Excluding Prior Sexual Acts Evidence in California

In People v. Daggett (1990) 225 Cal.App.3d 751, the defendant was convicted of molesting a child under the age of 14. (Id. at p. 754) On appeal, he successfully challenged the trial court's refusal to hold a hearing pursuant to Evidence Code section 782 on the admissibility of evidence that the child had been previously molested by two older children. (Daggett, supra, at p. 757.) Defendant's offer of proof consisted of evidence that the child had told a mental health worker and a doctor who had examined him that he had been molested by two older children when he was five years old. (Ibid.) The Court concluded the trial court erred in excluding prior sexual acts evidence without holding a hearing to consider whether the evidence was admissible under Evidence Code section 782. The Daggett court further concluded that this error was compounded by prosecutorial misconduct committed when the prosecutor argued to the jurors that, if they believed the victim had molested other children, the victim must have learned the behavior from being molested by the defendant. (Daggett, at p. 757.) The court in Daggett held that the failure to conduct an Evidence Code section 782 hearing, in conjunction with the prosecutorial misconduct, constituted prejudicial error. (Daggett, supra, 225 Cal.App.3d at p. 758.) The Daggett court explained: "The prosecution may argue all reasonable inferences from the record, and has a broad range within which to argue the facts and the law. The prosecutor, however, may not mislead the jury. The prosecutor asked the jurors to draw an inference that they might not have drawn if they had heard the evidence the judge had excluded. He, therefore, unfairly took advantage of the judge's ruling. Vigorous advocacy is admirable, but when it turns into a zeal to convict at all costs, it perverts rather than promotes justice." (Id. at pp. 757-758.)