Brief Bank # B-717 (Re: F 2.50 n10 [Uncharged Offenses: Prior Sexual Offenses As Character Evidence (EC 1108)].)
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I.
THE TRIAL COURT ERRED IN ADMITTING EVIDENCE OF AN
ALLEGATION OF UNCHARGED SIMILAR CONDUCT
Respondent’s brief cites Evidence Code section 1108 in support of its contention that evidence of a prior act allegedly committed by appellant, but apparently uncharged in the county in which it occurred, was properly before the jury. Appellant disagrees for a number of reasons.
A. Because The Prosecution Failed To Raise Evidence Code section 1108 As A Basis For Admitting The Evidence, The Issue Of Such Admissibility Has Been Waived
The record reveals that in the trial court, the prosecutor never raised the issue of whether a prior bad act or uncharged offense is admissible pursuant to Evidence Code section 1108. Appellant contends that the issue of admissibility under section 1108 has been waived, and respondent may not attempt to rely upon it now.
This court is entitled to presume that the prevailing party made a proper record below. Yet in this case, the prosecution never offered the evidence of the prior uncharged offense on the theory now advanced.
“To permit the People to inject this new theory into the case would deprive the [defendant] of a fair opportunity to present an adequate record in response . . . He had no opportunity to mount a legal attack on the theory advanced for the first time before this court, nor to present evidence on cross-examination . . . [Citations.]” (People v. Superior Court (Simon) (1971) 7 Cal.3d 186, 198-199.)
In the present case, appellant clearly had no opportunity to attack the constitutionality of Evidence Code section 1108, or to otherwise challenge the admissibility of evidence purportedly within its ambit. It would be blatantly unfair to allow respondent to rely upon the section at this late date.
B. Evidence Code Section 1108 Denies Criminal Defendants Due Process Of Law
Evidence Code section 1108, subd. (a) provides as follows:
“In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s conunission of another sexual offense or offenses is not made inadmissible by section 1101, if the evidence is not inadmissible pursuant to section 352.”
The Due Process Clause of the United States Constitution prohibits state procedures which offend some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental. (Reno v. Flores (1993) 507 U.S. ___; Medina v. California (1992) 505 U.S. _.) The Due Process Clause may fairly be said to prohibit any procedures which undermine the ultimate integrity of the fact finding process. (Ohio v. Roberts (1980) 448 U.S. 56, 64; Chambers v. Mississippi (1973) 410 U.S. 284, 295.)
The United States Supreme Court has ruled that the Due Process Clause requires that proof of a criminal charge be beyond a reasonable doubt. (In re Winship (1970) 397 U.S. 358.) Due process does not permit a conviction based on no evidence, or on evidence so unreliable and untrustworthy that it may be said the accused had been tried by a kangaroo court. (California v. Green (1970) 399 U.S. 149, 186, fn. 20; Turner v. Louisiana (1965) 370 U.S. 466; Thompson v. City of Louisville (1960) 362 U.S. 199.)
Upon the foregoing principles, the admission of prior acts to show a propensity to conunit crime and to allow a jury to convict upon such evidence would amount to a denial of the right to due process of law and the right to a fair trial. Evidence of prior crimes introduced for no other purpose than to show criminal disposition is violative of the Due Process Clause. (Spencer v. Texas (1967) 385 U.S. 554, 574-575 [conc. and dissenting opinion of Warren, C.J..)
The right not to be tried on evidence of character, unless the defendant himself puts his character at issue, is a principle of justice so rooted in the traditions and conscience of the American people that it is ranked as fundamental. California courts have cited this principle repeatedly throughout the judicial history of the state. It is well established that evidence of other crimes is inadmissible to prove the accused had the propensity or disposition to commit the crime charged. (People v. Guerrero (1976) 16 Cal.3d 719, 724; People v. Terry (1970) 2 Cal.3d 362, 396.) In People v. Kelley (1967) 66 Cal.2d 232, the California Supreme Court stated:
“The general rule is that evidence of other crimes is inadmissible when it is offered solely to prove criminal disposition or propensity on the part of the accused to commit the crime charged, because the probative value of the evidence is outweighed by its prejudicial effect. The purpose of the rule is to avoid placing the accused in a position of having to defend against crimes for which he has not been charged and to guard against the probability that evidence of other criminal acts having little bearing on the question whether defendant actually committed the crime charged would assume undue proportions and unnecessarily prejudice defendant in the minds of the jury, as well as promote judicial efficiency by restricting proof of extraneous crimes.” (Id., at pp. 238-239.)
