Filed 5/21/14 P. v. Acosta CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H038983
                                                                    (Santa Cruz County
         Plaintiff and Respondent,                                   Super. Ct. No. F22119)

         v.

ANDY ALLEN ACOSTA,

         Defendant and Appellant.




                                           I.        INTRODUCTION
         Defendant Andy Allen Acosta appeals after a jury convicted him of inflicting
corporal injury on the mother of his child (Pen. Code, § 273.5, subd. (a)1), false
imprisonment by violence (§ 236), criminal threats (§ 422), misdemeanor vandalism
(§ 594, subd. (a)), misdemeanor battery on the mother of his child (§ 243, subd. (e)(1)),
and three counts of misdemeanor violation of a protective order (§ 166, subd. (c)(1)).
Defendant was sentenced to a five-year, eight-month prison term.
         On appeal, defendant contends he received ineffective assistance of counsel
because his trial attorney did not object when the trial court admitted evidence, pursuant
to Evidence Code section 1109, that defendant committed a prior domestic violence


         1
             All further statutory references are to the Penal Code unless otherwise indicated.
offense more than 10 years before the charged offenses. Defendant also contends that his
constitutional right to due process was violated when the trial court admitted evidence of
two prior domestic violence offenses pursuant to Evidence Code section 1109.
Additionally, defendant contends—and the Attorney General concedes—that the trial
court erred by ordering him to pay a $200 fee to a women’s shelter and a $200 domestic
violence fund fee.2 We will strike the two challenged fees and affirm the judgment as
modified.

                                 II.    BACKGROUND
       G.M. had an “on and off” relationship with defendant for about 10 years. They
began dating in 2002, had two children together, and broke up in 2010. Although
defendant moved out after they broke up, they still had sex “at times.” They frequently
argued about defendant’s failure to help pay for childcare and about defendant’s desire to
“make things work.”
       A.     March 5, 2011 Incident (Battery and Contempt)
       A three-year restraining order issued on August 1, 2008 required defendant to stay
100 yards away from G.M. and to have no contact with her.
       On March 5, 2011, G.M. was at her apartment with defendant and their infant
daughter. Defendant wanted to have sex. G.M. said she did not want to. Defendant
became angry. G.M. and defendant eventually went to bed together. At some point,
defendant woke up G.M.. He hit her on the head and asked about a photo of man he had
found on her cell phone. G.M. said the man in the photo was a friend, but defendant did
not believe her. He hit her on the head, pulled her hair, called her a whore, and spit on
her. Defendant also broke the headboard of the bed. He left the bedroom, but came back
to hit G.M. and spit on her multiple times.


       2
        Defendant also initially argued that the trial court erred by ordering him to pay a
$190 lab analysis fee and a $190 AIDS fund fee, but he later withdrew that argument.

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      On March 9, 2011, G.M. filed a report with the Sheriff’s Department. A deputy
called defendant, who admitted that he had yelled at G.M. after finding a photo of another
man on her cell phone. Defendant admitted spitting on G.M., but he claimed it happened
unintentionally while he was yelling.
      B.     January 24, 2012 Incident (Penetration With a Foreign Object, Infliction
             of Corporal Injury, False Imprisonment, and Vandalism)
      On January 24, 2012, G.M. stayed home from work because she had the stomach
flu. Defendant called and asked why she was not at work; she told him that she was sick.
Defendant later came to her apartment, bringing her Sprite and orange juice. G.M.
thanked defendant, who wanted to come in. G.M. said she was not feeling well, but
defendant pushed his way inside. G.M. told defendant she wanted him to leave. Instead,
he picked her up and carried her to the bedroom, ignoring her pleas to put her down and
leave. Defendant put G.M. on the bed and laid on top of her. G.M. tried to push him off.
      Eventually, defendant lay next to G.M. on the bed. G.M. asked him to leave.
Instead, defendant put his hand down her pants. G.M. told defendant to stop and tried to
pull his hand out. Defendant put his hand inside G.M.’s underwear and tried to arouse
her by putting his finger inside her vagina. G.M. told defendant to stop and asked him to
leave. Defendant took his hand out, got on top of G.M., and asked if she was “fucking
someone else.” Defendant grabbed G.M. by the arms and shook her as he yelled at her,
leaving marks and bruises on her arm. Defendant also punched a hole in the wall above
G.M.’s head. The bruises on G.M.’s arm were later observed by a deputy and a Sexual
Assault Forensic Examiner nurse.
      The next day, defendant left G.M. several voicemail messages. In one message,
defendant stated, “I’m gonna get you and I’m gonna fucking beat the living shit out of
you just for that, watch. ‘Cause I know you were fucking somebody, huh, you fucking
little bitch. You watch. I’m gonna fuck you up and kill you, bitch.” The voicemail
messages were played for the jury.

