*1 [No. S023804.Feb. 1994.] PEOPLE,
THE Plaintiff and Respondent, EWOLDT,
CRAIG Defendant and Appellant.
Counsel Denvir, Court,
Quin under and John F. Jackson appointment Supreme for Defendant and Appellant
Talcott, Vandevelde, Lightfoot, Woehrle & and Michael J. Sadowsky Amici Lightfoot as Curiae on behalf of Defendant and Appellant. General, Williamson, Daniel Lungren, E. Chief Assistant Attorney George General, Bass, Attorney Sugiyama John H. and Ronald A. Assistant Attor- General, DeHart, Ronald E. Niver and neys Attorneys Gloria F. Deputy General, for Plaintiff and Respondent.
Opinion child, GEORGE, J. this lewd prosecution committing for acts upon In evidence was admitted to establish that defendant had tending committed a prior, (his lewd act upon witness complaining stepdaughter) and also had committed lewd prior, uncharged acts her older sister. upon evidence, whether it determining for the trial court to admit this proper whether, we first consider criminal the rule set forth proceedings, (section Evidence 1101), Code section 1101 the use of character prohibiting occasion, evidence to conduct aon remains prove specified applicable I, (d), following adoption of article section subdivision (section 28(d)), California Constitution an initiative measure enacted hold, follow, as part of 8. We if Proposition for reasons that that even the adoption 28(d) of section abrogated section reenacted Legislature section 1101 when it amended that statute in 1986 more than a two-thirds vote.
We next address the
whether evidence of defendant’s
question
*7
hold,
criminal conduct was admissible under section
We
1101.
for the
follow,
reasons that
that the evidence was admissible to establish that the
charged offenses were committed pursuant to the same
used
committing
defendant
uncharged
holding,
offenses.
so
we
(1984)
our
to the
Tassell
disapprove
prior holdings
contrary
People v. Ogunmola
Cal.3d 77
679 P.2d
and
Cal.Rptr.
[201
1]
1173], We
that the
Finally, Stanley that our decision not does exclusion require 913] complaining testimony witness’s commmitted an uncharged defendant her, lewd act on the that such upon ground testimony uncorroborated. History
Factual and Procedural Defendant was charged information with four counts a committing of Code, 288, lewd act a child (Pen. under of fourteen upon age years § (a), subd. a and felony) one count of under the annoying molesting a child Code, 647.6, age eighteen (Pen. of years misdemeanor). The alleged § victim of was offenses Jennifer. The stepdaughter, trial, case proceeded but a mistrial when was declared was unable jury to reach a verdict. trial,
At the first court trial admitted evidence that defendant had Jennifer, committed a prior, lewd uncharged act but evidence upon excluded that defendant had committed prior, lewd acts her older uncharged upon sister, Natalie. trial,
Prior to the second which jury judge, conducted before another the trial court ruled that the evidence that defendant had committed prior, lewd acts Natalie was The upon admissible. trial court also granted the People’s motion to dismiss one the counts of commis- alleging sion of a lewd act upon a child under the fourteen On the age years. day of following this ruling, defendant asked the court to reconsider decision its allowing admission of had defendant committed prior, Natalie, lewd acts and upon offered to if the “that stipulate jury finds that the defendant was present committed various acts which are the subject these ... he charges, did so with specific requisite that, therefore, intent and . . . intent would be an . . longer no issue . .” court, however, reiterated its ruling that the evidence was admissible. Jennifer, trial, who was 15 years at age the time of testified that mother married defendant in 1977 when age. Jennifer was 3 From years the time Jennifer was six years or seven age, continuing weekly on *8 basis biweekly age, until she was fourteen defendant touched years incident, “in
Jennifer such was not way didn’t like.” first which [she] information, in the watching occurred while Jennifer television charged was with defendant room. Defendant touched either her breasts or living area; her Jennifer not which. She that she vaginal could remember did recall and “was scared” “knew that it was wrong.” The incident count 1 charged as of the information occurred when Jennifer was the fifth When returned from school grade. she home them, one and entered her was day greet bedroom to defendant parents’ clothes, the bathroom. Jennifer he had he instructed her Telling to his change to turn She around. did so and her Defendant said he began describing day. around, was dressed and she could turn face When Jennifer to him. turned she found that He defendant was naked and forced penis his erect. bed, area, Jennifer onto the her and Defend- vaginal fondled undressed her. Jennifer, ant fondled and again force her After attempted legs apart. to her, Jennifer and cried told defendant to he did so and to stop, apologized it would not promising again. happen
The incident as count occurred in Jennifer when Defendant, naked, inwas the sixth or grade. again seventh who was as- bed, underwear, saulted Jennifer on his her and fondling both over under her refused, her and asked to he undress. When she removed her clothes and to attempted force her When Jennifer resisted legs apart. began cry, and defendant stopped. whether,
Jennifer could not recall either of the as during incidents counts 1 and defendant her with because “it his penetrated vagina finger, had so often.” happened
The incident charged as count 3 occurred in when Jennifer was in occasion, grade. seventh On that entered defendant bedroom Jennifer’s the middle of the night while she was him clothed She awoke to find asleep. underwear, in his of alcohol. smelling Defendant uncovered his and penis it, so, told Jennifer to touch but she refused. he do When forced her to she began cry said she had to go using to the bathroom. After bathroom, bedroom, Jennifer toward her proceeded intending to parents’ arm, wake her mother. Defendant her her her grabbed pulling toward “no,” bedroom. They struggled, and Jennifer screamed her mother. waking Jennifer told she had a nightmare, had with her mother the slept remainder of that night. did
Jennifer not tell about defendant’s conduct. She anyone once threat- ened defendant she would tell if he not defendant someone did but said stop, *9 so, “it in in real trouble” and would big the event she did she “would be silent, she feared no one break Jennifer remained because family.” up would believe her and felt confused.” “very Pen. (the violating
The incident as misdemeanor count of count Code, 647.6) Jennifer was years took November when place § Defendant entered her bedroom while was and she awoke age. asleep, she when felt him her She defendant what he was touching she breasts. asked and he her Jennifer not doing, he was with a blanket. could replied covering clothes, recall whether on defendant her under her this occasion touched occurrence, “because this same times." After this thing happened many Jennifer convinced her mother to a Jennifer’s bedroom door. install lock on incident, after this final Jennifer disclosed defendant’s conduct to
Shortly friend, The who the information to a school counselor. counselor relayed notified the police. Natalie, trial,
Jennifer’s sister who was 23 at the time of years age testified she was 10 or 11 when her married defendant. years age mother them, after Shortly defendant with Natalie three began residing awoke on bed, occasions to find defendant her her vaginal beside breasts and touching occasions, On the area. first two Natalie was uncertain whether she had been occasion, On the dreaming. third when what he she asked defendant was leave, he said he doing, was She him “straightening up covers.” told however, further no incidents of this occurred. on type Subsequently, sister, Theresa, several occasions Natalie and her older defendant found peeking into their bedroom while window were they dressing. her,
Natalie never told defendant had anyone molested until she learned defendant had molested Jennifer. Ewoldt, mother, that,
Jennifer’s Karen testified late one she heard night, house, Jennifer say “get out.” someone had Fearing broken into Ms. Ewoldt entered Jennifer’s bedroom and discovered defendant “pretending occasion, like he was On Jennifer picking up something.” another she heard scream and found her “running down the hall.” Defendant was walking toward the kitchen. Jennifer said she had had a She nightmare. slept do, mother’s bed the remainder of that night, which was unusual for her to couch, and defendant on room he On third slept living as often did. occasion, she observed defendant into the looking window of Natalie Theresa’s bedroom. behalf,
Defendant testified his own of the incidents denying any described Jennifer had occurred he ever had and that into Natalie peeked and Theresa’s bedroom window. found defendant jury guilty as counts 3 and but
unable to reach a verdict on count which was dismissed subsequently the trial court. Defendant was sentenced to a term eight years prison.
