Opinion Bank # O-244 People v. Morehouse (UNPUBLISHED OPINION)
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NOT TO BE PUBLISHED
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent, B106834
v. (Sup. Ct. No. BA113681)
ARTHUR C. MOREHOUSE,
Defendant and Appellant.
_________________________________________
APPEAL from a judgment of the Superior Court of Los Angeles County, Robert O’Neill, Judge. Reversed.
Edward P. George, Jr. and Dennis A. Fischer for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney GeneralCarol Wendelin Pollack, Senior Assistant Attorney General, Susan D. Martynec, Supervising Deputy Attorney General, and Rama R. Maline, Deputy Attorney General, for Plaintiff and Respondent.
____________________
INTRODUCTION
Defendant Arthur C. Morehouse appeals from a judgment entered after a jury found him guilty of two counts of lewd acts against children (Pen. Code, § 288, subd. (a)). Prior to trial, the People moved to admit evidence of defendant’s other acts pursuant to Evidence Code sections 1101, subdivision (b), and 1108; defendant opposed the motion. The court denied the motion insofar as it sought to admit other actspursuant to subdivision (b) of section 1101 but granted it with respect to section 1108. The court limited consideration of the evidence to its effect on the credibility of defendant and the prosecuting witness, however. After denying defendant’s motions for a new trial, the court sentenced him to state prison for the term prescribed by law. We reverse the judgment.
STATEMENT OF FACTS
On April 17, 1995, D.G. and her sister, M.G., lived with their mother, J.H., in a ground floor apartment on Martin Luther King Boulevard. The apartment had a fenced yard. D. was four years old; M. was three. Late that afternoon, D. and M. were playing in the front yard. There was a truck parked nearby. The man in the truck, defendant, went into the house next door and talked to a lady for a few minutes. Thereafter, he talked to a succession of ladies in the house and the yard. D. and M. watched all this visiting.
D. and M. are not allowed to go out of the yard. That afternoon, M. climbed up on the gate and opened it; she pushed D. out of the yard. M. then pushed D. down the street toward their grandmother’s house. When they got to the truck, defendant offered them candy; there was no one else around. M. pushed D. into the truck. Defendant gave D. a small candy covered in white. He pulled down her pants and underpants and touched her inside her “private parts.” She knew it was bad for someone to touch her there. Defendant then pulled down M.’s pants and underpants and touched M. D. left the truck and went back to the yard. She told her mommy what defendant had done.
J.H. had told her daughters they would be punished if they ever talked to a stranger, took candy from a stranger or left the yard. Just before 6:00 p.m. on April 17, 1995, D. and M. were playing in the yard as J.H. cooked supper. Approximately 10 minutes after she checked on them, D. ran into the house crying and screaming. She said a bad man touched her private parts and was doing things to M. D.’s T-shirt, which usually was tucked neatly in her pants, was pulled out.
When D. took her mother outside, J.H. saw a Snap-On Tools truck parked at the curb approximately three apartment buildings down the street. J.H. asked D. where M. was; D. pointed to the truck. J.H. walked toward the truck, called M.’s name loudly. A pair of hands lifted M. by the waist out the side door of the truck; M. fell to her knees. Her shirt was pulled out and her pants were twisted to the side. M. appeared frightened and withdrawn. J.H. picked up M., went into the apartment and got her keys. She put the girls in the back seat of her automobile as the truck drove away.
J.H. followed the truck eastward on Martin Luther King Boulevard. D. was crying, but M. was very quiet. She was sitting on the floor.
The truck was traveling at a normal speed and made traffic stops. The truck drove past the freeway entrance at Flower Street. While she was stopped at a traffic signal at San Pedro Street, J.H. saw a police vehicle traveling in the opposite direction; she caught Los Angeles Police Officer Rudy Vidal’s attention, then spoke to him. Officer Vidal told her to stay behind him; they would follow the truck. Officer Vidal stopped the truck at McKinley and 41st Streets.
Officer Vidal and his partner got out of their police vehicle and ordered defendant to get out of the truck. Officer Vidal could see defendant’s reflection in the truck’s side view mirror. Defendant’s hands came up to some kind of dispenser, then moved in a washing motion. Approximately 15 seconds later, defendant stepped out of the truck. D.G. identified defendant as the man who did bad things to her and M. Officer Vidal handcuffed and detained defendant. After J.H. took the girls to the Newton Police Station, she took , them to Los Angeles County-U.S.C. Medical Center; they were there until 4:00 a.m. A police officer accompanied them.
Astrid Heger is a physician employed by the medical center’s vulnerablechild violent intervention program. The program evaluates between 1,500 and 2,000 children a year who are suspected victims of abuse, mostly of the sexual variety. Approximately 15 percent are found to have suffered some kind of genital trauma.
Dr. Heger’s practice has focused on sexual abuse since 1982. She authored the first textbook on the evaluation of sexually abused children and has published articles in the area of medical diagnosis of sexual abuse in children. She published an article in 1984 on the use of the colposcope, a magnification device which can be equipped with a camera, in the medical diagnosis of sexual assault in children. She has also published articles on its use in adults. In addition, she has written a number of research articles on the long-term effect of acute genital injury and on normal newborn genitalia.
Dr. Heger teaches the medical diagnosis of sexual abuse in children at a variety of universities. She serves as one of seven doctors on a superior court panel which renders opinions in dependency court proceedings. She sits on a number of national boards, including the American Academy of Pediatrics Board on Child Abuse. Dr. Heger has testified as an expert in approximately 74 cases.
Ann Lloyd (Lloyd), a registered nurse, had assisted Dr. Heger for the past 10 years. Lloyd assisted or performed 6,000 to 7,000 child sexual examinations. Approximately 60 to 70 percent of the examinations involved prepubescent children. Genital trauma was diagnosed in approximately 15 percent of the examinations. During the first five years of Lloyd’s professional association with Dr. Heger, she and Dr. Heger examined patients together. Thereafter, Lloyd performed the examinations while Dr. Heger assisted her. When the examinations were completed, Lloyd and Dr. Heger discussed and reviewed the findings. Dr. Heger trained Lloyd to take a conservative approach in making her findings. She generally agreed with Lloyd’s findings.
Sexual examinations generally were conducted by two medical professionals, either a doctor and a nurse or two doctors. Late at night or in the early morning hours, however, a nurse may perform the examination alone. In that case, the colposcopic examination is videotaped. Dr. Heger later reviews the videotape and either rejects or adopts the findings.