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        G.M. filed a report with the Sheriff’s Department. A deputy helped her perform a
pretext call. During the call, defendant apologized to G.M. about “the fact that I fucking
punched the wall” and “that I fucking grabbed you and I was fucking like going crazy.”
G.M. reminded defendant that he had been “putting your hands down my pants and
wanting to like feel me up and all that stuff when I kept telling you no,” that he had
“forced [him]self on me,” and that he had “laid on top of me and didn’t let me get up.”
Defendant agreed that his behavior was “not right.” He explained, “I was just so fucking
mad.”
        C.    February 2, 2012 Incident (Contempt)
        On February 2, 2012, defendant called G.M. 18 times between 3:18 a.m. and
3:34 a.m. Restraining orders filed on October 18, 2011 and January 27, 2012 prohibited
defendant from contacting G.M.
        D.    March 8, 2012 Incident (Threat and Contempt)
        On March 8, 2012, defendant called G.M. while she was talking to her uncle on
the phone. Defendant heard G.M. say, “Juan,” her uncle’s name. He asked her, “who the
fuck is Juan” and threatened to kill G.M. and Juan. Defendant said that he “didn’t care
anymore, if he didn’t have [her], no one was gonna have [her].” Defendant called G.M.
14 times between 6:36 p.m. and 6:51 p.m. that day.
        After G.M. called the Sheriff’s Department again, a deputy located and
interviewed defendant. Defendant acknowledged that he had been ordered not to contact
G.M., and he initially denied that he had “seen her or anything.” Defendant then
admitted he called G.M. “every night,” just to “hear her voice,” but he claimed that he did
not say anything to her when he called. Defendant also admitted he had called G.M. that
day. Defendant denied threatening G.M., but he admitted that he had been yelling at her.
He then admitted that he had asked her, “Who the fuck is Juan” and told her, “you watch,
you watch, I’m going to jail because of all of this.” Defendant said he only threatened to
kill himself. Defendant’s interview was played for the jury.

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      E.     Prior Domestic Violence
      The prosecution introduced evidence that defendant had committed domestic
violence on prior occasions. Two incidents involved G.M.; the other involved C.S., the
mother of defendant’s son.
             1.     October 13, 2000 Incident (C.S.)
      On May 24, 2001, defendant was convicted of violating section 243,
subdivision (e)(3). The victim of that offense was C.S., the mother of defendant’s son.
The conviction “resulted from an incident on October 13, 2000, in which case
[defendant] wil[l]fully and unlawfully used force and violence on the person of [C.S.]”
             2.     May 11, 2008 Incident (G.M.)
      On May 11, 2008, defendant broke down the door to G.M.’s apartment. He
thought G.M. had another man in her bed. He grabbed G.M. by the neck, using two
hands. Defendant was convicted of misdemeanor domestic violence on August 1, 2008.
             3.     February 2009 Incident (G.M.)
      In February of 2009, G.M. attended a concert in San Jose with defendant and
another couple: C.E. and her boyfriend. G.M. and defendant got kicked out of the
concert because they were loudly arguing over defendant’s use of marijuana. G.M. told
defendant she wanted to stay with a girlfriend in Santa Clara, but defendant would not let
G.M. call her friend. Defendant hit G.M. and forced her to get into the car they had come
in. Defendant asked the driver to lock the doors to keep G.M. from getting out. When
G.M. returned to Santa Cruz, she spoke with a police officer. She had no visible injuries,
but defendant had a scratch on his face. G.M. was arrested but not convicted. Defendant
was not arrested nor convicted.
      F.     Defense Evidence
      C.E. testified about the incident in 2009. G.M. was “pretty aggressive” at the
concert: she was loud and drunk, and on the ride home, G.M. was kicking and
screaming. Defendant was trying to calm her down, and he was holding her in order to

