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Name: People v. Morton
Case #: G036413
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 06/20/2007
Subsequent History: rev. granted 9/29/07, S154794

Introduction of prior incidents of domestic violence was not error. In appellant’s trial for domestic violence offenses against his girlfriend, the prosecution introduced evidence of a prior uncharged incident of domestic violence against another victim pursuant to Evidence Code section 1109, subdivision (a)(1). On appeal, appellant argued that this was a case in which the evidence of prior domestic violence was more prejudicial than probative and should have been excluded. The appellate court rejected the argument, finding that the similarities between the two incidents made the evidence strongly probative. The passage of time did not necessarily affect the probative value of the incident. Further, the trial court did not err when it allowed the prior victim’s now 19-year-old son to testify about the incident. The disputed prior incident was relevant and probative, and was tailored by the court to redact its most inflammatory elements, and therefore the trial court did not err by admitting it. No Cunningham remand was necessary where the three factors relied on by the court to justify the aggravated sentence fell within the “prior conviction” exception. The court found that appellant had numerous prior convictions and was on parole at the time of the offense, facts which could be determined by an examination of court records. The third factor, that appellant’s prior performance on probation or parole was unsatisfactory, was a closer call. However, even if that decision should have been made by the jury, any error was harmless. If the issue had been submitted to a jury, they would have reached the same conclusion as the court.