Lead Opinion
Opinion
Pursuant to Evidence Code
On appeal, defendant challenged the modified instruction based on People v. Quintanilla (2005)
Factual and Procedural Background
Defendant was charged with committing various offenses, including rape, against five women between 2005 and 2008.
R.I.
On May 25, 2005, prostitute R.I. agreed to have sex with defendant for $80 and got into his car. After driving to a nearby residential area, defendant stopped the car, pulled out a gun from the backseat, and told the victim not to
The bruises on RJ.’s back and vagina, along with the swelling in her legs, were consistent with her account of the attack. DNA samples taken from R.I. were later found to match defendant’s DNA. R.I. subsequently identified defendant from a six-pack photographic lineup.
N.G.
On June 21, 2006, 18-year-old N.G. was walking home late at night when defendant drove up in a car, pointed a gun at her, and told her to get in his car or else he would kill her. She got in and defendant drove off. He told her not to look at him, and held a razor to her ribcage as he drove. When he stopped in a residential area, he forced N.G. to have vaginal intercourse, and inserted his fingers into her vagina. Defendant took the victim’s cell phone, rings, and sunglasses, and then let her go.
DNA samples taken from N.G. were later determined to match defendant’s DNA. Almost two years after the attack, N.G. identified defendant from a six-pack photographic lineup.
Beverly G.
On February 3, 2008, prostitute Beverly G. agreed to have sex with defendant for $100. After she got into his car, defendant drove a short distance to a residential area. When he stopped the car, he pulled out a stun gun, activated it, and told Beverly not to move. He held the stun gun to her neck and screamed, “Don’t look at me.” He forced her to have vaginal and anal intercourse. Whenever Beverly looked at defendant, he slapped her or spat at her. After he was done, defendant told her to get out; she did not retrieve her belongings before getting out of the car.
Beverly eventually told police what had happened and identified defendant from a six-pack photographic lineup on May 2, 2008.
C.C.
In the early morning of February 10, 2008, defendant offered a ride to C.C., who was waiting at a bus stop. She accepted the ride because another man had been harassing her. C.C. asked defendant to drive her to Hollywood. When she noticed he had driven to Santa Monica, she became worried and
After defendant promised to take her home, C.C. got back into his car. He then pulled out a Taser or stun gun, activated it, and placed it near her throat. He ordered C.C. to take off her pants, which she did. He told her not to look at him, punched her in the face, and made her cover her head with her shirt. Defendant forced C.C. to have vaginal intercourse, bit her left breast, and pulled out some of her hair. He took her purse.
C.C.’s physical injuries—a bite mark and suction injury on C.C.’s left breast—were consistent with her account of the attack. DNA samples taken from her body were later found to match defendant’s DNA. In April 2008, C.C. identified defendant from a six-pack photographic lineup.
Kimberly J.
On April 4, 2009, around 3:00 a.m., prostitute Kimberly J. got into defendant’s car. He drove a few blocks before parking the car on a secluded street. He then jumped on top of Kimberly and said, “Shut up or I’m going to kill you.” He pulled out a stun gun and turned it on to scare her. After defendant ripped off Kimberly’s underwear and pulled down her skirt, he forced her to have vaginal intercourse. He repeatedly pushed her head and told her not to look at him. When defendant was done, he took Kimberly’s jewelry and cell phone and ordered her out of the car.
Kimberly’s physical injuries—vaginal bruising and abrasions on her hymen—were consistent with her account of the attack. DNA samples were taken from Kimberly, which were later determined to match defendant’s DNA. Kimberly helped police create a composite drawing of her attacker, and she later identified defendant from a six-pack photographic lineup.