The state has developed a form, called OCJP 925, for use in the sexual assault examinations of children. The questions to be answered and blanks to be filled in take an examiner through the performance of an examination. The form provides space for a history taken from the child or the person accompanying the child, diagrams of genital findings to be drawn by the examiner and other information useful for reporting the results of the examination to law enforcement and social services.
Dr. Heger was not present when D.G. and M.G. were examined; Lloyd conducted the examinations alone. Dr. Heger recalled reviewing the forms and the videotapes Lloyd had prepared the next time they both were in the office but did not recall on what day of the week this occurred or how many cases she had reviewed with Lloyd at that time. Her records show that D. and M. were examined separately. Dr. Heger found no major discrepancies between the videotapes and the OCJP 925 forms completed by Lloyd. She signed the reports and adopted Lloyd’s findings as her own.
Lloyd had documented in the OCJP 925 forms for D. and M. tears in their vaginal floors. The form completed for D. depicted a tear in the fossa navicularis, which is an area below the hymen, and posterior fourchette, which is at the base of the hymen. The form completed for M. depicted a tear in the posterior fourchette. The tears were past the girls’ external genitalia. In Dr. Heger’s opinion, the trauma was recent. It was consistent with a penetrating trauma, specifically digital penetration of the vagina while the child was standing.
The floor of the vaginal wall in the area of the posterior fourchette is covered in epithelial cells. In very young girls such as D. and M., however, Dr. Heger opined that the epithelial layer was only one cell thick. She had never known an injury to a prepubescent girl, such as a tear in the posterior fourchette, to deposit epithelial cells on the hands and under the fingernails of the perpetrator.
Dr. Heger had written and lectured about the importance of documenting physical injury in child cases photographically or videographically. Due to the number of examinations performed annually, however, space constraints militated against preserving videotapes of examinations. They were used to review examinations conducted by nurses; once the review was completed, they were recycled and eventually erased by new recording. The videotapes of D.G.’s and M.G.’s examinations no longer existed.
When Dr. Heger reviewed the videotapes with Lloyd, she assumed they would be able to rely on 35-millimeter slides taken at the same time. It is Dr. Heger’s standard procedure to have such slides taken. Each morning, the previous 24 hours’ slides are sent to the photographic laboratory for processing. Dr. Heger could find no record that 35 millimeter slides had been taken in this case.
At approximately 8:15 a.m. on August 17, 1989, J.R. was walking to Suva Intermediate School in Bell Gardens. As she approached a cream colored Mercedes Benz that was parked at the curb, she saw defendant sitting inside the Mercedes. He was naked and was holding his penis in his right hand; he was smiling broadly. Just below the window, defendant was holding something that might have been a mirror in the closed fist of his left hand. The passenger window was closed; defendant made no effort to speak to J.R. Although the license plate was covered with waxed paper, J.R. was able to read and record the number. Upon arriving at school, she reported the incident to her principal, who then telephoned the police.
Several months earlier, a man had driven by doing the same thing. He had called J.R. and her friends over his automobile. She never reported this incident to the principal.
Defense
Defendant, who was 50 years old at the time, had been an independenttool dealer for Snap-On Tools Corporation since 1979; he lived in Downey. His wife of 26 years helped him in his business. He keeps a cell phone in his truck; his wife generally calls him a couple of times a day.
On August 17, 1989, when J.R. allegedly observed him exposing himself, he had stopped for breakfast at Sam’s in Bell Gardens. He was driving a beige 1981 Mercedes Benz; he was dressed in a light tank top and beige shorts. He was holding a mug of coffee between his legs. As defendant operated the clutch, the coffee spilled. He parked his Mercedes on Fry Street. Holding the mug in one hand, he used some papers to daub up the coffee from his legs and shorts. He then returned home to change his clothes.
Defendant did not see a young woman walk past. He did not expose himself or hold his penis in his hand. He did have a plastic license plate holder over the rear plate of the Mercedes.
Donnel Ball was defendant’s field manager form 1979 to 1994. Snap On Tools has approximately 250 dealers in Southern California, each of whom has a specific territory. Many Snap-On Tools dealers use their wives as business secretaries, as does defendant. Defendant’s task was to sell tools from his truck, collect money and service customers in his territory. That territory varied on the different days of the week. On a Monday such as April 17, 1995, defendant could see up to 75 potential customers, 10 to 15 active accounts, in his area. His territory would end on Martin Luther King Boulevard.
All Snap-On Tools trucks are the same. They are 21-foot vans with only one door for entrance. The rear doors are kept locked. The passenger window is covered partially with a reflective film; one cannot see into the van through this window.
Since Snap-On Tools trucks are large and white, they sometimes are mistaken for catering or ice cream trucks. Dealers are trained to be courteous and kind to everyone, especially children, for often the children encountered are those of a customer. It is not unusual to see children on a Snap-On Tools truck. The trucks carry candy as a regular feature. Defendant kept his supply of candy on a waist-high shelf behind the driver’s seat in sockets that are approximately two and one-half inches in diameter. These were individually wrapped hard candies and caramels. Candies often fall out of the receptacles and land on the floor. When defendant’s wife helps him clean the truck, she finds candies all over the place.
Defendant had generated a number of invoices on April 17, 1995. They all pertained to familiar customers. The date on an invoice is fixed by computer. Neither the date, the invoice number nor the sequence can be manipulated.
On April 17, 1995, defendant left his house in Downey between 10:30 and 11:00 a.m. He was carrying a box of See’s candy bars in addition to the usual hard candies; he had purchased the box from a customer.
Defendant anticipated seeing approximately 70 customers, then returning home by 6:45 p.m. He had a customer, Eric Hamada (Hamada), to see at 7:00 p.m. Hamada, who represented approximately 30 percent of defendant’s volume, tended to be very prompt. Defendant also had promised to have dinner with his wife and daughter early enough that his daughter could return to school by 9:00 p.m.
Defendant first stopped at the MTA Maintenance Division No. 5 and saw Coleman Hollis at approximately 11:30 a.m. Mr. Hollis had been a customer for 17 years. Defendant then made stops at Crenshaw Transmissions, Crenshaw Motors Ford Body Shop, Hero’s Auto Shop and Chin’s Auto; all of these businesses were on Crenshaw Boulevard. Defendant’s next customers were Harper’s Automotive, Fine Automotive and Johnny’s Right Tune, all of which are on Vernon Avenue.
