852. Evidence of Uncharged Domestic Violence
The People presented evidence that the defendant committed domestic violence that was not charged in this case[, specifically: <insert other domestic violence alleged>.]
<Alternative A—As defined in Pen. Code, § 13700>
[Domestic violence means abuse committed against (an adult/a fully emancipated minor) who is a (spouse[,]/ [or] former spouse[,]/ [or] cohabitant[,]/ [or] former cohabitant[,]/ [or] person with whom the defendant has had a child[,]/ [or] person who dated or is dating the defendant[,]/ [or] person who was or is engaged to the defendant).]
<Alternative B—As defined in Fam. Code, § 6211>
[Domestic violence means abuse committed against a (child/ grandchild/parent/grandparent/brother/sister) of the defendant.]
Abuse means intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable fear of imminent serious bodily injury to himself or herself or to someone else.
[A fully emancipated minor is a person under the age of 18 who has gained certain adult rights by marrying, being on active duty for the United States armed services, or otherwise being declared emancipated under the law.]
[The term cohabitants means two unrelated adults living together for a substantial period of time, resulting in some permanency of the relationship. Factors that may determine whether people are cohabiting include, but are not limited to, (1) sexual relations between the parties while sharing the same residence, (2) sharing of income or expenses, (3) joint use or ownership of property, (4) the parties' holding themselves out as husband and wife, (5) the parties' registering as domestic partners, (6) the continuity of the relationship, and (7) the length of the relationship.]
You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged domestic violence. Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true.
If the People have not met this burden of proof, you must disregard this evidence entirely.
If you decide that the defendant committed the uncharged domestic violence, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit domestic violence and, based on that decision, also conclude that the defendant was likely to commit [and did commit] <insert charged offense[s] involving domestic violence>, as charged here. If you conclude that the defendant committed the uncharged domestic violence, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of <insert charged offense[s] involving domestic violence>. The People must still prove each element of every charge beyond a reasonable doubt.
[Do not consider this evidence for any other purpose [except for the limited purpose of <insert other permitted purpose, e.g., determining the defendant's credibility>].]
The court must give this instruction on request when evidence of other domestic violence has been introduced. (See People v. Falsetta (1999) 21 Cal.4th 903, 924 [89 Cal.Rptr.2d 847, 986 P.2d 182] [error to refuse limiting instruction on request]; People v. Jennings (2000) 81 Cal.App.4th 1301, 1317-1318 [97 Cal.Rptr.2d 727]; but see CJER Mandatory Criminal Jury Instructions Handbook (CJER 13th ed. 2004) sua sponte Instructions, § 2.112(f) [included without comment within sua sponte instructions]; People v. Willoughby (1985) 164 Cal.App.3d 1054, 1067 [210 Cal.Rptr. 880] [general limiting instructions should be given when evidence of past offenses would be highly prejudicial without them].)
If the court has admitted evidence that the defendant was convicted of a felony or committed a misdemeanor for the purpose of impeachment in addition to evidence admitted under Evidence Code section 1109, then the court must specify for the jury what evidence it may consider under section 1109. (People v. Rollo (1977) 20 Cal.3d 109, 123, fn. 6 [141 Cal.Rptr. 177, 569 P.2d 771] [discussing section 1101(b); superseded in part on other grounds as recognized in People v. Olmedo (1985) 167 Cal.App.3d 1085, 1096 [213 Cal.Rptr. 742]].) In the first sentence, insert a description of the uncharged offense allegedly shown by the section 1109 evidence. If the court has not admitted any felony convictions or misdemeanor conduct for impeachment, then, in the first sentence, the court is not required to insert a description of the conduct alleged.
The definition of "domestic violence" contained in Evidence Code section 1109(d) was amended, effective January 1, 2005. The statute now states:
As used in this section, 'domestic violence' has the meaning set forth in Section 13700 of the Penal Code. Subject to a hearing conducted pursuant to section 352, which shall include consideration of any corroboration and remoteness in time, 'domestic violence' has the further meaning as set forth in section 6211 of the Family Code if the act occurred no more than five years before the charged offense.
If the court determines that the evidence is admissible pursuant to the definition of domestic violence contained in Penal Code section 13700, give the definition of domestic violence labeled alternative A. If the court determines that the evidence is admissible pursuant to the definition contained in Family Code section 6211, give the definition labeled alternative B.
Depending on the evidence, give on request the bracketed paragraphs defining "emancipated minor" (see Fam. Code, § 7000 et seq.) and "cohabitant" (see Pen. Code, § 13700(b)).
In the paragraph that begins with "If you decide that the defendant committed," the committee has placed the phrase "and did commit" in brackets. One appellate court has criticized instructing the jury that it may draw an inference about disposition. (People v. James (2000) 81 Cal.App.4th 1343, 1357, fn. 8 [96 Cal.Rptr.2d 823].) The court should review the Commentary section below and give the bracketed phrase at its discretion.
