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Murder conviction reversed because trail court excluded significant evidence of the victim’s violent character

People v. DelRio (Cal. Ct. App., Aug. 31, 2020, No. B298637) 2020 WL 5104917

Facts:
DelRio and his cousin Raul Prieto had a gunfight in front of a house on a cul-de-sac. Prieto shot his nine-millimeter pistol 15 times but missed every time. DelRio fired his .40-caliber pistol twice and each bullet hit Prieto. Each shot was fatal.

DelRio was convicted of second degree murder and a firearm enhancement allegations  under Penal Code section 12022.53, subdivisions (b), (c), and (d). The trial court denied defense counsel’s motion to strike or dismiss the enhancements under Penal Code section 12022.53, subdivision (h). The trial court sentenced DelRio to life with the possibility of parole, plus a consecutive 25 years to life for the firearm enhancement under Penal Code section 12022.53, subdivision (d). The court stayed the firearm enhancement sentences under Penal Code section 12022.53, subdivisions (b) and (c).

DelRio argues the trial court erroneously excluded several pieces of evidence under section 1103, subdivision (a). He contends the trial court should have admitted each item of evidence to prove Prieto previously engaged in violence. The trial court excluded evidence of the following:

  • a shooting Prieto allegedly committed 10 days before the shooting in this case;
  • Prieto’s past domestic violence;
  • Prieto’s prior firearm possession convictions;
  • Prieto’s schizophrenia linked with violent outbursts; and
  • methamphetamine in Prieto’s blood the night of the shooting.

The trial court erroneously excluded this violent victim evidence. The error was prejudicial.

Character or propensity evidence is generally inadmissible-violent victim rule exception

Evidence of people’s character is inadmissible when offered to prove their conduct on specified occasions. This rule prevents prosecutors from introducing defendants’ rap sheets to suggest once a criminal, always a criminal.

The character evidence rule has the violent victim rule exception.( Evidence Code  §1103, subd. (a)(1).) This rule allows  DelRio to try to prove the conduct of a victim like Prieto conformed to his character. The rule  permits DelRio to introduce evidence Prieto had a propensity for violent aggression. This evidence would aid DelRio’s effort to prove that, at the crime scene, Prieto was violently aggressive, which forced DelRio to resort to deadly self-defense. (E.g., People v. Wright (1985) 39 Cal.3d 576, 587, 217 Cal.Rptr. 212, 703 P.2d 1106 (Wright).)

DelRio offered to prove Prieto had a propensity for violent aggression with  evidence Prieto was arrested for for domestic violence in March 2012, April 2013, and June 2013.

At trial, DelRio testified he did not know about Prieto’s domestic violence incidents but argued it was “basically evidence of the victim’s character for violence which is relevant to who started the escalation towards deadly force.” Counsel argued “the jury is entitled to know that Mr. Prieto engaged in this type of force.”

The prosecutor argued Prieto’s bad acts were irrelevant unless DelRio knew about them, and the court agreed. The court decided DelRio’s testimony was a basis for a self-defense instruction, but excluded evidence of Prieto’s bad acts because “[i]f he didn’t know about it, it did not enter into his decision-making process whatsoever and could not have influenced his analysis of what was happening in front of him.”

Prior bad acts of victim not known to the defendant are relevant

 DelRio need not have known about Prieto’s past bad acts. DelRio’s theory was Prieto’s violent character was circumstantial evidence of how Prieto acted at the scene. (E.g., People v. Castain (1981) 122 Cal.App.3d 138, 142, 175 Cal.Rptr. 651 [evidence victim officer used excessive force on other occasions admissible as circumstantial evidence of officer’s conduct during incident in question] (Castain); Wright, supra, 39 Cal.3d at p. 587, 217 Cal.Rptr. 212, 703 P.2d 1106 [evidence of victim’s previous violent reaction admissible when defendant claimed self-defense in a homicide case]; Pitchess v. Superior Court (1974) 11 Cal.3d 531, 537, 113 Cal.Rptr. 897, 522 P.2d 305 [deputies’ disciplinary records “unquestionably relevant and admissible” as character evidence of deputies’ violent tendencies to support defendant’s self-defense theory]; Hinojosa v. Superior Court (1976) 55 Cal.App.3d 692, 696, 127 Cal.Rptr. 664 [evidence of bigotry or a proclivity for violence on the part of assault victims is admissible where conduct of victims in conformity with their character would tend to exculpate a defendant or mitigate the offense].)

Whether DelRio knew of Prieto’s arrests for violence is not relevant. “If this [violent] character was known to the defendant, the evidence tends to show the defendant’s apprehension of danger; if it was not known, the evidence nevertheless tends to show that the victim was probably the aggressor.” (1 Witkin, Cal. Evidence (5th ed. 2012) Circumstantial Evidence, § 59, p. 437. See also People v. Shoemaker (1982) 135 Cal.App.3d 442, 446–447, 185 Cal.Rptr. 370 [where self-defense is raised in a homicide prosecution, evidence of the victim’s violent character is admissible to show the victim was the aggressor]; People v. Rowland (1968) 262 Cal.App.2d 790, 797–798, 69 Cal.Rptr. 269 [same].)

California law accords with the national rule. (E.g., McCormick, Evidence (8th ed. 2020) Character of victim in cases of assault, murder, and rape, § 193 [“This line of proof and counterproof openly relies on the victim’s tendency to act in accordance with a general trait of character—a violent or a peaceful disposition. Consequently, it does not require proof that the defendant was aware of the victim’s violent reputation or acts.”].)

In this case there were no independent witnesses and with no motive for a murder. We know both men had loaded guns, both men fired at each other, and DelRio killed Prieto. The crucial factual question for the jury thus was whether Prieto was the aggressor. The trial court instructed the jury on justifiable homicide in self-defense. Evidence tending to show Prieto by nature was violently aggressive would have high probative value.