The United States Supreme Court has recently stated that “our primary guide in determining whether the principle in question is fundamental is, of course, historical practice.” (Montana v. Egelhoff (1996) ___ U.S. ___ [135 L.Ed.2d 361, 368]; Medina v. California (1992) 505 U.S. 437, 446.) However, the Court has also acknowledged that the burden is on those who seek to challenge a particular principle to show that it is “‘so rooted in the traditions and conscience of our people as to be ranked as fundamental.”‘ (Egelhoff, supra, at p. 371, citing Patterson v. New York (1977) 432 U.S. 197, 201-202.) Thus, the implication is that the practice of determining the fundamental nature of a principle is not necessarily determinative if a principle has become firmly rooted since the adoption of the Fourteenth Amendment. (Egelhoff, supra, at p. 371.)
Appellant acknowledges that the present rule of excluding character evidence embodied in Evidence Code section 1101 , subd. (a) offered to show mere propensity to commit crimes was not firmly rooted in 1865, although it was in the process of being formed. (Imwinkelreid, Uncharged Misconduct Evidence, section 2.24, et. seq.) Nevertheless, the rule is presently so well established that due process is violated by the admission of character evidence to prove propensity. This is confirmed by the fact that almost all states prohibit the introduction of character evidence offered only to prove propensity. [Footnote 1] (See Cooper v. Oklahoma (1996) __ U.S. – [134 L.Ed.2d 498, 51 1]; state rule on burden of proof violated due process since only 4 states have such a rule.)
It is clear from the above authorities that Evidence Code section 1108 impermissibly deprives criminal defendants of their right to Due Process by allowing the finder of fact to consider evidence proving nothing more than the propensity to commit a crime. In addition, courts have recognized that character evidence “is said to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge.” (Michelson v. United States (1948) 335 U.S. 469, 475476; see also Henry v. Estelle (9th Cir. 1993) 993 F.2d 1423, 1427-1428, overruled on other grounds, Duncan v. Henry (1995) ___ U.S. ___ [130 L.Ed.2d 865] [holding use of propensity evidence to bolster weak prosecution in child molestation case, in addition to instruction requiring jurors to focus on prior accusation and whether defendant’s denial was genuine violated due process]; United States v. Vizcarra-Martinez (9th Cir. 1995) 66 F.3d 1006, 1013-1014 commenting that other crimes evidence is disfavored, because the accused must be tried on the basis of evidence of the charged offense, not for who he is or for prior uncharged wrongdoing]; McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378, 1384.) Since such a rule is directly contrary to the established rule in almost every jurisdiction in the United States, and fails to guard against the danger that juries will convict a defendant on the bases of his character rather than the facts of the alleged offense, appellant’s convictions should be reversed.
C. Evidence Code Section 1108 Deprives Criminal Defendants Of Equal Protection
Both the Fourteenth Amendment to the United States Constitution and Article I, section 7 of the California Constitution guarantee to each person the equal protection of the laws. California Evidence Code section 1101 , subd. (a) protects a person from the admission of character evidence if offered only to show a propensity to commit crime. Evidence Code section 1108 removes that protection only from persons accused of a sexual offense who have previously committed an earlier sexual offense. This disparate treatment of those accused of criminal offenses violates the United States and California guarantees of the equal protection of the laws.
This court has stated that
“[b]oth the federal and state Constitutions prohibit denying equal protection of the laws.’ [Citations.] This requires that ‘persons similarly situated with respect to the legitimate purpose of the law receive like treatment.’ [Citation.] ‘The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.’ [Citations.]” (Murphy v. Pierce (1991) 1 Cal.App.4th 690, 694, emphasis in original; see also People v. Cortez (1985) 166 Cal.App.3d 994, 1000 [the concept of the equal protection of the laws compels recognition of the proposition that persons similarly situated with respect to the legitimate purpose of the law receive like treatment].)