After visiting three more customers in the same general vicinity, defendant went to King Auto Repair; he spoke to Jose Delgado. He then continued on to Ako Automotive, a transmission shop at the corner of Arlington Avenue and Martin Luther King Boulevard. He made his last stop, at Consolidated Auto Repair, where he spent approximately 15 minutes talking with John Pettigrew, the owner, who had been a customer for 17 years. Defendant delivered a promised gift of a Snap-On Tools jacket to Mr. Pettigrew.
At this point, defendant began his homeward journey. He normally drove east on Martin Luther King Boulevard to the first street going south that looked inviting. While he sometimes took the Harbor Freeway, it depended on the volume of traffic. That evening, the traffic was not inordinately heavy.
Just before defendant reached Menlo Street, he heard an automobile horn. He thought he recognized a customer, Dennis Pena, driving a rust 1985 Cadillac. He stopped at the curb in front of a row of apartment houses; the Cadillac stopped in front of him. When defendant stepped out of the truck, he realized the driver was not Mr. Pena. The man appeared to be a mechanic, however, and was familiar with Snap-On tools. He was interested in a particular tool box which defendant had in stock. Defendant unlocked the truck and let the man come inside. They discussed the features of the tool box which was a $3,000 item.
As the discussion continued, defendant noticed that there was a four to five-year-old girl outside the door, looking at the candy on the floor. She asked if she could have the candy; he said she could. There was a younger girl standing behind the first little girl; she, too, asked for candy. Defendant put out his hand and helped the girls into the truck. He suggested they take candy from the container rather than the floor. The girls walked back toward the center of the truck where the candy was stored. Although his focus was on his customer, defendant saw the girls take candy from the socket.
The customer finished their discussion, handed defendant his business card and left. By then the older girl had left the truck but the younger girl was still inside. Defendant told her it was time to go. She jumped to the ground; defendant had his hand out to steady her if necessary but he did not think he actually touched her. He did not lure the children into the truck, remove their clothing or touch them in a sexual fashion.
Defendant took some time to secure items and tidy up the truck before he left. Approximately two to three minutes later, he closed the door and continued on his journey. Approximately two to three miles along, on McKinley Street, defendant pulled over to the curb in response to flashing lights on a police vehicle. Two officers drew their guns and pointed them in the direction of the truck. Defendant observed them for a bit, attempting to figure out what was happening. He never lifted his hands or moved them in a washing motion. There was a dispenser in the truck which he had used for various items, but it was empty.
When defendant heard the police order him to come out of the truck, he complied. The police handcuffed him and took him to the police station where a criminalist took swabs of all his fingers and cuticles and scrapings from underneath each of his fingernails.
The swabs and scrapings taken from defendant’s hands were delivered to the Los Angeles Police Department’s crime laboratory. A criminalist tested the swabs and scrapings on December 17, 1995. He found no epithelial or sperm cells and detected no measurable quantities of DNA.
Marc Scott Taylor (Taylor), a criminalist and forensic scientist, conducted further testing on the swabs and scrapings. Taylor has a bachelor’s degree in zoology and has done graduate work in cell biology with an emphasis on the physiology and anatomy of cells. He also has taken a number of courses in molecular biology to assist him in developing procedures for the performance of DNA typing. He formerly held a research position with the Los Angeles County coroner’s office. He has testified as an expert witness on DNA and DNA analysis dozens of times. He has published articles in this field.
Taylor reviewed the police report, the girls’ medical records and an analyzed evidence report dated December 27, 1995. He employed very sensitive testing in an attempt to uncover cellular material or DNA; he found none. An even more sensitive DNA test also yielded no evidence.
Squamous epithelial cells are large flat cells that form the lining of the mucous membranes. The cells are shed into mucousal secretions. There is a thin layer of epithelial cells in prepubescent girls. In a child of three to four years of age, the cells would form a layer five or six cells thick. If a person placed his finger inside the vagina of such a child, epithelial cells would be deposited on his finger. Capillary action would draw vaginal secretions, which are present even in a three-year-old child, under the fingernails. If an individual penetrated the vaginas of two children, there would be an even greater likelihood of finding epithelial cell trace evidence. Taylor could detect as few as three epithelial cells.
If a person moved his hands in a washing motion after placing his finger in a very young child’s vagina, one still would expect to find epithelial cells on the finger. It would be possible theoretically to remove the cells with a cleaning solution but it would require a very thorough washing to do so. Epithelial cells are very think and tend to stick to surfaces.
Earl Solomon Fuller is an obstetrician and gynecologist who has been practicing in California since 1962. He has been board certified since 1967. He has qualified as an expert witness in several courts. While the focus of Dr. Fuller’s practice is adults, he has examined 200 children in the past 30 years. He has never seen a situation where two sisters of approximately the same age alleged digital vaginal penetration by the same perpetrator. In such a case, he would expect to see similarities.
The structure of the genitalia is basically the same in a prepubescent girl and a mature woman. The vaginal mucosin of the vaginal walls is thin in a prepubescent girl; it is a moist epithelium that may be only four to six cells deep. In a mature woman, it would be 15 to 20 cells deep. The epithelial layer is never one cell thick, however; that is impossible. There are epithelial cells in the vagina of a three- to four-year-old girl. Squamous cells are moved to the surface, then slough off and are replaced.
If an individual penetrated the vagina of such a very young girl digitally, it would be expected that epithelial cells would be deposited on his finger and under his fingernails. The exposure would be increased upon the penetration of a second child.
If a person attempted to remove the cells by using a washing motion, most of them would remain on the hand. To remove all of the cells with a cleaning agent, the person would have to use a very caustic abrasive. Even after a surgeon scrubs for 10 minutes, some bacteria remain on the hands.
Dr. Fuller reviewed the medical records Lloyd had prepared after her examination of D.G. and M.G. He found it most unusual that the records contain virtually identical wording. Each record recited that the child stated “`He put his fingers into mine,’ (points to vagina).” Most of the entries have the same symmetry. In all his years of practice, Dr. Fuller had never seen two examinations of two different children so identically worded. Moreover, both reports record a tear in the posterior fourchette in precisely the 6 o’clock position. The records are inconsistent, however, in reporting the presence of a fossa navicularus tear; it is reported in the physical examination of one child, but not on the final diagnosis.
