Brief Bank # B-853 (Re: F 2.50.01 n4 [Other Sexual Offenses: Constitutional Challenge To Proof Of Propensity By Other Acts].)
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THE PREPONDERANCE OF EVIDENCE STANDARD CONTAINED IN
THE COURT’S INSTRUCTIONS ON OTHER ACTS OF
DOMESTIC VIOLENCE ADMITTED PURSUANT TO EVIDENCE
CODE SECTION 1109 VIOLATED APPELLANT’S DUE PROCESS
RIGHT TO REQUIRE PROOF BEYOND A REASONABLE DOUBT.
Pursuant to Evidence Code section 1109, the prosecution introduced extensive testimony regarding appellant’s other acts of domestic violence against his wife and former codefendant, Ms. D, and his then current girlfriend, Ms. P. (RT 1830, 1835, 1857, 1867, 1920, 1940, 2339 (Ms. D’s testimony), 2057 (Ms. J testimony), 2373, 2383 (appellant’s testimony).) The trial court instructed the jury on evidence of other domestic violence by giving the 1997 version of CALJIC No. 2.50.02, which expressly informed the jury that it could use evidence of disposition to conclude that appellant committed the crime he was charged with. The court also gave CALJIC Nos. 2.50.1 and 2.50.2, informing the jury that evidence of other acts of domestic violence need only be proved by a preponderance of the evidence.
These instructions, individually and when read together, specifically advised the jury that it could find appellant guilty of murder because of his alleged violent criminal disposition to commit acts of domestic violence, which only needed to be proved by a preponderance of the evidence and not proved beyond a reasonable doubt. (CT 163-166.)Those erroneous instructions effectively lowered the district attorney’s burden of proving appellant guilty of murder by proof beyond a reasonable doubt, thereby violating appellant’s state and federal constitutional right to due process, a fair trial, and a jury trial under the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution. [Footnote 1]
A. This legal issue is cognizable on appeal.
California courts have consistently held that instructional errors may be raised on appeal and considered by the appellate court without an objection by trial counsel. (People v. Carpenter (1997) 15 Cal.4th 312, 380-381 [defendant may challenge on appeal the preponderance of the evidence standard for other crimes evidence without the proper legal objection]; People v. Fitzpatrick (1992) 2 Cal.App.4th 1285, 1291 [court could review lying in wait murder instruction even without objection at trial]; People v. Godwin (1995) 31 Cal.App.4th 1112, 1116 [court’s definition of “wrongfully” could be reviewed on appeal without objection]; People v. Hall (1989) 208 Cal.App.3d 34, 47 [instruction on unjoined perpetrator could be reviewed on appeal without objection]; and People v. Andersen (1994) 26 Cal.App.4th 1241, 1249 [DUI instruction could be reviewed on appeal without objection].) Instructions which affect the “substantial rights of the defendant” may be reviewed on appeal without an objection. (Penal Code § 1259.)
California courts have also held that federal constitutional claims may be raised for the first time on appeal. In People v. Blanco (1992) 10 Cal.App.4th 1167, 1172-1173, the court decided a constitutional claim which had not been raised at trial and noted that “our Supreme Court and other appellate courts have sometimes addressed such constitutional questions in the absence of proper objection below.” (Id. at p. 1172.) Other courts have reached the same conclusion. (People v. Allen (1974) 41 Cal.App.3d 196, 201, fn. 1; People v. Norwood (1972) 26 Cal.App.3d 148, 153.)
Trial counsel’s failure to object on this specific legal ground constitutes ineffective assistance of counsel under the state and federal constitutions. (People v. Ledesma (1987) 43 Cal.3d 171, 215; Strickland v. Washington (1984) 466 U.S. 668.) To establish ineffective assistance of counsel, appellant must demonstrate that (1) counsel’s representation was deficient in falling below an objective standard of reasonableness, and (2) counsel’s deficient representation prejudiced appellant, i.e., there is a reasonable probability that the result would have been more favorable to appellant absent counsel’s omission. (Ibid.)
