Admission of Evidence of Uncharged Sex Offenses
In rejecting the argument that section 1108 offends due process, the People v. Falsetta (1999) court relied on reasoning articulated in People v. Fitch (1997) 55 Cal. App. 4th 172, 178-185 [63 Cal. Rptr. 2d 753].
The Falsetta court reasoned, "As stated in Fitch, 'Section 1108 has a safeguard against the use of uncharged sex offenses in cases where the admission of such evidence could result in a fundamentally unfair trial.
Such evidence is still subject to exclusion under . . . section 352. . . . by subjecting evidence of uncharged sexual misconduct to the weighing process of section 352, the Legislature has ensured that such evidence cannot be used in cases where its probative value is substantially outweighed by the possibility that it will consume an undue amount of time or create a substantial danger of undue prejudice, confusion of issues, or misleading the jury. . . . This determination is entrusted to the sound discretion of the trial judge who is in the best position to evaluate the evidence.
With this check upon the admission of evidence of uncharged sex offenses in prosecutions for sex crimes, we find that . . . section 1108 does not violate the due process clause." (Falsetta, supra, 21 Cal. 4th at pp. 917-918, original italics.)
"It is reasonable to infer that those who actually voted on the proposed measure read and considered the materials presented in explanation of it, and that the materials therefore provide some indication of how the measure was understood at the time by those who voted to enact it." (Hutnick v. United States Fidelity & Guaranty Co. (1988) 47 Cal. 3d 456, 465, fn. 7 [253 Cal. Rptr. 236, 763 P.2d 1326].)
Consequently, we can rely on the inference that, by enacting sections 1108 and 1109, the obvious intention of the Legislature was to provide a mechanism for allowing evidence of past sexual offenses or acts of domestic violence to be used by a jury to prove that the defendant committed the charged offense of the same type; recidivist conduct the Legislature has determined is probative because of its repetitive nature.
Furthermore, it is apparent that the Legislature considered the difficulties of proof unique to the prosecution of these crimes when compared with other crimes where propensity evidence may be probative but has been historically prohibited.
The language of section 1109 mirrors that of section 1108, and both sections are specifically omitted from section 1101, which generally excludes evidence of prior bad acts to prove a defendant's criminal disposition. ( 1101, subd. (a).)
Both sections 1108 and 1109 require "pretrial notice of the offenses sought to be proved, assuring that the defendant will not be surprised or unprepared to rebut the proposed evidence." (Falsetta, supra, 21 Cal. 4th at p. 916, original italics; see 1108, subd. (b), 1109, subd. (b).)
Furthermore, both sections 1108 and 1109 limit the admissibility of evidence of prior misconduct if its probative value is substantially outweighed by its prejudicial effect. ( 352, 1108, subd. (a), 1109, subd. (a).)
The specific retention of the power to exclude evidence under section 352, found in both sections 1108 and 1109, provides "a realistic safeguard that ensures that the presumption of innocence and other characteristics of due process are not weakened by an unfair use of evidence of past acts." ( People v. Harris (1998) 60 Cal. App. 4th 727, 730 [70 Cal. Rptr. 2d 689].)
Accordingly, we hold that Falsetta's pronouncement that "the trial court's discretion to exclude propensity evidence under section 352 saves section 1108 from [a] defendant's due process challenge" is fully applicable to section 1109 as well. (Falsetta, supra, 21 Cal. 4th at p. 917.)