People v. Cottone, 57 Cal. 4th 269

Defendant Cottone was convicted of multiple lewd acts (Pen. Code § 288) against his niece B., who testified the abuse began when she was 8 and continued episodically; defendant sentenced to six years.
Prosecution offered Evidence Code § 1108 evidence that, when defendant was nearly 14, he digitally touched his then-5-year-old sister L.; that act was unadjudicated (no juvenile petition filed).
At an in limine hearing the trial court found defendant at least 13 years 10 months at the time and, by clear and convincing evidence, capable of appreciating wrongfulness (Pen. Code § 26(1)); it admitted the § 1108 evidence and gave CALCRIM No. 1191.
On appeal the Court of Appeal reversed, holding the jury (not the court) must decide capacity under Penal Code § 26(1) and that the trial court had a sua sponte duty to instruct the jury to apply the § 26(1) presumption.
The California Supreme Court granted review to decide (1) whether § 26(1)’s presumption of incapacity applies to § 1108 proffered conduct occurring before age 14, and (2) whether the court or the jury decides that capacity question and whether a sua sponte § 26(1) instruction is required.

Issue	Plaintiff's Argument (People)	Defendant's Argument (Cottone)	Held
Whether Penal Code § 26(1) presumption of incapacity applies to unadjudicated sexual conduct committed before age 14 offered under Evidence Code § 1108	§ 1108 allows only evidence of other sexual offenses that are "crimes," so § 26(1) capacity presumption applies and must be overcome	§ 26(1) does not control § 1108 use or should not bar admissibility of such evidence	Held: § 26(1) applies; prosecution must prove by clear and convincing evidence the minor appreciated wrongfulness before § 1108 evidence is admissible
Who decides capacity (court or jury) and whether court must sua sponte instruct jury on § 26(1) presumption	Court: the trial judge decides preliminary fact of capacity under Evid. Code §§ 405/403 as a threshold admissibility issue; no sua sponte duty to instruct jury on § 26(1)	Jury must decide capacity by clear and convincing evidence and court must give § 26(1) instruction sua sponte	Held: Trial court decides capacity as a preliminary fact and applies clear-and-convincing standard; jury does not reassess admissibility or relitigate § 26(1) but may consider age when weighing admitted § 1108 evidence; no sua sponte duty to instruct on § 26(1) absent request

People v. Reliford, 29 Cal.4th 1007 (section 1108 permits other-sex-offense evidence to prove propensity)
People v. Falsetta, 21 Cal.4th 903 (framework and limits for admitting other-sex-offense evidence under § 1108)
In re Manuel L., 7 Cal.4th 229 (§ 26(1) presumption; prosecution must rebut by clear and convincing evidence)
People v. Lewis, 26 Cal.4th 334 (discussion of juvenile capacity issues and prior treatment of jury/court roles)
People v. Villatoro, 54 Cal.4th 1152 (discussion of § 1108 and safeguards for inflammatory other-crimes evidence)
Estelle v. McGuire, 502 U.S. 62 (other-crimes evidence may be admissible for limited purposes but cannot alone support conviction)