Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF115124, James L. Quaschnick, Judge. (Retired judge of the Fresno Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Reversed.
Sally P. Brajevich, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez, and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
McKinster, Acting P.J.
Defendant Billy Ray Castleberry was convicted of second degree murder in the death of his 12-year-old son, Bradley. Defendant contended that he accidentally discharged a shotgun—a replica of a Civil War-era muzzle-loading shotgun—while the two were playing. He now challenges the sufficiency of the evidence in support of the verdict and asserts that multiple errors require reversal and remand for a new trial.
We agree with defendant that evidence of prior acts of misconduct was not relevant to any material issue in this case and that the error in admitting that evidence was prejudicial. Consequently, we reverse the conviction.
PROCEDURAL HISTORY
The district attorney charged defendant with one count of willful, deliberate and premeditated murder in the death of Bradley Castleberry. (Pen. Code, § 187, subd. (a).) The information also alleged that defendant personally and intentionally discharged a firearm, proximately causing great bodily injury or death. (Pen. Code, § 12022.53, subd. (d).)
The first trial ended in a mistrial when the jury was unable to reach a unanimous verdict. A second jury found defendant guilty of second degree murder and found the enhancement true. Defendant was sentenced to a term of 40 years to life. We reversed that conviction for instructional error. (People v. Castleberry (Apr. 10, 2007, E039464) [nonpub. opn.].)
Following a third trial, defendant was again convicted of second degree murder with a finding that he personally and intentionally discharged the firearm. The court again sentenced defendant to a term of 15 years to life for second degree murder, with a consecutive term of 25 years to life for the firearm enhancement.
Defendant filed a timely notice of appeal.
FACTS
Defendant shot and killed his 12-year-old son, Bradley, with a replica of a Civil War-era muzzle-loading black powder shotgun. The defense contended that it was an accident, that defendant was playing with his son and believed that the gun was not loaded. He pulled the trigger expecting the gun to make a noise like a cap gun; instead, it discharged, killing the boy. The prosecution contended that defendant either intentionally shot Bradley because he was angry that his son referred to having seen his father engaged in a homosexual act, or that the shooting was unintentional but committed with implied malice, i.e., with conscious disregard of the known risk of pointing a firearm at another person and pulling the trigger.
The prosecutor did not argue that the killing was deliberate and premeditated; he sought only a conviction for second degree murder.
The weapon belonged to the late husband of defendant’s girlfriend. She put it in the closet in defendant’s bedroom when she moved in with him. A few weeks before the shooting, defendant took it to work, where his supervisor, Ferd Mawcinitt, who had 10 to 15 years’ experience with black powder muzzle-loading shotguns, examined it. Before working on the gun, Mawcinitt determined that it was not loaded by putting a ramrod down each barrel and looking down inside each barrel with a flashlight. The gun was disassembled and rusty. The hammers were frozen because of the rust. Mawcinitt cleaned the mechanism, the springs and the hammer with WD-40. He reassembled the gun, which was now functional.
Mawcinitt explained to defendant how to load the gun. He explained to defendant that he could not use modern synthetic gun powder, but only black powder. He told him of a gun shop in San Bernardino where he could probably obtain black powder. He cautioned him that improper loading could cause the gun to explode. Defendant told him that he wanted to give it to his son. Because of the difficulty of loading a muzzle-loading shotgun properly and the risk of explosion from incorrectly loading it, Mawcinitt advised defendant against allowing his son to use it. A week later, Mawcinitt gave defendant some percussion caps, some wadding and a shotgun shell. He told defendant that the shell would not work in his gun. He cut it open, just to show him what the BBs inside the shell look like.
To load the gun, black powder, wadding, ammunition and more wadding are placed down the barrels, in that order. The materials are tamped down with a ramrod. If there is any gap between the wadding and the powder, an air pocket will form, causing the gun to explode when it is fired. To fire the gun, a percussion cap is placed on the outside of each barrel. When the trigger is pulled, the hammer strikes the cap. This detonates the explosive within the cap, causing a flame inside the gun. The flame burns the powder, which explodes, expelling the ammunition from the barrel.