                                            5
restrain her. C.E. told a detective that G.M. was verbally and physically abusing
defendant as they left the concert, and that defendant told G.M. to stop hitting him during
the car ride home. C.E. also stated that she tried to help defendant restrain G.M. from
jumping out of the car. G.M. kicked C.E. in the face and tried to choke C.E.’s boyfriend
with a seatbelt.
       Two of defendant’s coworkers testified that defendant received a high number of
calls at work. Both coworkers had heard G.M.’s voice on some of the calls. Once, after
one of the coworkers had answered the phone and told G.M. that defendant was
unavailable, G.M. had raised her voice. The other coworker had overheard G.M.’s voice
on some calls to defendant and described G.M. as sounding “very aggressive.” G.M. had
once called defendant at work 10 times in one day.
       Defendant testified that his relationship with G.M. involved a lot of emotional and
physical abuse. He admitted that on five or six occasions, he had grabbed G.M. by the
shoulders and shaken her. G.M. would throw things at him, and he would throw things at
her. G.M. would call him often at work, during both good and bad times. They both
were often jealous, believing that the other person was cheating. It would be “upsetting”
to him when G.M. did not want to have sex with him, and he would get mad.
       Defendant admitted breaking G.M.’s door during the May 11, 2008 incident. He
acknowledged he had been “really mad” and had been calling G.M. “nonstop” because he
thought she was with someone else. He had “rammed” the door with his shoulder, but he
denied trying to choke G.M.
       Regarding the 2009 concert incident, defendant admitted he and G.M. argued over
his use of marijuana. Defendant claimed G.M. slapped him on the chest during the
concert and that she bit him when he was trying to restrain her in the car. G.M. also hit
him and scratched him.
       Regarding the incident on March 5, 2011, defendant admitted being at G.M.’s
home. He knew there was a restraining order in place, but he thought G.M. had

                                             6
“modified” it because she had been visiting him when he was “incarcerated in ’09.”
Defendant admitted seeing a photo on G.M.’s cell phone and getting “really pissed off.”
Defendant admitted waking G.M. up, grabbing her by the shoulders, and asking her “who
the fuck is this.” He admitted getting “more mad” when G.M. claimed not to know how
the photo got on her phone. He admitted using “[e]very name in the book” and breaking
the headboard, but he denied hitting G.M.
       Defendant admitted going to G.M.’s home in January of 2012. He denied that
G.M. told him to leave when he arrived. He admitted picking her up and carrying her to
the bedroom but denied that G.M. told him to put her down. He admitted laying next to
G.M. on the bed and claimed that she began to rub against him. He admitted putting his
hand down her pants and keeping it there after she said no. He claimed he took his hand
out after G.M. said no a second time, and that he never penetrated her vagina. Defendant
admitted accusing G.M. of “fucking somebody else” and speaking to her “in a raging
tone.” He admitted punching a hole in the wall and leaving the voicemail messages for
her the next day. Regarding the pretext call, defendant claimed he had apologized in
order to “just move forward.” Defendant stated that at the time, he had been attending
counseling and a program called Men Overcoming Abusive Behavior (MOAB) for
10 years.
       Defendant acknowledged that a restraining order issued on January 27, 2012
prohibited him from contacting G.M. but that he called her 21 times on February 2, 2012
after getting “bailed out” of jail. Defendant admitted calling G.M. 95 times on another
day.
       Defendant admitted having a telephone conversation with G.M. in March of 2012
in which he asked her, “who the fuck’s Juan.” He claimed that he did not threaten to kill
G.M. during that call, but he told her, “if I flip out, I’m going to prison,” and that he
would kill himself. Defendant knew that the no contact order was still in place at the
time he called G.M.

