SERIES 800 ASSAULTIVE AND BATTERY CRIMES
F 853 Evidence Of Uncharged Abuse Of Elder Or Dependent Person (EC 1109(a)(2))
TABLE OF CONTENTS
F 853.1 Titles And Identification Of Parties
F 853.1 Inst 1 Evidence Of Uncharged Abuse of Elder Or Dependent Person—Title
F 853.1 Inst 2 Identification Of Prosecution And Defendant
F 853.1 Inst 3 Evidence Of Uncharged Abuse Of Elder Or Dependent Person (EC 1109)— Instructions
F 853 NOTES
F 853 Note 1 Evidence Of Uncharged Abuse of Elder Or Dependent Person: CALCRIM Cross-References And Research Notes
F 853 Note 2 Evidence Of Uncharged Abuse of Elder Or Dependent Person: Additional Notes
F 853 Note 3 EC 1109 Does Not Apply Unless The Elements Of The Charged Offense Involve Domestic Violence
F 853 Note 4 Other Abuse Of Elder Or Dependent Person Offenses: Constitutional Challenge To Preponderance Of Evidence Standard
F 853 Note 5 Uncharged Crimes To Show Propensity: Analogy To Improper Joinder As Illustrative Of Prejudice
F 853 Note 6 Other Abuse Of Elder Or Dependent Person Offenses: Limiting Instruction Must Be Requested
F 853 Note 7 Improper Instruction Regarding Substantive Use Of Prior Offense: Standard Of Prejudice
F 853 Note 8 Improper Propensity Instruction May Be Prejudicial Even If Jury Considered Evidence
F 853 Note 9 Uncharged Acts As Propensity Evidence
F 853 Note 10 EC 1109 Does Not Apply Unless The Elements Of The Charged Offense Involve Abuse Of Elder Or Dependent Person
F 853 Note 11 When The Prosecution Presents Evidence Under EC 1108 The Defense Is Entitled To Introduce Character Evidence On Rebuttal
F 853 Note 12 Other Abuse Of Elder Or Dependent Person Offenses: Duty To Request
F 853 Note 13 Other Abuse Of Elder Or Dependent Person Offenses: Subsequent Domestic Violence Offenses
F 853 Note 14 Prior Acts To Show Criminal Disposition: Admissibility Of Prior Acts Of Good Conduct Offered By Defendant
F 853 Note 15 Charged Offense May Not Be Used To Show Propensity Under EC 1109
F 853 Note 16 Definition Of “Care Custodian”
F 853 Note 17 Instruction Only Applicable To Uncharged Other Crimes
Return to Series 800 Table of Contents.
F 853.1 Titles And Identification Of Parties
F 853.1 Inst 1 Evidence Of Uncharged Abuse of Elder Or Dependent Person—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 853.1 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 853.1 Inst 3 Evidence Of Uncharged Abuse Of Elder Or Dependent Person (EC 1109)— Instructions
Adapt from FORECITE F 851, F 852 and F 1191.
F 853 NOTES
F 853 Note 1Evidence Of Uncharged Abuse of Elder Or Dependent Person: CALCRIM Cross-References And Research Notes
CALCRIM Cross References:
CALCRIM 850 [Testimony On Intimate Partner Battering And Its Effects: Credibility Of Complaining Witness (EC1107(a))]
CALCRIM 851 [Testimony On Intimate Partner Battering And Its Effects: Offered By The Defense (EC 1107(a))]
CALCRIM 852 [Evidence Of Uncharged Domestic Violence (EC 1109(a)(1))]
CALCRIM 1191 [Evidence Of Uncharged Sex Offense (EC 1108)]
Research Notes:
See CLARAWEB Forum, Assaultive And Battery Crimes—Series 800-900.
F 853 Note 2 Evidence Of Uncharged Abuse of Elder Or Dependent Person: Additional Notes
See FORECITE F 1191.
F 853 Note 3 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; see also People v. Jones (1988) 46 C3d 585, 599 [ambiguous statute must be interpreted in favor of the defendant].)
CALJIC NOTE: See FORECITE F 2.50.02 n13.
F 853 Note 4 Other Abuse Of Elder Or Dependent Person Offenses: Constitutional Challenge To Preponderance Of Evidence Standard
See FORECITE F 852 Note 3.
F 853 Note 5 Uncharged Crimes To Show Propensity: Analogy To Improper Joinder As Illustrative Of Prejudice
See FORECITE F 852 Note 4.
F 853 Note 6 Other Abuse Of Elder Or Dependent Person Offenses: Limiting Instruction Must Be Requested
See FORECITE F 852 Note 6.
F 853 Note 7 Improper Instruction Regarding Substantive Use Of Prior Offense: Standard Of Prejudice
See FORECITE F 852 Note 7.
F 853 Note 8 Improper Propensity Instruction May Be Prejudicial Even If Jury Considered Evidence
See FORECITE F 852 Note 8.
F 853 Note 9 Uncharged Acts As Propensity Evidence
See FORECITE F 852 Note 9.
F 853 Note 10 EC 1109 Does Not Apply Unless The Elements Of The Charged Offense InvolveAbuse Of Elder Or Dependent Person
See FORECITE F 852 Note 10.
F 853 Note 11 When The Prosecution Presents Evidence Under EC 1108 The Defense Is Entitled To Introduce Character Evidence On Rebuttal
See FORECITE F 852 Note 11.
F 853 Note 12 Other Abuse Of Elder Or Dependent Person Offenses: Duty To Request
See FORECITE F 852 Note 12.
F 853 Note 13 Other Abuse Of Elder Or Dependent Person Offenses: Subsequent Domestic Violence Offenses
See FORECITE F 852 Note 13.
F 853 Note 14 Prior Acts To Show Criminal Disposition: Admissibility Of Prior Acts Of Good Conduct Offered By Defendant
See FORECITE F 852 Note 15.
F 853 Note 15 Charged Offense May Not Be Used To Show Propensity Under EC 1109
See FORECITE F 1191 Note 19.
F 853 Note 16 Definition Of “Care Custodian”
See Bernard v. Foley (2006) 39 C4th 794.
F 853 Note 17 Instruction Only Applicable To Uncharged Other Crimes
See CJ 2.50.03, Use Note.