In Dr. Fuller’s opinion, a tear in the six o’clock position is inconsistent with digital penetration by a person facing the child. In that case, the tear would be at the 10 to 2 o’clock position. A tear at six o’clock would be consistent with penetration if the child were lying down or were penetrated from behind. A rear penetration would be an awkward and unusual approach. If rear penetration forceful enough to cause a tear occurred, it is difficult to envision how the penetration would not also injure the hymen. The medical records record no hymenal injuries. In forming this opinion, Dr. Fuller relied on Dr. Heger’s statements in an article she wrote on the use of the colposcope.
It is customary for physicians to record their findings on medical records. If photographs were taken, that fact should be recorded and the photographs made part of the record. It would have been helpful to have been able to review videotapes of the examinations. From review of a videotape, Dr. Fuller could have ascertained whether there was any bruising which would suggest that blunt trauma caused the tears. In addition, children have their hands in their genital areas all the time. Dr. Fuller often has had to remove foreign objects from children’s vaginas. In reviewing a videotape, Dr. Fuller could have determined whether the tears were consistent with the insertion of foreign objects.
CONTENTIONS
I
Defendant contends the trial court erred, on various grounds, in admitting evidence of an uncharged sexual offense.
II
Defendant asserts the prosecution’s failure to produce the videotapes and 35-millimeter photographic slides taken during D.G.’s and M.G.’s examinations denied him his statutory right to discovery and his constitutional right to due process of law.
III
Defendant additionally asserts he was denied his constitutional rightof confrontation, in that the destruction of the videotapes and disappearance of the slides prevented his effective cross-examination of Dr. Heger and Lloyd was unavailable as a witness.
IV
Defendant also asserts the trial court erred prejudicially in admitting in evidence Dr. Heger’s 25-page curriculum vitae, in that it was hearsay.
V
Defendant contends the trial court made a number of prejudicial instructional errors.
VI
Finally, defendant contends the prosecutor committed prejudicial misconduct when he argued, in the absence of any evidence to that effect, that he failed to call M.G. as a witness because it was too traumatic for her to testify.
DISCUSSION
I
Defendant contends the trial court erred, on various grounds, in admitting evidence of an uncharged sexual offense. We agree in part.
Evidence Code section 1108, enacted in 1995 (Stats. 1995, ch. 439, § 2), provides that “evidence of the [criminal] defendant’s commission of another sexual offense . . . is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.” (Subd. (a).) Section 1108 “shall not be construed to limit the admission or consideration of evidence under any other section of this code.” (Subd. (c).) The statute defines “sexual offense” as “a crime under the law of a state or of the United States that involved any of the following: [§] (A) Any conduct proscribed by Section 234.4, 261, 261.5, 262, 264.1, 266c, 286, 288, 288a, 288.2, 288.5, or 289, or subdivision (b), (c), or (d) of Section 311.2 or Section 311.3, 311.4, 311.10, 311.11, 314, or 647.6, of the Penal Code.” (Subd. (d)(1).) Defendant previously had been convicted of indecent exposure in violation of Penal Code section 314. J.R. testified to the facts underlying this conviction. Under the terms of Evidence Code section 1108, evidence of this sexual offense was admissible unless it was inadmissible pursuant to Evidence Code section 352.
Defendant challenges the admission of this evidence on several grounds. First, he argues that Evidence Code section 1108 cannot be construed reasonably as permitting the introduction of evidence of dissimilar sexual offenses, i.e., evidence tending only to show the defendant’s character or propensity to commit such crimes. Second, he argues that if section 1108 is construed as permitting the introduction of evidence of dissimilar offenses, it violates the due process clauses of the federal and state Constitutions. Third, he argues that application of section 1108 to him violates the ex post facto clauses of the state and federal Constitutions. Finally, he argues that even if there is no constitutional violation, the trial court abused its discretion under Evidence Code section 352, in that the evidence clearly is more prejudicial than probative.
Application of Dissimilar Offense
In order to determine legislative intent, we first look to the words of the statute. (People v. Fuhrman (1997) 16 Cal.4th 930, 937.) We consider the ordinary meaning of the words employed. (People v. Broussard (1993) 5 Cal.4th 1067, 1071.) If the language used is clear and unambiguous, there is no need for further construction. (Fuhrman, supra, at p. 937.)
Nothing in the language of Evidence Code section 1108 suggests it is limited to similar sexual offenses or to evidence probative of something more than mere bad character or propensity to commit sexual offenses. Indeed, the language suggests the contrary. Subdivision (a) of section 1108 expressly provides that evidence of a prior sexual offense “is not made inadmissible by Section 1101.” Subdivision (a) of section 1101 provides that “evidence of a person’s character or a trait of his or her character . . . is inadmissible when offered to prove his or her conduct on a specified occasion.” Subdivision (b) permits the admission of other acts evidence “when relevant to prove some fact . . . other than his or her disposition to commit such an act.” In other words, in making evidence of other sexual offenses not inadmissible by virtue of section 1101, the Legislature signaled an intent that such evidence be used even when probative of nothing other than propensity or disposition.
A perusal of the legislative history of section 1108 leads ineluctably to the same conclusion. The Assembly Committee on Public Safety’s report on Assembly Bill No. 882 states: “Evidence admitted under this new section would be subject to rational assessment by a jury as evidence of the defendant’s disposition to commit such crimes, and as evidence concerning the probability or improbability that the defendant has been falsely or mistakenly implicated in the commission of [the] charged offense.” (At p.1, italics added.) The report goes on to state: “The propensity to commit sexual offenses is not a common attribute among the general public. Therefore, evidence that a particular defendant has such a propensity is especially probative and should be considered by the trier of fact when determining the credibility of the victim’s testimony.” (Assem. Com. on Pub. Safety, Report on Assem. Bill No. 882, p. 2, italics added.)
In short, it is clear the Legislature intended that evidence of dissimilar sexual offenses, probative of nothing other than a defendant’s disposition or propensity to commit sexual offenses, be admissible under Evidence Code section 1108. The dissimilarity of indecent exposure and child molestation therefore was not a barrier to the admissibility of J.R.’s testimony under the terms of this statute.
Due Process
As noted recently in People v. Fitch (1997) 55 Cal.App.4th 172, “[t]he Due Process Clause has limited operation beyond the specific guarantees of the Bill of Rights, and the category of infractions that violates `fundamental fairness’ is defined very narrowly. [Citation.]” (At p. 179.) Nonetheless, “`[d]ue process draws a boundary beyond which state rules [of evidence] cannot stray.'” (Jammal v. Van de Kamp (9th Cir. 1991) 926 F.2d 918, 919.) In this particular case, “[t]o succeed on his due process claim defendant must show that his right not to permit the jury to use character evidence to show disposition to commit the charged offense is a fundamental principle of justice.” (Fitch, supra, at p. 180.) The test of whether a due process violation has occurred is twofold: “Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process. Even then, the evidence must `be of such quality as necessarily prevents a fair trial.'” (Jammal v. Van de Kamp, supra, 926 F.2d at p. 920, italics omitted.) That is, the evidence must be highly prejudicial.