The Court of
Appeal
judgment,
reversed
that the trial court
holding
in
erred
admitting Natalie’s
For the
the trial
on
testimony.
guidance court
remand, the Court of
further held that Jennifer’s
Appeal
uncorroborated
testimony regarding
uncharged misconduct with her was inad-
under
in People
Stanley, supra,
our decision
v.
Discussion I contends, Defendant and the Court of that admission Appeal agreed, of defendant’s misconduct with prior, uncharged Natalie violated section 1101, (a), subdivision which the admission of “evidence of a prohibits person’s character ... or her prove his conduct on a occasion.” specified that, In response, claim as a People result of enactment of section 28(d), occasions, in section 1101 no effect. On we longer prior have taken issue, note of (People (1991) this without it. v. 53 resolving Sully Cal.3d 1195, 144, 163]; (1989) 1226 Cal.Rptr. People 812 v. Harris 47 [283 1047, 352, Tassell, 619]; 1081 Cal.Rptr. People 767 P.2d v. [255 82, 77, hold, supra, 36 Cal.3d fn. We now have occasion to do and for so follow, the reasons that that even if the 28(d) of section adoption abrogated 1101, section in reenacted 1101 it Legislature section 1986 when amended that statute more than a by two-thirds vote. 28(d)
Section in provides, as statute pertinent part: “Except provided by hereafter enacted in by two-thirds vote of the each house membership relevant Legislature, evidence shall not be excluded in criminal any .... in proceeding this section shall affect Nothing any existing statutory Code, rule relating of evidence to privilege hearsay, or Evidence Sections 352, 782 or 1103.” contends,
Defendant initally following of the Court of reasoning 377, v. Appeal Superior Newman Court 179 382 Cal.App.3d [224 538], 646, and Cal.Rptr. People v. Perkins 649-650 Cal.App.3d 625], that the Cal.Rptr. foregoing [205 exclusion of Evidence Code section 28(d) 1103 from the ambit of section must be as excluding interpreted well, section 1101 as because 1103 is an to section 1101 exception “[s]ection (Newman cannot exist an Superior as to a nonexistent v. exception rule.” Perkins, Court, 377, 382; supra, 159 People supra, Cal.App.3d 550, 650; (1987) 194 People Cal.App.3d but see v. Scott Cal.App.3d not, not, 588].) this and do resolve fn. We need however, conclude, the Court of Appeal we as did because question, 554-556, Scott, if even section supra, 194 Cal.App.3d has 28(d), the Legislature section by by 1101 was repealed implication reenacted the statute. (b) amended subdivision of section Legislature Tassell, to this court’s decision
response be proved the list of of matters could adding following examples for an evidence of other acts: “whether a defendant prosecution unlawful act did not reasonably unlawful sexual act or sexual attempted *11 (Stats. in . . .” ch. faith believe that the victim consented . good 1, 2, IV 5129-5130.) Section of article of the California pp. §§ not may Constitution in that section of a statute provides, pertinent part, “[a] By amending be amended unless the section is re-enacted as amended.” reenacted, in section 1101 as Legislature entirety, section thus its amended. The than two-thirds of measure was votes of more passed by (39-0 the members of both of the in the Senate Sen. J. Legislature houses [4 (1985-1986 Sess.) J. in the Assem. Reg. Assembly 80-0 p. [6 7595] (1985-1986 Sess.) 9606-9607]). Reg. virtue of pp. Accordingly, by than a two-thirds legislation, Legislature by reenacted section 1101 more vote.
The
not be
People contend that the
action
1986 should
Legislature’s
viewed
28(d),
as an enactment of section 1101 within the
of section
meaning
that the reenactment
was
a technical
asserting
of section 1101
simply
reenactment,
IV,
article
of the
compelled by
section
provisions
the.
California Constitution.
decision in In re Lance W.
They contend this court’s
(1985)
In In our In re Lance W. is case. distinguishable from present Lance W. we Penal rejected argument amending an that the Legislature, by Code section 1538.5 a unanimous by adoption vote subsequent 28(d), section reestablished violation of the California Constitution as a basis 1538.5, however, for the exclusion of evidence. estab- Penal Code section the procedure lishes motions to evidence obtained as a governing suppress a search result of or seizure. It does not establish for any grounds W., therefore, The exclusion of evidence. addressed Lance was argument whether the not amendment to section a reenactment of 1538.5 constituted statute, but whether the effect of such reenactment require was of section section 1538.5 be as it had been to the applied prior adoption 28(d). was termed “a noncontrover- Observing that the amendment at issue amendment,” Legis- we concluded it was “that the ‘clean-up’ unlikely sial far-reaching lature understood or intended that such consequences—virtually legislative Proposition of the ‘Truth-in-Evidence’ section repeal an without casually adopted —would follow amendment so proposed W., Furthermore, (Lance 894.) at we pointed opposition.” p. understanding Legislature out that this on the confirmed part session, declaring its enactment of a bill at the same companion legislative did not “create new for any grounds that the amendment of section 1538.5 (37 did act.” Cal.3d at p. exclusion of evidence that not exist to this prior 894.) In W. held that of this the decision Lance light legislative history, independent conclusion that the did not intend to reinstate Legislature “[t]he (Id. state for seized evidence grounds excluding unlawfully inescapable.” at fn. from Lance W. several important respects. case differs present 1538.5, rule
Unlike Penal 1101 sets forth a substantive Code section section rule was reenacted limiting admission of relevant evidence. This to the two-thirds vote when section 1101 was amended 1986. contrast W., Lance now before us would governing legislation circumstances become a were we to hold that the 1986 amendment nullity complete *12 statute, the rule of law section 1101 did not reenact a substantive evidence, the admission more than two-thirds of governing by approved Such a would be each house of the would have no effect. result Legislature, 28(d) inconsistent with the clause of section introductory dictates the by effect of statutes a two-thirds vote. regarding passed W., Furthermore, unlike the in in which it was inconceiv situation Lance able the had the “Truth-in-Evidence” Legislature effected a virtual repeal in section of 8 and without Proposition casually opposition, present it retain situation is no means that the chose to by implausible Legislature evidence to conduct on against prove admission of character prohibition occasion, 1101, (a). a Such a rule embodied section subdivision specified evidence that is relevant to demonstrate criminal excluding solely disposi ” tion “was a of ‘the law of force part early England’ currently (Imwinkel “all American either statute or case law . . . jurisdictions, Méndez, ried & Old Law on Character Evidence Resurrecting California’s 1005, 1006, 1041.) section Pacific L.J. The 1986 amendment to 1101, under which evidence of un specifying an additional circumstance criminal charged misconduct be admitted to a matter other than may prove establishes that more than two-thirds of both houses of disposition, rules embodied Legislature evidentiary favored retention of substantive in section as amended. conclude, therefore, 28(d)
We that even if the of section abro- adoption that statute Evidence Code section reenacted gated Legislature when it amended it in more than a vote. We proceed, two-thirds therefore, whether, case, evidence challenged to determine present under section 1101. uncharged defendant’s misconduct was admissible
II A (a) evidence of Subdivision of section 1101 admission of prohibits character, a evidence in the form of person’s including specific of character misconduct, instances of a uncharged the conduct of that on prove person however, clarifies, (b) occasion. specified Subdivision of section 1101 rule this does not prohibit admission of misconduct when such evidence is relevant to establish some fact other than the person’s case, character or In the disposition.1 evidence of defendant’s present prior misconduct is relevant to a material fact prove other than criminal disposition, because the between the circumstances of the similarity acts and prior offenses the inference that defendant supports committed the charged offenses defend pursuant same or plan ant used to commit the misconduct.