At trial, the victims (all but Kimberly J.) testified about what had happened to them, and indicated they did not know one another before they were attacked. Without objection, the trial court instructed the jury with a modified version of CALCRIM No. 1191, which permitted the jury to use evidence of defendant’s guilt of one of the charged sexual offenses as evidence of his propensity to commit the other charged sexual offenses. The jury convicted defendant of five counts of rape, one as to each victim. It also convicted him
Relying on Quintanilla, supra,
Discussion
A. Character Evidence and Section 1108
Character evidence, sometimes described as evidence of a propensity or disposition to engage in a type of conduct, is generally inadmissible to prove a person’s conduct on a specified occasion. (§ 1101, subd. (a) (section 1101(a)); Cal. Law Revision Com. com., reprinted at 29B pt. 3B West’s Ann. Evid. Code (2009 ed.) foil. § 1101, p. 221; see People v. Carter (2005)
As relevant here, section 1108, subdivision (a), provides: “In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible
Nearly every published opinion interpreting section 1108 (including some from this court) has recognized that this provision allows, when proper, evidence of prior uncharged sexual offenses to prove propensity. (See, e.g., People v. Reliford (2003)
Section 1108 provides that in a sexual offense case, “evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.” By its terms, the statute does not distinguish between charged or uncharged sexual offenses, and refers instead to “another sexual offense or offenses.” (Italics added.) As used here, the ordinary meaning of the word “another” is “being one more in addition to one or a number of the same kind: ADDITIONAL.” (Webster’s 3d New Internat. Dict. (2002) p. 89; see Wasatch Property Management v. Degrate (2005)
Section 1108’s qualifying language that such evidence is “not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352,” also does not mandate that the sexual offense be uncharged. The argument is that evidence relating to the charged sexual offenses which defendant is currently facing is independently admissible and would not be rendered inadmissible by either section 1101 or section 352; in other words, the phrase makes no sense if applied to charged offenses. (See cone. & dis. opn. of Corrigan, J., post, at pp. 1173, 1178.) We are not persuaded.
1. “Not Made Inadmissible by Section 1101”
First, we must construe the words of sections 1101 and 1108, which cross-reference each other, consistently. (See Isobe v. Unemployment Ins. Appeals Board (1974)
Also, in making clear that evidence of prior uncharged sex offenses is not made inadmissible by section 1101(a)’s ban on propensity evidence to prove conduct (see Falsetto, supra,
2. Section 352 and Quintanilla
Second, with respect to section 352, defendant relies heavily on the reasoning in Quintanilla, supra,
Quintanilla dealt with the parallel provision governing propensity evidence in domestic violence cases (§ 1109).
Section 1108’s legislative history reveals that the legislation was amended after it was introduced to include a specific reference to section 352. (Assem. Bill No. 882 (1995-1996 Reg. Sess.) as amended July 18, 1995.) “While [section] 1108 explicitly supersedes [section] 1101’s prohibition of evidence of character or disposition within its scope of application, it does not supersede other provisions of the Evidence Code, such as normal restrictions in hearsay and the court’s authority to exclude evidence presenting an overriding likelihood of prejudice under [section] 352. [Citations.] [][] ‘The amendment adopted at the Judiciary Committee hearing simply makes this point explicit in relation to [section] 352.' " (Assemblymember Rogan, letter of intent regarding Assem. Bill No. 882 (1995-1996 Reg. Sess.) Aug. 24, 1995, reprinted at 29B pt. 3B West’s Ann. Evid. Code (2009 ed.) foil. § 1108, p. 352, italics added (Rogan letter).)
Rather than imposing an additional hurdle to the admissibility of character evidence, as defendant suggests, the inclusion of section 352 merely makes “explicit” the point that section 1108 does not supersede section 352 or other provisions of the Evidence Code. In other words, even if section 1108 did not refer to section 352, the latter still serves as a limitation on the admission of all evidence. (See Ewoldt, supra,
Though recognizing that evidence of the charged offenses may not be excludable under section 352, the Court of Appeal below concluded that nothing precludes a trial court from considering section 352 factors when deciding whether to permit the jury to infer a defendant’s propensity based on this evidence. It explained; “Even where a defendant is charged with multiple sex offenses, they may be dissimilar enough, or so remote or unconnected to each other, that the trial court could apply the criteria of section 352 and determine that it is not proper for the jury to consider one or more of the charged offenses as evidence that the defendant likely committed any of the other charged offenses.” We agree. (See People v. Harris (1998)
In short, we conclude nothing in the language of section 1108 restricts its application to uncharged offenses. Indeed, the clear purpose of section 1108 is to permit the jury’s consideration of evidence of a defendant’s propensity to commit sexual offenses. “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 a victim’s testimony.” (Assem. Com. analysis, supra, p. 1 [purpose according to bill’s author]; Sen. Com. on Crim. Proc., Analysis of Assem. Bill No. 882 (1995-1996 Reg. Sess.) as amended May 15, 1995, p. 2 (Senate Committee analysis) [same]; Sen. Com. on Judiciary, Analysis of Assem. Bill No. 882 (1995-1996 Reg. Sess.) as amended June 27, 1995, p. 9 [same]; Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 882 (1995-1996 Reg. Sess.) as amended July 18, 1995, p. 5 [same].) “[C]ase law clearly shows that evidence that [a defendant] committed other sex offenses is at least circumstantially relevant to the issue of his disposition or propensity to commit these offenses.” (Falsetta, supra,