The error was not harmless in this close case and the Court reversed DelRio’s conviction.

DelRio was convicted of second degree murder and a firearm enhancement allegations  under Penal Code section 12022.53, subdivisions (b), (c), and (d). The trial court denied defense counsel’s motion to strike or dismiss the enhancements under Penal Code section 12022.53, subdivision (h). The trial court sentenced DelRio to life with the possibility of parole, plus a consecutive 25 years to life for the firearm enhancement under Penal Code section 12022.53, subdivision (d). The court stayed the firearm enhancement sentences under Penal Code section 12022.53, subdivisions (b) and (c).

DelRio argues the trial court erroneously excluded several pieces of evidence under section 1103, subdivision (a). He contends the trial court should have admitted each item of evidence to prove Prieto previously engaged in violence. The trial court excluded evidence of the following:

  • a shooting Prieto allegedly committed 10 days before the shooting in this case;
  • Prieto’s past domestic violence;
  • Prieto’s prior firearm possession convictions;
  • Prieto’s schizophrenia linked with violent outbursts; and
  • methamphetamine in Prieto’s blood the night of the shooting.

The trial court erroneously excluded this violent victim evidence. The error was prejudicial.

Character or propensity evidence is generally inadmissible-violent victim rule exception

Evidence of people’s character is inadmissible when offered to prove their conduct on specified occasions. This rule prevents prosecutors from introducing defendants’ rap sheets to suggest once a criminal, always a criminal.

The character evidence rule has the violent victim rule exception.( Evidence Code  §1103, subd. (a)(1).) This rule allows  DelRio to try to prove the conduct of a victim like Prieto conformed to his character. The rule  permits DelRio to introduce evidence Prieto had a propensity for violent aggression. This evidence would aid DelRio’s effort to prove that, at the crime scene, Prieto was violently aggressive, which forced DelRio to resort to deadly self-defense. (E.g., People v. Wright (1985) 39 Cal.3d 576, 587, 217 Cal.Rptr. 212, 703 P.2d 1106 (Wright).)

DelRio offered to prove Prieto had a propensity for violent aggression with  evidence Prieto was arrested for for domestic violence in March 2012, April 2013, and June 2013.

At trial, DelRio testified he did not know about Prieto’s domestic violence incidents but argued it was “basically evidence of the victim’s character for violence which is relevant to who started the escalation towards deadly force.” Counsel argued “the jury is entitled to know that Mr. Prieto engaged in this type of force.”

The prosecutor argued Prieto’s bad acts were irrelevant unless DelRio knew about them, and the court agreed. The court decided DelRio’s testimony was a basis for a self-defense instruction, but excluded evidence of Prieto’s bad acts because “[i]f he didn’t know about it, it did not enter into his decision-making process whatsoever and could not have influenced his analysis of what was happening in front of him.”

Prior bad acts of victim not known to the defendant are relevant

 DelRio need not have known about Prieto’s past bad acts. DelRio’s theory was Prieto’s violent character was circumstantial evidence of how Prieto acted at the scene. (E.g., People v. Castain (1981) 122 Cal.App.3d 138, 142, 175 Cal.Rptr. 651 [evidence victim officer used excessive force on other occasions admissible as circumstantial evidence of officer’s conduct during incident in question] (Castain); Wright, supra, 39 Cal.3d at p. 587, 217 Cal.Rptr. 212, 703 P.2d 1106 [evidence of victim’s previous violent reaction admissible when defendant claimed self-defense in a homicide case]; Pitchess v. Superior Court (1974) 11 Cal.3d 531, 537, 113 Cal.Rptr. 897, 522 P.2d 305 [deputies’ disciplinary records “unquestionably relevant and admissible” as character evidence of deputies’ violent tendencies to support defendant’s self-defense theory]; Hinojosa v. Superior Court (1976) 55 Cal.App.3d 692, 696, 127 Cal.Rptr. 664 [evidence of bigotry or a proclivity for violence on the part of assault victims is admissible where conduct of victims in conformity with their character would tend to exculpate a defendant or mitigate the offense].)

Whether DelRio knew of Prieto’s arrests for violence is not relevant. “If this [violent] character was known to the defendant, the evidence tends to show the defendant’s apprehension of danger; if it was not known, the evidence nevertheless tends to show that the victim was probably the aggressor.” (1 Witkin, Cal. Evidence (5th ed. 2012) Circumstantial Evidence, § 59, p. 437. See also People v. Shoemaker (1982) 135 Cal.App.3d 442, 446–447, 185 Cal.Rptr. 370 [where self-defense is raised in a homicide prosecution, evidence of the victim’s violent character is admissible to show the victim was the aggressor]; People v. Rowland (1968) 262 Cal.App.2d 790, 797–798, 69 Cal.Rptr. 269 [same].)

California law accords with the national rule. (E.g., McCormick, Evidence (8th ed. 2020) Character of victim in cases of assault, murder, and rape, § 193 [“This line of proof and counterproof openly relies on the victim’s tendency to act in accordance with a general trait of character—a violent or a peaceful disposition. Consequently, it does not require proof that the defendant was aware of the victim’s violent reputation or acts.”].)

In this case there were no independent witnesses and with no motive for a murder. We know both men had loaded guns, both men fired at each other, and DelRio killed Prieto. The crucial factual question for the jury thus was whether Prieto was the aggressor. The trial court instructed the jury on justifiable homicide in self-defense. Evidence tending to show Prieto by nature was violently aggressive would have high probative value.

The error was not harmless in this close case and the Court reversed DelRio’s conviction.

 

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