SERIES 1100 SEX OFFENSS
F 1191 NOTES
TABLE OF CONTENTS
F 1191 Note 1 Evidence Of Uncharged Sex Offense—CALCRIM Cross-References And Research Notes
F 1191 Note 2 Other Sexual Offenses: Constitutional Challenge Based On Inequity In Precluding Evidence Of Victim’s Prior Consensual Sexual Encounters
F 1191 Note 3 Other Sexual Offenses: Constitutional Challenge To Proof Of Propensity By Other Acts
F 1191 Note 4 Other Sexual Offenses: Constitutional Challenge To Preponderance Of Evidence Standard
F 1191 Note 5 Uncharged Crimes To Show Propensity: Analogy To Improper Joinder As Illustrative Of Prejudice
F 1191 Note 6 Prior Acts To Show Criminal Disposition: Admissibility Of Prior Acts Of Good Conduct Offered By Defendant
F 1191 Note 7 Improper To Permit Expert Opinion As To Defendant’s Criminal Propensity Or Predisposition
F 1191 Note 8 Instruction On Other Sexual Offense: Need For Clarification From California Supreme Court
F 1191 Note 9 Constitutional Challenge To Propensity Evidence Based On Inability Of Jurors To Follow Limiting Instructions
F 1191 Note 10 Other Sexual Offenses: Limiting Instruction Must Be Requested
F 1191 Note 11 Improper Instruction Regarding Substantive Use Of Prior Offense: Standard Of Prejudice
F 1191 Note 12 Improper Propensity Instruction May Be Prejudicial Even If Jury Considered Evidence
F 1191 Note 13 Uncharged Acts As Propensity Evidence
F 1191 Note 14 Other Sexual Offenses: Definition Of Sex Offense
F 1191 Note 15 When The Prosecution Presents Evidence Under EC 1108 The Defense Is Entitled To Introduce Character Evidence On Rebuttal
F 1191 Note 16 Prior Acts To Show Identity (EC 1108)
F 1191 Note 17 Other Sexual Offenses: Duty To Request
F 1191 Note 18 Other Sexual Offenses: Subsequent Sexual Offenses
F 1191 Note 19 Charged Offense May Not Be Used To Show Propensity Under EC 1108
F 1191 Note 20 Permissive Inferences And Burden Of Proof: CJ 2.50.01 Versus CC 1191
Return to Series 1100 Table of Contents.
F 1191 Note 1 Evidence Of Uncharged Sex Offense—CALCRIM Cross-References And Research Notes
CALCRIM Cross-References:
See FORECITE F 375 Notes
See FORECITE F 852 Notes
See FORECITE F 853 Notes
CALCRIM 375 [Evidence of Uncharged Offense to Prove Identity, Intent, Common Plan, Etc.]
CALCRIM 852 [Evidence of Uncharged Domestic Violence]
CALCRIM 853 [Evidence of Uncharged Abuse of Elder or Dependent Person]
Research Notes:
See CLARAWEB Forum: CALCRIM Warnings, Assaultive And Battery Crimes—Series 800-900.
1191 Note 2 Other Sexual Offenses: Constitutional Challenge Based On Inequity In Precluding Evidence Of Victim’s Prior Consensual Sexual Encounters
The due process and equal protection clauses of the 14th Amendment require a sense of balance and reciprocal parity between the prosecution and the defense in criminal cases. The state may not deprive a criminal defendant of a fair trial by giving the prosecution discovery, evidentiary, jury instructional, or other important rights which it denies to the defense. (Wardius v. Oregon (1973) 412 US 470 [37 LEd2d 82; 93 SCt 2208]; Izazaga v. Superior Court (1991) 54 C3d 356, 377, fn 14; Hubbard v. Superior Court (1997) 53 CA4th 587 [review granted, but subsequently dismissed with order to republish opinion at 66 CA4th 1163, 1170].)
The California legislature has now mandated in EC 1108 that evidence of a criminal defendant’s sexual misconduct with another woman can be used to establish a predisposition to commit sexual offenses and, by inference, that he forced the female victim in the instant case to engage in non-consensual sex; however, EC 1103 prohibits a defendant from offering “character evidence” of the victim’s consensual sexual encounters with other men to prove that she had a propensity to acquiesce to sexual relations and, by inference, consented to sexual relations with the defendant before falsely crying rape. To load the scales against the defendant in this way violates the reciprocal parity and balance requirements of the 14th Amendment and is fundamentally unfair.
