The modified instruction in Villatoro provided as follows:
The People presented evidence that the defendant committed the crime of rape as alleged in counts 2,4,7,9,12, and 15 and the crime of sodomy as alleged in count 14. These crimes are defined for you in the instructions for these crimes. [¶] If you decide that the defendant committed one of these charged offenses, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit the other charged crimes of rape or sodomy, and based on that decision also conclude that the defendant was likely to and did commit the other offenses of rape and sodomy charged. If you conclude that the defendant committed a charged offense, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove the defendant is guilty of another charged offense. The People must still prove each element of every charge beyond a reasonable doubt and prove it beyond a reasonable doubt before you may consider one charge as proof of another charge. (People v. Villatoro (2012) 54 Cal. 4th 1152, 1167-1168.)
The court in Villatoro 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 1167.) It is particularly inappropriate for the court to characterize a prior attempted kidnapping conviction as a prior “sexual offense” under EC § 1108. Courts also should not permit the jury to use sexual offense propensity evidence to find propensity to commit non-sexual offenses. (People v. Jandres (2014) 226 Cal. App. 4th 340, 358-359.)