The Fitch court concluded that Evidence Code section 1108 does not violate due process. (People v. Fitch, supra, 55 Cal.App.4th atpp. 180-184.) As the Fitch court correctly notes, “[o]ur guide in making this determination is historical practice. [Citation.]” (Id. at p. 180.) The historical analysis employed in Fitch is flawed, however.
In McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378, the court noted that “[t]he use of `other acts’ evidence as character evidence is . . . contrary to firmly established principles of Anglo-American jurisprudence. In 1684, Justice Withins recalled a prior case in which the court excluded evidence of any forgeries, except the one for which the defendant was standing trial. [Citation.] Similarly, in Harrison’s Trial, the Lord Chief Justice excluded evidence of a prior wrongful act of a defendant who was on trial for murder . . . . [Citation.] Early American courts retained the rule against using `other acts’ evidence as character evidence to show action in conformity therewith. [Citations.]
“`Guilt in a criminal case must be proved beyond a reasonable doubt and by evidence confined to that which long experience in the common law tradition, to some extent embodied in the Constitution, has crystallized into rules of evidence consistent with that standard. These rules are historically grounded rights of our system, developed to safeguard men from dubious and unjust convictions, with resulting forfeitures of life, liberty and property.’
“The rule against using character evidence to show behavior in conformance therewith, or propensity, is one such historically grounded rule of evidence. It has persisted since at least 1684 to the present . . . .” (McKinney v. Rees, supra, 993 F.2d at pp. 1380-1381.)
While acknowledging the import of the McKinney case, the Fitch court disingenuously states that “the Supreme Court has noted, `. . . the common law was far more ambivalent. [Citation.] Alongside the general principle that prior convictions are inadmissible, despite their relevance to guilt, [citation], the common law developed broad, vaguely defined exceptions—such as proof of intent, identity, malice, motive, and plan—whose application is left largely to the discretion of the trial judge, [citation]. In short, the common law . . . implicitly recognized that any unfairness resulting from admitting prior convictions was more often than not balanced by its probative value and permitted the prosecution to introduce such evidence without demanding any particularly strong justification.'” (People v. Fitch, supra, 55 Cal.App.4th at p. 181, quoting Marshall v. Lonberger (1983) 459 U.S. 422, 438 439, fn. 6.)
It is clear, however, that the Supreme Court was referring to nonpropensity uses of prior bad acts when it noted the ambivalence of the common law. The court made the reference in criticism of the dissent’s apparent position “that the common law regarded the admission of prior convictions as grossly unfair and subject to some sort of blanket prohibition.” (Marshall v. Lonberger, supra, 459 U.S. at p. 438, fn. 6.)
The United States Supreme Court has recognized elsewhere that there is no ambivalence in the common law regarding the use of character evidence to demonstrate disposition or propensity. In Michelson v. United States (1948) 335 U.S. 469, the court stated: “Courts that follow the common-law tradition almost unanimously have come to disallow resort by the prosecution to any kind of evidence of a defendant’s evil character to establish a probability of his guilt. Not that the law invests the defendant with a presumption of good character, [citation], but it simply closes the whole matter of character, disposition and reputation on the prosecution’s case-in-chief. The state may not show defendant’s prior trouble with the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime. The inquiry is not rejected because character is irrelevant; on the contrary, it 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. The overriding policy of excluding such evidence, despite its admitted probative value, is the practical experience that its disallowance tends to prevent confusion of issues, unfair surprise and undue prejudice.” (At pp. 475-476, fns. omitted, italics added.) In other words, the disallowance of propensity evidence is a fundamental principle of Anglo American jurisprudence.
The Supreme Court also has acknowledged directly the “`deep roots in our common-law heritage'” that the prohibition against propensity evidence possesses. (Cooper v. Oklahoma (1996) 517 U.S. ___ [134 L.Ed.2d 498, 506].) The prohibition is founded on principles of “`”fundamental fairness.”‘” (Id. at p. ___ [134 L.Ed.2d at p. 511.])
Moreover, while the United State Supreme Court has not decided the issue presented here, its opinions do provide guidance on the subject. As noted by Chief Justice Warren, its decisions “suggest that evidence of prior crimes introduced for no purpose other than to show criminal disposition would violate the Due Process Clause.” (Spencer v. Texas (1967) 385 U.S. 554, 572-574, conc. and dis. opn. of Warren, C.J.)
The Fitch court next states that “ambivalence about prohibiting character evidence is greatest in sex offense cases. Courts have liberally interpreted evidence rules to permit the admission of uncharged sexual misconduct under the rubric of motive, identity and common plan, or more directly admitted it under an exception known as the `lustful disposition’ rule. (1A Wigmore on Evidence [Tillers rev. 1983] § 62.2, pp. 1334-1335 [`Do such decisions show that the general rule against the use of propensity evidence against an accused is not honored in sex offense prosecutions? We think so.’]; 1 McCormick on Evidence (Strong 1992) § 190, pp. 803-804 . . . .)” (People v. Fitch, supra, 55 Cal.App.4th at p. 181.)
The flaw in this portion of the Fitch analysis lies in the court’s reliance on the treatises rather than the cases cited therein. A perusal of the cases reveals little in the way of relaxation of the rule against propensity evidence. A number of jurisdictions have made a limited exception where the offense is one—like statutory rape, adultery or incest—in which the status of the victim makes the act criminal. In such prosecutions, evidence of other acts with the same victim are admissible to show “lustful disposition” or “depraved sexual instinct.” (See, e.g., Maynard v. State (Ind. 1987) 513 N.E.2d 641, 647; State v. Rankin (Iowa 1970) 181 N.W.2d 169, 171; Woods v. State (Ind. 1968) 235 N.E.2d 479, 486; State v. Jenks (1928) 126 Kan. 493 [268 P. 850].) The rationale for this exception is that “`in prosecutions for depraved acts ” . . . the prosecuting witness is not likely to be believed, since the evidence[] standing alone and entirely unconnected with anything which led to or brought it about, would appear . . . unnatural or improbable in itself.” [Citations omitted.] Thus, the evidence lends credence to the testimony of the prosecution that might otherwise be disbelieved.