CALJIC NOTE: See FORECITE F 2.50.01 n3.
F 1191 Note 3 Other Sexual Offenses: Constitutional Challenge To Proof Of Propensity By Other Acts
ALERT: People v. Falsetta (1999) 21 C4th 903 rejected a due process challenge to CJ 2.50.01. However, until the issue is resolved by the United States Supreme Court it is appropriate to continue raising it.
Due process is transgressed by a state rule that “offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” (Medina v. California (1992) 505 US 437, 445-46 [120 LEd2d 353; 112 SCt 2572]; see also Montana v. Egelhoff (96) 518 US 37 [135 LEd2d 361; 116 SCt 2013]; Schad v. Arizona (1991) 501 US 624 [115 LEd2d 555, 571; 111 SCt 2491].) The use of EC 1108 or EC 1109 of “other acts” evidence as character evidence to show that the defendant has criminal propensities, and therefore is by inference likely to have committed the currently charged crimes, has been universally condemned as contrary to firmly established principles of Anglo-American jurisprudence for more than 300 hundred years. (See McKinney v. Rees (9th Cir. 1993) 993 F2d 1378.)
The United States Supreme Court has recognized at least twice the unanimous tendency of courts that follow the common law tradition to disallow resort by the prosecution to evidence of a defendant’s evil character to establish the probability of his guilt and strongly suggests that introduction of prior crimes evidence solely for the purpose of showing a criminal disposition would violate the due process clause. (Michelson v. U.S. (1948) 335 US 469 [93 LEd 168; 69 SCt 213]; Bell v. Texas (1967) 385 US 554, 572-74 [17 LEd2d 606; 87 SCt 648], conc. and diss.op. of Warren, C.J.; see also Panzavecchia v. Wainwright (5th Cir. 1981) 658 F2d 337; People v. Kelley (1967) 66 C2d 232, 238-39.)
The contrary conclusion reached in People v. Fitch (1997) 55 CA4th 172, should not be followed. Fitch misconstrues the common law proscription against propensity evidence and unduly relies upon the federal rules of evidence without evaluating the matter under the appropriate due process constitutional principles. (See also People v. Waples (2000) 79 CA4th 1389, 1396 [prior acts of molestation may be admissible as propensity evidence and to show common scheme or plan]; People v. Jennings (2000) 81 CA4th 1301, 1313-14 [prior domestic violence evidence may be admissible if it is more probative than prejudicial].) (See FORECITE F 2.50.01a and F 2.50.02a.) [See Brief Bank # B-768for additional briefing on these issues.]
State v. Burns (MO 1998) 978 SW2d 759, held that a statute requiring evidence of other charged or uncharged crimes involving victims under 14 years of age to be admitted to show criminal propensity violated the defendant’s constitutional right to be tried only on the charged offense. Evidence of uncharged offenses to show propensity is inadmissible because it fosters conviction based on such propensity without regard to whether the defendant is guilty of the charged crime.
People v. Morehouse (3/30/98, B106834) UNPUBLISHED, disagreed with People v. Fitch (1997) 55 CA4th 172 and concluded that EC 1108 is unconstitutional. Morehouse concluded that case law has always held propensity evidence to be inadmissible as an historical matter. Since the test for constitutionality is whether the evidence was admissible historically, the exclusion of propensity evidence as an historical matter renders EC 1108 unconstitutional in violation of due process principles. [See Opinion # O-244forthe copy of the Morehouse opinion is available to FORECITE subscribers. See Brief Bank # B-853for additional briefing on this issue.]
CALJIC NOTE: See FORECITE F 2.50.01 n4.
F 1191 Note 4 Other Sexual Offenses: Constitutional Challenge To Preponderance Of Evidence Standard
PRACTICE NOTE: The following argument has been rejected in California (People v. Carpenter (1997) 15 C4th 312, 380-83); however, it should still be preserved for federal habeas corpus and/or certiorari.