Counsel was clearly ineffective in failing to object on this specific legal ground to the instructions on “other domestic violence.” Given that the defense bar around the state has been mounting legal challenges to these instructions and the constitutionality of Evidence Code sections 1108 and 1109, counsel should have been on notice that he had a duty to object to these instructions.
There could be no conceivable reason for counsel’s failure to object on these grounds, so his omission could not have been the result of an informed tactical decision. (People v. Pope (1979) 23 Cal.3d 412, 425-426.) Where there is no conceivable rational tactical explanation for an omission, nothing more is necessary to establish counsels inadequacy. (See e.g., People v. Guizar (1986) 180 Cal.App.3d 487, 492, fn. 3 [failure to move to delete references to unproven other crimes from tape and transcript admitted into evidence]; People v. Asbury (1985) 173 Cal.App.3d 362, 365-366 [failure to object on collateral estoppel grounds to felony murder instructions].)
For these reasons, this issue is cognizable on appeal because the court’s erroneous instructions adversely affected appellant’s substantial rights (Penal Code § 1259), and because trial counsel was ineffective in failing to object on this specific legal ground.
B. The instructions given by the court here.
The trial court gave the following jury instructions advising the jury that it could use the other evidence of domestic violence to find appellant guilty of murder. The first instruction given by the court was the pre-1999 version of CALJIC No. 2.50.02, which read as follows:
“Evidence has been introduced for the purpose of showing that the defendant engaged in an offense involving domestic violence on one or more occasions other than that charged in the case.
“`Domestic violence’ means abuse committed against an adult or a fully emancipated minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the defendant has had a child or is having or has had a dating or engagement relationship.
“`Abuse’ means 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.
“If you find that the defendant committed a prior offense involving domestic violence, you may, but are not required to, infer that the defendant had a disposition to commit the same or similar type offense. If you find that the defendant had this disposition, you may, but are not required to, infer that he was likely to commit and did commit the crime of which he is accused.
“Unless you are otherwise instructed, you must not consider this evidence for any other purpose.” (CT 163-164, RT 2545-2546; CALJIC No. 2.SO.02 (1997 new), emphasis added.)
Significantly, CALJIC No. 2.50.02 was amended in 1999, to include the following key paragraph explaining to the jury that it still had to find the defendant guilty of the charged offense beyond a reasonable doubt:
“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 …. committed the charged offense. The weight and significance, if any, are for you to decide.” (CALJIC No. 2.50.02 (1999 revision) (January 2000 Pocket Part), p. 18.)
The trial court here compounded its initial error in giving the 1997 version of CALJIC No. 2.50.02 by following that instruction with CALJIC Nos. 2.50.1 and 2.50.2, which
read as follows:
“Within the meaning of the receding instruction, the prosecution has the burden of proving by a preponderance of the evidence, that the defendant committed crimes other than that for which he is on trial.
“You must not consider this evidence for any purpose unless you find by a preponderance of the evidence that a defendant committed the other crimes.
“`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.
“You should consider all of the evidence bearing upon every issue regardless of who produced it.” (CT 165-166, RT 2546, emphasis added.)
C. The court’s instructions violated appellant’s due process right to be convicted of proof beyond a reasonable doubt.
The trial court committed reversible error by giving these three instructions to the jury, especially the 1997 version of CALJIC No. 2.50.02. Those instructions specifically told the jury that (1) the other evidence of domestic violence could be used to conclude that appellant had a violent, criminal disposition; (2) that his criminal disposition could be used to find him guilty of murder; and (3) the other acts of domestic violence need only be proved by a preponderance of the evidence, and not proof beyond a reasonable doubt.
Similar jury instructions in cases involving evidence of prior sexual offenses admitted pursuant to Evidence Code section 1108, were found to be constitutionally flawed in People v. Vichroy (1999) 76 Cal.App.4th 92, and People v. Orellano (2000) 79 Cal.App.4th 179. (Contra, People v. Van Winkle (1999) 75 Cal.App.4th 133, 147-149; People v. Brown (2000) 77 Cal.App.4th 1324, 1334-1336 [Evidence Code § 1109].)
