EC 1101(b) provides for the admissibility of uncharged acts based on noncharacter theories.
Evidence that a person committed a crime or other act is admissible to prove a fact other than propensity, such as motive, intent, or absence of mistake or accident. (EC 1101(b).)
The statute allows admission of criminal activity other than the charged offense “when such evidence is relevant to establish some fact other than the person’s character or disposition.” (People v. Johnson (2022) 12 Cal.5th 544, 610.)
Gang Evidence including evidence of the gang’s territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries , and the like–can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertaining to guilt of the charged crime. (People v. Hernandez (2004) 33 Cal.4th 1040, 1049.)
(1) the materiality of the fact sought to be proved or disproved; (2) the tendency of the uncharged crime to prove or disprove the material fact (probative value); and (3) the existence of any rule or policy requiring exclusion of relevant evidence (EC 352).” (People v. Dryden (2021) 60 Cal.App.5th 1007, 1017.)
Materiality
Rule: “In order to satisfy the requirements of materiality, the fact sought to be proved or disproved must be either an ultimate fact or an intermediate fact from which such ultimate fact may be inferred.” (People v. Clark (2021) 62 Cal.App.5th 939, 957-958.)
Ultimate facts: elements of the offense and defenses. (Hendrix, at p. 239.)
Intermediate facts: motive and the absence of mistake. (Clark at p. 958.)
Striking Similarities Test: other crimes evidence relevant to identity only if
(a) the other crime is sufficiently distinctive and similar in its distinctiveness to the charged crime, or
(b) if the crimes share a large number of less distinctive common marks, that a proper inference may be drawn the same person committed both crimes. (People v. Nible (1988) 200 Cal.App.3d 838, 848.)
Similarities: nighttime entry through locked doors, attacks on Vs, D’s familiarity w/ Vs, and discussion with them of himself and/or his parents. (People v. Pendleton (1979) 25 Cal.3d 371, 376-377.)
Whether similarity is required to prove knowledge and the degree of similarity required depends on the specific knowledge at issue and whether the prior experience tends to prove the knowledge defendant is said to have had in mind at the time of the crime. (People v. Hendrix (2013) 214 Cal.App.4th 216, 243.)
Evidence of D’s prior DUI conviction & attendance at post-conviction DUI school) relevant to prove D’s subjective awareness of risk in vehicular murder case. (People v. Ortiz (2003) 109 Cal.App.4th 104, 110-116.)
Prior robbery and charged home invasion murder, “were not particularly similar, but they contained one crucial point of similarity–the intent to steal from victims whom defendant selected. Evidence that defendant intended to rob the [earlier] victims tended to show that he intended to rob when he participated in the [currently charged] crimes. This made the evidence relevant on that specific issue …” (People v. Jones (2011) 51 Cal.4th 346, 371.)
Prior & current V both have terminal cancer, D had access to both their apartments, took valuable items and staged random burglaries by opening windows. D denied thefts and claimed what he took had been gifts, took items he could readily sell, took items containing each V’s PII. Prior incident “tended to negate [D’s] claim of innocent intent as to [the current victim]–his claim that [the current victim] had given him the money and property.” (People v. Phillips (2022) 75 Cal.App.5th 643, 673.)
See Doctrine of Chances
Doctrine of Chances
The recurrence of a similar result tends to negate an innocent mental state and tends to establish the presence of the normal criminal intent. (People v. Jones (2011) 51 Cal.4th 346, 371.)
Innocent persons sometimes accidentally become enmeshed in suspicious circumstances, but it is objectively unlikely that will happen over and over again by random chance. (People v. Phillips (2022) 75 Cal.App.5th 643, 672.)
Doctrine asks the jurors to consider the objective improbability of a coincidence in assessing the plausibility of a defendant’s claim that a loss was the product of an accident or that he or she was accidentally enmeshed in suspicious circumstances. (People v. Phillips (2022) 75 Cal.App.5th 643, 672.)
Applies to: Knowledge, intent, absence of mistake or accident
Motive
How similar? NOT AT ALL
“The probativeness of other-crimes evidence on the issue of motive does not necessarily depend on similarities between the charged and uncharged crimes, so long as the offenses have a direct logical nexus.” (People v. Fayed (2020) 9 Cal.5th 147, 191.)
