People v. Villatoro (2012) 54 Cal. 4th 1152, held that evidence of other sex crimes pursuant to EC § 1108 may be admitted even when the evidence consists of other sex crimes alleged as counts in the charging document. EC § 1108 and EC § 1109, which is the underlying statute for CC 852, are substantially identical and thus it may be permissible to use CC 852 regarding evidence of other crimes alleged as counts in the charging instrument.
However, if other counts are used for propensity, it is important that the jury not be instructed that the other counts can be proved by a mere preponderance of the evidence. (Id. at 1167-1168.) Using CC 852 unaltered when the only evidence of domestic violence consists of other counts in the charging document would confuse the jury because they would have to perform mental gymnastics to consider the evidence for purposes of using a preponderance of evidence standard but only convict the defendant of the counts if convinced beyond a reasonable doubt. In sum, CC 852 should be modified to instruct the jury that the other counts must be proved beyond a reasonable doubt.
Caveat: In Villatoro, the court stressed that the trial court should use its discretion under EC § 352 to determine whether the other charged offenses are dissimilar enough, or so remote or unconnected to each other, that admission of them for propensity evidence would be too prejudicial. (Id. at 1163.)