. . .'” (Maynard v. State, supra, 513 N.E.2d at p. 647.)
Upon close analysis, however, it is clear the “lustful disposition” or “depraved sexual instinct” characterization of the exception isjust a label. Prior similar acts with the same person are admissible more traditionally to demonstrate an absence of mistake or accident, guilty knowledge of the nature of the offense or evil intent. (People v. Kelley (1967) 66 Cal.2d 232, 242-243 and fn. 5.) In essence, these are the purposes for which the “lustful disposition” courts allowed such evidence.
Other jurisdictions allow the admission of substantially similar acts with others, as long as they are not too remote, to demonstrate that the defendant “possessed such an abnormal mental or moral nature as would likely lead him to commit the offense charged” (Commonwealth v. Wilson (1964) 205 Pa.Super. 36 [205 A.2d 673, 674]), or to show “a specific emotional propensity for sexual aberration” (State v. McFarlin (1973) 110 Ariz. 225 [517 P.2d 87, 88, 90]). Here, too, however, it is clear that these are just labels.
Despite references to “emotional propensity,” “lustful propensity” and “abnormal mental or moral nature,” these cases require sufficient similarity and closeness in time that the prior acts are relevant to the establishment of a common plan or scheme (People v. Thomas (1978)20 Cal.3d 457, 468; Elliott v. State (Wyo. 1979) 600 P.2d 1044, 1047 1048 [characterizing the evidence as admissible to show motive, but acknowledging its likely admissibility to show common design or plan]; State v. McFarlin, supra, 517 P.2d at p. 89, citing State v. Goldsmith (1969) 104 Ariz. 226 [450 P.2d 684]; State v. Schlak (Iowa 1961) 111 N.W.2d 289, 291 [characterizing the evidence as admissible to show motive].) The same category of act (rape, child molestation, lewd conduct) with others also may be admissible to prove the defendant acted with criminal intent. (People v. Salazar (1983) 144 Cal.App.3d 799, 809, 812; People v. Barney (1983) 143 Cal.App.3d 490, 494, 495; People v. Greene (1973) 34 Cal.App.3d 622, 638; State v. Fears (1984) 69 Or.App. 606 [688 P.2d 88, 90]; Findley v. State (Nev. 1978) 577 P.2d 867, 868.)
There is nothing unusual in the approach of the foregoing cases, however. The admissible purposes of other act evidence are the same in nonsexual crime cases as in sexual offense cases. Moreover, each of these jurisdictions follows the same rule codified in California in Evidence Code section 1101; notwithstanding the rhetoric utilized, none of them admits other act evidence solely to demonstrate criminal disposition or propensity—even in sexual offense cases. In short, the ambivalence toward propensity evidence perceived in Fitch is largely
mythical.
The Fitch court also notes that “the ban on uncharged sexual misconduct as character evidence in sex offense cases has been eliminated in federal courts under rule 413 of the Federal Rules of Evidence (28 U.S.C.).” (People v. Fitch, supra, 55 Cal.App.4th at p. 181.) Rule 413(a) of the Federal Rules of Evidence provides: “In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant’s commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant.” It thus parallels to a degree Evidence Code section 1108.
What the Fitch court fails to note, however, is that rule 413(a) is, like section 1108, a recent enunciation of principle and is untested in the courts. Rule 413(a) was enacted to encourage states to adopt similar rules of evidence; it “has no clear policy because it is the result of political posturing by actors not motivated to reveal their true goals.” (23 Wright & Graham, Fed. Practice & Procedure (1997 Supp.) § 5412, p. 267, fn. omitted.) Indeed, the enactment of section 1108 was proposed in response to the adoption of rule 413. (Analysis of May 4, 1995 version of Assem. Bill No. 822 for Assem. Com. on Pub. Safety.) The rise of this modern trend has no reasonable tendency to demonstrate any degree of ambivalence in the common-law rule of exclusion of propensity evidence.
Relying on People v. Balcom (1994) 7 Cal.4th 414, People v. Robbins (1988) 45 Cal.3d 867 and People v. Johnson (1993) 15 Cal.App.4th 169, the People argue that California has retreated from the absolute exclusion of propensity evidence, thus demonstrating the ambivalence the Fitch court discerned. Nonsense.
In Balcom, the Supreme Court affirmed that the similarities betweenprior and present acts need not be distinctive or unusual for prior acts to demonstrate the existence of a common plan or scheme. (People v. Balcom, supra, 7 Cal.4th at p. 424.) It also noted that a common plan tends to prove the act, or what happened; it thus is relevant when the victim and the defendant are the only witnesses and give totally divergent accounts. (Id. at pp. 423-424.) The People characterize this use of prior acts as the equivalent of propensity evidence. Not so. It is the similarity of the acts which is relevant, not their loose association as the same class of acts. Loosely associated acts show nothing but propensity; closely similar acts may show a number of relevant facts, including intent.
As noted in Robbins, “`if a person acts similarly in similar situations, he probably harbors the same intent in each instance.'” (People v. Robbins, supra, 45 Cal.3d at p. 879.) That is, “[t]he inference to be drawn is not that the actor is disposed to commit such acts[ but] . . . that, in light of the first event, the actor, at the time of the second event, must have had the intent attributed to him by the prosecution.” (Ibid., italics in the original; see also People v. Johnson, supra, 15 Cal.App.4th at p. 176.)
Fairly considered, the history of Anglo-American jurisprudence and the development of the common law demonstrate that the “right not to permit a jury to use character evidence to show disposition to commit the charged offense is a fundamental principle of justice.” (Peoplev. Fitch, supra, 55 Cal.App.4th at p. 180.) If there is no permissible inference (one other than disposition or propensity) which the jury could have drawn from J.R.’s testimony, therefore, its admission may have violated defendant’s right to federal due process. (Jammal v.Van de Kamp, supra, 926 F.2d at p. 920.)
The People assert two permissible uses to which the jury legitimately could have put this evidence. First, they argue, the jury permissibly could have used the evidence to assess the credibility of defendant and the victim. Second, they argue, the jury permissibly could have inferred that defendant had a sexual interest in young girls.
The first rationale falls apart immediately. The other bad act evidence offered in this case was relevant to credibility only insofar as it illuminated defendant’s character. In recognition of this fact, it is settled that the prosecution cannot use other bad act evidence solely to corroborate a witness’s testimony. (People v. Brown (1993) 17 Cal.App.4th 1389, 1396-1397.)
