Admission of Evidence of Other Sex Offenses to Prove the Defendant's Disposition to Commit Sex Offenses

Evidence Code section 1108 sets forth an exception to the general rule against the use of evidence of a defendant's misconduct apart from the charged offense to show a propensity to commit crimes. (People v. Robertson (2012) 208 Cal.App.4th 965, 989-990.) When a defendant is charged with a sex offense, Evidence Code section 1108 allows admission of evidence of other sex offenses to prove the defendant's disposition to commit sex offenses, subject to the trial court's discretion to exclude the evidence under Evidence Code section 352. (Evid. Code, 1108, subd. (a);Robertson, at p. 990.) Evidence Code section 1108 is premised on the recognition that sex offense propensity evidence is critical in sex offense cases "'given the serious and secretive nature of sex crimes and the often resulting credibility contest at trial.'" (People v. Falsetta (1999) 21 Cal.4th 903, 918 (Falsetta).) Based on Evidence Code section 1108, the presumption is in favor of the admissibility of other sex offense evidence; however, the evidence should not be admitted in cases where its admission could result in a fundamentally unfair trial. (People v. Loy (2011) 52 Cal.4th 46, 62; People v. Falsetta, supra, 21 Cal.4th at p. 917.) To safeguard a defendant's fair trial rights, the trial court is required to engage in a careful weighing process under Evidence Code section 352 to determine whether the probative value is substantially outweighed by the danger of undue prejudice, confusion, or time consumption. (Falsetta, at pp. 916-917.) When making this evaluation, similarity between the prior and current sex offenses is a relevant factor to consider (People v. Lewis (2009) 46 Cal.4th 1255, 1285); however, there is no strict similarity requirement for admission of the evidence (see People v. Loy, supra, 52 Cal.4th at p. 63; People v. Robertson, supra, 208 Cal.App.4th at p. 991). Undue prejudice does not exist merely because highly probative evidence is damaging to the defense case, but rather arises from evidence that uniquely tends to evoke an emotional bias against the defendant or cause prejudgment of the issues based on extraneous factors. (People v. Doolin (2009) 45 Cal.4th 390, 438-439.) The decision whether to apply Evidence Code section 352 to exclude otherwise admissible evidence "'is entrusted to the sound discretion of the trial judge who is in the best position to evaluate the evidence.'" (People v. Falsetta, supra, 21 Cal.4th at pp. 917-918.) On appeal we will not disturb the trial court's ruling unless the court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a miscarriage of justice. (People v. Lewis, supra, 46 Cal.4th at p. 1286.)