Division Two of this Court in People v. Vichroy, supra, held that CALJIC No. 2.50.01 — in its pre-1999 version -was unconstitutional because it permitted the jury to find defendant guilty of the current charges solely because he had committed prior sexual offenses admitted pursuant to Evidence Code section 1108. (76 Cal.App.4th at p. 101.) The 1996 version of CALJIC No. 2.50.01, as given there, read as follows in relevant part: “If you find beyond a reasonable doubt that the defendant committed a prior sexual offense, you may, but are not required to, infer that the defendant had a disposition to commit the same or similar type of sexual offenses. If you find that the defendant had this disposition, you may, but are not required to, infer that he was likely to commit and did commit the crime or crimes of which he is accused.” (Id. at p. 99.) Unlike the instruction given at appellant’s trial here, that instruction informed the jury that it had to find the prior sexual offenses true beyond a reasonable doubt before concluding that the defendant had a criminal disposition. (Ibid.)
The Vichroy court concluded that that instruction violated appellant’s right to due process for the following reasons:
“We do not believe proof beyond a reasonable doubt of a basic fact, that appellant committed prior sexual offenses, may act as ‘proxy’ or substitute for proof of the ultimate fact, i.e., appellant’s guilt of the currently charged offenses. The constitutional infirmity arises in this case because the jurors were instructed that they could convict appellant of the current charges based solely upon their determination that he committed prior sexual offenses.” (Id. at p. 99.)
Division Four of this Court in People v. Orellano, supra, held that the pre-1999 version of CALJIC No. 2.50.01, in combination with 2.50.1 and 2.50.2, violated appellant’s due process right to require proof beyond a reasonable doubt of every fact necessary to constitute the charged crime. (Id. at p. 181.) Evidence of prior sex offenses was admitted pursuant to Evidence Code section 1108, and the jurors were instructed that that evidence only need be proved by a preponderance of the evidence. (Ibid.)
The Orellano court explained that those instructions permitted the jury to infer that the defendant had a disposition to commit such crimes, and to infer from such disposition that appellant “did commit” the charged crimes, without necessarily being convinced beyond a reasonable doubt that the defendant did commit the charged crimes. (79 Cal.App.4th at pp. 184-185.) “If the jury followed these instructions literally and arrived at a guilty verdict in that manner, appellant was denied his due process right to require proof beyond a reasonable doubt of every fact necessary to constitute the charged crimes.” (Ibid.)
The Orellano court further explained that because Evidence Code section 1108 permits admission of disposition evidence in an unprecedented manner, it is especially important that the jury be fully and fairly instructed on its permissible use. The court concluded that the 1999 revision (containing the critical reasonable doubt language) is more than just a “useful nugget” of additional information, but is “essential to the jury’s proper understanding of “disposition evidence.” (Id. at p. 185.) Without the 1999 revision, “the jurors are told they may infer the defendant’s guilt of the charged crimes from the preponderance of evidence that he committed prior sex crimes, and they are forced to surmise from all the other instructions that this inference is subject to the reasonable doubt standard.” (Id. at p. 186.)
The legal principles enunciated by other divisions of this court in Vichroy and Orellano are directly controlling here, even though other acts of domestic violence were admitted pursuant to Evidence Code section 1109 here rather than prior sex offenses pursuant to Evidence Code section 1108. That is because key provisions of both sections 1108 and 1109 are nearly identical because they permit the prosecution to introduce evidence of other crimes to prove a defendant’s disposition to commit a charged sexual offense or offense involving domestic violence, subject only to the limiting provisions of section 352. Subdivision (a) of both of those sections specifically exempt this evidence from the limitations of Evidence Code section 1101.
More importantly, the CALJIC instructions on other crimes evidence admitted pursuant to Evidence Code section 1108 and 1109 (CALJIC Nos. 2.50.01 and 2.50.02) are almost identical because the jury can consider that evidence to find that the defendant had a criminal disposition to commit the charged offense.
