Can Past Domestic Violence Be Used Against You in California? Evidence Code 1109 Explained
The short answer: yes, in most cases. California's general rule in Evidence Code section 1101 bars the prosecution from using a defendant's past conduct to argue that he or she has a propensity to commit crimes. Evidence Code section 1109 carves out an exception for domestic violence prosecutions: when a defendant is charged with an offense involving domestic violence, evidence of other acts of domestic violence is admissible to show propensity, subject to the court's power to exclude it under Evidence Code section 352. The prior acts do not have to have resulted in an arrest or a conviction, and they can involve a different partner. For anyone facing a domestic violence charge at the Riverside Hall of Justice, the San Bernardino Justice Center, the Victorville courthouse, or a Los Angeles County courthouse, the fight over section 1109 evidence is often the most important pretrial battle in the case. This guide explains how the statute works, what limits it, and how the defense responds.
Why Domestic Violence Cases Are Different
Propensity evidence is normally forbidden. In an ordinary assault or theft case, the jury never hears that the defendant did something similar before, unless the evidence is offered for a specific non-character purpose under subdivision (b) of Evidence Code section 1101, such as motive, intent, or identity. The reason is simple: jurors who hear about a past act tend to convict for the past act rather than the charged one. Domestic violence and sexual offense prosecutions are the two exceptions the Legislature created, in Evidence Code section 1109 and Evidence Code section 1108 respectively.
The courts have upheld the exception. The California Supreme Court upheld the sexual offense counterpart against a due process challenge in People v. Falsetta (1999) 21 Cal.4th 903, reasoning that the trial court's power to exclude unduly prejudicial evidence under Evidence Code section 352 preserves a fair trial. Courts of Appeal applied the same reasoning to section 1109 in cases such as People v. Johnson (2000) 77 Cal.App.4th 410 and People v. Hoover (2000) 77 Cal.App.4th 1020. Constitutional challenges to the statute are therefore not a realistic path in the trial court. The defense fight is about what the statute actually reaches and about the section 352 weighing.
Prosecutors rely on it because domestic violence cases are hard to prove. Many complaining witnesses recant, stop cooperating, or testify differently at trial, as we explain in our guide on whether a victim can drop domestic violence charges. Section 1109 lets the prosecutor fill that gap by showing a pattern, and it is one of the main reasons a case can proceed even without the victim testifying.
What Evidence Code 1109 Allows
The charged offense must involve domestic violence. Section 1109 applies when the defendant is accused of an offense involving domestic violence, as defined in Penal Code section 13700, which covers abuse committed against a spouse, former spouse, cohabitant, former cohabitant, a person with whom the defendant has a child, or a person with whom the defendant has or had a dating or engagement relationship. The statute also incorporates the broader definition in Family Code section 6211, which adds relatives and children, when the prior act occurred within five years of the charged offense. Charges under Penal Code section 243, subdivision (e)(1), Penal Code section 273.5, Penal Code section 422 against a partner, Penal Code section 646.9, and Penal Code section 273.6 are the usual vehicles.
The prior acts must also be domestic violence. The other acts the prosecutor offers must themselves qualify as domestic violence under the same definitions. A prior bar fight with a stranger does not come in under section 1109, although the prosecutor may try to offer it under a different theory. A prior incident with a former girlfriend, an ex-spouse, or the same complaining witness does qualify, and that is the typical scenario in Riverside and San Bernardino County courtrooms.
Uncharged and unproven incidents count. The prior acts do not need to have resulted in an arrest, a charge, or a conviction. A complaining witness can testify that the defendant pushed her two years earlier and never reported it, and a former partner can be called to describe an incident from a different relationship. The prosecutor must prove the prior act by a preponderance of the evidence, a much lower standard than beyond a reasonable doubt, and the jury is instructed accordingly under CALCRIM 852A. Elder abuse and child abuse have parallel provisions in the statute, which is why a prior child abuse or elder abuse allegation can surface in the right kind of case.