                                               7
       Defendant admitted having three prior misdemeanor convictions: a 2001
conviction of giving false information to a police officer in violation of section 148.9,
a 2001 conviction of battery on the mother of his child in violation of section 243,
subdivision (e)(1), and a 2008 conviction of battery on the mother of his child in violation
of section 243, subdivision (e)(1). Defendant explained that he provided a false name to
a police officer when he was found with C.S. after being ordered to have no contact with
her.
       G.     Charges, Convictions, and Sentencing
       The District Attorney filed a second amended information charging defendant with
sexual penetration with a foreign object (§ 289, subd. (a)(1)), inflicting corporal injury on
the mother of his child (§ 273.5, subd. (a)), false imprisonment by violence (§ 236),
misdemeanor vandalism (§ 594, subd. (a)), criminal threats (§ 422), three counts of
misdemeanor violation of a protective order (§ 166, subd. (c)(1)), misdemeanor battery
on the mother of his child (§ 243, subd. (e)(1)), and possession of methamphetamine
(Health & Saf. Code, § 11377, subd. (a)). The information alleged that defendant was on
bail when he committed the criminal threats count. (§ 12022.1.)
       Defendant admitted the on bail enhancement prior to trial on the substantive
offenses. The trial court bifurcated the possession of methamphetamine count. The jury
was unable to reach a verdict on the sexual penetration with a foreign object count, but it
convicted defendant of the other eight counts. Defendant then pleaded no contest to
possession of methamphetamine.
       At the sentencing hearing held on September 5, 2012, the trial court imposed a
five-year, eight-month sentence, consisting of the three-year midterm for inflicting
corporal injury on the mother of his child, a consecutive eight-month term for criminal
threats, and a consecutive two-year term for the on-bail enhancement. The trial court
imposed a concurrent two-year term for possession of methamphetamine and stayed
imposition of sentence for false imprisonment. The trial court ordered defendant to pay

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various fees and fines, including $200 to a women’s shelter and $200 to a domestic
violence fund.

                                   III.   DISCUSSION
       A.      Ineffective Assistance of Counsel
       Defendant contends he received ineffective assistance of counsel because his trial
attorney did not object when the trial court admitted evidence, pursuant to Evidence Code
section 1109, that defendant committed a prior domestic violence offense more than
10 years before the charged offenses. According to defendant, due to trial counsel’s
ineffectiveness, we should reverse his convictions of infliction of corporal injury on a
spouse (§ 273.5, subd. (a)), false imprisonment (§ 236), and battery (§ 243, subd. (e)(1)).3
               1.    Evidence Code Section 1109
       Evidence Code section 1109, subdivision (a)(1) provides: “Except as provided in
subdivision (e) or (f), in a criminal action in which the defendant is accused of an offense
involving domestic violence, evidence of the defendant’s commission of other domestic
violence is not made inadmissible by Section 1101 if the evidence is not inadmissible
pursuant to Section 352.”
       Evidence Code section 1109, subdivision (e) provides: “Evidence of acts
occurring more than 10 years before the charged offense is inadmissible under this
section, unless the court determines that the admission of this evidence is in the interest
of justice.”


       3
         The trial court instructed the jury, pursuant to CALCRIM No. 852, that it could
consider defendant’s prior domestic violence in determining his guilt only with respect to
the charge of penetration with a foreign object (§ 289, subd. (a)), as to which the jury did
not reach a verdict, and the charges of infliction of corporal injury on a spouse (§ 273.5),
and battery on the mother of defendant’s child (§ 243, subd. (e)(1)). That limiting
instruction also told the jury that if it concluded that defendant committed the uncharged
domestic violence, “that conclusion is only one factor to consider along with all the other
evidence” and it was “not sufficient by itself to prove that the defendant is guilty.”

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              2.     Proceedings Below
       The prosecution filed a motion in limine seeking to introduce evidence of
defendant’s prior domestic violence convictions pursuant to Evidence Code section 1109.
The prosecution also sought to introduce defendant’s two prior domestic violence
convictions for purposes of impeachment and pursuant to Evidence Code section 1101,
subdivision (b).4
       The prosecution’s Evidence Code section 1109 motion stated, “The Defendant
has two prior convictions of Penal Code Section 243(e)(1): on May 24, 2001 and on
August 1, 2008.” The motion further specified that the first charged incident occurred on
March 5, 2011 and that “[t]he prior acts of domestic violence occurred in May 2001
through 2012, which clearly is within ten years of [the charged offenses].” In fact, as the
trial court later informed the jury, defendant’s May 24, 2001 conviction of violating
section 243, subdivision (e)(3) “resulted from an incident on October 13, 2000, in which
case [defendant] willfully and unlawfully used force and violence on the person of
[C.S.]” Thus, defendant’s 2001 conviction of violating section 243, subdivision (e)(3)
was based on “acts occurring more than 10 years before the charged offense[s].” (Evid.
Code, § 1109, subd. (e).)
       At the hearing on motions in limine, the trial court indicated it was inclined to
grant the prosecution’s motion to admit defendant’s prior domestic violence convictions
pursuant to Evidence Code section 1109, with a “ten-year cutoff, ten years from the date
of the first [charged] offense.” Trial counsel objected to the admission of any prior
convictions involving a different victim than G.M., and he objected to introduction of the