More to the point, the instruction here (as set out in full below) did not permit the jury to convict defendant of one count based simply on its guilty “verdict” on any other counts. (Cf. conc. & dis. opn. of Corrigan, J., post, at pp. 1179-1180.) It is not the verdict itself, but rather the jury’s factual finding that defendant has committed a sex offense, that the jury relies on to draw an inference of disposition or propensity. Specifically, like an instruction based on uncharged sex offenses, the modified CALCRIM No. 1191 explained to the jury that if it decided that defendant had committed a charged sex offense, “from that evidence” it could conclude that defendant had a disposition to commit the other charged sex offenses, and that based on that decision, the jury could also conclude that defendant was likely to and did commit the other charged sex offenses. (See post, at p. 1167; see also Reliford, supra,
To the extent the Legislature has given greater attention to evidence of uncharged (as compared to charged) sex offenses under section 1108, such focus is not surprising.• Shortly before section 1108’s enactment, we strongly cautioned that “[e]vidence of uncharged offenses ‘is so prejudicial that its admission requires extremely careful analysis.’ ” (Ewoldt, supra,
Allowing a jury to draw an inference of propensity from other charged offenses is also consistent with the use of charged offenses under section 1101, subdivision (b). As noted, section 1101, subdivision (b), permits the admission of other crimes evidence to establish a material fact like intent, common design or plan, or identity. (See ante, at p. 1159.) We have made clear that juries may consider evidence of other charged offenses for the purposes outlined in subdivision (b), as well as to establish the charged offenses, if the evidence would have been cross-admissible had the charges been tried separately. (Catlin, supra,
It is true that section 1108 does not mention drawing a propensity inference from the evidence of charged sex offenses (see conc. & dis.. opn. of Corrigan, J., post, at pp. 1169, 1173, 1175-1177, 1181-1182), because, in fact, the statute makes no reference to inferences at all. Nonetheless, despite no mention of inferences, we concluded that pursuant to section 1108, CALJIC No. 2.50.01 properly instructed that jurors may “infer the defendant has a disposition to commit sex crimes from evidence the defendant has committed other sex offenses,” and that jurors “may—but are not required to— infer from this predisposition that the defendant was likely to commit and did
B. Modified CALCRIM No. 1191
We next address whether the trial court erred in instructing the jury with a modified version of CALCRIM No. 1191. Defendant argues that the modified instruction failed to designate clearly what standard of proof applied to the charged offenses before the jury could draw a propensity inference from them. He insists that without such guidance, a juror could have used any standard of proof, or no standard at all, to convict him based on even a minimal amount of evidence supporting another sexual offense, thus depriving him of the presumption of innocence. We disagree.
The modified instruction given here provided: “The People presented evidence that the defendant committed the crime of rape as alleged in counts 2, 4, 7, 9, 12 and 15 and the crime of sodomy as alleged in count 14. These crimes are defined for you in the instructions for these crimes, [f] If you decide that the defendant committed one of these charged offenses, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit the other charged crimes of rape or sodomy, and based on that decision also conclude that the defendant was likely to and did commit the other offenses of rape and sodomy charged. If you conclude that the defendant committed a charged offense, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove the defendant is guilty of another charged offense. The People must still prove each element of every charge beyond a reasonable doubt and prove it beyond a reasonable doubt before you may consider one charge as proof of another charge.”
Unlike the standard pattern instruction CALCRIM No. 1191, which refers to the use of uncharged offenses, the modified instruction did not provide that
Defendant also argues that the trial court did not undertake a section 352 analysis here before giving the modified instruction. In concluding to the contrary, the Court of Appeal first recognized that the record does not include an express statement by the trial court that it undertook such an analysis. Noting that an express statement is not required (see People v. Padilla (1995)
We agree with the Court of Appeal that the trial court implicitly conducted a section 352 analysis. “[W]e are willing to infer an implicit weighing by the trial court on the basis of record indications well short of an express statement.” {Padilla, supra,
In any event, any error in failing to conduct such an analysis was harmless. (Padilla, supra,
In sum, under the facts of this case, the trial court did not err in giving the modified instruction. We do not decide, however, whether courts should give such an instruction in the future.
Conclusion
Based on the foregoing, we affirm the Court of Appeal’s judgment.
Cantil-Sakauye, C. J., Kennard, J., and Baxter, J., concurred.
Further statutory references are to the Evidence Code unless otherwise noted.
Kimberly refused to testify at trial and the trial court, over defense counsel’s objection, declared her unavailable under section 240. Her preliminary hearing testimony, which provided details of the incident, was read into the record at trial. Though the admissibility of her testimony was at issue below, it is not an issue here.