“The of a presence design or to do or not to do a act has given value probative (1A to show that the act inwas fact done or not done.” Wigmore, (Tillers Evidence 1983) rev. ed. For example, § letter written by the defendant he stating to commit a certain offense planned would be relevant evidence of the defendant for subsequent prosecution committing (See, that offense. e.g., People v. Nicolaus 575-577 893].) existence of such a *13 design or also plan may be evidence proved circumstantially by that defendant has acts “such performed having a concurrence of common fea tures that the various acts are to be as caused a naturally explained general plan (2 which are the they individual manifestations.” Wigmore, preparation, plan, knowledge, in in a reasonably wrong, or inadmissible opinion, evidence disposition evidence offered to 1Section 1101 states: this section prosecution of a other to commit such an act. and in when offered to person’s prohibits act for an good support when relevant reputation, character “(a) the admission of evidence faith believe that unlawful Except or attack the prove identity, absence of mistake or aor or [1] his or as to evidence of sexual act or trait of his or her character provided prove (c) her conduct on a credibility of witness.” Nothing some fact the victim in this section and in Sections 1102 and specific in this section affects the attempted a (such instances of his or her a person consented) specified accident, as unlawful motive, (whether committed a occasion. other or whether sexual opportunity, in the form of an than his or her admissibility [1] act crime, (b) a conduct) defendant Nothing did intent, civil not omitted.) (Chadbourn 1979) Evidence rev. ed. italics p. Evidence § therefore, the defendant’s of a common or is not used to design plan, prove in the the defendant engaged intent or but rather to identity prove conduct to constitute the offense.2 alleged charged illustrate, has this court on numerous occasions following
As cases bemay employed that evidence of similar misconduct recognized uncharged v. Lisenba establish a or design plan. to common in 569], floating the defendant’s wife was found body her a snakebite on fish in the of their home. She had suffered pond garden foot, defendant testified that had died A confederate of the by drowning. but and, when that he and the defendant had inflicted snakebite deliberately fatal, in depositing did the deceased a bathtub before not had drowned prove of an in Their was to obtain the body proceeds the fish pond. purpose applicable that included a policy double-indemnity provision insurance the event the deceased died accidentally. earlier, that, three years
The trial court admitted evidence establishing wife, had been insured under a provision former who also death, had drowned a bathtub. double for accidental providing indemnity death, that, she was at the time of her demonstrating Evidence was admitted that the in an automobile collision recovering injuries from serious sustained distinction, uncharged acts to establish the existence 2This between the use of evidence of identity, design prove as to the use of such evidence to intent or plan opposed of a common or that, the defendant significant. prove is subtle but Evidence of intent is admissible to if committed an element of the alleged, comprises the act he or she did so with the intent that assumed; intent, sought what is is the state charged proving offense. “In the act is conceded 1979) 238.) (2 Wigmore, (Chadbourn p. ed. accompanied of mind that it.” rev. § that the shoplifting for which it was conceded or assumed example, prosecution For in a merchandise, without for the defendant’s paying defendant left the store certain inadvertently might be that he or she did not similar acts of theft admitted demonstrate merchandise, neglect pay for the but rather harbored the intent to steal it. common defendant of a is admissible to establish that the Evidence intent, conceded or alleged. prove evidence used to where the act is committed the act Unlike assumed, (2 Wigmore, supra, .” proving design, the act is still undetermined . . . “[i]n 1979) (Chadbourn prosecution shoplifting for example, rev. ed. For § alleged present was conceded or assumed that the defendant was at the scene of the which it theft, committed markedly shoplifting the defendant had acts of in a evidence that might be admitted to demonstrate that he or she took similar manner to the offense alleged prosecution. the merchandise in the manner it is or assumed that the offense identity Evidence of is admissible where conceded *14 someone, perpetrator. defendant was the For by prove was committed in order to that the was conceded or assumed that a theft was example, prosecution shoplifting in a for in which it committed uncharged had by person, committed an unidentified evidence that the defendant might be shoplifting acts and distinctive manner as the offense of in the same unusual (2 perpetrator offense. admitted to defendant was the establish that the 410, 1979) (Chadbourn p. ed. Wigmore, supra, rev. §
395 collision, defendant had deliberately caused. When she survived the defendant drowned her in the collecting bathtub for the purpose insurance This court held that evidence the defendant’s proceeds. prior misconduct was murder admissible to establish a common to Lisenba, his wives for financial 14 Cal.2d gain. (People supra, 427-428; (1969) see also v. Schader 71 Cal.2d 776-777 [80 841]; Cal.Rptr. People Kelley (1967) 457 P.2d 66 Cal.2d 239 [57 947]; P.2d 24-25 People v. Gosden 6 Cal.2d 211].) P.2d [56 924],
In v. Peete the defendant employed a Mrs. by Logan provide “domestic service and care” for Mrs. husband, Logan’s elderly (Id. who was in a at state of “senile dementia.” 309.) While defendant was so Mrs. Two employed, Logan disappeared. days later, the defendant her husband moved into Mrs. and Logan’s house caused Mr. Logan to be confined in a mental Mr. hospital, asserting Logan had attacked his wife. response concerning Mrs. inquiries Logan’s whereabouts, the defendant asserted that Mrs. had left to seek Logan plastic surgery necessitated the attack by her husband and perpetrated by planned own, never to return. The defendant treated Logan’s Mrs. home as her opening Mrs. Logan’s mail and forging Mrs. name to certain Logan’s documents. seven
Nearly months after Logan Mrs. disappeared, body was found buried in the backyard of her home. She had been shot the back neck, vertebra, the bullet struck the having fourth cervical narrowly missing tlie cord. Death spinal was caused two fractures of the depressed skull. The butt of a revolver the defendant had stolen “fitted perfectly” depressions the deceased’s skull. Blood and human hair were found on Peete, weapon. (People v. 310-313.) 28 Cal.2d at pp. that, earlier, landlord,
Evidence was introduced 24 years Mr. Denton, had disappeared weeks after leasing his residence to the defend- ant. In whereabouts, response to inquires Denton’s regarding defendant asserted Denton had been shot the arm an unknown woman. The defendant rented Denton’s residence to a third to sell the party, attempted residence, went through Denton’s papers, forged Denton’s name to certain documents.
