by Douglas Ankney

Division Eight of the California Court of Appeal for the Second Appellate District held that a trial court abused its discretion when it excluded evidence of a homicide victim’s prior violent acts.

Neil Efren Delrio exchanged gunfire with his cousin, Raul Prieto. According to Delrio (the only eyewitness), Prieto became angry and pulled his nine-millimeter handgun because he believed Delrio was snubbing him, i.e., not speaking to him, “ducking” him, etc. Delrio testified he was “in fear of [his] life” after Prieto racked a round into the gun’s chamber and raised it toward him. Delrio testified he then pulled his own .40 caliber pistol and fired at Prieto. Prieto fired once in return. Delrio then fired again before getting into his vehicle and driving off. Prieto continued firing at Delrio as he drove away.

Prieto died from two bullet wounds to his abdomen. A .40 caliber bullet was recovered from his body. From the scene of the shooting, police recovered two .40 caliber cartridge casings and 15 nine-millimeter cartridge casings. Delrio’s vehicle had multiple bullet holes, and a bullet fired from Prieto’s weapon was found in the car.

Because Delrio intended to claim self-defense, prior to trial, he sought to admit evidence of Prieto’s propensity for violence – including evidence of two incidents of Prieto’s domestic violence. Delrio sought to admit the 911 call of the woman who lived with Prieto who reported that he was schizophrenic, not taking his medicine, choked her, and had a firearm. He also sought to have the woman testify. Prieto had ultimately been convicted of domestic violence in connection to this incident. The trial court deferred ruling until trial. 

At trial, Delrio testified that he had been unaware of the domestic violence before the shooting.

Because Delrio had been unaware of this prior to the shooting, the trial court refused to allow the evidence, reasoning that the evidence did not factor into Delrio’s decision to pull his weapon and fire. Delrio was convicted of numerous offenses, including second-degree murder. He appealed. He argued, inter alia, that the trial court abused its discretion when it excluded the evidence of Prieto’s propensity for violence.

The Court of Appeal observed “evidence of people’s character is inadmissible when offered to prove their conduct on specified occasions.” Evidence Code § 1101(a). But there are exceptions. One exception is the violent victim rule. Id. This exception allows a defendant to introduce evidence that a victim had a propensity for violent aggression.

In the instant case, the evidence of Prieto’s domestic violence would have aided Delrio’s effort to prove that Prieto was violently aggressive and had pulled his gun first, which forced Delrio to resort to deadly self-defense. People v. Wright, 703 P.2d 1106 (Cal. 1985). The trial court was incorrect, as a matter of law, in ruling that Delrio had to have prior knowledge of Prieto’s past bad acts. Delrio was not seeking to admit the evidence to demonstrate that he was fearful of Prieto based on Prieto’s past bad acts. Instead, Delrio’s theory was that Prieto’s violent character was circumstantial evidence for the jury to consider when deciding how Prieto acted at the scene. As such, it was admissible without Delrio’s prior knowledge of it. People v. Shoemaker, 135 Cal.App.3d 442 (1982); 1 McCormick, Evidence (8th ed. 2020) Character and Habit, § 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.”).

Physical evidence demonstrated who was involved in the shooting, who fired which weapons, and which weapon killed Prieto. The crucial fact question for the jury was whether Prieto was the aggressor. If Prieto was first with his hand on a gun, the prosecution would have a hard time disproving the claim of self-defense. Evidence tending to show Prieto by nature was violently aggressive would have been directly on point. The Court concluded the error was not harmless. Accordingly, the Court reversed Delrio’s conviction. See: People v. Delrio, 2020 Cal. App. LEXIS 830 (2020).

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