Prior restraining order findings can come in. Subdivision (f) of Evidence Code section 1109 allows evidence of findings made in a separate court proceeding, such as a family court's finding that the defendant committed abuse when it issued a domestic violence restraining order. This is one of the most important reasons we tell clients never to treat a civil restraining order hearing as unimportant while a criminal case is pending; the two cases feed each other, as we explain in our guide on how a domestic violence arrest affects custody.
The Limits on Evidence Code 1109
The 10-year rule. Under subdivision (e) of Evidence Code section 1109, evidence of acts that occurred more than 10 years before the charged offense is inadmissible unless the court determines that admitting it is in the interest of justice. Courts have admitted older incidents when they are strikingly similar or when the defendant was incarcerated for part of the period, but the presumption runs the defense's way, and the prosecutor must make a specific showing to get past it.
Section 352 is the real battleground. Even when a prior act qualifies, the court must exclude it if its probative value is substantially outweighed by the probability that it will consume undue time, create substantial danger of undue prejudice, confuse the issues, or mislead the jury. Judges in domestic violence departments weigh the similarity of the prior act to the charged offense, how remote it is, whether it resulted in a conviction, whether the jury might punish the defendant for the uncharged act, how much trial time it will take, and whether the prior act is more inflammatory than the charged conduct. A prior act far more violent than the current allegation is the strongest candidate for exclusion.
Prior acts cannot be used to lower the burden of proof. The jury must still find every element of the charged offense beyond a reasonable doubt. The instruction tells jurors that the prior act evidence is only one factor and is not sufficient by itself to prove guilt. Defense counsel should insist on a complete limiting instruction and should object to any argument that invites the jury to convict because the defendant is a bad person rather than because the charged act was proven.
Notice and disclosure. The prosecution must disclose the prior act evidence it intends to use in compliance with the discovery rules in Penal Code section 1054.7, including the witnesses' statements and any police reports from the prior incidents. Late disclosure is a basis to exclude the evidence or continue the trial. Our guide on criminal discovery and Brady obligations explains how to force complete disclosure of prior incident reports, including any that help the defense.
How the Defense Fights Prior Act Evidence
Challenge whether the prior act is domestic violence at all. The first question is whether the relationship in the prior incident fits Penal Code section 13700 or, for incidents within five years, Family Code section 6211. A roommate who was never a dating partner, a casual acquaintance, or a sibling outside the five-year window does not qualify. A prior incident that was mutual combat or self-defense is not abuse. Winning this threshold argument keeps the evidence out entirely.
Attack the reliability of the prior act. Because the prior act need not have been charged, the evidence is often a single witness's uncorroborated account of something years old. The defense investigates: was a police report made, were there photographs or medical records, did the witness tell anyone at the time, and does the witness have a motive now, such as a pending custody dispute in family court. A former partner who first described an incident after being contacted by the prosecutor's investigator is open to pointed cross-examination. The same investigation applies when the accusation is false, as we discuss in our guide for people falsely accused of domestic violence.
File a motion in limine and build the section 352 record. Before trial, the defense files a written motion to exclude or limit the prior act evidence, lays out each section 352 factor, and asks for a hearing under Evidence Code section 402 so the court can hear the witness outside the jury's presence before ruling. Even a partial win, such as excluding the most inflammatory incident or limiting the witness to a short summary, changes the trial. A detailed record also preserves the issue for appeal.
Use the evidence to reset the negotiation. Section 1109 rulings change plea positions on both sides. If the court excludes the prior acts, the prosecutor's case may shrink to a recanting witness and a 911 call, and the offer often moves toward a reduced charge or a diversion-type resolution where available. If the court admits the prior acts, the defendant must weigh a trial where the jury hears about multiple incidents. Our guide on whether to take a plea deal in California explains how to make that decision, and our article on the no contest plea covers a resolution that limits civil fallout.
What This Means Before Trial: Practical Steps
Do not create new prior acts. The most common way a client makes a domestic violence case worse is by contacting the protected person in violation of the criminal protective order issued under Penal Code section 136.2. Every text, call, or drive-by becomes a new incident that is both a separate charge under Penal Code section 273.6 and admissible propensity evidence in the original case. Our guide to the criminal protective order explains the order's terms, and our article on text messages as evidence explains why apologetic messages are so damaging.
