DISCUSSION

I The Court Did Not Err In Admitting Defendant’s Prior Acts Of Domestic Violence Under Evidence Code Section 1109 Or Evidence Code Section 352 Defendant contends Evidence Code section 1109 is unconstitutional under the federal and state constitutions as a violation of due process. He further contends that even if the section is constitutional, the trial court abused its discretion under Evidence Code section 352 in admitting the evidence of uncharged acts. He is wrong on both accounts, as we explain below. A Evidence Code Section 1109 Is Constitutional Evidence Code section 1109, subdivision (a)(1), permits the admissibility of prior acts of domestic violence to show the defendant’s propensity to commit such violent acts. The section is almost identical with Evidence Code section 1108, subdivision (a), which permits similar propensity evidence in sex offense cases. Both sections depart from the normal limitation on the use of uncharged acts, which are not admissible to show

3 propensity, but must be admitted only to the extent they are relevant to prove some other matter at issue in the case. (Evid. Code, § 1101, subds. (a) & (b).) In People v. Falsetta (1999) 21 Cal.4th 903, 917, the California Supreme Court upheld the constitutionality of Evidence Code section 1108 against a claim that it violated due process. The court explained that the procedural protections of that section, which are similar to those in Evidence Code section 1109, protect the defendant’s due process rights. (Falsetta, at p. 917.) Chief among the protections was the limitation on judicial discretion found in Evidence Code section 352. (Falsetta, at p. 917.) Since Falsetta, many California appellate courts have applied the same analysis to Evidence Code section 1109. (People v. Cabrera (2007) 152 Cal.App.4th 695, 704; People v. Villatoro (2012) 54 Cal.4th 1152, 1162-1163, fns. 4 & 5; People v. Johnson (2010) 185 Cal.App.4th 520, 528-530.) We, too, agree that Evidence Code section 1109 does not violate either state or federal due process. B The Court Was Within Its Discretion To Admit The Two Prior Acts Of Domestic Violence Defendant’s second claim with the propensity evidence is that even if Evidence Code section 1109 is constitutional on its face, the trial court abused its discretion in admitting the two prior acts of domestic violence. Defendant argues the court “completely failed to understand and fulfill its responsibilities under section 352,” and that the “unfiltered and unlimited testimony . . . turned a trial for current conduct into a carnival of dramatic details about prior acts.” The record refutes defendant’s argument. As to the March 2011 incident in which defendant beat the victim over an argument about him wanting to sell the family’s video game system, the court directed the prosecutor to “limit your prove-up, if necessary, to simply one officer . . . [¶] . . . under 352.” This was in response to the prosecutor’s list of potential witnesses regarding this incident that included not just one, but two police officers and a certified copy of

4 defendant’s judgment and conviction. Thus, contrary to defendant’s argument, the court weighed the probative value against prejudicial effect and concluded that only one officer’s testimony was necessary to prove up this incident. As to the June 2014 incident in which the victim admitted appellant had threatened to beat up her mother’s boyfriend but denied she was afraid of him or that he threatened her or other family members that day, the court again said it “wanted to talk about 352.” It continued that as to this incident, given the way the prosecutor had stated he wanted to present this prior act (namely, by asking the victim about the incident and then if she denied any portion of it, the People would likely call a police deputy to impeach her with her prior statement), there were no “352 factors here that would suggest to me that the June 18, 2014, incident should have any limitations in the way you present them.” This was well within the court’s discretion, as the actual presentation of this prior act took up very little time at trial, about 10 pages of testimony, and the prosecutor never ended up calling the police deputy to impeach the victim, even though she denied much of the contents of the police report. II The Court Was Correct In Not Giving A Unanimity Instruction For The Charge Of Corporal Injury On A Spouse; Counsel Was Not Ineffective For Failing To Ask For That Instruction Defendant contends the court should have given a unanimity instruction for the charge of corporal injury on a spouse and that his trial counsel was ineffective for failing to request this instruction. Not so, as this was a continuous course of conduct. “As a general rule, when violation of a criminal statute is charged and the evidence establishes several acts, any one of which could constitute the crime charged, either the state must select the particular act upon which it relied for the allegation of the information, or the jury must be instructed that it must agree unanimously upon which act to base a verdict of guilty. [Citation.] There are, however, several exceptions to this rule.

5 For example, no unanimity instruction is required if the case falls within the continuous- course-of-conduct exception, which arises ‘when the acts are so closely connected in time as to form part of one transaction’ [citation], or ‘when . . . the statute contemplates a continuous course of conduct of a series of acts over a period of time’ [citation]. There also is no need for a unanimity instruction if the defendant offers the same defense or defenses to the various acts constituting the charged crime.” (People v. Jennings (2010) 50 Cal.4th 616, 679.) It has long been established that corporal injury on a spouse may be charged as a continuous course of conduct. (People v. Thompson (1984) 160 Cal.App.3d 220, 225.) Here, it was. The amended information charged defendant with corporal injury on the victim that occurred between October 1, 2014 and November 17, 2014. Consistent with the amended information, the evidence showed a continuous course of abuse by defendant on the victim during this time period. Under these facts, the court was correct in not giving a unanimity instruction for this charge and counsel was not deficient for failing to request one.

DISPOSITION

The judgment is affirmed.

/s/ Robie, J.

We concur:

/s/ Blease, Acting P. J.

/s/ Mauro, J.

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