The due process clause of the U.S. Constitution, and similar California Constitutional provisions require that, in criminal cases, the state prove every factual and legal element of the offense charged beyond a reasonable doubt. (In re Winship (1970) 397 US 358, 363-64 [25 LEd2d 368; 90 SCt 1068].) Jury instructions relieving state prosecutors of this burden violate a defendant’s due process rights, subvert the presumption of innocence and invade the truth-finding task assigned solely to juries in criminal cases. (Francis v. Franklin (1985) 471 US 307 [85 LEd2d 344; 105 SCt 1965]; Sandstrom v. Montana (1979) 442 US 510 [61 LEd2d 39; 99 SCt 2450]; Carella v. California (1989) 491 US 263, 265 [105 LEd2d 218; 109 SCt 2419]; County Court of Ulster County v. Allen (1979) 442 US 140 [60 LEd2d 777; 99 SCt 2213]; People v. Roder (1983) 33 C3d 491; People v. Figueroa (1986) 41 C3d 714, 726; People v. Hedgecock (1090) 51 C3d 395, 407; People v. Kobrin (1995) 11 C4th 416.)
While the prosecution needs to prove prior misconduct by only a preponderance of the evidence rather than proof beyond a reasonable doubt, the jury instructions concerning the prior crimes must not abrogate the requirement of proof beyond a reasonable doubt of all of the elements of the charged offenses. Due process still requires that the jury be convinced beyond a reasonable doubt of the “ultimate fact” of the defendant’s guilt of the crime for which he is currently on trial. (People v. Medina (1995) 11 C4th 694, 763-64; see also People v. Lisenba (1939) 14 C2d 403, 430.)
CJ 2.50.01, 2.50.02, 2.50.1 and 2.50.2 violate the above principles since they permit the jury to find the defendant guilty based merely on proof by a preponderance of the evidence that the defendant committed a prior similar act. (EC 1108, EC 1109.) [See Brief Bank # B-769for additional briefing on these issues.]
CALJIC NOTE: See FORECITE F 2.50.01 n5.
F 1191 Note 5 Uncharged Crimes To Show Propensity: Analogy To Improper Joinder As Illustrative Of Prejudice
It has been recognized that there is a high risk of prejudice whenever joinder of counts allows evidence of other crimes to be introduced in a trial of charges with respect to which the evidence would otherwise be inadmissible. (See U.S. v. Lewis (9th Cir. 1986) 787 F2d 1318; Bean v. Calderon (9th Cir. 1998) 163 F3d 1073.) This prejudice is illustrative of the prejudice resulting from allowing the jury to use a prior uncharged offense.
CALJIC NOTE: See FORECITE F 2.50.01 n6.
F 1191 Note 6 Prior Acts To Show Criminal Disposition: Admissibility Of Prior Acts Of Good Conduct Offered By Defendant
Rules of evidence such as EC 1108 permit the prosecution to present prior bad acts to prove criminal propensity. However, when such propensity evidence is admitted, the defendant should have a right to defend against the prior acts indirectly by presenting evidence which would disprove the propensity such as prior acts where the defendant exhibited good conduct in similar situations. (See People v. Callahan (1999) 74 CA4th 356.)
CALJIC NOTE: See FORECITE F 2.50.01 n7.
F 1191 Note 7 Improper To Permit Expert Opinion As To Defendant’s Criminal Propensity Or Predisposition
See FORECITE F 375 Note 15.
CALJIC NOTE: See FORECITE F 2.50.01 n8.
F 1191 Note 8 Instruction On Other Sexual Offense: Need For Clarification From California Supreme Court
[See Brief Bank # B-854for briefing discussing the various differing authorities concerning this issue.]
CALJIC NOTE: See FORECITE F 2.50.01 n9.
F 1191 Note 9 Constitutional Challenge To Propensity Evidence Based On Inability Of Jurors To Follow Limiting Instructions
The rules permitting the jury to consider uncharged bad acts as propensity evidence (EC 1108 and EC 1109) are grounded upon the assumption that the jury instruction will protect against improper use of the evidence by the jury; however, in practice, this assumption is unfounded.
