What is the test for admissible propensity evidence in a domestic violence case?

California, United States of America


The following excerpt is from People v. Andrade, B262569 (Cal. App. 2016):

13700 of the Penal Code." (Evid. Code, 1109, subd. (d)(3).) As relevant here, Penal Code section 13700, defines domestic violence in subdivision (a), as abuse committed against a spouse, and defines abuse in subdivision (b), 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." As the murder of a spouse is "'the ultimate form of domestic violence,'" other uncharged acts of domestic violence by the defendant may be admissible to show a propensity to commit such a crime. (People v. Brown (2011) 192 Cal.App.4th 1222, 1232, 1237.)

When requested, the trial court must give a limiting instruction regarding the correct use of admissible propensity evidence. (People v. Falsetta (1999) 21 Cal.4th 903, 923-924.) CALCRIM No. 852 is a limiting instruction, as it explains the correct use of propensity evidence which has been admitted under Evidence Code section 1109. (See People v. Reyes, supra, 160 Cal.App.4th at pp. 251-252.) Thus, the trial court read CALCRIM No. 852 in relevant part as follows:

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