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'Other acts' in sexual assault cases
By Karla Kerlin and Renee Korn

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Evidence of a defendant's other acts of misconduct many times play a critical role in trials involving sexual assaults. Knowing the ways a defendant's other acts can be used in trial is critical when handling these types of cases.

The objective of this article and self-study test is to acquaint bench officers and attorneys with other acts evidence, including other acts evidence used to show propensity under Evidence Code Section 1108, and to prove other matters such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident under Evidence Code Section 1101(b).

Section 1108

Evidence Code Section 1108 allows the prosecution to prove a defendant's propensity to commit sex crimes through specific instances of conduct. The section provides that: "In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352." (Evidence Code Section 1101(a) generally bars evidence of a person's character or trait of character from being admitted when offered to prove conduct on a specified occasion, while Evidence Code Section 352 requires the court to balance prejudice versus probative value regarding any item of evidence prior to its admission.)

A "sexual offense" which can be used under Evidence Code Section 1108 is very broadly defined to include most major sex crimes listed in the Penal Code, and it also includes attempts or conspiracies to engage in the above offenses. Evid C Section 1108(a) & (d)(1)(F). "Sexual offense" is defined to include not only the enumerated Penal Code provisions, but also other sexually related contacts or activities. See Evid C Section 1108(d)(1)(B)-(E).

The prosecution may introduce evidence of other sexual misconduct even if the misconduct was subsequently adjudicated and the defendant was convicted of a non-sexual offense. People v. Lopez, 156 Cal. App. 4th 1291 (2007). Uncharged sex offenses committed outside the U.S. may be admitted as propensity evidence. People v. Miramontes, 189 Cal. App. 4th 1085 (2010). Evidence of a sex offense which occurred after the charged sex crime has been held to be admissible. People v. Medina, 114 Cal. App. 4th 897 (2003). The state Supreme Court in People v Villatoro, 54 Cal. 4th 1152 (2012), held that evidence of other current charged sex crimes can also be considered under Evidence Code Section 1108.

The prosecution must disclose the evidence to the defense no less than 30 days before trial, unless good cause is established for a delayed disclosure pursuant to Penal Code Section 1054.7. Evid C Section 1108(b).

1108 admissibility

Under People v. Falsetta, 21 Cal. 4th 903 (1999), a court should address the following areas on the record to weigh the admissibility of the other sexual acts evidence:

"its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant's other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense."

The other sex offenses must be relevant to issues in the current proceedings in order to be admitted into evidence. People v. James, 81 Cal. App. 4th 1343 (2000); People v. Britt, 104 Cal. App. 4th 500 (2002). The court must focus on the similarity between the uncharged act and the current offense because only sexual offenses of a similar type are likely to be admissible to prove predisposition. People v. Earle, 172 Cal. App. 4th 372 (2009). In evaluating similarities between the other offense or offenses and the current case, the court must focus on the facts that actually existed, rather than on the evidence that does not exist. People v. Story, 45 Cal. 4th 1282 (2009).

More recent acts of misconduct are obviously more relevant to predisposition than

ones that occurred many years ago. But length of time between the uncharged act and the current case can be overcome by similarity. In People v. Branch, 91 Cal. App. 4th 274 (2001), uncharged prior sexual offenses committed more than 30 years earlier by defendant against his stepdaughter were held admissible because the significant similarities between prior and charged offenses balanced out the remoteness of the prior offenses.

The court must also analyze if the admission of the conduct should be excluded because its probative value is substantially outweighed by danger of undue prejudice, consumption of time, confusion of the issues or misleading of the jury under Evidence Code Section 352. See Evid C Section 1108(a).

Section 1101(b)

Under Evidence Code Section 1101(b), evidence may be admitted "that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented)."

Section 1101(b) applies to all persons, and is not limited to evidence concerning a criminal defendant. People v. Davis, 10 Cal. 4th 463 (1995). No conviction is needed in order to admit evidence of other crimes or misconduct of a defendant under Section 1101(b). People v. Wilson, 3 Cal. 4th 926 (1992). Section 1101(b) does not only apply to prior misconduct: other crimes or misconduct committed after the charged incident may be admissible. "If evidence of an uncharged offense is relevant, there is no distinction between an offense that is prior to and one that is subsequent to the date of the charged offense." People v. Balcom, 7 Cal. 4th 414 (1994).