       4
         Evidence Code section 1101, subdivision (b) permits “the admission of evidence
that a person committed a crime, civil wrong, or other act when relevant to prove some
fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence
of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act
or attempted unlawful sexual act did not reasonably and in good faith believe that the
victim consented) other than his or her disposition to commit such an act.”

                                             10
prior convictions by way of documentary evidence only. The trial court overruled those
objections.
       After the trial court granted the prosecution’s motion to admit the prior domestic
violence evidence pursuant to Evidence Code section 1109, the prosecution withdrew its
motion to admit that same evidence pursuant to Evidence Code section 1101,
subdivision (b).
                 3.   Standard for Ineffective Assistance of Counsel Claims
       “To prevail on a claim of ineffective assistance of counsel, the defendant must
show counsel’s performance fell below a standard of reasonable competence, and that
prejudice resulted. [Citations.] When a claim of ineffective assistance is made on direct
appeal, and the record does not show the reason for counsel’s challenged actions or
omissions, the conviction must be affirmed unless there could be no satisfactory
explanation. [Citation.] Even where deficient performance appears, the conviction must
be upheld unless the defendant demonstrates prejudice, i.e., [a reasonable probability]
that ‘ “ ‘but for counsel’s unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.’ ” ’ [Citations.]” (People v. Anderson (2001) 25 Cal.4th 543,
569 (Anderson); see also Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694
(Strickland).)
                 4.   Analysis
       During motions in limine, the prosecution represented that defendant’s 2001
domestic violence conviction was based on “acts” that had occurred within 10 years of
the charged offenses. When the trial court admitted evidence of defendant’s prior
domestic violence offenses pursuant to Evidence Code section 1109, the court indicated it
was only admitting offenses that had occurred within “ten years from the date of the first
[charged] offense.” However, defendant’s 2001 conviction was actually based on an
offense that had occurred in October of 2000, which was over 10 years before the date of

                                            11
the first charged offense. Trial counsel did not object on this basis when the evidence
was introduced.
       Defendant contends that trial counsel had no possible tactical reason for failing to
object on the ground that the 2001 conviction was based on an offense committed more
than 10 years before any of the charged offenses. Defendant points out that trial counsel
did make other objections to the evidence of his prior domestic violence. The Attorney
General concedes that defendant’s claim of deficient performance “may have merit.” We
will assume that reasonable trial counsel would have objected to the admission of the
2001 conviction on the ground that the underlying conduct occurred more than 10 years
prior to the date of defendant’s first current offense, and we turn to the question of
whether defendant has demonstrated prejudice. (See Anderson, supra, 25 Cal.4th at
p. 569; Strickland, supra, 466 U.S. at p. 694.)
       Defendant contends the case was close, noting that there were no other witnesses
to these incidents and that there was evidence that G.M. had engaged in emotionally and
physically abusive behavior towards defendant.
       We do not agree that any deficient performance was prejudicial in this case. First,
even if trial counsel had objected to the admission of defendant’s 2001 conviction on the
basis that the underlying conduct had occurred over 10 years before any of the charged
conduct, the trial court had discretion to admit the evidence in the “interest of justice”
pursuant to Evidence Code section 1109, subdivision (e). The trial court also had
discretion to admit the evidence pursuant to Evidence Code section 1101, subdivision (b),
as initially requested by the prosecution. Particularly since defendant’s 2001 conviction
was based on conduct that had occurred just five months outside the 10-year period, the
trial court could have reasonably determined that the evidence was admissible in the
“interest of justice” (Evid. Code, § 1109, subd. (e)) because the evidence was “ ‘more
probative than prejudicial.’ ” (See People v. Johnson (2010) 185 Cal.App.4th 520, 538,
539-540 [“the ‘interest of justice’ exception is met where the trial court engages in a