Section 352 provides: “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
For purposes of the issue presented here, the precise distinctions between section 1108 and section 1109 are not pertinent. (See People v. Brown (2000)
We disapprove People v. Quintanilla, supra,
Notwithstanding isolated references to “uncharged crimes” and “uncharged sexual acts” in an early analysis by the Senate Committee on Criminal Procedure (see Sen. Com. analysis, supra, p. 1), section 1108’s legislative history reflects that the Legislature did not consistently use the term “uncharged,” and more importantly, the Legislature ultimately did not make such a distinction between “uncharged” and “charged” in the text of section 1108. Moreover, contrary to the concurring and dissenting opinion’s suggestion (see cone. & dis. opn. of Corrigan, J., post, at pp. 1174-1175), the Legislature’s references to “other” (“other victims” and defendant’s commission of crimes “on other occasions”) may also mean that the case in which a propensity inference will apply involves multiple victims and multiple sex crimes charged against the defendant, as here.
Although the written version of the modified instruction included this last sentence, it also referred to “specific intent” as follows: “The People must still prove each element of every charge beyond a reasonable doubt and must prove it beyond a reasonable doubt before you may consider one charge as proof of specific intent of another charge.” (Italics added.) Because the prosecution did not argue that evidence of the other charged offenses could be proof of defendant’s specific intent, we, like the Court of Appeal below, have not considered this limitation when evaluating the instruction. In that regard, we reject defendant’s contention that the modified instruction included the reasonable doubt standard only with respect to proof of a “specific intent of another charge.”
Concurrence Opinion
I respectfully dissent from the majority’s analysis. The majority concludes Evidence Code section 1108
Section 1108 governs the admission of evidence, nothing more. It creates a narrowly crafted exception to the long-standing ban on propensity evidence. Specifically, it provides that evidence of a defendant’s sex crimes on other occasions can be admitted in a new sex crime trial to prove the defendant’s propensity to commit such offenses. Section 1108 addresses evidence of uncharged crimes. It says nothing about the inferences permissible from evidence of charged crimes.
A. General Principles
The majority’s reasoning fails to distinguish between evidence and inferences a jury may draw from the evidence. “ ‘Evidence’ means testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact.” (§ 140.) “An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the action.” (§ 600, subd. (b); see People v. Reliford (2003)
The issues presented here implicate another important distinction about how the jury can reach conclusions from the evidence in a multiple-count case. In the absence of a statute to the contrary, all relevant evidence is admissible at trial. (§ 351.) Unless evidence is admitted for a limited purpose, or against a specific party, evidence admitted at trial may generally be considered for any purpose.
B. The Long-standing Rule Against Propensity Evidence
One example of limited admissibility arises in the context of other crimes evidence. Evidence of a person’s character, also known as propensity evidence, is inadmissible to prove conduct in conformity with that character trait. (§ 1101, subd. (a) (section 1101(a)); Cal. Law Revision Com. com., reprinted at 29B pt. 3B West’s Ann. Evid. Code (2009 ed.) foil. § 1101, pp. 221-222.)
The prohibition on propensity evidence is not merely statutory, however. In enacting section 1101(a), the Legislature codified a rule of evidentiary exclusion that is at least three centuries old in the common law. (People v. Alcala (1984)
Thus, allowing a defendant to be convicted because of his bad character is generally impermissible not only under California law (§ 1101(a)) and the Federal Rules of Evidence (Fed. Rules Evid., rule 404(b), 28 U.S.C.), but is also “contrary to firmly established principles of Anglo-American jurisprudence” (McKinney v. Rees, supra,
C. Section 1108, Subdivision (a) Is a Narrow Exception to the Rule Against Propensity Evidence
In enacting section 1108, the Legislature created a narrow exception to the venerable rule prohibiting the use of uncharged bad acts to prove propensity. The narrowness of the lawmakers’ intention is reflected in both the language of the statute and the legislative history.
