. [See FORECITE F 100.2 Note 1; CALCRIM Motion Bank # CCM-006.]
Use Of The Term “Defendant”—The defense requests that the defendant be referred to by name throughout this trial and in the jury instructions. [See CALCRIM Motion Bank # CCM-005.] By using the term “defendant” in this instructional request, the defense does not withdraw the request.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 852.2 Inst 4 Failure To Prove Uncharged Prior As Evidence That Defendant Is Not Disposed Or Inclined To Commit Domestic Violence—Reverse Instruction
*Add to CC 852 as follows:
If, on the other hand, you decide that there is insufficient proof that the defendant committed the uncharged domestic violence, you may, but are not required to, conclude that the defendant [is] [was] not predisposed or inclined to commit domestic violence. And, that conclusion alone may leave you with a reasonable doubt that the defendant committed the charged ___________ <charged offense>.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Right To Instructional Balance: Lack Of Uncharged Offenses Shows Defendant Not Predisposed—See People v. Callahan (1999) 74 CA4th 356; see also CC 350 [good character]; see also e.g., FORECITE F 372.4 [reverse flight].
Use Of The Term “Defendant”—The defense requests that the defendant be referred to by name throughout this trial and in the jury instructions. [See CALCRIM Motion Bank # CCM-005.] By using the term “defendant” in this instructional request, the defense does not withdraw the request.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
FORECITE CG 4.5 [Right To Present Evidence And Fair Opportunity To Defend]
FORECITE CG 6.5 [Instructions Must Be Balanced Between Defense And Prosecution].
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
NOTE: The good character instruction (CC 350) might also apply to this situation. Jury instructions must be balanced and not unfairly slanted in favor of the prosecution. (See Cool v. United States (1972) 409 US 100, 103 n. 4 [34 LEd2d 335; 93 SCt 354] [reversible error to instruct jury that it may convict solely on the basis of accomplice testimony but not that it may acquit based on the accomplice testimony]; People v. Moore (1954) 43 C2d 517, 526-27 [275 P2d 485] [“There should be absolute impartiality as between the People and the defendant in the matter of instructions”]; Reagan v. United States (1895) 157 US 301, 310 [15 SCt 610; 39 LEd 709]; see also Wardius v. Oregon (1973) 412 US 470 [93 SCt 2208; 37 LEd2d 82].)
WARNING—See also FORECITE CG 6.5 [Instructions Must Be Balanced Between Defense And Prosecution].
F 852.2 Inst 5 Evidence Of Other Domestic Violence Offenses (EC 1109): Informing Jury That Prior Offenses Resulted In Acquittal Or Hung Jury
*Add to CC 852 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 whether the defendant was guilty of this alleged conduct concluded that (he/she) was not guilty of that conduct.
[Source: Adapted from People v. Mullens (2004) 119 CA4th 648, 664.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Instruction On Prior Acquittal—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 (1967) 66 C2d 459.) Moreover Mullens suggested the above instruction in cases involving an acquittal. (Mullens, 119 CA4th at 664.)
Use Of The Term “Defendant”—The defense requests that the defendant be referred to by name throughout this trial and in the jury instructions. [See CALCRIM Motion Bank # CCM-005.] By using the term “defendant” in this instructional request, the defense does not withdraw the request.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 2.50.02e.
F 852.2 Inst 6 (a & b) The Jury Is Entitled To Disregard Prior Domestic Violence Evidence Unless The Prosecution Proves A “Dating Relationship” With The Alleged Victim—Preliminary Fact Instructions
*Add to CC 852:
Alternative a [Evidence offered by prosecution: CALCRIM 224 and 376 Format—Essential Fact Must Be Proved Beyond A Reasonable Doubt]:
The prosecution has presented evidence [alleging] that the defendant had a “dating relationship” with _______________ <name of alleged victim>. You must not consider this evidence for any purpose unless the prosecution has proved the following preliminary fact by a preponderance of the evidence:
That the defendant and _______________ <name of alleged victim> had frequent, intimate associations primarily characterized by the expectation of affection or sexual involvement independent of financial considerations.
A fact is proved by a preponderance of the evidence if you find that it is more likely than not that the fact is true. This is a lesser burden of proof than proof beyond a reasonable doubt.
Unless [all of you] find that this preliminary fact to exist you must disregard, for all purposes, [the testimony of witness ___________<name of witness>] [any evidence of __________].
If you [all] find the above preliminary fact to exist then you [may] [must] consider the testimony of witness ___________<name of witness>] [any evidence of __________] in your deliberations.
However, you must not rely on [______’s <name of witness> testimony] [the ________] to find an essential fact or element of the charged offense[s] unless the prosecution has proved [the above preliminary fact beyond a reasonable doubt] [beyond a reasonable doubt that the defendant had frequent, intimate associations primarily characterized by the expectation of affection or sexual involvement independent of financial considerations].
Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt.
[Based on Family Code 6210; PC 243(f)(10); People v. Rucker (2005) 126 CA4th 1107, 1116.]
Alternative b:
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”]:
“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.]
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”].]
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”].]
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
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Dating Relationship As A Preliminary Fact—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.
Propriety Of Preliminary Fact Instruction—See EC 403; see also FORECITE F 319 Inst 1.
Preliminary Fact Must Be Proven Beyond A Reasonable Doubt Vis A Vis Essential Facts And Elements Of The Offense—The final paragraph of Alternative a, regarding proof of essential facts is adapted from CALCRIM 224 and 376. (See also, FORECITE F 103.2 Inst 1; FORECITE CG 2.2.)
Whether the Jurors “Must” Consider the Evidence After Finding the Preliminary Fact—See FORECITE F 105.2 Inst 1.
Propriety of Juror Unanimity As To Preliminary Facts—See FORECITE F 3500.3.1.
Not Alone Sufficient To Convict—See FORECITE F 319 Inst 1.
Obligation Of Defendant To Prove Preliminary Fact Does Not Alter Prosecution’s Burden Of Proof—See FORECITE F 100.1 Inst 1; see also CAVEAT 3 in F 319 Inst 1.
Identification Of Parties—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 5.7 [Preliminary Facts]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
Unanimity Use Note—If unanimity is not required, then the instructions should be directed toward individual jurors. Those finding preliminary fact can consider the evidence, those not finding it cannot. (See generally FORECITE F 100.7 Inst 2.)
CAVEAT 1: Benefits And Risks Of Preliminary Fact Instruction—Because they involve different standards of proof, preliminary fact instructions under EC 403 require careful strategic consideration. (See Caveat 1 in FORECITE F 319 Inst 1.)
CAVEAT 2: Burden Of Proof In EC 403 Instructions—See Caveat 2 in FORECITE F 319 Inst 1.
CAVEAT 2: Obligation To Prove Preliminary Fact Does Not Alter Prosecution’s Burden Of Proof—See Caveat 3 in FORECITE F 319 Inst 1.
CALJIC NOTE: See FORECITE F 2.50.02d.