Handle the family court case with the criminal case in mind. A domestic violence restraining order hearing in family court, a custody evaluation, or a declaration filed in a divorce case can generate findings and statements that come back into the criminal case through subdivision (f) of Evidence Code section 1109 or through ordinary impeachment. Clients should not file declarations or testify in family court without coordinating with their criminal defense lawyer, and in many cases the criminal case should be resolved first. Our child custody practice handles these cases alongside the criminal defense so the two strategies do not collide.
Expect the prosecutor to look for prior partners. In Riverside County and San Bernardino County domestic violence units, investigators routinely run the defendant's history for prior calls for service, prior restraining orders, and prior partners, including in the High Desert communities of Victorville, Hesperia, and Apple Valley where many cases are filed at the Victorville courthouse. A defendant who knows a prior partner may be contacted should tell his or her lawyer early so the defense can investigate the prior incident before the prosecutor's version is the only one in the file. Our guide on domestic violence charges at the Riverside Hall of Justice and our article on domestic violence charges in Apple Valley and Hesperia describe how those courthouses handle these cases.
Frequently Asked Questions
Can the prosecutor bring up a past domestic violence incident that never led to charges?
Yes. Evidence Code section 1109 does not require that the prior act resulted in an arrest, a charge, or a conviction. The prosecutor must prove the prior act by a preponderance of the evidence, and the court can exclude it under Evidence Code section 352 if it is unduly prejudicial, remote, or time-consuming.
Can an ex from a different relationship testify in my domestic violence case?
Yes, if the prior incident qualifies as domestic violence. The prior act must involve a relationship covered by Penal Code section 13700, such as a former spouse, former cohabitant, or former dating partner. The defense can challenge the witness's credibility, motive, and timing, and can ask the court to exclude the testimony under section 352.
How far back can prior domestic violence evidence go in California?
Generally 10 years. Under subdivision (e) of Evidence Code section 1109, acts more than 10 years before the charged offense are inadmissible unless the court finds that admitting them is in the interest of justice. Prosecutors must make a specific showing to use older incidents, and the defense should hold them to it.
Can a restraining order from family court be used against me in a criminal case?
Yes, findings from the restraining order proceeding can be admitted. Subdivision (f) of Evidence Code section 1109 allows evidence of findings made in a separate proceeding, and statements made in family court declarations can also be used for impeachment. This is why the family court and criminal cases must be coordinated.
Does Evidence Code 1109 apply to misdemeanor domestic battery?
Yes. The statute applies to any criminal action in which the defendant is accused of an offense involving domestic violence, including misdemeanor domestic battery under Penal Code section 243, subdivision (e)(1) and felony or misdemeanor corporal injury under Penal Code section 273.5. The same section 352 limits apply.
Can the defense use the victim's past violence under Evidence Code 1109?
Not under section 1109, but sometimes under other rules. Section 1109 is a prosecution tool that applies to the defendant's other acts. A defendant claiming self-defense may offer evidence of the complaining witness's prior violence under Evidence Code section 1103 to show the complaining witness was the aggressor, subject to the same section 352 weighing, as we explain in our guide to self-defense in California criminal law.
Talk to a Domestic Violence Defense Lawyer
Gramling Law Group defends domestic violence cases at the Riverside Hall of Justice, the Southwest Justice Center in Murrieta, the San Bernardino Justice Center, the Victorville courthouse, and throughout the Inland Empire, Los Angeles County, Orange County, and Southern California. Daniel Gramling, Esq. offers flat-fee criminal defense and limited-scope options and handles the related restraining order and custody cases so that nothing said in family court undermines the criminal defense. Call (909) 654-4575 or contact us through this website for a consultation.
This article is educational and is not legal advice. Reading it does not create an attorney-client relationship. It addresses California law only.
Related Guides From Gramling Law Group
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Phone: (909) 654-4575
Serving the Inland Empire, Los Angeles County, Orange County, and all of Southern California except San Diego in family law and criminal defense.
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