1. Statutory Language Is Limited to Admitting Evidence of Uncharged Crimes
Section 1108, subdivision (a) (section 1108(a)) states that, when a defendant is on trial for a sex offense, “evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.” Until recently, courts have generally interpreted this language to mean that section 1108(a) permits the admission into evidence of a defendant’s uncharged sex crimes even if this evidence is relevant only to show criminal propensity. (E.g., Reliford, supra, 29 Cal.4th at p. 1009; Falsetta, supra, 21 Cal.4th at pp. 911, 917-919; People v. Medina (2003)
Although section 1108 does not expressly state that evidence of the other sex offense to be admitted must relate to an uncharged crime, this conclusion is fairly implied from its wording. The statute states that “[i]n a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to section 352.” (§ 1108(a), italics added.) The majority’s analysis relies heavily on the absence of language limiting the provision to “uncharged” offenses and the dictionary definition of “another.” But, read in context, the word “another” clearly suggests the statute is referring to offenses “other” than those for which the defendant is currently on trial. The whole point of section 1108 is to make admissible a certain type of “bad act” evidence that is otherwise inadmissible under section 1101. Evidence pertaining to the crimes for which the defendant is on trial is admissible in its own right and not “made inadmissible by Section 1101.”
Despite this clear limitation, the majority insists section 1108 “necessarily extends to evidence of both charged and uncharged sex offenses” (maj. opn.,
The statute also requires that the other crimes evidence “is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.” (§ 1108(a), italics added.) The significance of this reference to section 352 is discussed at pages 1176-1178, post.
Finally, the Legislature’s intent that section 1108 govern the admission of uncharged misconduct is clear from subdivision (b), which requires that the prosecution disclose other crimes evidence to the defense before trial. Subdivision (b) makes no sense when the evidence at issue relates to charged offenses. Pretrial discovery rules already require disclosure of evidence pertaining to the charged crimes. When applied to evidence of charged offenses, subdivision (b) is superfluous. We generally avoid interpretations that render any part of a statute superfluous. (People v. Aguilar (1997)
2. Legislative History Supports a Limited Reading of Section 1108(a)
In addition to the statutory language, the legislative history uniformly shows that the Legislature was concerned with admitting evidence of uncharged sex crimes when it enacted section 1108. For example, an analysis prepared by the Senate Committee on Criminal Procedure described the “key issue” presented by Assembly Bill No. 882 as follows: “Under current law evidence that a defendant has committed other uncharged crimes, for which the defendant has not been convicted, is generally inadmissible to prove a specific crime. [][] Should an exception to that rule be made to allow the introduction of evidence of uncharged sexual acts to show that the defendant committed the sexual offense in question?” (Sen. Com. on Criminal Procedure, Analysis of Assem. Bill No. 882 (1995-1996 Reg. Sess.) as amended May 15, 1995, pp. 1-2, italics added, capitalization omitted.) In the same report, the bill’s author explained that, under current law, evidence the
A floor analysis from the Assembly was in accord. It stated that the bill would establish a general rule of admissibility in sex crime cases “for evidence that the defendant has committed offenses of the same type on other occasions.” (Assem. Com. on Public Safety, Off. of Assem. Floor Analyses, 3d reading analysis of Assem. Bill No. 882 (1995-1996 Reg. Sess.) as amended May 15, 1995, p. 1, italics added.) The author also described the bill as establishing “a presumption of admissibility for evidence that the defendant has committed similar crimes on other occasions.” (Id. at p. 2, italics added.) In these statements, “other” logically means “other than the case for which the defendant is on trial.”
There is more. In a Senate Judiciary Committee analysis, the question was raised whether “the proposed use of character evidence of the defendant’s commission of another sexual offense to prove the commission of the charged sexual offense [should] be limited to other similar sexual offenses.” (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 882 (1995-1996 Reg. Sess.) as amended June 27, 1995, p. 3, italics added, capitalization omitted.) In the same report, the bill’s author was quoted as saying that, under current law, evidence the defendant had committed sex crimes “ ‘against other victims' ” was often not admissible, and the bill would “ ‘amend the Evidence Code so as to establish, in sexual offense actions, a presumption of admissibility for evidence that the defendant has committed similar crimes on other occasions.' ” (Id. at p. 9, italics added.) These repeated references to inadmissibility of other crimes evidence make no sense if understood to refer to charged crimes because evidence of charged offenses is clearly admissible.
This sampling of the available legislative history consistently shows that section 1108 was intended only to permit the admission of uncharged offenses. Significantly, nothing in the available legislative history for Assembly Bill No. 882 suggests the Legislature ever contemplated the use of section 1108 to support an instruction that invites jurors to draw a propensity inference from evidence pertaining solely to charged sex crimes.
Moreover, the contemplated instruction does not serve the legislative purpose behind section 1108. “Available legislative history indicates section 1108 was intended in sex offense cases to relax the evidentiary restraints section 1101, subdivision (a), imposed, to assure that the trier of fact would be made aware of the defendant’s other sex offenses in evaluating the victim’s and the defendant’s credibility.” (Falsetta, supra,
D. Extending Section 1108(a) to Permit a Propensity Inference for Charged Crimes Conflicts with Fundamental Principles
Section 1108 is a narrow rule authorizing the admission of evidence of the defendant’s uncharged sex crimes, subject to section 352, even if those crimes are only relevant to show the defendant’s propensity to commit sex crimes.