According to defendant, on the day of the shooting, he got up to find Bradley playing with a piece of wood, pretending it was a gun. He went back to bed, but then felt bad that his son was playing alone. He got up and got the shotgun out of his bedroom closet. Mawcinitt had told him that if he placed percussion caps on the unloaded gun, it would make a small explosive noise, like a cap gun, and he thought it would be fun to use it to play with his son. (Mawcinitt denied having told defendant that it was safe to use the gun in that manner.) He found Bradley standing in the hallway outside Bradley’s bedroom. Bradley was holding the wooden “gun” in his hands. Believing that the shotgun was not loaded, defendant pointed it at Bradley and pulled the trigger for one barrel. Nothing happened. He pulled the second trigger and heard a loud explosion. The air filled with smoke. He then saw Bradley slumped against the bedroom door jamb with a big hole in his chest. Defendant ran to him, calling his name. He then called 911. He did not explicitly say so, but he gave the impression that Bradley had shot himself.
When Riverside County Sheriff’s Deputy Jones arrived, defendant was outside the house. He “seemed distraught” and appeared to have been crying. He said that his son “shot himself.” Bradley was lying on his back in the hallway, with his feet inside his bedroom. He was not breathing and his pupils did not react to a flashlight. Firefighters arrived and began to administer CPR. Paramedic Lisa DeMetz arrived a short while later. She testified that the body was cool and that she observed significant lividity. She determined that there was no possibility of resuscitating Bradley and ordered CPR discontinued.
The jamb on the bedroom door behind Bradley’s body was shattered and there were wood chips on and under his body. A police investigator opined that the door had been kicked in. There was a blue smudge mark on the door. The color was consistent with the soles of Bradley’s shoes. The blood spatter pattern indicated that Bradley fell from his room into the hallway.
Detectives found the gun in Bradley’s room. A ramrod and several pieces of wadding lay by the gun and by the body. On the dresser in defendant’s bedroom, detectives found wadding, a percussion cap, and a shotgun shell that had been cut open and some pellets apparently removed. The pillowcase on the bed was bloody.
A criminalist who examined the gun testified that the left barrel was empty. The right barrel contained 10 steel shotgun pellets, some wadding and about 92 grains of black powder. He tested the hammers and determined that the right hammer barely locked, even in the safety position. He described it as a “hair trigger,” meaning it would release the hammer with the slightest pull of the trigger. The trigger pull on the left hammer was 10 pounds, within the normal range.
The autopsy showed that Bradley had been shot from a distance of at least two to three feet and that the muzzle of the gun had been pointed at the middle of his torso. He also had a bruise on his scalp which he incurred at or near the time of his death.
When he was first questioned, defendant told detectives that Bradley shot himself. He told a variety of different stories, but he eventually admitted that he had aimed the gun and pulled the trigger. He always maintained that he did not know the gun was loaded and that it discharged accidentally.
Gary Orantes, defendant’s cellmate while he was in custody awaiting his second trial, testified at defendant’s second trial. He had died before the third trial, and his testimony from the second trial was read to the jury. Orantes testified that defendant originally told him that his son’s death was an accident. After they had become friends, defendant told him that he had loaded the gun the day before he shot and killed his son. He said that a few days before the shooting, Bradley had seen him “in a homosexual relationship” with another man. He told Bradley never to mention it. He loaded the gun as a scare tactic. He said he had always been a violent person and that his son “knows better when I ask him to do something, not to do it.” However, the following day, his son repeated “about what he saw” and asked him why he would do such a thing. He grabbed the gun and went looking for his son. He kicked the door open, and his son appeared, holding a piece of wood for protection. Defendant shot his son in the chest, also hitting the piece of wood. Defendant said he was wondering if he should come clean about it, but he also said he had beaten the charges once in a mistrial and that he could do so again.
LEGAL ANALYSIS
THERE WAS NO ERROR IN DENYING A CONTINUANCE
Defendant asserts that the court abused its discretion by denying a requested continuance because the defense needed additional time to locate a material witness, Paul Tucker, who could impeach the credibility of Ferd Mawcinitt. Defense counsel made two pretrial motions for continuance. The first was granted, albeit for two weeks rather than the 30 days counsel sought. The second was denied, but the case was trailed until October 22, 2007, when defense counsel announced ready. In neither motion did counsel state that he needed a continuance in order to locate Paul Tucker. Indeed, as the Attorney General points out, defense counsel first mentioned Tucker’s name and his potential impeachment of Mawcinitt only during a hearing on motions in limine. He did not request further time to locate Tucker. Because defendant has not demonstrated that the court denied a continuance based on the asserted need to locate Tucker, his claim fails.
