Metropolitan News-Enterprise


Monday, January 3, 2011


Page 1


Court: Prior Domestic Violence Acts Admissible at Burglary Trial


By STEVEN M. ELLIS, Staff Writer


Burglary can be a crime of domestic violence, allowing the introduction of prior acts of domestic violence as evidence against the accused, the Fifth District Court of Appeal has ruled.

A panel said Thursday that a trial court did not err in admitting evidence of Robert Earl James’ past instances of domestic violence at trial because prosecutors were trying to show he intended to commit domestic violence when he broke down a former girlfriend’s door at 1 a.m.

Writing for the court, Justice Jennifer R.S. Detjen rejected James’ assertion that Evidence Code Sec. 1109, which permits the use of prior acts of domestic violence in prosecutions of offenses “involving domestic violence,” did not apply to burglary because it did not inherently involve domestic violence.

Acknowledging that “burglary is not, in every instance, an offense involving domestic violence,” she explained:

“Here, the burglary was based on the intent to commit an act of domestic violence. It is defendant’s intent that makes the burglary an offense ‘involving’ domestic violence.”

First Degree Burglary

James was convicted of first degree burglary and sentenced to 10 years in prison following a February 2008 incident at the apartment of a woman identified as “K.M.” with whom he previously lived.

At trial, prosecutors played recordings of K.M.’s 911 call for the jury, and she testified that James told her “I could have just as easily put those holes in your head,” the day after the incident when she found numerous punctures on three of her car’s tires.

K.M. then testified to an incident in September 2005, in which James allegedly gained access to her home in the early afternoon by poking a hole in her screen door and threw her to the ground.

Prosecutors also introduced testimony from “J.F.,” who said that when she was living with James in March 2002 they had an argument over the car and he backhanded her, causing her eye to swell.

James, who admitted a prior serious felony conviction that qualified as a strike, was sentenced to a two-year term that was doubled because of the strike, and he was given an additional five-year term for the prior conviction and a one-year term for having served a prior prison term.

On appeal, he argued that evidence of prior criminal acts is ordinarily inadmissible to show a disposition to commit such acts, and he said that a legislatively-created exception for acts of domestic violence could not apply to a crime that could be accomplished without domestic violence.

Detjen, however, wrote that James’ crime of burglary, under the facts of the case, was an offense involving domestic violence.

“Defendant broke down the door of K.M., a person with whom he had a dating relationship, and repeatedly made threatening remarks towards her,” she said. “His actions placed K.M. in reasonable apprehension of imminent serious bodily injury to herself. Thus, his actions, which resulted in his conviction for burglary, involved domestic violence.”

Prior Case

The justice rejected James’ attempt to distinguish his circumstances from those in People v. Story (2009) 45 Cal.4th 1282. The defendant in Story was tried for murder after he entered a victim’s apartment with the intent to commit rape, and the California Supreme Court upheld the admission of evidence of four other sexual assaults he committed.

James contended that result did not control in his case because prosecutors in Story had to show a rape occurred in order to establish that there was a murder during the course of a rape, while James could have been convicted of burglary without a showing of domestic violence.

“Although the crime of burglary is not a crime of domestic violence on its face, the trial court properly found that under the facts of the case, the burglary was a qualifying offense allowing the People to seek to present propensity evidence under section 1109,” Detjen wrote.

Justices Rebecca A. Wiseman and Stephen Kane joined Detjen in her opinion.

The case is People v. James, F057974.


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