The present case does not concern the admission of evidence, nor does it concern evidence of a defendant’s uncharged sex crimes. The question here is whether the jury should be instructed that it can infer, from a finding that the defendant committed one of the charged sex crimes, that he has a propensity to commit such offenses and, thus, may have committed the other sex crimes for which he is on trial. Section 1108 simply does not address this question. Although section 1108 may reflect the Legislature’s increased willingness to tolerate propensity evidence in the context of sex crimes, the statute was carefully crafted to permit the admission of evidence of uncharged crimes subject to the balancing test of section 352. In light of the historically grounded, constitutionally significant rule against propensity evidence (see Falsetta, supra, 21 Cal.4th at pp. 914-915), this court is not free to expand section 1108’s exception to this rule beyond its narrow boundaries. The majority’s analysis violates the canon that statutory exceptions such as the one set forth in section 1108 must be narrowly construed. (City of National City v. Fritz (1949)
Moreover, the inference the challenged instruction encourages is not a permissible one. The jury is generally forbidden from inferring criminal propensity from the existence of multiple charges. Although section 1108(a) implicitly allows the jury to infer propensity from evidence that the defendant committed uncharged sex crimes, it does not abrogate the broader rule that a conviction on one count cannot be relied upon to convict on other counts. Section 1108 says nothing about a propensity inference drawn from charged crimes. Because it amounts to a bootstrapping of verdicts in multiple-count cases, such an inference remains improper.
In Falsetta, supra,
We described section 352 as “a safeguard that strongly supports the constitutionality of section 1108” (Falsetta, supra,
Clearly, the trial court’s broad discretion to exclude propensity evidence under section 352 was critical to our holding that section 1108 was constitutional. (Falsetta, supra, 21 Cal.4th at pp. 917-918.) However, section 352 has no logical application to the issue in this case, which is whether the jury can be instructed to draw a propensity inference from evidence properly admitted to show that the defendant committed the charged offenses. As noted, section 352 concerns only the admission of evidence. It allows the court to exclude relevant evidence if it is unduly prejudicial, time consuming, or confusing. The familiar section 352 balancing test can be easily applied in deciding whether to admit evidence of uncharged offenses; however, it provides no basis to exclude otherwise competent and appropriate evidence of the charged offenses.
Like sections 1101 and 1108, section 352 specifically addresses the discretion of the trial court to exclude relevant evidence. It confers this authority when the proffered evidence would (1) require undue consumption of time, (2) create a substantial danger that the jury might be confused or misled, or (3) create a substantial danger of undue prejudice. (§ 352.) The first two factors authorize a trial court to exclude evidence of uncharged offenses entirely if it poses a substantial risk of undue confusion or time consumption. But these factors are necessarily inapplicable when the evidence is relevant and admissible to prove a charged offense. Moreover, at the jury instruction stage, presentation of the evidence will have concluded. Unduly confusing or misleading evidence relating to the charges will have been excluded under normal application of the rules of evidence.
All that would remain of a purported section 352 analysis would be the question of undue prejudice. Yet the majority does not explain how a defendant could possibly be prejudiced by a correct explanation of the applicable law, which is the only question before the court in considering proposed jury instructions. The majority gives no guidance on how a prejudice analysis should be performed in such a context. What factors should the court rely upon in deciding whether to give or reject a propensity instruction? The majority is silent.
Although section 352 can operate as a reasonable safeguard to prevent unfairness in the context of admitting evidence of uncharged crimes, it cannot serve the same purpose in the context of an instruction that encourages the drawing of a propensity inference from charged crimes. Without the safeguard of section 352, or a reasonable means of assessing undue prejudice to the defendant, it is questionable whether a propensity instruction like the one here is consistent with due process.
The majority’s analysis elides an important distinction between the cross-admissibility of evidence on multiple counts and the jury’s duty to decide each count separately, uninfluenced by its verdict on any other count.
A propensity instruction is not needed to permit the jury to consider evidence across multiple counts if the evidence is relevant to prove a fact at issue in other counts. Jurors can consider all the evidence admitted in a case to the extent that evidence is relevant to prove any count. If a fact is relevant in deciding multiple charges, the jury can consider the admitted evidence with regard to each count that fact has “any tendency in reason” to prove. (§210 [defining relevant evidence].)
