California Evidence Code Section 1109

Evidence Code Section 1109 provides that when a defendant is accused of an offense involving domestic violence, evidence that the defendant committed other uncharged domestic violence is admissible unless precluded under section 352. ( 1109, subd. (a)(1).) Evidence of other acts of domestic violence is admissible to show a defendant has a propensity to commit acts of domestic violence. (People v. Brown (2011) 192 Cal.App.4th 1222, 1232.) Admitting evidence of prior domestic violence to show a propensity to commit the charged domestic violence offense does not violate due process of law because section 1109 affords the defendant substantial protections. (See, e.g., People v. Johnson (2000) 77 Cal.App.4th 410, 417-420; People v. Hoover (2000) 77 Cal.App.4th 1020, 1027-1029.) In particular, the statute allows the trial court to exclude unduly prejudicial evidence under section 352. ( 1109, subd. (a); People v. Johnson, supra, at p. 420.) The trial court may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. ( 352, 1109, subd. (a).) The weighing process under section 352 requires consideration of the unique facts and issues of each case, rather than the mechanical application of automatic rules. (People v. Jennings (2000) 81 Cal.App.4th 1301, 1314.) But consistent with the legislative intent behind section 1109, "'"the principal factor affecting the probative value of an uncharged act of domestic violence is its similarity to the charged offense."'" (People v. Johnson (2010) 185 Cal.App.4th 520, 531.) Other factors relevant to the trial court's consideration include whether the evidence of the uncharged act of domestic violence comes from an independent source (which reduces the danger of fabrication), the recency or remoteness of the uncharged offense, whether the evidence would unduly confuse the issues, whether presentation of the evidence would consume inordinate time at the trial, and whether the evidence of uncharged conduct is inflammatory when compared with the facts of the charged offense. (Id. at pp. 533-535; People v. Rucker (2005) 126 Cal.App.4th 1107, 1119-1120.) Evidence of other acts is generally inadmissible to prove propensity to commit the charged acts. (Evid. Code, 1101, subd. (a).) However, Evidence Code section 1101, subdivision (b), provides for admissibility of prior acts "when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . .) other than his or her disposition to commit such an act." Evidence Code section 1109 provides for an exception to the rule that evidence of prior acts is inadmissible to prove propensity. It states that "in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant's commission of other domestic violence is not made inadmissible by Evidence Code Section 1101 if the evidence is not inadmissible pursuant to Evidence Code Section 352." (Evid. Code, 1109, subd (a)(1).) The statute establishes a presumptively admissible time frame and permits the introduction of acts occurring within 10 years of the charged offense. Older offenses may also be admitted if the court finds their admission to be in the "interest of justice." (Evid. Code, 1109, subd. (e).) Although evidence of prior bad acts is generally barred by Evidence Code section 1101, subdivision (a), Evidence Code section 1109, subdivision (a)(1), provides an exception to this rule and states in pertinent part: "In a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant's commission of other domestic violence is not made inadmissible by Evidence Code Section 1101 if the evidence is not inadmissible pursuant to Evidence Code Section 352." "Domestic violence," for purposes of Evidence Code section 1109, is broadly defined as "abuse committed against an adult or a minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship." (Pen. Code, 13700, subd. (b); see also Evid. Code, 1109, subd. (c)(3).) "'Abuse' is defined as 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." (Pen. Code, 13700, subd. (a).)