1101(b) admissibility

A court must evaluate for what purpose the other acts evidence is being admitted under Section 1101(b). People v. Ewoldt, 7 Cal. 4th 380 (1994). Admission of other crimes evidence cannot be justified merely by asserting an admissible purpose; such evidence may only be admitted if it (1) tends logically, naturally and by reasonable inference to prove the issue upon which it is offered, (2) is offered upon an issue which will ultimately prove to be material to the People's case, and (3) is not merely cumulative with respect to other evidence which the People may use to prove the same issue. People v. Lopez, 198 Cal. App. 4th 698 (2011).

For evidence of a defendant's other crimes to be admissible, there must be some degree of similarity between the charged crime and the other crime, but the degree of similarity depends on the purpose for which the evidence is presented. People v. Jones, 51 Cal. 4th 346 (2011). Some of the most common ways that Section 1101(b) evidence is used in sexual assault cases is discussed below.

Identity requires the most substantial amount of similarity. People v. Earle, 172 Cal. App. 4th at 394. When admitting other acts evidence as to the issue of identity, it is useful to visualize signature crimes: The inference of identity arises when the marks common to the charged and uncharged offenses, considered singly or in combination, logically operate to set the charged and uncharged offenses apart from other crimes of the same general variety and, in so doing, tend to suggest that the perpetrator of the uncharged offenses was the perpetrator of the charged offenses; the pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature. People v. Carter, 36 Cal. 4th 1114 (2005).

A lesser degree of similarity between charged and uncharged crimes is required to establish relevance on the issue of common design or plan. To establish the existence of a common design or plan by evidence of an uncharged offense, the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual, it need only exist to support the inference that the defendant employed that plan in committing the charged offense. People v. Avila, 38 Cal. 4th 491 (2006). To establish common design or plan, evidence must demonstrate not merely similarity in results, but such occurrence of common features that the various acts are naturally to be explained as caused by general plan of which they are the individual manifestations. People v. Balcom.

Evidence of intent is admissible to prove that, if the defendant committed the act alleged, he or she did so with the intent that comprises an element of the charged offense. "In proving intent, the act is conceded or assumed; what is sought is the state of mind that accompanied it." People v. Ewoldt, 7 Cal. 4th at 394 n.2. In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant "probably harbor[ed] the same intent in each instance." People v. Ewoldt, 7 Cal.4th at 402. The least degree of similarity between the charged crime and the other crime is needed when the evidence is offered to prove intent. People v. Jones, 51 Cal. 4th 346 (2011); People v. Escudero, 183 Cal. App. 4th 302 (2010).

Other crimes evidence is also admissible to establish two different types or categories of motive evidence; in the first category, the uncharged act supplies the motive for the charged crime, as the uncharged act is cause, while the charged crime is effect, and in the second category, the uncharged act evidences the existence of a motive, but the act does not supply the motive, as the motive is the cause, and both the charged and uncharged acts are effects. See People v. Spector, 194 Cal. App. 4th 1335 (2011).

In cases where the Section 1101(b) evidence involves a separate victim than the current case, the Section 1101(b) evidence may not be relevant on the issue of consent. In People v. Bruce, 208 Cal. App. 3d 1099 (1989), the defendant was convicted of rape of victim at gunpoint at a marina. The trial court admitted a prior rape with another victim who defendant also raped at gunpoint at the same marina. At trial, the defense admitted engaging in sexual intercourse with victim arguing that the prior incident was no longer relevant since identity was no longer at issue. The trial court permitted the 1101(b) victim to testify, while admonishing the jury that her testimony was admitted only on the issue of consent. The appellate court reversed the conviction and held that the 1101(b) evidence of another rape - a different incident involving a different victim - had no tendency to prove or disprove whether the victim in the current case consented. (Note that this same evidence would now likely be admissible under Evidence Code Section 1108.)

Finally, as with Evidence Code Section 1108, evidence otherwise admissible under Evidence Code Section 1101(b) may be excluded under Evidence Code Section 352 if its probative value is substantially outweighed by the danger of undue prejudice, consumption of time, confusion of the issues or misleading of the jury. People v. Ewoldt, 7 Cal. 4th at 404. Among other factors, the court must weigh the remoteness in time of the uncharged offenses. People v. Abilez, 41 Cal. 4th 472 (2007).

Karla Kerlin is a judge in Los Angeles County Superior Court.

Renee Korn is a judge in Los Angeles County Superior Court.

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