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Name: People v. Rivera
Case #: A130421
Court: CA Court of Appeal
District 1 DCA
Division: 1
Opinion Date: 11/30/2011

Requiring a testifying defendant to demonstrate the strangulation of his victim had inconsequential probative value and resulted in an abuse of discretion, but it was not sufficiently prejudicial to require reversal. The defendant admitted that he killed the victim and presented a defense that the killing was a crime of passion or unreasonable self-defense to negate the element of malice. On cross examination, the defendant was asked to demonstrate the strangulation. Using a mannequin the defendant was led by the prosecutor and the court to take certain positions to demonstrate the strangulation. The demonstrative evidence was offered to prove malice and intent to kill. The defendant testified that the victim, his partner in unprotected sex, had just informed him that he might be HIV positive at the time of the first attack. After he discovered a call from an AIDS agency, the strangulation was renewed and this time resulted in the victim’s death. The demonstration was cumulative, inflammatory, and of minimal probative value because of the absence of similarity and circumstances. However, it was not reasonably probable that the demonstration affected the jury’s verdict since it was merely a visual repetition of the defendant’s testimony.