People v. Phea
240 Cal. Rptr. 3d 526
Cal. Ct. App. 5th2018Background
- Defendant was convicted on 33 counts involving multiple victims: 31 counts of sexual offenses against minors and 2 counts of furnishing controlled substances; sentenced to 46 years 4 months.
- The prosecution introduced testimony from two additional uncharged victims (P. and Ra.) under Evidence Code § 1108 to show propensity.
- The trial court instructed the jury with CALCRIM No. 1191 (uncharged sexual-misconduct evidence) and CALCRIM No. 224 (circumstantial evidence). CALCRIM No. 1191 required jurors to find uncharged acts by a preponderance before considering them for propensity.
- Defendant challenged admission of § 1108 evidence, the CALCRIM 1191 instruction (and its interaction with circumstantial-evidence instruction), and CSAAS expert testimony; raised ineffective-assistance arguments for forfeited objections.
- The Court of Appeal affirmed convictions, rejected defendant’s due process and burden-of-proof challenges to § 1108 and CALCRIM No. 1191, rejected reliance on McKinney, vacated sentences on counts 1 and 2 for resentencing technicalities, and otherwise affirmed.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of § 1108 propensity evidence | § 1108 is constitutional and properly applied; § 352 balancing was performed | Admission violated due process (reliance on McKinney) | Evidence admissible; McKinney inapplicable; federal and California precedent uphold § 1108 and its application |
| Burden and wording of CALCRIM No. 1191 | Instruction correctly explains preponderance for prior acts but reiterates reasonable doubt for charged crimes | CALCRIM No. 1191 lets jurors infer guilt from prior acts proved by preponderance, effectively lowering burden and conflicting with circumstantial-evidence instruction (CALCRIM No. 224) | Instruction is correct; Reliford/Loy precedent dispel conflict; written instruction reminded jury that "People must still prove the charge beyond a reasonable doubt" |
| Effect of circumstantial-evidence instruction (CALCRIM No. 224) on § 1108 use | Circumstantial-instruction does not alter § 1108 scheme; jurors can reconcile different burdens due to different purposes | CALCRIM 224 conflicts with CALCRIM 1191 and could convince jury to use preponderance finding as proof beyond a reasonable doubt | No conflict: different burdens correspond to different factual roles (intermediate vs. ultimate facts); jurors reasonably can apply reasonable-doubt standard to guilt |
| Reliance on McKinney (federal case) to show due process violation | Not raised by People; courts should consider controlling precedent upholding rules allowing prior sexual-act evidence | McKinney supports due process objection to propensity evidence | Court rejects McKinney as inapplicable; later federal circuits (and Ninth Circuit decisions) and California high-court authority support admission and constitutionality of such rules |
Key Cases Cited
- McKinney v. Rees, 993 F.2d 1378 (9th Cir.) (defendant relied on McKinney but court rejects its applicability to § 1108 propensity evidence)
- United States v. LeMay, 260 F.3d 1018 (9th Cir.) (upheld federal rule allowing prior child-molestation evidence; rejected McKinney in that context)
- United States v. Schaffer, 851 F.3d 166 (2d Cir.) (rule 413 does not, on its face, violate due process given Rule 403 safeguards)
- People v. Falsetta, 21 Cal.4th 903 (Cal.) (discusses § 1108 origins and proper use of prior sexual-offense evidence)
- People v. Reliford, 29 Cal.4th 1007 (Cal.) (approves predecessor instruction to CALCRIM No. 1191; preponderance finding for prior acts does not reduce burden for charged offenses)
- People v. Loy, 52 Cal.4th 46 (Cal.) (reinforces that inference from prior acts is not substitute for proof beyond a reasonable doubt)
- People v. Virgil, 51 Cal.4th 1210 (Cal.) (distinguishes intermediate facts proved by preponderance from ultimate facts that must be proved beyond a reasonable doubt)