Whereas the jury is generally free to apply evidence admitted on one count when it is relevant to other charges, courts in this state have long held that the jury may not allow its verdict on one count to influence its determination about whether the other counts have been proven. In People v. Magee (1963)
Pattern jury instructions today are consistent with this settled law. CALJIC No. 17.02 states: “Each Count [other than Count[s] . . .] charge[s] a distinct crime. You must decide each Count [other than Count[s] . . .] separately. The defendant may be found guilty or not guilty of [any or all] [either or both] of the crimes charged [in Count[s] . . .]. Your finding as to each Count must be
The instruction the majority now approves invited the jury to do exactly what these instructions, and 50 years of precedent, forbid. The modified version of CALCRIM No. 1191 given here told the jury, in part: “If you decide that the defendant committed one of these charged offenses, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit the other charged crimes of rape or sodomy, and based on that decision also conclude that the defendant was likely to and did commit the other offenses of rape and sodomy charged.” (Italics added.) Thus, if the jury reached a particular “decision,” or verdict, as to one of the charges, the instruction told the jury it could rely on this decision to conclude “that the defendant was likely to and did commit” the other charged offenses. The instruction sanctions a bootstrapping of verdicts we have long considered improper. For the jury to apply a verdict against the defendant on one count to conclude the defendant was likely to commit, and did commit, the other counts violates the well-settled rule that the jury must decide each count uninfluenced by its verdict on other counts.
E. A Propensity Instruction Is Unnecessary and Potentially Confusing
In Reliford, we approved the giving of CALJIC No. 2.50.01 to explain how jurors are to evaluate evidence of uncharged sexual misconduct admitted pursuant to section 1108. (Reliford, supra,
The instruction here is different. Evidence pertaining to the charged crimes is not admitted for a limited purpose, and no instruction is needed to tell the jury of its possible relevance. Evidence that the defendant committed the charged crimes is, by definition, relevant and admissible. This instruction draws the judge into the adversarial process by encouraging the jury to draw a specific, and generally prohibited, conclusion from the evidence. The case against a defendant is obviously strengthened when the evidence shows he committed a series of similar crimes. This holds true for any type of criminal trial, not just sex offenses. The prosecution’s case is stronger in a multiple-count case not because the jury can, or should be encouraged to, judge the defendant based on his character, but rather because repeated instances of the same behavior logically tend to show that the defendant acted with a plan or harbored a certain mental state when committing the crimes in question. As we explained in People v. Ewoldt, supra,
The majority opinion contends it would be anomalous for us to require that a “propensity instruction” be given on request for uncharged offenses (see Falsetta, supra,
An example from outside the sex offense context illustrates the point: When a defendant’s similar uncharged conduct is offered under section 1101(b), the court will instruct the jury that evidence of the uncharged offense has been offered for a limited purpose and may only be considered in support of an inference related to that limited purpose. (CALCRIM No. 375.) If other similar offenses have been charged, does the court also have to instruct that evidence generally admitted to prove the charged offenses can be used to
Moreover, the majority’s holding will potentially create confusion and inconsistent results. For example, suppose the defendant is on trial for five murders and five rapes. Five victims were each raped and then murdered in a similar manner. A propensity instruction like the one at issue here tells the jury that, if it decides the defendant committed one of the charged rapes, it can infer he had a propensity to commit rape and thus may have committed the other charged rapes. The giving of such an instruction raises problems, however, because a propensity inference is impermissible in deciding the multiple murders. In such a case, one could argue that a propensity-to-rape instruction would make the jury more inclined to draw a forbidden propensity inference with respect to the charged murders. Should the defendant be entitled to an instruction that directs the jury not to infer a propensity to murder from those charges? If so, might not defendants be entitled to the same instruction in any case involving multiple charges of similar, nonsexual offenses? Again, we have never so held.
The issue becomes even more complicated if the prosecution has also presented evidence of uncharged misconduct under section 1101(b) or 1108. CALCRIM Nos. 375 and 1191 explain that the jury need only find that the defendant committed the uncharged acts by a preponderance of the evidence before it can rely on the uncharged acts to support a specific inference. If the same preponderance standard is applied to charged offenses, as it was in People v. Quintanilla (2005)
This confusion is entirely avoidable. Juries have never been instructed about the reasonable inferences they can draw from the relevant facts of the charged crimes. There is no need for them to be so instructed in cases involving multiple charged sex offenses. The instruction is not necessary to
However, because the case against this defendant was particularly strong, the error was harmless. In addition to testimony from each of the five victims, DNA testing confirmed defendant’s involvement in four of the rapes. Strong similarities among the crimes also mitigated prejudice from the instruction, because the jury could have properly considered these similarities for non-character purposes, as we discussed in People v. Ewoldt, supra,
Werdegar, J., concurred.