More than three months after Denton’s disappearance, his was found body neck, buried beneath his residence. He had been shot the back of the bullet struck having the fourth cervical vertebra and severed the cord. spinal The defendant had been convicted of that murder and had the follow- spent ing years prison.
396 the murder committed by
This court held admissible the evidence of
prior
“Evidence
relevant to
concerning
prove
defendant:
another offense is
when in the
of the
light
that a death resulted from the execution of a scheme
crime
it indicates the existence of
sought
circumstances of the
to be proved,
in
with the previous
such a scheme. When a defendant’s conduct
connection
in connec-
crime bears
to his conduct
similarity
significant respects
such
aby
tion with the crime
to be
as caused
naturally
explained
as
coincidental,
that the
is not
but indicates
general plan,
similarity
merely
striking similarity
conduct was directed
The
by design.
...[][]
[Citations.]
case and
between defendant’s conduct
the Denton
significant respects
indicates a
her conduct
connection with Mrs.
death
Logan’s
strongly
scheme
defendant to
of a suitable victim murder.”
acquire
property
Peete,
306, 317-318.)
(People
28 Cal.2d
590],
422
(1967)
In
P.2d
Ing
defendant, defendant determine who testified had consulted the to they and, so, instance, In each whether were if abortions. they pregnant procure an injection defendant confirmed the administered patient pregnant, unconscious, A that rendered her and then had sexual intercourse with her. former of the defendant that the defendant had had employee also testified sexual intercourse with her after administering injections. admissible, “In
This court ruled the evidence was view challenged stating: and the ones striking similarities between the other offenses the evidence was relevant on the of a scheme or question common 612; (People commit .” see also rape Ing, supra, . . . People v. Cramer 67 Cal.2d 129-130 Cal.Rptr. [60 582].) P.2d v. Sam
700], this ruled that the admitted evidence of improperly trial court court misconduct to establish a common because plan, instance, had acted each suggested defendant spontaneously rather than The defendant’s murder was pursuant to a conviction of plan. *16 victim, that, the defend with during an altercation evidence upon based 199.) (Id. at p. stomach.” his foot into “stomped [victim’s] ant had admitted evidence was objection, Over defense victim died two weeks later. his had kicked that, the defendant a drunken quarrel, indicating during that, on ribs, and in her hospitalization, resulting in the former girlfriend an during occasion, another person had kicked yet the defendant another altercation. defend that the evidence holding judgment,
This court reversed the
common
a
to demonstrate
misconduct was inadmissible
ant’s
and present
link
the prior
between
connecting
because “no
design or plan,
independent
The acts were
be inferred.
reasonably
was
or could
alleged
acts
(People v.
in each instance.”
spontaneous
of one another and apparently
Sam,
205.)
supra, 71 Cal.2d
397, 477 P.2d
(1970)
Cal.Rptr.
421], two of his wives defendant was of murdering convicted In a dose of insulin. a lethal administering unusual means of nephew by discussion, that the defendant held that evidence somewhat brief this court wife, ex-husband of another murder third had used the same means to wife, friend, (Id. a common or scheme.” plan and a was admissible “to show at p. 215, 573 P.2d (1978)
In People
Cal.Rptr.
v. Thomas
In People supra, 36 Cal.3d court its this from departed previous to the approach question of criminal admissibility uncharged acts to demonstrate a The in design common or victim Tassell was a plan.
waitress in a restaurant in which the employed defendant was a customer. a.m., When the restaurant at agreed give closed 1:30 the victim to defendant a ride home in her The van. victim testified that when they destination, and, reached the defendant’s he her when to kiss she attempted resisted, van, her grabbed by neck and threw her into the rear of the where he later her and her raped forced him. orally copulate that, earlier,
Evidence was introduced indicating four the defendant years had engaged a similar attack a barmaid after she left her upon employment closed, at a bar which the defendant was a customer. When the bar defendant followed the her victim to automobile and her attempted to kiss as resisted, she started the engine. When she he forced his into the vehicle way arrived, and her neck grabbed as he drove to a secluded When spot. they him, defendant forced victim to orally anal copulate forcibly engaged victim, intercourse with the and her. raped
Additional evidence was introduced that on a three indicating night years offense, to the prior commission of the charged the defendant a picked up hitchhiker, road, female off the pulled and to kiss her. When she attempted resisted, him, he grabbed the throat and forced her to orally copulate intercourse, unsuccessfully attempted anal the victim. raped This court held evidence of the defendant’s criminal prior acts was inadmissible to establish a common or Unlike dis- design plan. the cases cussed above in which this court determined whether the similarities be- tween the uncharged misconduct and the offense were sufficient to charged demonstrate the existence of a common a new design, Tassell promulgated rule that evidence of misconduct could uncharged be used to demonstrate a truth, is, common design or “where it is claimed a plan only that there ‘single or of which the conception plot’ crimes are uncharged individual manifestations. Absent such a talk ‘grand design,’ [Citation.] of ‘common or plan scheme’ is but the of a really nothing bestowing respectable label on a disreputable basis for admissibility—the 3As discussed opinion, degree later in this of which the remoteness in time evidence misconduct probative establishing will affect the value of such evidence in a common design plan vary, depending or will upon the of each case. circumstances 77, 84, Tassell, omitted.) The supra, fn. 36 Cal.3d (People disposition.” a conten- would argument support went on to “No rational explain: decision There one larger plan. crimes were part tion that the three sets of sex operand! it is whether the modus no issue immaterial being identity, offenses. While crime similar to that of the admissibility, rationale on the for rely plan ‘common scheme’ ” (Id. that is for merely euphemism ‘disposition.’ under the circumstances 88-89.) at Tassell, is based decision be cannot common erroneous
upon premise markedly committed the defendant reflecting established *18 circum under similar against similar acts of misconduct similar victims stances, or conception unless all acts are a part single, continuing of these 403, Lisenba, in 14 People supra, As this court v. Cal.2d recognized plot. however, defendant, occasions, the married evidence that the two separate on victim, life, her in manner obtained on and then drowned her a insurance accidental, her admissible to calculated to make it that death was appear committed design, that were to a demonstrate both crimes common pursuant had the fact that the defendant that there was to indicate despite nothing to its single, Contrary formed a to kill of his wives. continuing plot both Tassell, in in it is and its held that holding progeny this court Lisenba relevant that the aby modus offenses committed operandi uncharged offense, defendant is the even evi similar to when the markedly charged intent, dence is admitted but to that the not to or establish prove identity the uncharged charged offenses and offense are manifestations of a common 249; 304, (2 (Chadbourn 1979) or design rev. ed. plan. Wigmore, p. § contra, 190, 800-801; 1 1992) Evidence (4th McCormick on ed. pp. § Imwinkelried, 3:23, 61.) Misconduct Evidence Uncharged p. § similar, in decision recognize uncharged Tassell failed to that evidence of to may only misconduct be used not to intent or but also identity, prove a common of a show or As we have design plan. explained, common is admitted the intent or design or not to plan prove but to the in the to identity, prove alleged that defendant conduct engaged evidence, (Ante, 393-394.) Such there constitute offense. pp. fore, is not that has a admitted to establish the defendant criminal disposition character, or bad that he offense but to or she committed prove in same pursuant design plan committing used criminal acts. novel,
