California Evidence Code Section 1108 - Example Case

In People v. Harris (1998) 60 Cal.App.4th 727, the court held a 23-year-old prior sex offense was too remote to be admissible under section 1108. (60 Cal.App.4th at p. 739.) Harris, a male mental health nurse, was on trial for taking sexual advantage of two mentally troubled, vulnerable women. Both incidents were nonviolent, and both victims remained "on speaking terms" with Harris afterwards. (Id. at pp. 731-732, 738.) The 23-year-old prior, on the other hand, had been a brutal rape of Harris's neighbor, in which he had stabbed the victim repeatedly with an ice pick and mutilated her vagina. (Id. at pp. 733-735.) Although a toned-down version was presented to the jurors, they did hear testimony describing the "viciously beaten and bloody victim," they were told that Harris was arrested nearby with blood on his clothes and penis, and they were informed that he was convicted of burglary, with serious bodily injury, in connection with that crime. (Id. at pp. 734-735, 738.) Harris, unlike defendant here (see fn. 12, ante), had led a largely "unblemished" life since the prior rape. (Harris, at p. 739.) The Court set out factors to be weighed in considering whether to exclude Evidence Code section 1108 evidence under section 352: the inflammatory nature of the evidence, the probability of confusion, remoteness, consumption of time, and the probative value of the evidence. (Harris, at pp. 737-741.) In Harris, the defendant was a male mental health nurse accused of six counts of sexually licking and fondling two female patients, one of whom he had dated. (People v. Harris, supra, 60 Cal.App.4th at pp. 730-732, 738.) The prosecution was allowed to introduce evidence of a 23-year-old incident for which the defendant had been convicted of first degree burglary with infliction of great bodily harm. At least three witnesses testified about the incident in which a young female was found lying unconscious on the floor, naked from the waist down, with her legs spread apart and blood on her vagina and mouth. She had been beaten severely about her head and face. The defendant was found hiding nearby with blood on his shorts, on the inside of his thighs, and on his penis. (Id. at pp. 733-735.) The Harris court found the introduction of this evidence "inflammatory in the extreme" and concluded the trial court abused its discretion in admitting the evidence. (Id. at p. 738.) The court also found that the prior incident was too remote to be relevant, especially in light of the fact that the defendant engaged in no intervening criminal conduct. (Id. at p. 739.) "Although there is no bright-line rule, 23 years is a long time...." (Ibid.) In that case, the defendant was a mental health nurse, who was charged with several sex offenses and "accused of preying on women who were vulnerable due to their mental health condition." (Id. at p. 730.) At trial, evidence was presented regarding the events leading to the defendant's prior burglary conviction. (Id. at p. 734.) That evidence "described a viciously beaten and bloody victim who as far as the jury knew was a stranger to the defendant," and which the Court of Appeal found to be "inflammatory in the extreme." (Id. at p. 738.) In contrast, the charged sex crimes involved "a breach of trust by a caregiver" and the court determined that "the abuse the victims suffered" was "unfortunately, not unusual or shocking." (Ibid.) The court concluded that the prior offense evidence "was remote, inflammatory and nearly irrelevant and likely to confuse the jury and distract it from the consideration of the charged offenses." (Id. at p. 741.)