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People v. Vilan10/24/2001
tive on the issues of intent, motive and premeditation . . . ." (Id. at p. 150.) As is clear from the foregoing, the other acts were not similar to the murder, except that they involved the same victim.
Here, all the assaults occurred at places where people were gathered together. None of the victims did any provoking-Vilan and his cohorts did all the provoking. All the victims were outnumbered. All the encounters featured "low blows," i.e., unfair fighting by Vilan and his cohorts. The trial court did not abuse its discretion in determining that there were sufficient similarities between the charged incidents and the other acts to permit admission of evidence of the latter.
Although we conclude that admission of this evidence was not improper, we feel compelled to respond to an additional point raised in Vilan's briefs. In contending that the admission of this evidence prejudiced him, Vilan calls our attention to the prosecutor's argument to the jury. The prosecutor began his argument by addressing the claims of a defense witness that not only did Vilan not attack anyone, but he broke up attacks that occurred in his presence. The prosecutor went on to argue that the victims of the charged and other incidents testified otherwise. He made it clear that the jury could use the evidence of the other acts to show Vilan's motive and intent during the charged offenses and "a characteristic method of attacking other people." Defense counsel objected to none of these statements, nor to any of the others to which Vilan now calls our attention. Contrary to Vilan's present claim, the prosecutor made no use during argument of evidence that either had not been ruled proper by the trial court or had not been conceded by defense counsel.
2. Exclusion of Evidence
a. Concerning Vilan's Being Hit With a Wrench During the First Incident and the Resulting Injuries
Before trial began, the People sought to exclude evidence that at the end of the first incident, Vilan was hit in the head by the victim's brother with a wrench, causing significant injuries. This knocked him out, effectively ending the fight. The People argued that since the injury occurred after the victim had been assaulted, its only relevance would be to elicit sympathy for Vilan. Defense counsel conceded that the blow with the wrench occurred "seconds" after the fight ended. He wanted the evidence admitted to explain any potential lapses of memory that Vilan might have should he testify. He also wanted it admitted to support one of the defense theories that it was the victim's family and not Vilan and his cohorts who initiated the violence and that the family was willing to use deadly force on Vilan. Finally, he argued that it was relevant to the defense's claim that Vilan hit the victim of the second incident either in self-defense or in defense of others. He conceded, however, that this would be inconsistent with his main defense to that incident, which was that someone other than Vilan hit the second victim. The prosecutor pointed out that two other incidents of assaultive behavior by Vilan followed his injury during the first incident and preceded the second. These disproved the theory that Vilan was reluctant to get into fights since being injured. The trial court ruled that the evidence was irrelevant. The court commented that without some psychological examination of Vilan which concluded that getting injured during the first incident caused him to fear being involved in subsequent fights, admitting the evidence would encourage him to falsely make such a claim.
Vilan here challenges this initial ruling. However, it was not an abuse of discretion. As to Vilan's first ground for admission o
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