In its restricted view the of evidence of adopting admissibility a under section criminal acts establish common 1101, the court in Tassell also the Law Revision Commission overlooked comment, in original enactment of section 1101 accompanying (b) intended to codify noted that subdivision of the statute was explicitly Lisenba, in existing law—including, specifically, decision supra, admission of Cal.2d 403: “Section 1101 does not prohibit in evidence of misconduct when it is offered as evidence of some other fact issue, motive, intent, such as knowl- plan, common scheme or preparation, (b) or absence or accident. Subdivision of Section edge, identity, of mistake Lisenba, 1101 makes this clear. This existing law. codifies criminal (prior general P.2d 569 crime admissible to show com., accident) (Cal. plan and absence Law Revision Com. 29B . . . (1966 ed.) added.) West’s Ann. Evid. Code italics p. § The flawed an flawed result reasoning produced equally of Tassell case, People Ogunmola, supra, 123. The defendant course of gynecologist, was convicted of two raping patients defend- examinations. Two other testified that the conducting pelvic patients instance, ant had them the same the crime was raped manner. each alleged to have occurred while the “victim was on her back on an lying her A drape examination table with knees bent and her feet stirrups. paper knees, covered her head and chest. blocking vision of all but defendant’s Each testified that the defendant had nurse left room after obtained pap omitted.) (Id. smear and before the bimanual examination.” at fn. *19 inadmissible, This court concluded the evidence was because challenged intent, neither the of the in issue.4 identity alleged nor his perpetrator, crimes, It is difficult to a of committed imagine stronger example separate to a in pursuant Ogun- common than the offenses involved plan, mola. The marked between the criminal acts and similarity defend- charged offenses constituted circumstantial evidence that the strong ant had in with developed engage patients sexual intercourse his without their consent and in unusual manner described. Ogunmola, People the decisions Tassell and this
Despite court Ruiz 200, 44 (1988) Cal.3d 589 749 P.2d held that Cal.Rptr. [244 854] defendant committed a similar but unconnected offense establishing defendant, could be admitted to that the the charged demonstrate committed Ruiz, In offense. the defendant in a joint murdering was convicted trial of held, 4We Cal.Rptr. since have v. Daniels 857-858 [277 906], guilty] 802 P.2d “that defendant’s not does of the crime plea put elements [of misconduct], purpose deciding admissibility in issue for the of evidence [of proof.” unless the defendant has taken some prosecution’s action to narrow the burden _62, 385, 397, (Fns. omitted.) In Estelle v. McGuire 502 U.S. L.Ed.2d 112 S.Ct. [116 stated, 481], high prove every prosecution’s court burden to element “[T]he crime is not relieved to contest an essential element of defendant’s tactical decision not the offense.” Pauline, wives, In two of his well Pauline’s son. Tanya ruling as as the trial court denied the properly charge defendant’s motion to sever held murdering Tanya remaining from the this court that evidence charges, in a that the defendant had murdered admissible Pauline would have been trial for the murder of separate Tanya. had under She had
Tanya disappeared circumstances. suspicious not announced intention of and the defendant any departing, appeared her body unconcerned absence. No one heard her and her again, from Pauline, never was found. after the defendant married she and son, under Their later Tony, disappeared circumstances. bodies suspicious were found buried outside the house where the defendant and Pauline had bodies, lived. Physical evidence discovered with the including frag- bullet ments, linked the defendant to the killings. close,” Although “the noting question is this court held that ‘there were sufficient similarities between the and the Tanya charges Pauline/Tony charges” for the trial court to admit evidence of the charges” “Pauline/Tony Ruiz, in a trial of the “Tanya charges.” (People separate 589, 605.) We observed: “The fact that defendant had tilled Pauline was indeed, relevant to the quite whether he killed question had Pauline’s Tanya; death was relevant to the critical issue whether too had died Tanya of some 606; (Id. at criminal agency. Douglas see also [Citation.]” (1990) 50 Cal.3d 640].) 510-511 Although there was no indication that the defendant had murdered both Pauline and single, Tanya pursuant to a continuing conception as plot, required by Ogunmola Tassell decisions in in order to the admission justify evidence, court, challenged this without discussing or to distin- attempting decisions, guish those held that this evidence was admissible.
In light of their anomalous position more than 50 years of California *20 Tassell, law, overrule People v. 77, case supra, and People v. we 36 Cal.3d 120, Ogunmola, supra, 39 Cal.3d to the extent they hold evidence of a defendant’s similar uncharged misconduct is admissible to establish a com- mon design or where plan only the charged and acts are a uncharged of part single, continuing or conception We hold instead that evidence plot.5 of a 5Justice Mosk asserts in dissenting opinion his that we should adhere to decision in (Post, Tassell as a 412.) matter of stare pp. disagree. decisis. at We principle The of stare because, shown, decisis would not be by following served Tassell as we have the Tassell decision itself is at odds with an authority otherwise consistent dating line of back more than Ruiz, years, including the People decision in v. supra, 44 Cal.3d decided this court years after Tassell. Justice Mosk notes that the decision in approval. cited Tassell with This citation Ruiz appears in the general discussion of the principles a governing the denial of motion for disputed severance when the (44 separate would have in been admissible trials. 605.) p. mentioned, however, Cal.3d at The decision in Tassell is not in the discussion of whether the uncharged defendant’s (44 misconduct pp. Cal.3d at was admissible. Ruiz miscon- uncharged where the misconduct is relevant uncharged the inference similar to sufficiently support
duct and the offense are charged or design plan. are manifestations of a common they rele is misconduct uncharged whether evidence of determining distinguish or it is useful to design plan, vant to demonstrate a common and (between misconduct similarity uncharged nature and of degree or offense) design plan, in order to establish a common required or identity. to intent degree similarity necessary prove from the of (between act and the uncharged degree similarity least Robbins, (See supra, intent. offense) is order to required prove . . tends of a similar result . 45 Cal.3d recurrence “[T]he instance) inadvertence or each accident or negative with (increasingly state, tends to mental self-defense or faith or other innocent good least, not though certainly) presence establish at (provisionally, normal, i.e., criminal, (2 Wigmore, such an act. . . .” intent accompanying 1979) 241.) In admissible to (Chadbourn order to be supra, p. rev. ed. § intent, similar to sufficiently must be misconduct prove “ same the inference that the defendant ‘probably harbor[ed] support Robbins, 45 Cal.3d supra, (People intent each instance.’ [Citations.]” 867, 879.) prove
A order degree similarity required greater above, in a establishing existence of a common As noted design plan. must demon evidence of misconduct common or plan, results, in the but such a concurrence merely similarity strate “not a as caused acts are to be naturally explained common features that the various (2 manifestations.” which are the individual they general plan omitted.) 1979) italics (Chadbourn rev. ed. Wigmore, supra, § innocent difference for acts similarity, negativing between requiring “[T]he intent, for acts design, features common indicating common requiring kind; to be than of for is a difference of rather showing design, degree features, features is common and to have common having similar involves Archerd, Instead, 605-606.) upon this court relied the decision Tassell, 615, which, part of did not uncharged misconduct be require unlike that evidence of be single, conception plot continuous in order to admissible. *21 conduct demonstrating design plan, uncharged a common or 6In addition to the existence of Daniels, (People v. may following, among other matters: motive be relevant to establish the Schader, 761, 776-777; People supra, knowledge (People supra, 815), Cal.2d 52 Cal.3d v. 71 154, v. Robbins (1988) Cal.3d (People v. Morani (1925) 135]), 45 Cal. 158 P. intent 196 Morani, 154, 867, 172, 158), supra, 355]; People Cal. Cal.Rptr. 755 P.2d 196 879 [248 492, 1289]; identity (People v. Miller Cal.Rptr. P.2d 50 790 Cal.3d 987 [269 1249]). v. Malone 762 21 [252 250-251, (Id. italics to have a at merely high degree similarity.” pp. omitted; McCormick, supra, see also §