Under the instructions given by the court here, the jury was specifically instructed that it could use the other crimes evidence to conclude that appellant had a criminal disposition, and that disposition evidence could be used to infer that he committed the charged offense of murder. (CALJIC No. 2.50.02 (1997 revision), CT 163-164.) That erroneous instruction was immediately followed by two instructions which specifically informed the jury that the prosecution need only prove the other domestic violence acts by a preponderance of the evidence. (165-166.) Given the specific language of these instructions telling the jury that appellant could be convicted of the charged offense by other crimes evidence proved only by a preponderance of the evidence, appellant was denied his due process right under the state and federal constitutions to require proof beyond a reasonable doubt of every fact necessary to prove the charged offense. (People v. Orellano, supra, at p. 186; Peolple v. Vichroy, supra, 76 Cal.App.4th at p. 99; In re Winship (1970) 397 U.S. 358, 368.)
D. The giving of these instructions require reversal of appellant’s murder conviction.
The trial court’s error in giving these constitutionally infirm instructions violated appellant’s fundamental constitutional right to be convicted by proof beyond a reasonable doubt. (In re Winship, supra, 397 U.S. 358, 364.) The trial court’s constitutional error in giving these instructions is reversible per se because it is a structural error” which affected the framework within which the trial proceeds, rather than simply an error in the trial process itself. (Arizona v. Fulminante (1991) 499 U.S. 279, 309-310.)
The United States Supreme Court in Sullivan v. Louisiana (1983) 508 U.S. 275, reversed a state criminal conviction when the trial court gave a constitutionally deficient reasonable doubt instruction. The court held that that instruction violated the defendant’s Sixth Amendment right to a jury trial and Fifth Amendment right to due process. The Supreme Court held that denying the right to a jury verdict of guilt beyond a reasonable doubt is a structural error which defies analysis by the harmless error standard. Thus, it would be “pure speculation” for an appellate court to attempt to determine what a reasonable jury would have done. (Id. at p. 281.)
Appellant’s conviction must be reversed here because these erroneous instructions directly infringed upon appellant’s federal constitutional right to have the jury find him guilty by proof beyond a reasonable doubt. Therefore, the court’s instructional error here constitutes reversible error per se which is not subject to a harmless error analysis.
If this court chooses not to apply a reversible per se standard here, appellant’s murder conviction must still be reversed because there is a reasonable likelihood that the jurors were misled by these constitutionally infirm instructions which effectively lowered the prosecution’s burden of proof. (People v. Orellano, supra, at p. 186; People v. Vichroy, suipra, at p. 99; People v. Cain (1995) 10 Cal.4th 1, 36.)
There was extensive testimony about appellant’s other acts of domestic violence against his wife and former codefendant Ms. D, and his then current girlfriend, Ms. P. Ms. D testified at length about the abuse she, her son, and another woman suffered at the hands of appellant. (RT 1835-1836, 1857, 1867, 1920-1921, 1940, 2339.) Ms. J testified that appellant had been violent toward the decedent during their relationship. (RT 2057.) Appellant was also cross-examined by the prosecutor about prior acts of violence against Ms. D. (RT 2373-2383.)
This was a close case because the prosecution’s case rested primarily on the testimony of former codefendant and accomplice Ms. D, who only testified against appellant after receiving a favorable disposition in her case. Ms. D was released on the day of her sentencing, even though she was sentenced to state prison for three years. The jury obviously had doubts about her testimony because appellant was found guilty of only second degree murder, where the prosecution asked for a verdict of first degree murder under the theory of premeditation. (RT 2471.)
The district attorney also emphasized the prior acts of domestic violence during her closing argument and argued that appellant was a violent man who brutalized both Ms. D and the decedent. (RT 2484-2485.) This highly prejudicial and inflammatory other crimes evidence could only have influenced the jury to conclude that appellant was a violent person whose criminal disposition led him to murder the decedent.