People v. Thomas, supra, 20 Cal.3d 457 does not hold to the contrary. It holds only that closely similar, nonremote offenses, relevant to prove a common plan or scheme, “may also assist in corroborating the prosecuting witness’ version of events. Yet, . . . [w]ere the theory to be held applicable in all sex offense cases, without regard either to remoteness or similarity, the `corroboration’ exception would absorb the general rule of exclusion in its entirety, permitting introduction of all prior sex offenses for purposes of corroborating the prosecuting witness.” (At pp. 468-469, first italics in the original.) The admissibility of such evidence, the court held, therefore depends upon the similarity of the prior offenses and their remoteness in time. (Id. at p. 469; accord, People v. Ewoldt (1994) 7 Cal.4th 380, 397.)
Limiting dissimilar other sexual offense evidence to use in assessing witness credibility and instructing the jury that it may not use the evidence to show propensity does not cure the prejudice resulting from evidence of dissimilar offenses. Instructing the jury that it may consider the evidence only as it bears on the believability of a witness and the weight to be given a witness’s testimony could lead a jury to conclude “they could consider the evidence presented as to the other [offense] as tending to show [defendant] was a [sexual predator] and therefore his denial of molesting [the victim] was less believable.” (People v. Brown, supra, 17 Cal.App.4th at pp. 1397-1398.) In reality, a jury cannot employ dissimilar other bad act evidence in any other fashion in assessing a defendant’s credibility.
The People’s second rationale fares no better. Evidence defendant exposes himself where J.R., a middle school student, could see him tends to prove he achieved sexual gratification from his act. It has no tendency, however, to prove he had an interest in forcibly molesting preschool-aged girls. The only inference a jury reasonably could have drawn from J.R.’s testimony is that defendant is a sexual pervert and one kind of sexual pervert is much like any other kind. This, however, is not a truism. Those given to indecent exposure often go no farther, and those given to molestation of small children often indulge in no other perversion.
In short, J.R.’s testimony had no tendency in reason to prove any fact other than that defendant had a propensity for sexual perversion. As demonstrated above, that inference violates a fundamental principle of Anglo-American jurisprudence. It thus is not a permissible inference. (Compare Jammal v. Van de Kamp, supra, 926 F.2d at p. 920 [jury could have inferred defendant put money in the trunk after an earlier drug transaction rather than inferring from the money’s presence that he was a drug dealer; although the latter inference was impermissible, the former inference was permissible].)
While the Fitch court acknowledges that “[o]ur Supreme Court has recognized the possibility that propensity evidence may reduce the burden of proof,” it concluded that “Evidence Code section 1108 has a safeguard against the use of uncharged sex offenses in cases where the admission of such evidence could result in a fundamentally unfair trial. Such evidence is still subject to exclusion under Evidence Code section 352. [Citation.] By subjecting evidence of uncharged sexual misconduct to the weighing process of section 352, the Legislature has ensured that such evidence cannot be used in cases where its probative value is substantially outweighed by the possibility that it will consume an undue amount of time or create a substantial danger of undue prejudice, confusion of issues, or misleading the jury.” (People v. Fitch, supra, 55 Cal.App.4th at p. 183.)
The observation is accurate insofar as it applies to evidence of similar other offenses. The trial court would be well positioned to weigh the great inherent prejudice of other offense evidence against probative value. (People v. Smallwood (1986) 42 Cal.3d 415, 429.) Insofar as the Fitch court’s observation applies to propensity evidence, however, the application of section 352 mandates exclusion; the probative value of propensity evidence is deemed conclusively to be outweighed by the risk of undue prejudice and confusion of issues. (See Michelson v. United States, supra, 335 U.S. at p. 476.)
As noted in People v. Smallwood, supra, 42 Cal.3d 415, “[i]n People v. Thompson (1980) 27 Cal.3d 303 . . . , this court rigorously enforced the rule that evidence of other crimes may never be admitted to show the accused’s criminal propensity. . . . `”The primary reasoning that underlies [the] basic rule of exclusion is not the unreasonable nature of the forbidden chain of reasoning. [Citation.] Rather, it is the insubstantial nature of the inference as compared to the `grave danger of prejudice’ to an accused when evidence of an uncharged offense is given to a jury. [Citations.] As Wigmore notes, admission of this evidence produces an `over-strong tendency to believe the defendant guilty of the charge merely because he is a likely person to do suchacts.’ [Citation.] It breeds a `tendency to condemn, not because he is believed guilty of the present charge, but because he has escaped unpunished from other offenses . . . .’ [Citation.] Moreover, `the jury might be unable to identify with a defendant of offensive character, and hence tend to disbelieve evidence in his favor.’ [Citation.]. . . .'” [Citation.]” (Smallwood, supra, at p. 428; accord, People v. Garceau (1993) 6 Cal.4th 140, 186.)
The Supreme Court continued, “[w]henever an inference of the accused’s criminal disposition forms a `link in the chain of logic connecting the uncharged offense with a material fact’ [citation] the uncharged offense is simply inadmissible, no matter what words or phrases are used to `bestow[] a respectable label on a disreputable basis for admissibility –the defendant’s disposition.’ [Citation.]” (People v. Smallwood, supra, 42 Cal.3d at p. 428.) In other words, “`[w]hile to the layman’s mind a defendant’s criminal disposition is logically relevant to his guilt or innocence of a specific crime, the law regards the inference from general to specific criminality so weak, and the danger of prejudice so great, that it attempts to prevent conviction on account of a defendant’sbad character. . . .'” (Id. at p. 429.)
In theory, then, the application of Evidence Code section 352 always would mandate exclusion of pure propensity evidence as well as a great deal of more relevant evidence which, although possessing probative value, lacked substantial probative value. (People v. Smallwood, supra, 42 Cal.3d at p. 429.) As a matter of practical reality, however, courts will exercise their discretion to admit pure propensity evidence, finding probative value under a variety of questionable rationales, as did the trial court in this case.
The Fitch court collided with the limitations of relying on Evidence Code section 352 shortly after rendering its decision. In People v. Harris (1998) 60 Cal.App.4th 727, petition for review pending, the court conceded its “conclusion in Fitch was based on the assumption that section 352 provided a realistic safeguard that ensures that the presumption of innocence and other characteristics of due process are not weakened by an unfair use of evidence of past acts,” an assumption which has proven faulty. (At p. 730.)