THE COURT WAS NOT REQUIRED TO RECORD THE “NOT GUILTY” VERDICT THE JURY MISTAKENLY RETURNED
The jury returned signed verdict forms reflecting both guilty and not guilty verdicts and showing both true and untrue findings on the firearm enhancement. The court returned the complete set of forms to the jury and instructed the jurors to return to the jury room and strike out the verdict and finding it did not choose. The court said, “[I]f you found him guilty of the charge that you found him guilty of, [sic] then just leave the other form blank. If you find... a personal use allegation, then you have to leave the other one blank or vice versa. You can’t sign both guilty and not guilty and did and did not.”
When the jurors returned to the courtroom, the foreperson reported that he or she had placed “a big X” through the forms they were not going to use and had stricken out his or her name. The clerk then read the verdict finding defendant guilty of second degree murder and the true finding on the firearm enhancement. The court polled the jurors individually, and each replied that the verdict and finding were his or her own individual verdict and finding.
Defendant contends that the court was required to accept the not guilty verdict and the not true finding on the enhancement. He cites Bigelow v. Superior Court (1989) 208 Cal.App.3d 1127, and Stone v. Superior Court (1982) 31 Cal.3d 503. However, both cases stand for the proposition that no particular form of verdict is required, and that as long as the jury’s intent to acquit is clear, the court must accept the verdict and may not direct the jury to reconsider. (Bigelow,at pp. 1134-1135; Stone, at p. 514.) Here, the jury’s intent to acquit was not clear; it returned inconsistent verdicts, one guilty and one not guilty. Defendant cites no authority which holds that where the jury has returned hopelessly inconsistent verdicts consisting of both a guilty verdict and a not guilty verdict on the same count, the court must accept the not guilty verdict.
Defendant also contends that the court improperly “impeded” the recording of the not guilty verdict by telling the jurors to “leave the other form blank” if they found him guilty. He contends that the court improperly “suggested” its preference for a guilty verdict. This is absurd; the court merely said that if the jurors had found defendant guilty, they must leave the other form blank, “or vice versa.” There was no suggestion that the court preferred a guilty verdict.
SUBSTANTIAL EVIDENCE SUPPORTS THE CONVICTION
Defendant was tried on theories of both express malice second degree murder and implied malice second degree murder. Express malice second degree murder requires proof that the defendant acted with the intent to kill. Implied malice second degree murder requires proof that the defendant intentionally committed an act, the natural consequences of which were dangerous to human life; that at the time he acted, the defendant knew his act was dangerous to human life, and that he deliberately acted with conscious disregard for human life. (CALCRIM No. 520.)
Defendant contends that there was insufficient evidence to support the verdict on an implied malice theory because there was no evidence he knew the gun was loaded and therefore capable of inflicting injury if he pulled the trigger. However, defendant asserts only that his own statements support the conclusion that he did not know the gun was loaded. This is not sufficient to meet his burden on appeal: A defendant who challenges the sufficiency of the evidence must discuss the evidence in the light most favorable to the prosecution and demonstrate that the evidence cannot reasonably support the verdict. (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1574.) If the defendant fails to present all of the relevant evidence or fails to present it in the light most favorable to the prosecution, “then he cannot carry his burden of showing [that] the evidence was insufficient because support for the jury’s verdict may lie in the evidence he ignores.” (Ibid.)