Give the final sentence that begins with "Do not consider" on request.
CALCRIM No. 1191, Evidence of Uncharged Sex Offense.
CALCRIM No. 853, Evidence of Uncharged Abuse of Elder or Dependent Person.
Instructional Requirement. Evid. Code, § 1109(a)(1); see People v. Reliford (2003) 29 Cal.4th 1007, 1012-1016 [130 Cal.Rptr.2d 254, 62 P.3d 601]; People v. Frazier (2001) 89 Cal.App.4th 30, 37 [107 Cal.Rptr.2d 100]; People v. Falsetta (1999) 21 Cal.4th 903, 923-924 [89 Cal.Rptr.2d 847, 986 P.2d 182] [dictum].
Abuse Defined. Pen. Code, § 13700(a).
Cohabitant Defined. Pen. Code, § 13700(b).
Domestic Violence Defined. Evid. Code, § 1109(d); Pen. Code, § 13700(b); Fam. Code, § 6211; see People v. Poplar (1999) 70 Cal.App.4th 1129, 1139 [83 Cal.Rptr.2d 320] [spousal rape is higher level of domestic violence].
Emancipation of Minors Law. Fam. Code, § 7000 et seq.
Other Crimes Proved by Preponderance of Evidence. People v. Carpenter (1997) 15 Cal.4th 312, 382 [63 Cal.Rptr.2d 1, 935 P.2d 708]; People v. James (2000) 81 Cal.App.4th 1343, 1359 [96 Cal.Rptr.2d 823].
Propensity Evidence Alone Is Not Sufficient to Support Conviction Beyond a Reasonable Doubt. People v. Younger (2000) 84
Cal.App.4th 1360, 1382 [101 Cal.Rptr.2d 624]; People v. James (2000) 81 Cal.App.4th 1343, 1357-1358 [96 Cal.Rptr.2d 823], fn. 8; see People v. Hill (2001) 86 Cal.App.4th 273, 277-278 [103 Cal.Rptr.2d 127] [in context of prior sexual offenses].
5 Witkin & Epstein, California Criminal Law (3d ed. 2000) Trial, § 640.
1 Witkin, California Evidence (4th ed. 2003) Circumstantial Evidence, § 98.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 83, Evidence, § 83.12 (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes Against the Person, § 142.13 (Matthew Bender).
The paragraph that begins with "If you decide that the defendant committed" tells the jury that they may draw an inference of disposition. (See People v. Hill (2001) 86 Cal.App.4th 273, 275-279 [103 Cal.Rptr.2d 127]; People v. Brown (2000) 77 Cal.App.4th 1324, 1334-1335 [92 Cal.Rptr.2d 433].) One appellate court, however, suggests using more general terms to instruct the jury how they may use evidence of other domestic violence offenses, "leaving particular inferences for the argument of counsel and the jury's common sense." (People v. James (2000) 81 Cal.App.4th 1343, 1357, fn. 8 [96 Cal.Rptr.2d 823] [includes suggested instruction].) If the trial court adopts this approach, the paragraph that begins with "If you decide that the defendant committed the uncharged domestic violence" may be replaced 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 to find the defendant guilty of <insert charged offense involving domestic violence>. The People must still prove each element of <insert charged offense involving domestic violence> beyond a reasonable doubt.
Evidence Code section 1109 does not violate a defendant's rights to due process (People v. Falsetta (1999) 21 Cal.4th 903, 915-922 [89 Cal.Rptr.2d 847, 986 P.2d 182]; People v. Branch (2001) 91 Cal.App.4th 274, 281 [109 Cal.Rptr.2d 870]; People v. Escobar (2000) 82 Cal.App.4th 1085, 1095-1096 [98 Cal.Rptr.2d 696]; People v. Hoover (2000) 77 Cal.App.4th 1020, 1028-1029 [92 Cal.Rptr.2d 208]; People v. Johnson (2000) 77 Cal.App.4th 410, 420 [91 Cal.Rptr.2d 596]; People v. Fitch (1997) 55 Cal.App.4th 172, 184 [63 Cal.Rptr.2d 753]) or equal protection (People v. Jennings (2000) 81 Cal.App.4th 1301, 1310-1313 [97 Cal.Rptr.2d 727]; People v. Fitch, supra, 55 Cal.App.4th at pp. 184-185).
Evidence of domestic violence occurring more than 10 years before the charged offense is inadmissible under section 1109 of the Evidence Code, unless the court determines that the admission of this evidence is in the interest of justice. (Evid. Code, § 1109(e).) Evidence of the findings and determinations of administrative agencies regulating health facilities is also inadmissible under section 1109. (Evid. Code, § 1109(f).)
See the Related Issues sections of CALCRIM No. 375, Evidence of Uncharged Offense to Prove Identity, Intent, Common Plan, etc., and CALCRIM No. 1191, Evidence of Uncharged Sex Offense.
(New January 2006)