The trial court properly admitted a prior uncharged incident of domestic violence at a trial for domestic battery. In an appeal from a conviction for domestic battery, Morton argued that the trial court abused its discretion in allowing the jury to hear evidence of a prior uncharged incident of domestic violence under Evidence Code section 1109, subdivision (a)(1). The appellate court rejected the argument, finding that the prior incident of domestic violence bore significant similarities to the charged offense, and the fact that it was unprovoked made it germane to Morton’s claim of self defense. Further, the admission of testimony concerning the incident from the victim’s son was reasonable because the son was a direct witness to the incident. While he was only nine at the time of the incident, he was nineteen at the time of the testimony. The “emotional impact” of his testimony was blunted by the passage of time. The evidence of the prior incident was relevant and probative, and was tailored by the court to redact its most inflammatory elements.
There was no Cunningham error where two of the bases relied upon by the court were constitutionally permissible and the third was a point on which no reasonable juror could disagree with the court’s conclusion. The trial court sentenced Morton to the upper term based on his numerous prior convictions and the fact that he was on parole at the time of the offense. Both of these factors fall comfortably within the “prior conviction” exception. The third factor relied upon by the court, that Morton’s prior performance on parole was unsatisfactory, is more problematic. However, because the evidence of that factor was so overwhelming, if it had been submitted to the jury, it would have reached the same conclusion as the court. Even if the court improperly relied upon the third factor, the error was harmless in light of Morton’s record.