Defendant ignores the evidence that he loaded the gun before he—as he ultimately admitted—aimed the gun at Bradley and intentionally pulled the trigger. Mawcinitt testified that the gun was unloaded the day he saw it. He told defendant how to load it. He later provided defendant with wadding, percussion caps and a shotgun shell containing pellets, and told him where he could obtain black powder. On the day of the shooting, detectives found wadding on the dresser in defendant’s bedroom, along with a shotgun shell which had been cut open and some pellets removed, and a percussion cap. The unfired barrel contained wadding, black powder and shotgun pellets. This evidence unquestionably supports the inference that defendant loaded the gun and therefore knew it was loaded when he pointed it at his son and pulled the trigger. Moreover, the prosecution’s theory on implied malice was that pointing a gun at another person is an inherently dangerous act, even if the actor believes the gun to be unloaded. A gun expert testified to that effect, and defendant’s friend, Jacob Roesch, testified that defendant was aware of the gun safety rule that prohibits pointing a gun at anyone, even if it is believed to be unloaded. Defendant’s statements during his videotaped interview with Detective Spivacke, which was played for the jury, appear to reflect this understanding as well. This evidence is sufficient to support the verdict on the theory advanced by the prosecutor.
Defendant also contends that the evidence was insufficient to support the verdict based on express malice because the prosecution’s theory that defendant shot Bradley to keep him from telling anyone he was homosexual was supported only by the testimony of Gary Orantes, a jailhouse snitch who supplied information to the prosecution in the hope it would earn him a reduced sentence. The jury was informed of Orantes’s criminal history and his hope that his cooperation with prosecution would assist him in getting his sentence modified in a pending case, however, and it was the jury’s exclusive function to decide how credible Orantes was; we do not address questions of witness credibility unless the witness’s statements are patently false without resort to inference or deductions, or they reflect a physical impossibility. (People v. Thornton (1974) 11 Cal.3d 738, 754, disapproved on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 685, fn. 12; People v. Young (2005) 34 Cal.4th 1149, 1181.)
THE ERRONEOUS ADMISSION OF EVIDENCE OF PRIOR UNCHARGED OFFENSES TO PROVE INTENT OR ABSENCE OF ACCIDENT OR MISTAKE REQUIRES REVERSAL
Defendant contends that it was prejudicial error to allow the prosecutor to rely on prior acts involving violence and threats of violence toward Bradley’s mother, Tracy T., as evidence of defendant’s intent in connection with the shooting.
The five incidents the court ruled admissible, and to which Tracy testified, are the following:
1. During an argument in 1991, defendant threatened to kill her and threatened her with a knife. He damaged numerous items of furniture.
2. During an argument in 1995, defendant threatened to kill her and pointed a shotgun at her.
3. During a separate incident in 1995, defendant hit her in the arm with a hatchet, causing serious injury.
The injury was a deep cut which required six to eight stitches.
4. During a separate incident in 1995, defendant punched her in the ribs.
5. In 1996, during an argument over Bradley, defendant pointed a handgun at Tracy in Bradley’s presence and threatened to kill them both.
The prosecutor argued that the incidents were admissible as evidence of intent or of absence of accident or mistake under Evidence Code section 1101, subdivision (b) (hereafter cited as section 1101(b)) and as evidence of defendant’s propensity to commit acts of domestic violence under section 1109. Over objection of the defense, the court ruled that five incidents involving Tracy were admissible under both section 1101(b) and section 1109.
All further statutory references are to the Evidence Code unless indicated otherwise.
In pertinent part, section 1101 provides:
The court ruled that a sixth incident, in which defendant slapped Bradley and threw a paddle-ball racquet at Bradley, hitting him in the head, would be admissible only to impeach defendant if he testified.
The prosecutor ultimately elected to use the prior instances only as evidence of intent or lack of accident or mistake pursuant to section 1101(b), and the jury was instructed only on the use of the prior acts evidence for purposes sanctioned by section 1101(b). Specifically, the jury was instructed that it could consider the evidence only for the purpose of deciding whether defendant acted with the specific intent to kill or whether his alleged actions were the result of mistake or accident.
Because the prosecutor chose not to rely on section 1109, the admissibility of the evidence pursuant to section 1109 is not before us in a direct sense. If, however, the evidence were admissible under that section, it would affect our determination that the error in admitting the evidence under section 1101(b) is prejudicial. Accordingly, it is appropriate to address that question.
We begin with the fundamental premise that evidence of prior misconduct is admitted in the trial court’s discretion (People v. Lewis (2001) 25 Cal.4th 610, 637), and that we are enjoined not to disturb a ruling admitting such evidence unless the trial court “exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.” (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.) Nevertheless, evidence of prior misconduct is inherently so prejudicial that its admission requires extremely careful analysis. (People v. Ewoldt (1994) 7 Cal.4th 380, 404 (Ewoldt), superseded by statute on other grounds as stated in People v. Britt (2002) 104 Cal.App.4th 500, 505.) The probative value of the uncharged offense evidence must be substantial, and the court must carefully analyze the evidence to determine both its relevance to the disputed issue and the extent to which its probative value outweighs its inherently prejudicial effect. (Ewoldt, at p. 404.)
