A ruling that allows introduction of past acts of domestic violence pursuant to Penal Code section 1109 is evaluated on appeal for abuse of discretion. No abuse of discretion was found when defense counsel argued that the prior incident was too remote and too prejudicial. The court expressly stated that the Evidence Code section 352 analysis required a finding that the prejudicial effect substantially outweighed the relevance. The court explicitly addressed the appropriate considerations and allowed one incident which involved biting and punching because those were the same assaultive behaviors as the current charges. Also, the court excluded other acts of domestic violence that differed considerably from the instant offense.
The documents to prove a prior conviction, the Penal Code section 969b packet, are non-testimonial in nature and not subject to confrontation and cross-examination pursuant to Melendez-Diaz v. Massachusetts (2009) 557 U.S. __ [129 S.Ct. 2527, 174 L.Ed.2d 314]. The records from the Department of Corrections and Rehabilitation were made for purposes other than to prove such prior convictions at a later trial. They are the records made in the ordinary course of other business of the courts and departments where the inmate is imprisoned. Although they may ultimately be used in criminal proceedings, they are not prepared for the purpose of providing evidence at trials. The failure to object at trial would have foreclosed the issue on appeal, but the merits were addressed because the hearing was shortly after the Supreme Court’s decision in Melendez-Diaz.