Prior Sexual Misconduct Evidence in California State Courts

Subject to Evidence Code section 352, Evidence Code section 1108 permits a jury to consider prior incidents of sexual misconduct for the purpose of showing a defendant's propensity to commit offenses of the same type and essentially permits such evidence to be used in determining whether the defendant is guilty of a current sexual offense charge. (Evid. Code, 1108, subd. (a).) Evidence Code section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, or confusing the issues, or of misleading the jury." Evidence Code section 1108, subdivision (a), provides that "in a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Evidence Code Section 1101, if the evidence is not inadmissible pursuant to Evidence Code Section 352." This section allows admission, in a criminal action in which the defendant is accused of one of a list of sexual offenses, of evidence of the defendant's commission of another listed sexual offense that would otherwise be made inadmissible by Evidence Code section 1101, subdivision (a). The prior and charged offenses are considered sufficiently similar if they are both sexual offenses enumerated in Evidence Code section 1108, subdivision (d)(1)(A) through (F). (People v. Frazier (2001) 89 Cal.App.4th 30, 41 (Frazier).) Although before Evidence Code section 1108 was enacted, prior bad acts were inadmissible when their sole relevance was to prove a defendant's propensity to engage in criminal conduct (see Evid. Code, 1101 ; People v. Falsetta (1999) 21 Cal.4th 903, 911, 913), its enactment created a statutory exception to the rule against the use of propensity evidence, allowing admission of evidence of other sexual offenses in cases charging such conduct to prove the defendant's disposition to commit the charged offense. (Id. at p. 911.) The California Supreme Court has ruled that section 1108 is constitutional. (Id. at pp. 910-922.) Evidence Code section 1101 provides in relevant part: "(a) Except as provided in this section and in Section . . . 1108 . . ., evidence of a person's character or trait of his . . . character (whether in the form of . . . evidence of specific instances of his . . . conduct) is inadmissible when offered to prove his . . . conduct on a specified occasion. (b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . .) other than his . . . disposition to commit such an act." To be relevant on the issue of intent, uncharged crimes need only be sufficiently similar to a charged offense to support the inference that the defendant probably harbored the same intent in each instance. (People v. Kipp (1998) 18 Cal.4th 349, 371 (Kipp).) However, because Evidence Code section 1108 conditions the introduction of uncharged sexual misconduct or offense evidence on whether it is admissible under Evidence Code section 352, any objection to such evidence, as well as any derivative due process assertion, necessarily depends on whether the trial court sufficiently and properly evaluated the proffered evidence under that section. "A careful weighing of prejudice against probative value under Evidence Code section 352 is essential to protect a defendant's due process right to a fundamentally fair trial. " (People v. Jennings (2000) 81 Cal.App.4th 1301, 1314 (Jennings).) As the California Supreme Court stated in Falsetta, in balancing such Evidence Code section 1108 evidence under Evidence Code section 352, "trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant's other . . . offenses, or excluding irrelevant though inflammatory details surrounding the offense. " (Falsetta, supra, 21 Cal.4th at p. 917.) In evaluating such evidence, the court must determine "whether 'the testimony describing defendant's uncharged acts . . . was no stronger and no more inflammatory than the testimony concerning the charged offenses.'" (People v. Harris (1998) 60 Cal.App.4th 727, 737.)