Regardless of what instructional formulation is used, it is doubtful that the jurors will abide by it. “[I]t is the essence of sophistry and lack of realism to think that an instruction or admonition to a jury to limit its consideration of highly prejudicial evidence to its limited relevant purpose can have any realistic effect.” (People v. Gibson (1976) 56 CA3d 119, 130; see also People v. Quintanilla (2005) 132 CA4th 572, 583 [noting but not deciding whether jurors can perform “mental gymnastics” requiring application of different standards of proof to the same evidence]; Krulewitch v. U.S. (1949) 336 US 440, 453 [93 LEd 790; 69 SCt 716] Jackson, J. concurring [“The naive assumption that prejudicial effects can be overcome by instructions to the jury, [citation], all practicing lawyers know to be unmitigated fiction. [Citation]”]; see also FORECITE PG X(E)(19)(1).)
In sum, because jury consideration of prejudicial and inflammatory evidence violates the defendant’s state (Art. I, § 7 and § 15) and federal (5th and 14th Amendments) constitutional rights to due process (see McKinney v. Rees (9th Cir. 1993) 993 F2d 1378; see also FORECITE PG VII(C)(20)), EC 1108 and EC 1109 should be held to violate the federal constitution.
NOTE: Even if the statutes are not generally invalidated, each individual case should be balanced to consider whether the statute should be subordinated to the defendant’s constitutional rights under the circumstances. (See FORECITE PG VII(C)(8).)
Subsequent History Note: The United States Supreme Court granted certiorari for People v. Quintanilla, sub nom. Quintanilla v. California (2007) ___ US ___ [167 LEd2d 40; 127 SCt 1215]. Judgment was vacated and the case remanded to the Court of Appeal for further consideration in light of Cunningham v. California (2007) 549 US 270 [166 LEd2d 856; 127 SCt 856]. On remand, the Court of Appeal filed an unpublished opinion on July 31, 2007.
CALJIC NOTE: See FORECITE F 2.50.01 n10.
F 1191 Note 10 Other Sexual Offenses: Limiting Instruction Must Be Requested
(See People v. Jennings (2000) 81 CA4th 1301, 1316.)
CALJIC NOTE: See FORECITE F 2.50.01 n11.
F 1191 Note 11 Improper Instruction Regarding Substantive Use Of Prior Offense: Standard Of Prejudice
People v. Regalado (2000) 78 CA4th 1056 suggested that the proper standard of prejudice is whether there was a reasonable probability the error in the giving of CJ 2.50.01 affected the result. (People v. Regalado (2000) 78 CA4th 1056, 1063-64 fn 5; People v. Watson (1956) 46 C2d 818, 833-35.)
However, because the error impacts the burden of proof it violates the federal constitution. (See FORECITE PG VII(C)(8).) For example, in People v. James (2000) 81 CA4th 1343, 1360-63, the court analyzed the issue thoroughly and concluded that any error should be evaluated for prejudice under the test announced in Chapman v. California (1967) 386 US 18 [17 LEd2d 705; 87 SCt 824], i.e., whether the error was harmless beyond a reasonable doubt. (81 CA4th 1343, 1360-63; see also Yates v. Evatt (1991) 500 US 391, 403-404 [114 LEd2d 432; 111 SCt 1884] [an instructional error may be found to be harmless where it is shown beyond a reasonable doubt that the error was “unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record”].)
Moreover, it may also be argued that such an error is structural and requires reversal per se. (See People v. Orellano (2000) 79 CA4th 179, 186; but see People v. Escobar (2000) 82 CA4th 1085, 1102 fn 10.) [See Brief Bank # B-861for additional briefing on this issue is available to FORECITE subscribers.]
CALJIC NOTE: See FORECITE F 2.50.01 n12.
F 1191 Note 12 Improper Propensity Instruction May Be Prejudicial Even If Jury Considered Evidence
“If the prosecution’s case is weak, or if the strength of the evidence advanced by the defense closely balances the prosecution’s evidence, the instruction permits the jury to take an impermissibly easy way out of its deliberations by deciding that, after considering all the evidence, it may resolve its doubts simply by relying on the propensity evidence. While a jury could properly weigh the propensity evidence together with the other evidence to reach an ultimate determination whether the elements of the charged offense have been proven, it could also reasonably interpret the instruction to allow a direct leap from the defendant’s disposition, over the troubling aspects of the rest of the evidence, to a guilty verdict. Such an improper deliberative process is more than a remote possibility, particularly if there is a disagreement among jurors on the strength of the other evidence. If a reviewing court cannot be confident that the deliberations took the proper course, the error cannot be deemed harmless. [Citation].” (People v. Younger (2000) 84 CA4th 1360, 1383.)