In Harris, there was no similarity between the prior offense and the present one except that both acts were technically rapes. The prior offense was a violent forcible rape committed against a stranger; the current offense involved an abuse of trust. (People v. Harris, supra, 60 Cal.App.4th at p. 738.) The court noted the absence of significant probative value. “The evidence [of the prior rape] did little more than show defendant was a violent sex offender”; it was so dissimilar that it did not even bolster the victim’s credibility. (Id. at p. 740.) Moreover, given the total dissimilarity of the offenses, it was not probative of a predisposition to commit the charged offense. (Id. at pp. 740-741.) In other words, it was pure propensity evidence.
Prior to tackling relevance, however, the court considered the prejudicial effect of this evidence, evaluating whether the prior offense was more or less inflammatory than the current offense, its remoteness, the time which its proof would consume and the probability the issues would be confused given the jury’s lack of awareness that the defendant had been punished for the prior offense. (Id. at pp. 737-739.) The court concluded, based on these factors, that the probative value of the evidence was outweighed by its prejudicial effect.
In employing this weighing process, however, the Harris court fell into the same trap which inevitably will lead trial courts astray. Its holding extends no father than the conclusion that under the particular circumstances of this case, the prejudicial effect of the evidence outweighs its probative value. As long as courts accept the premise that pure propensity evidence is generally unobjectionable under Evidence Code section 1108, Evidence Code section 352 provides only uncertain protection to defendants faced with its damson. This is inadequate to preserve the presumption of innocence.
To summarize, the exclusion of propensity evidence is a fundamental principle of our jurisprudence, no less so in this state than generally under common law principles. To the extent that Evidence Code section 1108 may be utilized to allow the admission of pure propensity evidence, it therefore may violate due process. The other sexual offense evidence admitted in this case was probative only of propensity; there was no permissible inference the jury could have drawn from it. Accordingly, if it is of such a nature as to deny defendant a fair trial, i.e., highly prejudicial, its admission denied him due process of law. (Jammalv. Van de Kamp, supra, 926 F.2d at p. 920.) As noted ante, the courts consider the great inherent prejudicial potential of other offense evidence as creating an unacceptably high risk of undue prejudice when the evidence is probative of nothing other than propensity; that is the basis upon which it is excluded. (See Michelson v. United States, supra, 335 U.S. at p. 476; People v. Smallwood, supra, 42 Cal.3d at pp. 428, 429; People v. Kelley, supra, 66 Cal.2d at p. 243.) As noted in Old Chief v. United States (1997) 519 U.S. ___ [136 L.Ed.2d 574, 588], “`[a]lthough . . . “propensity evidence” is relevant, the risk that a jury will convict for crimes other than those charged—or that, uncertain of guilt, it will convict anyway because a bad person deserves punishment—creates a prejudicial effect that outweighs ordinary relevance.'” This is particularly the case with sexual offenses, which are always inflammatory.
The other offense evidence introduced in this case had no probative value other than the weak inference which may be drawn from propensity to specific criminality. (People v. Smallwood, supra, 42 Cal.3d at p. 429.) That is, it had no reasonable tendency to prove any fact at issue in this action. (People v. Daniels (1991) 52 Cal.3d 815, 856.) It has an inherent and very great prejudicial effect in the sense of promoting prejudgment based on the defendant’s past record. (Michelson v. United States, supra, 335 U.S. at p. 476; People v. Thompson, supra, 27 Cal.3d at p. 318.) Moreover, while not as inflammatory as the offense with which defendant currently was charged, it was inflammatory. It presented defendant as a sexual pervert. This increased the promotion of prejudgment on the basis of his status rather than his present acts, an impermissible foundation for conviction. (Cf. Robinson v. California (1962) 370 U.S. 660.) In short, its admission not only violated due process of law but represented an abuse of discretion under Evidence Code section 352.
Evidence Code section 352 permits the trial court to exclude evidence when its probative value is outweighed by its potential prejudicial impact. Evidence is prejudicial in the context of Evidence Code section 352 when it “`uniquely tends to evoke an emotional bias against the defendant as an individual and . . . has very little effect on the issues.'” (People v. Karis (1988) 46 Cal.3d 612, 638.) A trial court rarely will be found to have abused its discretion in admitting evidence under this test, but where the probative value of the evidence is insignificant and the prejudicial impact is quite substantial, abuse will be apparent. (People v. Ramos (1982) 30 Cal.3d 553, 598, fn. 22.) That is the case here.
The error in admitting this evidence reasonably must be considered prejudicial. Contrary to the People’s characterization, this was a close case. It was, essentially, a credibility contest. There were reasons to doubt the truthfulness of D.G. She had been told never to let anyone touch her “private parts,” that this was bad. She would have been in trouble and faced a “whooping” for being outside the gate, talking to a stranger and taking candy from a stranger had she not thought of a great distraction, which her allegations certainly would be. She and her sister gave identical accounts to the examining nurse, an unlikely occurrence. Moreover, she told a convoluted tale of defendant’s long stay in the neighborhood, going in and out of a nearby house and talking to a great many ladies. This likely confabulation was uncorroborated by any other witness.
In addition, the defense experts challenged the medical evidence with a fair degree of success, establishing that there were inconsistent findings, testimonial impossibilities in that evidence and missing documentation. According to the defense experts, it was questionable whether defendant could have removed all traces of epithelial cells from his hands, although no evidence of the cells was found. In addition, a defense expert thoroughly disputed Dr. Heger’s conclusions.
On this record, it is reasonably probable that the jury’s knowledge of defendant’s prior sexual perversion tipped the balance in favor of the prosecution. In short, under any standard, the evidence of defendant’s prior sexual offense was prejudicial, requiring reversal of his conviction.
Ex Post Facto Application
A statute which does nothing more than allow the admission of certain previously inadmissible evidence in a criminal case is not ex post facto. (Thompson v. Missouri (1989) 171 U.S. 380, 387.) Inasmuch as Evidence Code section 1108 does not change the definition of the crime or increase defendant’s punishment, it does not violate the ex post facto clauses of the federal and state Constitutions. (People v. Fitch, supra, 55 Cal.App.4th at pp. 185-186.)
II-VI
(Text for the discussion of these sections was omitted.)
The judgment is reversed and the cause is remanded for a new trial.
NOT TO BE PUBLISHED
SPENCER, P.J.
We concur:
VOGEL (Miriam A.), J.
MASTERSON, J.