While it may be true that the trial court gave general instructions on reasonable doubt and presumption of innocence, those general instructions were overridden by the more specific instructions given here that the jury could use the other crimes evidence to conclude that appellant had a criminal disposition to commit the charged offense. There certainly is a reasonable likelihood that the jury interpreted these instructions in an impermissible manner because of the language of the 1997 version of CALJIC No. 2.50.02 and the preponderance of the evidence language contained in CALJIC Nos. 2.50.1 and 2.50.2. Those instructions specifically informed the jury that the other crimes evidence could be used to conclude that appellant had a criminal disposition, and that fact could be used to infer that appellant committed the charged offense. When read together, those three instructions directly informed the jury that criminal disposition could be proved by a preponderance of the evidence and not proof beyond a reasonable doubt.
It was only in 1999 that CALJIC No. 2.50.02 was amended to specifically inform the jury that the defendant still had to be found guilty beyond a reasonable doubt of the charged offense. But that was too late for appellant. Given that jurors are presumed to follow the jury instructions, we can only conclude that the jury followed those instructions and decided that appellant was guilty because the prosecution proved other acts of domestic violence by a preponderance of the evidence. (People v. Orellano, supra, at p. 186.)
It would be pure speculation for this court to conclude that a reasonable jury did not apply these instructions in an impermissible manner. (See Sullivan v. Louisiana, supra, 508 U.S. at p. 281.) Unless this court employs a totally result driven analysis, appellant’s murder conviction must be reversed because the trial court’s clearly erroneous legal instructions effectively lowered the prosecution’s burden of proof.
EVIDENCE CODE SECTION 1109 VIOLATES APPELLANT’S RIGHT
TO DUE PROCESS BECAUSE IT PERMITS EVIDENCE OF OTHER ACTS
OF DOMESTIC VIOLENCE TO BE USED AS PROPENSITY EVIDENCE.
The prosecution introduced extensive testimony regarding other acts of domestic violence by appellant pursuant to Evidence Code section 1109, which permits the jury to infer that appellant had a propensity to commit acts of domestic violence. On the basis of Evidence Code section 1109, the court instructed the jury that it could use such other crimes evidence to infer that appellant had a disposition to commit such acts, and that he was likely to commit the charged offense because of his violent disposition. (CALJIC No. 2.50.02 (1997 revision).)
Evidence Code section 1109 violates appellant’s state and federal constitutional rights to due process and equal protection under the Fifth and Fourteenth Amendments of the United States Constitution because that section allows the admission of other domestic violence crimes evidence to show that appellant had a criminal propensity to commit the charged offense. The trial court’s giving of CALJIC No. 2.50.02, which derives from Evidence Code section 1109, also violated appellant’s right to due process and equal protection because that instruction permits the jury to use other crimes evidence to infer that appellant had a criminal disposition to commit crimes of domestic violence. For these reasons, appellant’s murder conviction must be reversed because section 1109 is unconstitutional on its face and as applied to appellant. [Footnote 2]
A. History of Propensity evidence and adoption of Evidence Code sections 1108 and 1109.
Until the recent passage of Evidence Code sections 1108 and 1109, evidence of a defendant’s character was not admissible to prove a defendant’s guilt. (Evidence Code § 1101(a).) Other crimes evidence was admissible, and continues to be, to prove some other relevant fact such as motive, intent, plan, identity, etc., just so long as that evidence was not admitted to prove the defendant’s disposition. (Evidence Code § 1101(b).) A defendant has the right to introduce evidence of their character to prove their conduct in conformity with that character (Evidence Code § 1102(a)), and the prosecution may use character evidence to rebut the defendant’s evidence. (Evidence Code § 1102(b).)
For over three centuries, American and California courts have followed the rule against admitting propensity evidence to prove a defendant’s guilt. “The rule excluding evidence of criminal propensity is nearly three centuries old in the common law.” (People v. Alcala (1984) 36 Cal.3d 604, 630-631.) (See also People v. Ewoldt (1994) 7 Cal.4th 380, 392 [rule excluding evidence of criminal disposition derives from early English law and is currently enforced in all American jurisdictions by statute or case law]; People v.Falsetta (1999) 21 Cal.4th 903, 913.)
In McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378, the Ninth Circuit explained that the prohibition against use of such character “evidence is based on such a fundamental conception of justice and the community’s sense of fair play and decency.” (Id. at p. 1384, internal quotations and citations omitted.) The Ninth Circuit in McKinney held that the admission of character evidence in a murder prosecution violated the community’s sense of fair play because “people are convicted because of what they have done, not who they are.” (Id. at p. 1386, emphasis added.) In his concurring and dissenting opinion in Spencer v. Texas (1967) 385 U.S. 554, Chief Justice Warren wrote that “… our decisions exercising supervisory power over criminal trials in federal courts, as well as decisions by courts of appeals and of state courts, suggest that evidence of prior crimes introduced for no purpose other than to show criminal disposition would violate the Due Process Clause.” (Id. at pp. 527-575.)
All of this began to change in the 1990’s when Congress and California’s Legislature began passing draconian new anti-crime legislation. In 1994, Congress enacted Rules 413, 414, and 415 of the Federal Rules of Evidence, permitting the introduction of other crimes evidence to prove propensity in sexual assault and child molestation prosecutions.
Not to be outdone, the California legislature enacted Evidence Code section 1108 in 1995 and section 1109 in 1996. Section 1108 permits prior sexual offenses to be admitted to show propensity, and section 1109 permits prior acts of domestic violence to be admitted to prove propensity, subject only to the limitations of section 352. [Footnote 3]
B. Evidence Code section 1109 is unconstitutional because it permits other acts of domestic violence to be introduced to prove a defendant’s propensity to commit a violent crime.
The introduction of other acts of domestic violence to prove a defendant’s propensity to commit a charged offense involving domestic violence violates a defendant’s state and federal constitutional right to due process and equal protection. The admission of such evidence as propensity evidence violates a fundamental principle of American jurisprudence and common law which has been followed in this country for over three centuries. (People v. Alcala, supra, 36 Cal.3d at pp. 630-631, People v. Ewoldt, supra, 7 Cal.4th at p. 392.) The use of such evidence to prove a defendant’s propensity to commit a violent crime violates a fundamental principle of fair play and justice in our society that people should be convicted of what they have done, and not who they are. (McKinney v. Rees, supra, 993 F.2d at p. 1386.)
Appellant respectfully disagrees with the California Supreme Court’s recent ruling in People v. Falsetta (1999) 21 Cal.4th 903, in which the court rejected a similar due process challenge to Evidence Code section 1108 regarding the admission of sex crimes to prove the defendant’s propensity to commit a charged sexual offense. The Falsetta court recognized that, from at least an historical standpoint, “… the general rule against admitting such [propensity] evidence is one of long-standing application.” (Id. at p. 913, citation omitted.) Appellant respectfully disagrees with the court’s conclusion that this longstanding practice does not necessarily reflect a fundamental principle embodied in the Constitution. (Id. at p. 914.) Appellant believes that this is a fundamental principle which is reflected in the due process clause of the United States and California Constitutions, as the admission of such propensity evidence is so prejudicial as to render a defendant’s trial fundamentally unfair. (Vichroy, supra, 76 Cal.App.4th 92, 98.)
The Falsetta court noted that courts have been “more ambivalent” about prohibiting admission of defendants’ other crimes evidence in sex offense prosecutions. (21 Cal.4th at p. 914-915.) It must be noted that Falsetta dealt with the separate issue of whether other sex crimes could be admitted to prove a defendant’s propensity to commit a charged sex offense. As the court explained, some courts have dealt with evidence in sex cases somewhat differently, because such evidence may be admitted to show “lustful disposition.” (Id. at p. 914.) Therefore, Falsetta is not controlling here because it dealt with the separate issue of propensity to commit sexual offenses.
Sexual offenses are treated differently in California than other crimes, including violent crimes. There is an entirely different sentencing scheme for habitual sexual offenders. (Penal Code § 667.71.) For example, there is now the “one strike” violent sexual offender law (Penal Code § 667.61), the “Sexual Violent Predator Act” (Welf. Inst. Code § 660, et seq.), and the “chemical castration law” (Penal Code § 645). Violent sexual offenders are also subject to full, consecutive terms (Penal Code § 667.6(c)), which has resulted in some sexual offenders receiving sentences in the hundreds of years.