To establish the existence of a or the common design plan, common features must indicate the existence of a rather than a series of similar plan acts, or but the thus revealed need not be distinctive spontaneous plan unusual. For evidence that a search of the residence of a example, person victim to his suspected rape written to invite the produced alone, plan and, residence in once to force her to sexual intercourse would engage manner, relevant if highly be even the lacked the same plan originality. evidence defendant has committed criminal acts that are uncharged similar to the if charged may offense be relevant these acts demonstrate circumstantially that defendant committed the charged pursuant offense same he design or she used acts. plan committing Unlike evidence of uncharged acts used to need not prove identity, plan distinctive; be unusual or it need exist to the inference that the only support defendant employed (See committing charged offense. Ruiz, 605-606.) supra, Cal.3d
The greatest degree of un similarity required for charged misconduct to be relevant to identity. For to be prove identity established, the uncharged misconduct and the offense share must common features that are distinctive so as to the infer sufficiently support Miller, ence that the same person (People supra, committed both acts. 954, 987.) “The and characteristics of the crimes pattern must be so McCormick, unusual and distinctive (1 as to be like a signature.” 801-803.) pp. § case,
In the present victims of both the uncharged misconduct and the charged offenses were defendant’s who were stepdaughters, residing home, and the acts occurred when the victims were of a defendant’s occasions, age. similar On three defendant molested Natalie at while night discovered, she asleep bed. When defendant asserted he was only offenses, “straightening up covers.” In two of the charged defendant and, discovered, molested Jennifer in an almost identical fashion when proffered a similar excuse. On one occasion to the prior commission of the offenses, defendant touched either Jennifer’s breasts or her vaginal area. This marked the of an beginning ongoing pattern molesting Jennifer. conclude, therefore, We that evidence of misconduct shares sufficient common features with the charged offenses to support inference that both the uncharged misconduct and the charged offenses are manifestations of a common Such evidence plan. is relevant to establish that defendant committed the charged offenses accordance with that plan.
404
B exclusion of the Our conclusion that section 1101 does not require misconduct, is evidence of defendant’s that evidence uncharged because criminal disposition, relevant to a relevant fact other than defendant’s prove end Evidence “is so uncharged prejudicial does not our of offenses inquiry. (People that its admission careful requires extremely analysis. [Citations.]” 197]; (1986) 42 722 P.2d v. Smallwood Cal.3d Cal.Rptr. [228 Thompson Cal.Rptr. see also 109 [246 37].) inherent in 753 P.2d “Since ‘substantial effect prejudicial [is] [such] evidence,’ if have substantial they offenses are admissible uncharged only (People Thompson value.” probative 883], omitted.) 611 P.2d italics fn. original, in this the evidence of defendant’s criminal conduct
Although uncharged case is relevant establish a common or to be admissible such design plan, admission, as evidence “must contravene such policies limiting not other (People those contained Evidence Code 352. section [Citations.]” 109.) We to examine Thompson, supra, Cal.3d at thus proceed whether the the evidence of defendant’s uncharged value of probative is, admission offenses its “substantially outweighed by probability that confusing . . . create substantial of undue of danger prejudice, [would] issues, Code, (Evid. or of misleading jury." §
The the evidence of factor value of principal affecting probative that evidence to demon- uncharged tendency offenses is of strong. strate the existence of a common That design plan. tendency Defendant’s misconduct with Natalie was committed a manner uncharged offenses, identical to that of and the nearly charged charged two of acts course of action rather than a uncharged together suggested planned series of Natalie testified that the defendant molested spontaneous events. occasions, her on three and Jennifer testified that defendant’s uncharged misconduct with her was the an of beginning ongoing pattern frequent of defendant convincing molestations. this constitutes evidence that Together, to a common acting pursuant plan. value also is affected misconduct probative of the the extent to which its source is of the evidence independent offense. For if a witness to the offense charged example, provided a detailed of that incident without aware of the circumstances report being offense, have been the risk that the witness’s account may eliminated and the influenced offense would be knowledge value of the evidence would be enhanced. The value probative probative *23 such evidence would increase if evidence additional further of independent misconduct, the design instances of similar committed same or pursuant were These are of limited in the plan, produced. significance present factors case, however, it was Jennifer made a because after that had only learning similar Natalie her. The accusation that accused defendant of molesting therefore, source the of Natalie’s is not testimony, wholly independent evidence the charged offenses. scale,
On the other side of the the effect of prejudicial this evidence the heightened by circumstance that acts did not uncharged defendant’s result in criminal convictions. circumstance increased the that danger This might have jury been inclined to defendant for the punish uncharged offenses, regardless whether it him considered of- guilty charged fenses, Code, (Evid. increased the likelihood of the issues” “confusing 352), because had to determine jury § whether offenses uncharged had occurred. acts, however,
The testimony describing defendant’s was no stronger and no more than the inflammatory testimony concerning charged offenses. This circumstance decreased the for potential prejudice, because it was that unlikely jury disbelieved Jennifer’s testimony regard- ing but offenses nevertheless convicted defendant on the strength of Natalie’s testimony or Jennifer’s the un- testimony regarding offenses, that jury’s were inflamed the evidence passions of defendant’s uncharged offenses.
The circumstance that defendant’s uncharged misconduct with Natalie not, occurred approximately years trial prior to does the context of this case, evidence, significantly lessen the value probative of this because only a few years elapsed between the time defendant last molested Natalie and the time he began his ongoing pattern of Jennifer. In molesting Ing, 603, 612, supra, 65 Cal.2d we held admissible evidence of uncharged even misconduct one of the though prior offenses was committed years before (See the charged People Douglas, offenses. also supra, 50 Cal.3d 468, 511.) circumstances, all
Considering we conclude trial did not court abuse its discretion in the evidence admitting misconduct.
Our holding does not mean of a un- defendant’s similar charged acts demonstrate the existence of a common will be (or all admissible even most) criminal prosecutions. cases the many value,
prejudicial effect of such evidence would its outweigh probative because the evidence would be merely cumulative an issue that regarding Schader, was not reasonably subject (People dispute.
761, 775.) This is so because evidence of a common or is design plan admissible to only establish that the defendant in the engaged conduct offense, matters, alleged to constitute the charged not to other such as prove the (Ante, defendant’s intent or the identity charged as to offense. pp. 393-394.)
