California Criminal Jury Instructions (CALCRIM) (2017)

852a. Evidence of Uncharged Domestic Violence

Download PDF
852A.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 persons 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
563
0051
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 (the/each) (charge/ [and] allegation) 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>].]
New January 2006; Revised August 2006, June 2007, April 2008, February 2014,
March 2017
BENCH NOTES
Instructional Duty
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];
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, 2006. The definition is now in subd. (d)(3),
which states that, as used in section 1109:
‘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
CALCRIM No. 852A ASSAULTIVE AND BATTERY CRIMES
564
0052
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.
Related Instructions
CALCRIM No. 375, Evidence of Uncharged Offense to Prove Identity, Intent,
Common Plan, etc.
CALCRIM No. 1191A, Evidence of Uncharged Sex Offense.
CALCRIM No. 1191B, Evidence of Charged Sex Offense.
CALCRIM No. 852B, Evidence of Charged Domestic Violence.
CALCRIM No. 853A, Evidence of Uncharged Abuse of Elder or Dependent
Person.
CALCRIM No. 853B, Evidence of Charged Abuse of Elder or Dependent Person.
AUTHORITY
• 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)(3); 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
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 852A
565
0053
(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, fn.
8 [96 Cal.Rptr.2d 823]; see People v. Hill (2001) 86 Cal.App.4th 273, 277–278
[103 Cal.Rptr.2d 127] [in context of prior sexual offenses].
• Charged Sex Offenses Proved Beyond a Reasonable Doubt May Be Evidence of
Propensity. People v. Cruz (2016) 206 Cal.Rptr.3d 835, 2 Cal.App.5th 1178,
1186–1186]; People v. Villatoro (2012) 54 Cal.4th 1152, 1161 [144 Cal.Rptr.3d
401, 281 P.3d 390].
• Previous Version of This Instruction Upheld. People v. Johnson (2008) 164
Cal.App.4th 731, 738 [79 Cal.Rptr.3d 568].
• No Sua Sponte Duty to Give Similar Instruction. People v. Cottone (2013) 57
Cal.4th 269, 293, fn. 15 [159 Cal.Rptr.3d 385, 303 P.3d 1163].
Secondary Sources
5 Witkin & Epstein, California Criminal Law (4th ed. 2012) Criminal Trial,
§§ 720–722.
1 Witkin, California Evidence (5th ed. 2012) Circumstantial Evidence, §§ 101, 102.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 83,
Evidence, § 83.12[1] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142,
Crimes Against the Person, § 142.13 (Matthew Bender).
COMMENTARY
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
violenceinsert 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
CALCRIM No. 852A ASSAULTIVE AND BATTERY CRIMES
566
0054
domestic violence>. The People must still prove (the/each) (charge/ [and]
allegation) of <insert charged offense involving domestic
violence> beyond a reasonable doubt.
RELATED ISSUES
Constitutional Challenges
Evidence Code section 1109 does not violate a defendant’s rights to due process
(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]; see
People v. Falsetta (1999) 21 Cal.4th 903, 915–922 [89 Cal.Rptr.2d 847, 986 P.2d
182] (construing Evid. Code, § 1108, a parallel statute to Evid. Code, § 1109);
People v. Branch (2001) 91 Cal.App.4th 274, 281 [109 Cal.Rptr.2d 870]
(construing Evid. Code, § 1108) or equal protection (People v. Jennings (2000) 81
Cal.App.4th 1301, 1310–1313 [97 Cal.Rptr.2d 727]; see People v. Fitch (1997) 55
Cal.App.4th 172, 184–185 [63 Cal.Rptr.2d 753] (construing Evid. Code, § 1108).
Exceptions
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.
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 852A
567
0055