Here, we examine the asserted relevance of the uncharged offense evidence to the issues for which it was proffered. Evidence is relevant if it has a “tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) Although a trial court has broad discretion to determine the relevance of evidence, it has no discretion to admit evidence which is not relevant. (People v. Scheid (1997) 16 Cal.4th 1, 13-14.)
Evidence of prior misconduct may be relevant where, as here, “‘the proof of [the] defendant’s intent is ambiguous, as when he admits the acts and denies the necessary intent because of mistake or accident.’” (People v. Robbins (1988) 45 Cal.3d 867, 879 (Robbins), quoting People v. Kelley (1967) 66 Cal.2d 232, 242-243.) It has long been recognized “‘that if a person acts similarly in similar situations, he probably harbors the same intent in each instance’ [citations]... and that such prior conduct may be relevant circumstantial evidence of the actor’s most recent intent. The inference to be drawn is not that the actor is disposed to commit such acts; instead, the inference to be drawn is that, in light of the first event, the actor, at the time of the second event, must have had the intent attributed to him by the prosecution.” (Robbins, at p. 879.) Although it is often said that “the least degree of similarity” between the charged offense and the prior misconduct is required where the disputed issue is intent, the prior act must nevertheless be sufficiently similar to the charged offense that the evidence of the prior act tends “logically, naturally and by reasonable inference” to support the conclusion that the defendant probably harbored the same intent in each instance. (Ewoldt, supra, 7 Cal.4th at p. 402; Robbins, at pp. 879-880.) Otherwise, it merely suffices to raise a speculative inference and is not relevant. (People v. Morrison (2004) 34 Cal.4th 698, 711.)
Defendant’s violence toward Tracy in the incidents in which Bradley was not involved does not reasonably support the inference that defendant acted with the intent to kill Bradley. Pointing a gun at one person has no tendency in reason to prove that the defendant intended to kill a different person under completely different circumstances; the incidents are not sufficiently similar to have any tendency in reason to prove that the defendant acted with the same intent in both instances. (See People v. Simon (1986) 184 Cal.App.3d 125, 130, fn. 4.) Accordingly, even if we assume that defendant had the intent to kill Tracy when he pointed a shotgun at her and threatened to kill her, that evidence has no tendency in reason to prove that defendant intended to kill Bradley when he pointed the shotgun at Bradley in this instance. Similarly, the incidents in which defendant made verbal threats to kill Tracy while threatening her with a knife, punched her in the ribs on one occasion and cut her arm with a hatchet on another, have no logical relevance to prove his intent when he aimed the shotgun at Bradley.
Moreover, because Tracy did not testify that defendant made any attempt to kill her during any of the incidents in which he threatened to kill her while brandishing a weapon, her evidence was at best ambiguous as to defendant’s intent during those incidents. Evidence which is itself ambiguous as to intent is not relevant to resolve the ambiguity in the evidence as to the defendant’s intent during the charged offense. (Cf. Robbins, supra, 45 Cal.3d at p. 879.) The incident in which defendant pointed a gun at Tracy in Bradley’s presence and threatened to “kill them both” is not relevant for the same reason: The evidence is at best ambiguous as to whether defendant actually harbored the intent to kill Bradley. The prosecutor acknowledged that this incident took place when defendant and Tracy were engaged in a dispute over custody of Bradley. Accordingly, it is at least equally likely that his only intent was to intimidate Tracy and dissuade her from keeping Bradley from him. There is nothing about that incident which tends “logically, naturally and by reasonable inference” to support the conclusion that defendant probably harbored the intent to kill in both that incident and in the current incident. (Ewoldt, supra, 7 Cal.4th at p. 402; Robbins, at pp. 879-880.)