For admission of other crimes evidence to show motive court must consider: (1) the materiality of the fact to be proved or disproved, (2) the probative value of the other crime evidence to prove or disprove the fact, and (3) the existence of any rule or policy requiring exclusion even if the evidence is relevant.” (People v. Johnson (2022) 12 Cal.5th 544, 610.)
“[B]ecause a motive is ordinarily the incentive for criminal behavior, its probative value generally exceeds its prejudicial effect, and wide latitude is permitted in admitting evidence of its existence.” (People v. McKinnon (2011) 52 Cal.4th 610, 655.)
Act doesn’t supply motive? Still OK. A theory that supports admission is when “the uncharged act evidences the existence of a motive, but the act does not supply the motive … [T]he motive is the cause, and both the charged and uncharged acts are the effect. Both crimes are explainable as a result of the same motive.” (People v. Spector (2011) 194 Cal.App.4th 1335, 1381.)
People v. Demetulias (2006) 39 Cal.4th 1: Admission of evidence of D’s motive for robbing and assaulting one individual in order to support prosecution’s theory that the D had the same motive when he stabbed and killed the victim in the charged offense.
People v. Davis (2009) 46 Cal.4th 539: evidence D had previously “stalked, bound and assaulted” women and admitted he “found his attacks sexually stimulating” was “relevant and admissible to prove his motive to sexually assault” a later victim.
People v. Thomas (2023) 14 Cal.5th 327: evidence D planned to kill V because he believed they were going to report him to police for dealing drugs admissible to prove D killed V2 because he believed V2 was a “narc.
“The common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual.” (People v. Vargas (2020) 9 Cal.5th 793, 818.)
Considers existence of any rule or policy requiring the exclusion of relevant evidence, i.e., prejudicial effect or other EC 352 concerns.
Trial court must also find the evidence has probative value that is not substantially outweighed by its potential for undue prejudice under EC 352. (People v. Leon (2015) 61 Cal.4th 569, 599.)
Prejudice.
Prejudice under EC 352 refers to “evidence which uniquely tends to evoke an emotional bias against the D as an individual and which has very little effect on the issues.” (People v. Williams (2013) 58 Cal.4th 197, 270.)
“Evidence is not prejudicial, as that term is used in a section 352 context, merely because it undermines the opponent’s position or shores up that of the proponent. The ability to do so is what makes evidence relevant. The code speaks in terms of undue prejudice. Unless the dangers of undue prejudice, confusion, or time consumption “substantially outweigh” the probative value of relevant evidence, a section 352 objection should fail.” (People v. Thomas (2023) 14 Cal.5th 327.)
Case Law
Victim Outstanding Arrest Warrant. Where such evidence is sought for the purpose of explaining victim’s unavailability at trial, properly excluded under 352. “[E]xclusion of evidence that produces only speculative inferences is not an abuse of discretion.” (People v. Peoples (2016) 62 Cal.4th 718, 743; People v. Hayes (1992) 3 Cal.App.4th 1238, 1248 [rejecting argument that exclusion of victim’s outstanding arrest warrant violated Constitution or EC 352].)
EC 1102 (Character Evidence of Defendant)
Character evidence includes opinions, reputation, and specific instances of the person’s conduct. (EC 1100.)
When Offered By Defendant: opinion/reputation evidence of defendant’s character is not made inadmissible by EC 1101 if such evidence is (1) offered by the defendant (2) to prove his conduct in conformity with such character or trait of character. (EC 1102(a).)
When Offered By Prosecution (Rebuttal Evidence): opinion/reputation evidence of defendant’s character is not made inadmissible by EC 1101 if such evidence is offered by prosecution to rebut evidence adduced by the defendant under EC 1102(a). (EC 1102(b).)
When the witness has testified as to the defendant’s reputation, based on what the witness has heard, the proper form is to ask, “if you heard [about specific instances of defendant’s bad character].” (People v. Hawara (2021) 61 Cal.App.5th 704, 713.)
Rebutting OPINION Evidence.
