What is the test for making past domestic violence evidence in a domestic violence case?

Under section 1109, "evidence of past domestic violence inadmissible only if the court determines that its probative value is 'substantially outweighed' by its prejudicial impact." (People v. Johnson (2010) 185 Cal.App.4th 520, 531, italics added, fn. omitted.) In other words, section 1109 renders section 1101 inapplicable in domestic violence cases. However, the evidence must still satisfy section 352.

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It is at this juncture where defendant's first contention impacts our analysis. He posits that section 1109 is unconstitutional. If we agreed, there would be no operative exception to section 1101 applicable to this case. However, for the reasons explained below, we reject defendant's premise. Consequently, section 1109 remains in effect and operates to exempt the evidence in this case from the reach of section 1101.

1. People v. Falsetta