The fact that a criminal defendant is charged with a sex offense does not make that person’s situation dissimilar from those charged with other crimes. All defendants are similarly situated with respect to the rules of evidence in that each defendant has the right to a fair trial guided by rational rules of evidence.
When a state law infringes a constitutionally protected and fundamental right, that law is subject to strict scrutiny under the equal protection clause. (Attorney General of New York v. Soto-Lopez (1986) 476 U.S. 898, 904; San Antonio School District v. Rodriguez (1973) 411 U.S. 1, 33-34.) When the strict scrutiny standard is applied, the state must show a compelling justification for the discrimination or the discrimination is deemed a violation of the Equal Protection Clause. (Soto-Lopez,
supra, at p. 904.)
Evidence Code section 1108 treats those accused of a sexual offense differently from all other criminal defendants by allowing evidence of alleged other offenses to be admitted for all purposes including showing a propensity to commit crime. As stated above, the admission of such evidence impinges upon such a defendant’s constitutional rights to a fair trial, due process of law, and the requirement that the case be proved against him beyond a reasonable doubt. There can be no argument that these rights are not fundamental and guaranteed to a defendant by the Constitution. Since the impingement is upon a fundamental and constitutional right, the discrimination is subject to strict scrutiny. To uphold the discrimination, the State must show a compelling justification. Nothing justifies treating those accused of sexual offenses differently from those accused of murder, violent assault, burglary, or violence against children. Evidence Code section 1108 impinges upon the right of a person to a fair trial and to due process of law when he or she is accused of a sexual offense. This is unlawful discrimination which violates the state and federal guarantee to equal protection of the laws.
FOOTNOTES:
Footnote 1: Alabama: R. Evid., Rule 404
Alaska: Alaska Evid. Code section 404
Arizona: Ariz. R. Evid. 404
Arkansas: Ark. R. Evid. 404
Colorado: Colo. R. Evid. 404
Delaware: Del. R. Evid. 404
Florida: Fla. Stat. section 90.404(l)
Hawaii: Haw. R. Evid. 404
Idaho: Idaho R. Evid. 404
Indiana: In. St. Rev. Rule 404, subd. (a)
Iowa: Ia. R. Evid. 404
Kansas: Kan. Stat. Ann. section 60-447
Kentucky: Ky. R. Evid. 404
Louisiana: La. Code Evid. Ann. art. 404
Maine: Me. R. Evid. 404
Maryland: Md. St. Rev. Rule 5-404(a)
Michigan: Mich. R. Evid. 404
Minnesota: Minn. St. Rev. Rule 404, subd. (a)
Mississippi: Miss. R. Evid. 404
Montana: Mont. R. Evid. 404
Nebraska: Neb. Rev. Stat. section 27-404(l)
Nevada: Nev. Rev. Stat. 48-045(l)
New Hampshire: N.H.R. Evid. 404
New Jersey: N.J.R. Evid. 404
New Mexico: N.M. Stat. Ann. 11-404
North Carolina: N.C. Gen. Stat. section 8C-1, Rule 404
North Dakota: N.D. R. Evid. 404
Ohio: Ohio R. Evid. 404
Oklahoma: Okla. Stat. tit. 12 section 2404
Oregon: Or. R. Evid. section 404
Pennsylvania: Pa. St. 42 Pa. C. S. A. section 5918
Rhode Island: R.I. R. Evid. 404
South Carolina: S.C. R. Evid. 404
South Dakota: S.D. Codified Laws Ann. section 19-12-5
Tennessee: Tenn. R. Evid. 404
Texas: Tx. R. Crim. Evid. 404
Utah: Ut. R. Evid. 404
Vermont: Vt. R. Evid. 404
Washington: Wash. R. Evid. 404
West Virginia: W.Va. R. Evid. 404
Wisconsin: Eid. R. Evid. 904.03
Wyoming: Wy. R. Evid. 404
