People v. Bermudez CA5, F081814

Defendant Joel Nunez Bermudez was charged with rape by force or fear (Pen. Code §261) and incest after a 2017 sexual assault of his adult daughter (Jane Doe). A jury convicted him on both counts; sentence was an aggregate eight years. Defendant appealed.
The charged incident: while living temporarily in defendant’s house, defendant invited 19‑year‑old Jane to his bed, later touched her, digitally penetrated her, and had intercourse while she protested; DNA consistent with defendant was recovered from a used condom found in his home.
After the assault, Jane told her sister and mother; the family contacted police, and defendant was arrested after declining to voluntarily meet detectives.
The prosecution sought to admit under Evidence Code §1108 testimony about defendant’s prior sexual misconduct: (1) M.G. (a non‑biological daughter) who alleged touching/insertion when she was a child, and (2) B.S., who alleged multiple incidents of sexual touching as a child.
The trial court found the prior acts met §1108’s definition of sexual offenses and, after a §352 balancing, admitted the prior‑misconduct evidence; the court limited inquiry into convictions/punishment.
On appeal, defendant challenged the admission under §1108/§352 as unduly prejudicial, arguing dissimilarity, remoteness, greater inflammatory effect (minor victims), and jury confusion. The Court of Appeal affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the prior uncharged incidents qualify as a "sexual offense" under §1108	Prior touching/penetration of victims’ genitals fits §1108(d)’s definitions; court may make preliminary §405 finding	Prior incidents do not qualify as §1108 sexual offenses (or are disputed)	Court: preliminary factual finding supported by substantial evidence; incidents qualify as sexual offenses under §1108
Whether §352 required exclusion of §1108 evidence (probative vs. prejudicial)	Prior acts are highly probative: similar parent/child relationship, in‑bed approach, genital contact; probative value outweighs prejudice; safeguards (limits on convictions) reduce risk	Prior acts dissimilar (only touching), remote in time, more inflammatory (victims were minors), and likely to confuse/punish for prior bad acts	Court: no abuse of discretion. Probative value not substantially outweighed by undue prejudice; admission affirmed
Whether remoteness or greater inflammatory nature required exclusion	Even remote, repeated similar acts across multiple victims sustain probative value; similarity mitigates staleness	23‑year remoteness and child victims make evidence stale and unduly inflammatory	Court: remoteness did not eliminate probative value given similarities and repetition; not substantially more inflammatory than charged offense

People v. Falsetta, 21 Cal.4th 903 (1999) (§1108 permits admission of uncharged sexual offenses to show propensity; subject to §352)
People v. Cordova, 62 Cal.4th 104 (2015) (§1108 evidence is presumptively admissible and excluded only if prejudice substantially outweighs probative value)
People v. Cottone, 57 Cal.4th 269 (2013) (trial court makes preliminary factual §405 finding on prior conduct before §1108 admission)
People v. Nguyen, 184 Cal.App.4th 1096 (2010) (identifies important §352 factors for §1108 analysis)
People v. Dworak, 11 Cal.5th 881 (2021) (staleness of prior misconduct is relevant when defendant led a blameless life in interim)
People v. Escudero, 183 Cal.App.4th 302 (2010) (similarity between prior and charged acts can overcome remoteness)