All statutory references are to the Evidence Code.
If evidence has been admitted for a limited purpose, the jury will be instructed to restrict its consideration of the evidence accordingly. (§ 355.) To this end, CALCRIM No. 303 states: “During the trial, certain evidence was admitted for a limited purpose. You may consider that evidence only for that purpose and for no other.”
The issue in this case concerns character evidence offered to prove conduct. Character evidence admitted to attack or support a witness’s credibility is addressed in sections 786 through 790, and is not implicated here.
Reference was made in Hampden’s Trial (K.B. 1684) 9 How.St.Tr. 1053, 1103, to a forgery case in which the court had excluded evidence of a defendant’s prior forgeries. “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, saying to the prosecution: ‘Hold, what are you doing now? Are you going to arraign his whole life? Away, away, that ought not to be; that is nothing to the matter.’ 12 How.St.Tr. 834 (Old Bailey 1692).” (McKinney v. Rees (9th Cir. 1993)
Instructing the jury to draw a propensity inference from charged crimes also runs counter to our joinder jurisprudence. The potential prejudice that can result from the presentation of evidence on multiple charged crimes is generally assessed at the joinder and severance stage of proceedings. The joinder and severance rules presuppose that a jury can legitimately consider evidence of all counts in deciding each count. In ruling on a severance motion, the court must determine whether trial of the various charges together will create a risk of undue prejudice, (People v. Ruiz (1988)
Concurrence Opinion
The court holds that Evidence Code section 1108 applies to charged as well as uncharged offenses. (Maj. opn., ante, at pp. 1160-1167; further statutory references are to the Evidence Code.) However, neither the language nor the legislative history of section 1108 supports this construction. (See cone. & dis. opn. of Corrigan, J., ante, at pp. 1172-1175.) Section 1101 and, in turn, section 1108 govern whether evidence is admissible or inadmissible. These statutes do not govern how evidence that has been properly admitted—here, evidence of charged sex crimes—may be used by a jury. As Justice Corrigan explains: “The present case does not concern the admission of evidence, nor does it concern evidence of a defendant’s uncharged sex crimes. The question here is whether the jury should be instructed that it can infer, from a finding that the defendant committed one of the charged sex crimes, that he has a propensity to commit such offenses and, thus, may have committed the other sex crimes for which he is on trial. Section 1108 simply does not address this question.” (Cone. & dis. opn. of Corrigan, J., ante, at p. 1175.) I agree with Justice Corrigan that the trial court erred in instructing the jury with a modified version of CALCRIM No. 1191 but that the error was harmless in this case.
In this case, the record offers even less to indicate that the court conducted a section 352 analysis. The trial court’s reference to Wilson indicates only that the modified instruction was “based on the instruction given in Wilson” and not that the trial court conducted a section 352 analysis. That statement was preceded by two brief discussions outside the presence of the jury. During voir dire, the prosecutor advised the court and defense counsel that she would request a modified version of CALCRIM No. 1191. During the presentation of the defense case, the court stated that the prosecutor asked that the preponderance of the evidence standard of proof in CALCRIM No. 1191 be replaced by proof beyond a reasonable doubt. The prosecutor added that the words “uncharged or prior” also should be changed to “other charged offenses” so that the modified instruction would “make sense.” Section 352 was not discussed, and the record contains no briefs or other material bearing on this issue.
The court’s unfounded inference that the trial court actually conducted a section 352 analysis weakens the crucial protective role of that analysis in the statutory scheme. In People v. Falsetta (1999)
We concluded that “in light of the substantial protections afforded to defendants in all cases to which section 1108 applies, we see no undue unfairness in its limited exception to the historical rule against propensity evidence.” (Falsetta, supra,
I agree with Justice Corrigan that absent a statutory exception, the general rule against propensity evidence informs the proper use of evidence of charged offenses in a multiple-count case. (See cone. & dis. opn. of Corrigan, J., ante, at p. 1180 [inferring criminal propensity from evidence of a charged offense in a multiple-count case is “typically impermissible”].) Courts have generally held that a trial court has no duty to instruct the jury sua sponte in a multiple-count case that evidence of one charged offense may not be considered as evidence of general criminality tending to prove a defendant’s guilt of another charged offense. (E.g., People v. Holbrook (1955)