California Evidence Code Section 1108 - Interpretation

1. In People v. Fitch (1997) 55 Cal.App.4th 172, the court upheld an equal protection challenge to Evidence Code section 1108. The court explained: "The Legislature determined that the nature of sex offenses, both their seriousness and their secretive commission which results in trials that are primarily credibility contests, justified the admission of relevant evidence of a defendant's commission of other sex offenses. This reasoning provides a rational basis for the law. . . . In order to adopt a constitutionally sound statute, the Legislature need not extend it to all cases to which it might apply. the Legislature is free to address a problem one step at a time or even to apply the remedy to one area and neglect others." ( Id. at pp. 184-185.) 2. In People v. Soto (1998) 64 Cal.App.4th 966 (Soto), a sexual misconduct case, we approved the admission of testimony relating to the defendant's prior sexual misconduct that was between 23-30 years in the past. The Court observed that the passage of a "substantial length of time does not automatically render the prior incidents unduly prejudicial. ...especially when it is extremely probative ...." ( Id. at p. 991.) It is exactly the type of evidence contemplated by Evidence Code section 1108. The prejudice represented by this type of evidence is inherent in all propensity evidence and does not render the evidence inadmissible. (Soto, supra, 64 Cal.App.4th at pp. 991-992.) 3. In People v. Johnson (2000) 77 Cal.App.4th 410, we rejected the same contention relying upon the reasoning in People v. Falsetta (1999) 21 Cal.4th 903, 986 P.2d 182, which held that Evidence Code section 1108, a provision which allows admission of prior sex offenses to show propensity, did not violate due process. Because Evidence Code sections 1108 and 1109 are essentially the same, except the former applies to prior sex crimes and the latter applies to prior domestic violence, we applied the reasoning of Falsetta and concluded that Evidence Code section 1109 did not violate due process. ( Johnson, supra, 77 Cal.App.4th at pp. 417-420.) 4. In People v. Falsetta (1999) 21 Cal. 4th 903 89 Cal. Rptr. 2d 847, 986 P.2d 182, the court rejected a due process challenge to the admission of uncharged sex offenses pursuant to section 1108. The trial court had also given the pre-1999 version of CALJIC No. 2.50.01, and had refused several special instructions submitted by the defendant, which attempted to correct some of the defects identified in cases criticizing former CALJIC No. 2.50.01. The court endorsed the 1999 revision, stating it "adequately sets forth the controlling principles under Evidence Code section 1108." (21 Cal. 4th at p. 924.) The court noted that language added in the 1999 revision specifically cautions the jury that even if it finds "that the defendant committed prior sexual offenses, that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged crimes." Although the decision in Falsetta is not dispositive, because the 1999 revision had not been given, and the appellant in that case did not challenge it on due process grounds, it nevertheless provides guidance to us, because the court cited the 1999 revision as an example of "language appropriate for cases involving the admission of disposition evidence." ( Id. at p. 922.)