Section 1109 also violates appellant’s right to equal protection under the state and federal constitutions, because he is being treated differently from other similarly situated persons. This statute singles out for unequal treatment persons who are accused of committing violent offenses against persons with whom they have had a “domestic” relationship. Appellant is being treated differently than other persons who are accused of committing violent offenses against others with whom they do not have a “domestic” relationship. Appellant was treated differently here because acts of domestic violence against the victim and his wife were admitted to prove his propensity to commit a charged act of “domestic violence.” Other persons charged with violent offenses may have prior acts admitted to prove intent or motive, but not to prove their criminal disposition. (Evidence Code § 1101.)
The admission of this propensity evidence violates appellant’s fundamental right not to be convicted solely on the basis of propensity evidence. The state must, therefore, have a compelling state interest to treat appellant differently from other violent offenders, because this statute adversely affects appellant’s fundamental liberty interest. (People v. Olivas (1976) 17 Cal.3d 236, 245-251; see also People v. Sage (1980) 26 Cal.3d 498, 506-508.) There is no compelling reason, or even a rational basis, for treating appellant differently from other persons charged with violent offenses. Crimes of domestic violence are not qualitatively different from other crimes of violence.
C. Evidence Code Section 352 does not save section 1109.
The Supreme Court in Falsetta held that the trial court’s discretion to exclude propensity evidence under section 352 “saves section 1108 from defendant’s due process challenge” because “section 352 affords defendants a realistic safeguard in cases falling under section 1108.” (21 Cal.4th at pp. 917, 918.) Appellant respectfully disagrees with the court’s assessment that section 352 protects defendants from the inherent prejudice in admitting propensity evidence.
The fundamental flaw of the Falsetta court’s analysis is that it is the trial court, and not the jury, which employs a section 352 analysis to admit or exclude evidence. It is almost tautological to say that a trial court has discretion to exclude prejudicial propensity evidence when propensity evidence is, by its nature, highly prejudicial because the jury can find the defendant guilty of who he is and what he did in the past, rather than what he is charged with in the current prosecution.
Furthermore, it is the trial court, outside of the jury’s presence, which makes the section 352 analysis. Once the trial court has decided the propensity evidence is admissible, it is then admitted to the jury without any effective limitations on how it can use the evidence. In fact, CALJIC No. 2.50.02 specifically advises the jury that it can use the propensity evidence to find the defendant guilty of the charged offense. That is the essence of the constitutional infirmity of section 1109, that is the jury can use that evidence once it is admitted to find a defendant guilty because of what he has done in the past.
Section 352 is also not a “realistic safeguard” in protecting a defendant’s due process rights because trial courts more often than not admit other crimes evidence. This is especially true under section 1109, where the prosecution does not even have to show that the prior acts are necessarily similar or are relevant to show intent, motive, etc., as they are under section 1101.
For these reasons, and the additional reasons stated in Argument I, section 1109 is unconstitutional on its face and as applied to appellant because it violates appellant’s state and federal constitutional right to due process, a fair trial, and equal protection. Accordingly, appellant’s murder conviction must be reversed because of the extensive testimony about the other domestic violence acts, because of the trial court’s giving of CALJIC No. 2.50.02, and because of the prosecutor’s highly prejudicial closing argument on this issue. (See Argument I, ante.)
Footnote 1: The separate issue of the constitutionality of Evidence Code section 1109, and whether other crimes evidence may be admitted to prove that a defendant had a criminal disposition to commit a violent act, is addressed in Argument II, post.
Footnote 2: This legal issue is cognizable on appeal, even though appellant’s trial counsel did not object on these specific legal grounds, for the same reasons as stated in part A of Argument I, ante.
Footnote 3: Congress’s adoption of Rules 413-415 of the Federal Rules of Evidence was criticized as being politically motivated with no clear policy other than to encourage states to adopt similar rules of evidence. (See 23 Wright and Graham, Federal Practice and Procedure (1998 Supp.) § 5412, p. 283, which states that Federal Rule 413(a) “has no clear policy because it is the result of political posturing by actors not motivated to reveal their true goals.”)