Evans

Defendant Gary Brian Evans was sentenced to an aggregate term of seven years in prison in three cases stemming from acts of domestic violence against his wife. On appeal, defendant contends the admission of other incidents of domestic violence under Evidence Code section 1109 violated his state and federal due process rights to a fair trial. He also contends the trial court erred in instructing the jury with CALJIC No. 2.50.02 (1999 rev.) (6th ed. 1996) (hereafter CALJIC No. 2.50.02) and a modified version of CALJIC No. 2.50.2. Finally, defendant contends the trial court committed various sentencing errors, which the People concede. We find no violation of defendant’s constitutional rights, but agree the trial court erred in sentencing defendant. Accordingly, we affirm the convictions but remand the matter for resentencing.

Facts and Procedural History

In February 1997, defendant was charged with one count of spousal abuse (Pen. Code, § 273.5, subd. (a)) and one count of dissuading a witness (§ 136.1, subd. (c)(1)), arising out of an incident in which he choked and kicked his wife, then threatened to kill her if she told the police (hereafter case No. 97-886). Defendant…