When a witness offers an opinion of a defendant’s good character, it is often based on personal knowledge as well as reputation. [Citation.] This opens the door for the prosecutor to offer rebuttal evidence of defendant’s character … The prosecutor can test the witness’s opinion by asking about his or her knowledge of defendant’s misconduct [Citation.], even if the witness professes ignorance. (People v. Lopez (2005) 129 Cal.App.4th 1508, 1528.)
“[W]hen the witness has testified to the witness’s own opinion, based on the witness’s perceptions, it is perfectly proper to ask, ‘if you knew [about specific instances of defendant’s bad character]’ … the cross-examination question is tailored to undermining the claimed basis for the witness’s testimony.” (People v. Hawara (2021) 61 Cal.App.5th 704, 713.)
“[W]here a witness testified to an opinion about defendant’s good character, based, at least in part, on their [personal] perceptions, it was perfectly proper to cross-examine them about whether it would change their opinion if they knew or learned about instances of defendant’s bad character.” (People v. Hawara (2021) 61 Cal.App.5th 704, 714.)
EC 1103 (Character Evidence of Victim)
Violent Victim Rule. The defendant may introduce opinion or reputation evidence or proof of specific acts of the victim to establish a character trait of the victim in order to show that the victim acted in conformity with that trait. (EC 1103(a)(1).)
If “a defendant offers evidence to establish that the victim was a violent person, thereby inviting the jury to infer that the victim acted violently during the events in question, then the prosecution is permitted to introduce evidence demonstrating that … the defendant was a violent person, from which the jury might infer it was the defendant who acted violently.” (People v. Fuiava (2012) 53 Cal.4th 622, 696.)
Self-Defense. In a prosecution for a homicide or an assaultive crime where self-defense is raised, evidence of the violent character of the victim is admissible to show that the victim was the aggressor. (People v. Shoemaker (1982) 135 Cal.App.3d 442, 447.)
No Knowledge Requirement. Defense evidence of prior violence by the victim that establishes a character trait of the victim, submitted under Evidence Code 1103(a)(1), is relevant if it helps confirm the defendant’s assertion the victim was the aggressor, even if the defendant was unaware of the prior violence at the time of the alleged offense.
“If this [violent] character was known to the defendant, the evidence tends to show the defendant’s apprehension of danger; if it was not known, the evidence nevertheless tends to show that the victim was probably the aggressor.” (People v. DelRio (2020) 54 Cal.App.5th 47, 55.)
EC 1108(a)provides: “In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.”
Rule: Other crime is relevant to prove D’s propensity to commit the charged offense if:
(1) Charged offense is a sex offense
(2) Other crime is a sex offense
(3) Probative value of evidence is not substantially outweighed by the risk of unfair prejudice (EC 352.)
EC 1109allows for the admission of evidence of defendant’s commission of prior acts of domestic violence as propensity evidence when the defendant is accused of an offense involving domestic violence. (People v. James (2010) 191 Cal.App.4th 478, 479-780.)
Definition in FC 6211 if the act occurred no more than 5 years before the charged offense
Penal Code DV:
Domestic violence: 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.
Abuse: 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.
Family Code DV:
Domestic violence: abuse perpetrated against any person related by consanguinity or affinity within the second degree
Abuse: everything coved by PC DV AND “to engage in any behavior that has been or could be enjoined pursuant to FC 6320.”
Disturbing the peace of the other party. Can be enjoined under FC 6320
Thus: encompassed within the meaning of “offense involving domestic violence” in EC 1109 is an offense involving conduct constituting disturbing the peace of the victim. (People v. Mani (2022) 74 Cal.App.5th 343, 361.)
Remoteness. Evidence of acts occurring more than 10 years before the charged offense are inadmissible under EC 1109, unless admission is in interest of justice. (EC 1109(e).)
Priors > 10 years old held admissible in the interest of justice where priors occurred during argument with an intimate partner, that D becomes angry when unable to exert power and control over his female partners, and involved gunshots fired. “Painting a person faithfully is not, of itself, unfair.” (People v. Johnson (2010) 185 Cal.App.4th 520, 534-535.)