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balancing of factors for and against admission under [Evidence Code] section 352 and
concludes . . . that the evidence was ‘more probative than prejudicial’ ”].) The fact that
defendant committed a prior battery on the mother of his son was relevant to issues such
as motive and intent. (See Evid. Code, § 1101, subd. (b).) Moreover, the evidence of the
2001 conviction and underlying conduct was very brief, and thus it was not inflammatory
and posed little potential for confusion of issues. (See Evid. Code, § 352.)
       Second, even if the trial court had excluded the evidence of defendant’s 2001 prior
domestic violence conviction, there is no “reasonable probability” that “the result of the
proceeding would have been different.” (See Anderson, supra, 25 Cal.4th at p. 569;
Strickland, supra, 466 U.S. at pp. 687-688.) Contrary to defendant’s argument, the
evidence was not close. Defendant corroborated much of G.M.’s testimony concerning
each incident. He admitted violating the restraining orders on several occasions. He
admitted violent conduct, including breaking G.M.’s front door, breaking the headboard
of G.M.’s bed, and punching a hole in G.M.’s bedroom wall. Defendant admitted
grabbing G.M. by the shoulders and shaking her on five or six occasions. Concerning the
March 5, 2011 incident, for which he was convicted of battery, defendant admitted
grabbing G.M. by the shoulders, getting angry, and calling her “[e]very name in the
book.” Regarding the January 24, 2012 incident, for which he was convicted of inflicting
corporal injury and false imprisonment, defendant admitted picking G.M. up and carrying
her to the bedroom, speaking to G.M. “in a raging tone,” punching the hole in the wall,
and leaving threatening voicemail messages for her the following day, which the jury
heard. Further, two witnesses observed bruises on G.M.’s arms the next day. On this
record, there is no reasonable probability that, without the evidence of defendant’s
2001 prior conviction, any of the jurors would have disbelieved G.M.’s testimony about
defendant hitting her on March 5, 2011 and about defendant picking her up against her
wishes and inflicting corporal injury on her during the January 24, 2012 incident. (See
Anderson, supra, 25 Cal.4th at p. 569; Strickland, supra, 466 U.S. at pp. 687-688.)

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       B.      Constitutionality of Evidence Code Section 1109
       Defendant contends that his constitutional right to due process was violated when
the trial court admitted evidence of his 2001 and 2008 prior domestic violence
convictions pursuant to Evidence Code section 1109. He contends that Evidence Code
section 1109 “is unconstitutional on its face and as applied, because it authorizes the
admission of evidence of prior acts of domestic violence solely to prove a propensity to
commit the crime charged, and substantially increases the risk of an erroneous
conviction.”
       Defendant acknowledges that the California Supreme Court addressed a similar
argument when it upheld the admission of prior sex crimes pursuant to Evidence Code
section 1108, in People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta). He also
acknowledges that several appellate courts have found the reasoning of Falsetta
applicable to the admission of prior domestic violence pursuant to Evidence Code
section 1109. (See People v. Cabrera (2007) 152 Cal.App.4th 695, 704 (Cabrera)
[“Since Falsetta was decided, several cases from the California Courts of Appeal have
applied its reasoning to reject claims that admission of prior acts of domestic violence
pursuant to section 1109 violates due process.”].)
       Nevertheless, defendant contends that United States Supreme Court decisions
“strongly suggest” that the high court “would bar the admission of prior crimes to prove a
defendant’s disposition to commit the charged crime under the Due Process Clause of the
Fifth and Fourteenth Amendments.” He notes that the United States Supreme Court has
referred to the evidentiary rule against the admission of prior offenses to show guilt as
“historically grounded.” (See Brinegar v. United States (1949) 338 U.S. 160, 174.)
       In Falsetta, the California Supreme Court explained that a statute violates due
process if it “offends some principle of justice so rooted in the traditions and conscience
of our people as to be ranked as fundamental.” (Falsetta, supra, 21 Cal.4th at p. 913.)
The court acknowledged that “[f]rom the standpoint of historical practice, unquestionably