CALJIC NOTE: See FORECITE F 2.50.01 n13.
F 1191 Note 13 Uncharged Acts As Propensity Evidence
People v. Nwandu UNPUBLISHED (2000) concluded that the paragraph added to CJ 2.50.01 and CJ 2.50.02, in the 1999 revisions are more than just desirable improvements or useful nuggets of additional information. The court concluded that the 1999 revisions are “essential to the jury’s proper understanding of the disposition evidence. Without the 1999 revision, jurors are told they may infer the defendant’s guilt of the charged crimes from the preponderance of evidence that he committed prior crimes, and they are forced to surmise from all the other instructions that this inference is subject to the reasonable doubt standard.” (Id. at pp. 13-14.) [See Opinion Bank # O-269for the Nwandu opinion is available to FORECITE subscribers.]
CALJIC NOTE: See FORECITE F 2.50.01 n14.
F 1191 Note 14 Other Sexual Offenses: Definition Of Sex Offense
As amended effective January 1, 2002, EC 1108 expands the definition of “sex offense” under the exception to the inadmissibility of character evidence, which allows for the introduction of evidence of past sex offenses. “Sexual offense” means a crime under the law of a state or of the United States that involved any of the following: Any conduct proscribed by PC 243.4, PC 261, PC 261.5, PC 262, PC 264.1, PC 266c, PC 269, PC 286, PC 288, PC 288a, PC 288.2, PC 288.5, or PC 289, or subdivision (b), (c), or (d) of PC 311.2 or PC 311.3, PC 311.4, PC 311.10, PC 311.11, PC 314, or PC 647.6. (AB 380, Stats. 2001, Ch. 517.)
ALERT: This amendment allows evidence of a prior non-serious felony conviction, or even a misdemeanor conviction, as propensity evidence in violation of 300 years of Anglo-American legal tradition. In light of Garceau v. Woodford (9th Cir. 2001) 275 F3d 769, 773-77, a federal constitutional challenge to EC 1108 as amended may be viable particularly if the prior conviction was not a serious felony or was even a misdemeanor.
CALJIC NOTE: See FORECITE F 2.50.01 n16.
F 1191 Note 15 When The Prosecution Presents Evidence Under EC 1108 The Defense Is Entitled To Introduce Character Evidence On Rebuttal
If the prosecution is allowed to produce propensity evidence under EC 1108 the defense may rebut the evidence by introducing character evidence that the defendant has not committed sexual assaults under similar circumstances. (See People v. Callahan (1999) 74 CA4th 356, 374-79.) See Article Bank # A-95for the article on this issue, “Evidentiary Issues Frequently Arising In Sex Cases” by Dallas Sacher.
CALJIC NOTE: See FORECITE F 2.50.01 n17.
F 1191 Note 16 Prior Acts To Show Identity (EC 1108)
(See People v. Britt (2002) 104 CA4th 500 [EC 1108 (prior sex crimes to prove propensity to commit a charged sex crime) makes admission of prior sex crimes usable not just on issues such as intent, but also on identity itself].)
CALJIC NOTE: See FORECITE F 2.50.01 n18.
F 1191 Note 17 Other Sexual Offenses: Duty To Request
People v. Reliford (2003) 29 C4th 1007, 1015 fn. 2 suggests that CJ 2.50.01 is not required sua sponte.
CALJIC NOTE: See FORECITE F 2.50.01 n19.
F 1191 Note 18 Other Sexual Offenses: Subsequent Sexual Offenses
(See People v. Medina (2003) 114 CA4th 897 [uncharged sexual offense admissible pursuant to PC 1108 even though it occurred after the charged offense].)
CALJIC NOTE: See FORECITE F 2.50.01 n20.
F 1191 Note 19 Charged Offense May Not Be Used To Show Propensity Under EC 1108
See People v. Quintanilla (2005) 132 CA4th 572.
F 1191 Note 20 Permissive Inferences And Burden Of Proof: CJ 2.50.01 Versus CC 1191
The version of CJ 2.50.01 approved in People v. Reliford (2003) 29 C4th 1007 is “similar in all material parts” to CC 1191 in its explanation of the law of permissive inferences and burden of proof. (People v. Johnson (2008) 164 CA4th 731, 740)