For example, most for prosecutions crimes such as burglary it robbery, that the beyond dispute offense was committed someone; the issue to be determined primary is whether the defendant was Thus, circumstances, the of that perpetrator crime. such evidence that the defendant committed uncharged offenses that were the sufficiently similar to charged offense to demonstrate (but a common or design not suffi- distinctive ciently to establish would be identity) ordinarily inadmissible. that, Although such evidence is relevant to demonstrate the defend- assuming crime, ant was at the scene the present the defendant in the engaged offense, conduct alleged constitute the if it is beyond dispute occurred, the crime alleged such evidence would be cumulative and merely the effect prejudicial of the evidence of acts would uncharged its outweigh value. In probative ruling upon of evidence of admissibility uncharged acts, therefore, it is that the trial imperative court determine what specifically proffered is offered to so that the value prove, probative evidence can be evaluated for that purpose. reason,
For this same the evidence of defendant’s mis conduct case is present inadmissible for the purpose proving defendant’s intent as to the charges of committing lewd acts. Evidence of that, intent is relevant to establish the defendant assuming committed the conduct, alleged he or she harbored the intent. requisite testifying regard conduct, ing charges of lewd Jennifer stated that defendant repeatedly her, molested fondling breasts and genitals and her to touch his forcing conduct, If penis. defendant engaged this his intent so could not doing (Cf. be reasonably disputed. 4 Williams Cal.4th 362 961]; Tassell, Cal.Rptr.2d cf. also Cal.3d fn. 6 and therein.) cases cited As to these charges, acts, therefore, prejudicial effect of admitting evidence of similar uncharged would outweigh value of probative prove such evidence to intent.7 not, not,
We need and do consider whether the evidence of defendant’s misconduct was admissible to establish defendant’s intent as to 7Because we conclude that disputed evidence was admissible to establish common intent, plan, prove rather than to stipulate jury offer to “that if the finds that the committed present defendant was the various acts which are the subject of these child, the single charge of annoying molesting a because the evidence was not admitted for that limited and the not instructed purpose jury was consider the evidence only as to that charge.
Ill Defendant contends that his uncharged misconduct with Jennifer was inadmissible under the rule stated in People Stanley, supra, 812, which prohibits admission of “uncorroborated testimony 817-818; prosecuting (Id. witness as to noncharged offenses . . at pp. . *25 see also v. Scott 123].) however, The decision Stanley, declined “to expressly adopt
rigid rules” the regarding admission (People of such evidence. Stanley, “ Instead, supra, 67 Cal.2d 818.) this court ‘a recognized balancing process must take place—a weighing of the probative value of the evidence offered against the harm it is likely (Id. to cause.’ at p. [Citation.]”
In Stanley, the complaining witness testified that the defendant “had committed offenses on four other occasions with complaining [the witness] and other boys 812, 819, . . . .” (People v. Stanley, supra, 67 Cal.2d italics added.) This court noted that testimony uncharged offenses the involving complaining witness and other children “involves a substantial danger of prejudice to (Ibid.) defendant.” the Accordingly, court held that the trial court abused its discretion this admitting uncorroborated evidence.
In so holding, this court observed Stanley “that where the basic issue of the case is the veracity of the prosecuting witness and the defendant as to the commission of the acts the charged, trier of fact is not aided by other offenses where that evidence is limited to the uncorroborated testi- of the mony prosecuting (People witness.” Stanley, supra, 67 Cal.2d at p. 817.) This observation was based upon the premise that the sole purpose admitting evidence of uncharged misconduct is to corroborate the testimony of the complaining incorrect, witness. This premise is however. As noted earlier, evidence of uncharged misconduct be admitted properly may prove any fact material the prosecution’s case. Certainly, uncorroborated testimony the by complaining witness concerning defendant’s uncharged misconduct may have less value probative than that is testimony corrobo- rated or testimony provided a third by and the party, value of probative this evidence must be considered the trial by court in conducting weighing charges, ... he did requisite so with the specific intent. . .” did not affect the admissibility of the evidence. will circum- mandated Evidence Code section 352. There be
process stances, however, in which of the testimony complaining the uncorroborated will be admissi- concerning uncharged witness defendant’s misconduct The ble. case is one such present example.
Jennifer’s account which defendant molested her first occasion on context, when disclosing was relevant to offenses place charged defendant’s evidence was no recurring molesting began. This pattern offenses, more than inflammatory regarding Jennifer’s testimony reason, so its additional effect it was prejudicial was minimal. For same would return a verdict based unlikely jury guilty upon misconduct rather than the the trial court did Accordingly, offenses. not abuse its in admitting testimony discretion Jennifer’s uncorroborated misconduct. regarding
Disposition judgment Court of is reversed. Appeal *26 Lucas, J., Kennard, J., Arabian, J., Baxter, J., Panelli, J.,* C. and concurred. outset,
MOSK, J.,
I
Dissenting.
At the
with the
conclu
agree
majority’s
dissent,
sion that Evidence Code section 1101 is still the law of this state.1I
however,
People
from the decision of the
to overrule
v. Tassell
majority
567,
Tassell,
(1984)
(Tassell).
Section 1101 of evidence crimes prohibits introduction to show the defendant’s 44 (People (1988) criminal v. Williams disposition. 883, 336, 395]; Cal.3d 904 P.2d v. People Thompson 751 Cal.Rptr. [245 303, 289, (1980) 883]; 27 Cal.3d 316 611 P.2d Cal.Rptr. [165 *Retired Associate sitting assignment by Justice of the under Supreme Chairper Court son of the Judicial Council. statutory 1All references are to the Evidence Code unless otherwise indicated.
409 457, 215, (1978) 433]; Thomas 20 see 464 573 P.2d Cal.Rptr. [143 126, 230, also v. Cramer 67 Cal.2d 129 429 Cal.Rptr. [60 582]; P.2d 424 People Kelley (1967) 238 Cal.Rptr. [57 Witkin, 947];. (3d 1986) 325-326.) Cal. Evidence ed. pp. § Section provides that “evidence character of a or a trait person’s his or her character ... inadmissible when offered to his or prove However, conduct on a occasion." specified the section does not prohibit crime, “the admission of evidence that a person wrong, committed a civil other act when prove relevant to some . . . other than his or her fact disposition (§ to commit added.) such an act." italics The section provides examples facts that be relevant may for some reason other than “motive, intent, disposition: opportunity, iden- preparation, plan, knowledge, absence tity, of mistake (Ibid.) or accident. . . .” examples the statute recites of facts that may be relevant for some are, reason from apart criminal disposition with the exception of intent and not identity, normally ultimate facts at issue a criminal (People trial. Thompson, supra, facts, 27 Cal.3d at p. 13.) fn. They are intermediate admitted because are relevant they to an ultimate issue other than criminal (Id., propensity. at p. fn. Thus one Court of observed that Appeal is a “[t]here distinction between (facta facts issue probanda) and subor- (facta dinate facts probanda) which tend to prove facts issue. classic parlance, Stone, scheme are probanda, (J. not facts issue. facta America, Exclusion Similar 988, 1026n, Fact Evidence: 51 Harv.L.Rev. Evidence, cited in McCormick on (People 328n.” v. Covert 81, 84, Cal.App.2d 220].) fn.