Although we view the court’s exercise of discretion based on the information it had at the time it ruled on the admissibility of this evidence and not in hindsight (see People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1136; Reese v. Wal-Mart Stores, Inc. (1999) 73 Cal.App.4th 1225, 1237; Estate of Hammer (1993) 19 Cal.App.4th 1621, 1633), we note that Tracy’s testimony was highly ambiguous as to whether defendant actually threatened to kill Bradley. Tracy testified that defendant put a gun to her head and “said he’d kill us.” The prosecutor asked, “When you say ‘kill us,’ who was he referring to?” She replied, “Seeing as how it was just me and Bradley standing there, I thought it was us, meaning Bradley and me.” Tracy’s testimony was thus not that defendant did threaten to kill Bradley but that she interpreted his threat in that way. If she was required to interpret his statement in order to infer that he included Bradley in his threat, then defendant apparently did not actually say “I’m going to kill you both.”
Nor is the evidence that defendant brandished a gun at Tracy on two occasions relevant to negate accident or mistake. This evidence was offered on the premise that defendant’s act of threatening Tracy with guns showed his familiarity with guns, that he did not accidentally discharge the gun and that he knew it was dangerous to point a gun at another person. However, evidence of prior incidents of brandishing guns does not support the inference that defendant knew the gun was loaded in this instance. Consequently, that evidence had no relevance to prove that defendant did not kill Bradley by accident while playing with a gun he did not know was loaded. Nor does the act of brandishing a gun, which did not discharge and did not injure anyone, have any relevance to prove that defendant knew that pointing a gun at someone and pulling the trigger is an inherently dangerous act.
When evidence of prior misconduct is erroneously admitted, reversal of the defendant’s conviction is required only if it is reasonably probable that the result would have been more favorable to the defendant in the absence of that evidence. (People v. Cole (2004) 33 Cal.4th 1158, 1195.) A reasonable probability means merely “a reasonable chance, more than an abstract possibility.” (People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 918.) In our opinion in the prior appeal in this case, we held that there was a reasonable probability of a more favorable result if the court had given a requested instruction on involuntary manslaughter. We noted that although pointing and firing a gun believed to be unloaded can support a conviction for implied-malice second degree murder, it can also support a conviction for involuntary manslaughter, if the jury concludes that the defendant’s reckless conduct amounted only to criminal negligence rather than implied malice. (People v. Castleberry, supra, E039464 [at pp. 6-8].) The evidence as to how the homicide occurred was highly ambiguous and the evidence that defendant had perpetrated repeated acts of violence against Tracy and had threatened violence against Bradley was inflammatory, particularly in a case involving the death of a child. Although the jury was instructed that it was not permitted to consider the evidence of defendant’s prior acts of violence toward Tracy as proof that he is a person of bad character or that he has a predisposition to commit crimes, there is more than an abstract possibility that jurors who might otherwise have viewed defendant’s actions as criminally negligent were swayed by the evidence of prior misconduct to conclude that his actions instead demonstrated implied or express malice.
DISPOSITION
The judgment is reversed and the cause remanded for a new trial.
We concur: King, J., Miller, J.
“(a) Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.
“(b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act.”
In pertinent part, section 1109 provides:
“(a)(1) Except as provided in subdivision (e) or (f), 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 Section 1101 if the evidence is not inadmissible pursuant to Section 352.”
Domestic violence evidence admitted pursuant to section 1109 is admissible to prove the defendant’s propensity to commit domestic violence. (People v. Hoover (2000) 77 Cal.App.4th 1020, 1026-1029.)
Contrary to the court’s ruling, the evidence was not admissible under section 1109. In a case involving domestic violence against a child, evidence of prior acts of domestic violence is admissible only if the prior acts occurred within five years of the charged offense. (See Evid. Code, § 1109, subds. (a) & (d)(3); Pen. Code, § 13700, subd. (b); Fam. Code, § 6211; and People v. Dallas (2008) 165 Cal.App.4th 940, 953-954.) (Cf. Evid. Code, § 1109, subd. (e) [prior acts of domestic violence in a case involving domestic violence against an adult victim are presumptively inadmissible if they occurred more than 10 years before the charged offense, subject to the trial court’s determination that admission of the prior instance furthers the interests of justice].) Here, all of the prior acts took place more than five years before the homicide. The homicide occurred on February 10, 2004. The prior acts all occurred between 1991 and 1996.