                                             14
the general rule against admitting [propensity] evidence is one of long-standing
application.” (Ibid.) However, the court pointed out, “a long-standing practice does not
necessarily reflect a fundamental, unalterable principle embodied in the Constitution.”
(Id. at p. 914.) Since “the rule against admitting evidence of the defendant’s other bad
acts to prove his present conduct” had already been “subject to far-ranging exceptions,” a
new statutory exception applicable in sex offense cases did not necessarily offend
fundamental historical principles. (Ibid.)
       The Falsetta court noted that, according to some authorities, courts had been
“considerably more ‘ambivalent’ about prohibiting admission of defendants’ other sex
crimes in sex offense cases,” and that such evidence was often admitted. (Falsetta,
supra, 21 Cal.4th at p. 914.) The court thus found it “unclear whether the rule against
‘propensity’ evidence in sex offense cases should be deemed a fundamental historical
principle of justice.” (Ibid.)
       Ultimately, the Falsetta court did not decide whether the rule against admission of
propensity evidence should be “deemed fundamental from a historical perspective” in sex
offense cases. (Falsetta, supra, 21 Cal.4th at p. 915.) Instead, it determined that
Evidence Code section 1108 “did not unduly ‘offend’ those fundamental due process
principles . . . in light of the substantial protections afforded to defendants” by the statute.
(Ibid.) The court then reviewed those protections. First, Evidence Code “section 1108 is
limited to the defendant’s sex offenses, and it applies only when he is charged with
committing another sex offense.” (Id. at p. 916.) In addition, the statute “requires
pretrial notice of the offenses sought to be proved, assuring that the defendant will not be
surprised or unprepared to rebut the proposed evidence.” (Ibid.) Further, the admission
of propensity evidence pursuant to Evidence Code section 1108 is still subject to
limitation and exclusion pursuant to Evidence Code section 352, which “affords
defendants a realistic safeguard” against prejudice. (Id. at p. 918.)



                                              15
       Like Evidence Code section 1108, Evidence Code section 1109 affords defendants
“substantial protections” that ensure the propensity evidence will not lead to a
fundamentally unfair trial. (Falsetta, supra, 21 Cal.4th at p. 915.) Evidence Code
section 1109 is limited to evidence of the defendant’s prior domestic violence, and it
applies only when he is charged with committing a crime involving domestic violence.
(See id. at p. 916.) Evidence Code section 1109 is also subject to the limitations of
section 352. Under the reasoning of Falsetta, this limitation ensures that Evidence Code
section 1109 does not violate the due process clause. (See Cabrera, supra, 152
Cal.App.4th at pp. 703-704; People v. Escobar (2000) 82 Cal.App.4th 1085, 1095-1096;
People v. James (2000) 81 Cal.App.4th 1343, 1353; People v. Brown (2000) 77
Cal.App.4th 1324, 1335; People v. Johnson (2000) 77 Cal.App.4th 410, 417-420.) We
therefore reject defendant’s due process challenge to section 1109.
       C.     Domestic Violence Fund and Women’s Shelter Fees
       Defendant contends—and the Attorney General concedes—that the trial court
erred by ordering him to pay a $200 fee to a women’s shelter and a $200 domestic
violence fund fee. Defendant points out that these fees are authorized by
section 1203.097 only when probation is granted, and that there is no other statutory
authority for imposing these fees when a defendant is sentenced to state prison.
       Section 1203.097, subdivision (a) mandates certain terms of probation for a person
who is “granted probation for a crime in which the victim is a person defined in
Section 6211 of the Family Code.” Such a person must be ordered to pay a fee of at least
$500, depending on his or her ability to pay. (§ 1203.097, subd. (a)(5)(A).) Two-thirds
of the fee goes to “the domestic violence programs special fund created pursuant to
Section 18305 of the Welfare and Institutions Code,” and the remaining one-third goes to
“the Domestic Violence Restraining Order Reimbursement Fund” and “the Domestic
Violence Training and Education Fund.” (Id., subds. (a)(5)(B) & (a)(5)(C).) Such a



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person may also be required to “make payments to a battered women’s shelter, up to a
maximum of five thousand dollars ($5,000).” (Id., subd. (a)(11)(A).)
       The Attorney General agrees that the fees were unauthorized because defendant
was not granted probation, and we find the concession appropriate. We will therefore
order these two fees stricken.

                                 IV.   DISPOSITION
       The orders requiring defendant to pay a $200 fee to a women’s shelter and a $200
domestic violence fund fee are stricken. As modified, the judgment is affirmed.




                                  ___________________________________________
                                  BAMATTRE-MANOUKIAN, ACTING P.J.




WE CONCUR:




__________________________
MIHARA, J.




__________________________
GROVER, J.




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