It hardly seems controversial to as we did in require, explicitly Thompson, 303, supra, that evidence of an crime must uncharged 27.Cal.3d issue, be relevant to some ultimate fact in either directly through or the 315, of an drawing (Id., inference. at p. 14.) & fn. We “Evidence explained: of an uncharged that, offense is usually sought be admitted as if ‘evidence true, found to be a fact proves from which an inference of another fact may be drawn.’ As evidence, with other [Citation.] types circumstantial its admissibility depends three upon (1) factors: principal the materiality of fact sought to be proved (2) or disproved; tendency uncharged crime fact; to prove or disprove material the existence of rule any or policy requiring exclusion of relevant evidence.” (People Thomp- son, 315, supra, omitted; 27 Cal.3d at & p. italics fn. see also People v. 815, Daniels 52 122, Cal.3d 856 906]; Cal Rptr. [277 802 P.2d 115, v. Gallego (1990) 679, 52 Cal.3d 171 Cal.Rptr. [276 802 P.2d 410 172,
169]; 867, (1988) People v. Robbins Cal.3d 355].) We “In fact materiality, continued: order to satisfy requirement to be either in or an sought proved may be an ultimate fact the proceeding intermediate fact which fact ‘from such ultimate be may presumed [] Further, ‘actually inferred.’ the ultimate fact to must be proved be [Citation.] ” 315, omitted.) in (People dispute.’ Thompson, supra, 27 Cal.3d at fns. Tassell, even our in we Accordingly, supra, before decision were concerned in to limit evidence of crimes to situations which uncharged such evidence was in actually relevant to a fact issue.
It was in on basis of this that we reached the conclusion understanding Tassell, supra, 36 Cal.3d that evidence of an crime a showing common scheme or in the not admissible unless it was material plan sense that it was relevant to some ultimate fact. We reviewed prove disputed the case law section and arrived at the conclusion that interpreting order to avoid evidence of crimes to be admitted to permitting show criminal be disposition, “plan” language of section 1101 must that the interpreted require evidence show essentially conspiracy which the offense formed a or that part, such of common issue, plan must be relevant to some matter at such as prove actually identity (36 88-89.) or intent. Cal.3d at pp. Tassell, would
Although majority overrule they endorse the view that evidence of scheme common should not be plan admitted as an end itself or to show criminal conclude propensity. They that a common scheme or is an plan intermediate fact from which can be issue, is, drawn an inference on an ultimate fact that defendant did ante, (See commit the charged crime. maj. opn., 393-394 & fn. pp. pp. err, however, They that evidence concluding of common in this case was relevant from its defendant apart to show the tendency committed the crime he because acted with his conformity criminal disposition.
How does evidence of a common show that defendant plan legitimately assert, committed the crime? As the a majority plan common must demon- “ results, strate ‘not merely similarity the but such a concurrence of common features the that various naturally explained acts are to be as caused ” (See which general plan of are the individual manifestations.’ they ante, that maj. This definition seems to me consistent with opn., Tassell, 77; stated in when the shows an supra, evidence overarch- or such if the ing that it is established defendant committed plan conspiracy, well, uncharged portion charged he committed the as probably portion evidence of the is relevant show the plan to that defendant committed crime. charged situation,
In which foregoing the evidence is like a jigsaw puzzle, of the missing can inferred shape piece examining pieces be from I around it. would agree that such evidence of common scheme is or plan admissible show charged defendant committed the crime. addition, when the evidence of or a common scheme plan simply date, defendant has committed the same kind of crime at an earlier it bemay admissible the same way that modus evidence is operandi admissible on Tassell, the issue of identity or intent. We no said differently 88-89. However, neither grounds of these for admission of prior Here, crimes was here. present the evidence of crimes showed that defendant had molested his older he stepdaughter years some before committed the crimes charged of his There molesting younger stepdaughter. was no overarching of which crimes were one charged simply manifestation, nor there any issue intent identity. intent,
When there is no issue of identity and the evidence not does grand reveal a which design of uncharged crimes are parts, in what way is a prior uncharged crime the same as the nature crime probative on the ultimate issue of whether defendant commit- ted the charged crime? I submit that it is if probative we only permit jury draw inference from the earlier crime that it is defendant’s inclination crimes, or nature to commit such and that this of his character aspect caused him to commit the charged crimes. This is but criminal nothing propensity evidence, and should be excluded section 1101. majority, conclud- admissible, that such ing evidence is fail to out the basic carry purpose section which is to prohibit the introduction of other crimes evidence to show criminal disposition.
412 Tassell, a case that has courts for a
Fundamentally, disapproving guided decade, does violence to the of stare decisis.2 This kind of calcu principle Lewis lated to an Retired Justice damage elementary principle disturbing. is, he Powell wrote on the of stare decisis. The doctrine recently importance (Powell, “essential to the rule of law.” Stare Decisis and emphasized, (1991) Judicial Restraint J.Sup.Ct.Hist., p.
Justice Powell reduced the merits of stare decisis to three simple specifics: “(i) The easier first is one of interest to it makes our work special judges: .... It cannot be case to the Court suggested seriously every brought should reexamination on the merits of relevant require every precedent.
“(ii) Stare decisis in the . . decisis is stability also enhances law. . [S]tare to have a which citizens necessary predictable may rely set of rules on their behavior. shaping
“(iii) the most and familiar stare decisis is Perhaps argument for important one of ... An this is the public legitimacy. important respect of aspect (Powell, the Court shows for its own Stare Decisis and previous opinions.” Restraint, supra, 15-17.) Judicial J.Sup.Ct.Hist., pp.
Rejection of stare decisis this court has been much by majority of See, 59, (1993) too King v. 5 Cal.4th 82-83 frequent. e.g., [19 233, Mosk, (conc, J.); 851 P.2d and Cal.Rptr.2d dis. of Rider v. opn. 27] 1, 490, 1 County Diego (1991) San Cal.4th 33 P.2d 820 Cal.Rptr.2d [2 of Mosk, 1179, (dis. J.); People (1990) of v. 51 opn. Cal.3d 1000] Gonzalez 729, Mosk, (conc, J.); 1264 800 P.2d and dis. Cal.Rptr. opn. [275 1159] 1230, 144, (1989) Mitchell v. Superior Court 49 Cal.3d 1257 Cal.Rptr. [265 Mosk, (conc. 783 P.2d J.); v. opn. Municipal Court 731] Hernandez 713, (1989) 513, 49 Cal. 3d (dis. 729 781 P.2d Cal.Rptr. opn. [263 547] Mosk, J.); Thing LaChusa 681 Cal.Rptr. [257 Mosk, (dis. J.). 771 P.2d I will to opn. not belabor point, except 814] doctrine, add that the court’s failure to adhere to this particularly law, criminal has flux put law into our current deprived pronounce ments of the echo of finality. we should
Finally,
not overlook the fact that the Legislature,
amending
Tassell,
section
referred
reenacting
supra,
specifically
decisis,
2Vainly
attempting
damage
majority,
rationalize their
to stare
in footnote 5 of
declare that a subsequent opinion—i.e., People opinion,
their
As defendant argues, if the Legislature meant to clarify 36 Cal.3d on one it point, Legislature follows its accepted it on (See other points. People v. Scott 194 Cal.App.3d 556 [239 588].) then, Under the doctrine Cal.Rptr. of legislative our acquiescence, Tassell, decision supra, 36 Cal.3d has been adopted Legislature and should not be overruled by (See this court. Fontana Dist. School Unified Burman 689].)
I would affirm the judgment of the Court of Appeal.