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Name: People v. Brown
Case #: F058350
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 02/22/2011

Murder is an offense involving domestic violence within the meaning of Evidence Code section 1109. Appellant and the murder victim had dated for two years. Although she ended the relationship, appellant continued to attempt to contact her. In September 2001, she received a telephone call from appellant and went to his apartment. Approximately a month later, her body was found buried in a cornfield. Appellant was charged with and convicted of her murder. On appeal, he contended that the prosecution’s introduction of Evidence Code section 1109 propensity evidence of prior acts of domestic violence against the victim and four of his other girlfriends was error because he was charged with murder, and murder is not an offense listed in section 1109 as an offense involving domestic violence. The court disagreed. In cases involving domestic violence, Evidence Code section 1109 allows introduction of a defendant’s prior acts involving domestic violence to establish a propensity to commit the instant domestic violence offense. The statute does not list offenses “involving” domestic violence, but rather references Penal Code section 13700 and Family Code section 6211 for the definition of domestic violence and abuse. Section 13700 defines domestic violence as abuse committed against one with whom defendant has had a dating relationship and defines abuse as intentionally causing bodily injury or placing another in apprehension of imminent serious injury. Here, evidence was presented that appellant had physically abused the four other girlfriends and had choked the victim and threatened her on prior occasions. Thus, the prior offenses were admissible as evidence that he had the propensity to murder the victim, murder being the “ultimate form of domestic violence.” Further, the legislative history and language of section 1109 supported introduction of the propensity evidence. The prior acts were also relevant to establish an element of murder. A defendant’s pattern of prior acts of domestic violence leads to the inference of malice aforethought and culpability for murder.