Supreme Court of California Justia
Citation 57 Cal. 4th 269 (2013), 159 Cal. Rptr. 3d 385, 303 P.3d 1163, 13 Cal. Daily Op. Serv. 7676, 2013 Daily Journal D.A.R. 9463

People v. Cottone


Filed 7/22/13

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S194107
v.
Ct.App. 4/3 G042923
LEE VINCENT COTTONE,
Orange County
Defendant and Appellant.
Super. Ct. No. 06HF1734

Under Evidence Code section 1108,1 in the trial of sexual offense charges,
evidence the defendant committed another sexual offense may be admissible to
prove that the defendant has a propensity to engage in such conduct. This case
raises two questions.
First, if the proffered conduct occurred before the defendant had reached
the age of 14, must the prosecution establish that the defendant knew the conduct
was wrongful and was thus capable of committing a crime, as required by Penal
Code section 26, subdivision One (Penal Code section 26(One))? We conclude
such proof is required because section 1108 only permits admission of evidence of
another sexual offense that amounts to ―a crime‖ under state or federal law.

1
Subsequent undesignated statutory references are to the Evidence Code.
1


Second, does the trial court or the jury ultimately decide if the proffered
conduct amounted to a crime? The Court of Appeal held that the question is for
the jury and imposed a sua sponte duty to instruct on Penal Code section
26(One)‘s presumption of incapacity as it relates to evidence admitted under
section 1108 (1108 evidence). We reject that conclusion.
In laying the foundation for admissibility, the prosecution must demonstrate
that previously unadjudicated conduct amounts to a crime.2 That showing
presents a mixed question of law and fact. The trial court rules on the legal issues
relating to admissibility and resolves the preliminary factual question of capacity
under section 405, subdivision (a). Once the evidence is admitted, the jury does
not reassess these determinations. The jury does determine if the act occurred, as
well as the weight and significance of the evidence. To that end, the jury may take
into account the defendant‘s age in considering whether the evidence demonstrates
his propensity to commit the charged offenses. The trial court, however, need not
instruct the jury on that point absent a request. Accordingly, we reverse the Court
of Appeal, which found prejudicial instructional error.

2
For purposes of clarity, we note the following. Under Welfare and
Institutions Code section 602, subdivision (a), a minor is not charged with or
convicted of a crime, but rather is subject to a juvenile adjudication of wardship
based on a finding that the minor ―violate[d] any law . . . defining crime . . . .‖
(Welf. & Inst. Code, § 602, subd. (a); accord, People v. Burton (1989) 48 Cal.3d
843, 861; In re Joseph B. (1983) 34 Cal.3d 952, 955.) Regardless of this
nomenclature, however, when a minor is alleged to have violated a criminal
statute, all elements of that ―crime‖ must be proven beyond a reasonable doubt.
(Welf. & Inst. Code, § 701; In re Winship (1970) 397 U.S. 358, 368; In re Eddie
M. (2003) 31 Cal.4th 480, 487.) Because no wardship proceedings were ever filed
against Cottone, the allegations remained unadjudicated at the time of his adult
trial.
2


I. BACKGROUND
A. Charged Offenses3
Defendant was charged with committing four lewd acts upon his niece, B.,4
who was 19 years old at the time of trial. She testified that defendant began
molesting her in 1998, when she was eight. During school breaks and summer
vacation, B. stayed overnight with defendant and his wife, Jeanie. Being away
from home, B. was afraid to sleep alone all night. So the three shared a bed, with
B. sleeping between the two adults.
The first night of this arrangement, B. woke up to find that defendant had
placed his hand under her clothing and was massaging her ―vagina,‖ breasts, and
buttocks. Although B. moved away from defendant, she did not say anything
because she was frightened. She did not awaken Jeanie or tell her what had
happened. The next night defendant touched B. the same way. B. did not report
the incidents when she returned home because she remained afraid.
B. estimated that she stayed at the Cottone‘s home two to four days at a
time, three to four times a year for approximately four years. Defendant touched
B. the same way every time she spent the night, using his hand to rub her breasts,
buttocks, and ―vagina.‖ The touching did not involve penetration and defendant
never forced B. to touch him.
When B. was 11 or 12 years old, her sister and her cousin, C., also began
spending the night with the Cottones. B. estimated that the three girls slept over
together approximately 10 or 15 times, sharing a bed in the guestroom. Every

3
At defendant‘s first trial, the jury was unable to reach a verdict. We
summarize the facts and procedural history from the second trial.
4
Each count alleged that B. was under 14 when the acts occurred (Pen.
Code, § 288, subd. (a)) and that each offense involved substantial sexual conduct
(Pen. Code, § 1203.066, subd. (a)(8)).
3


night, defendant entered the dark room, sat on the bed, and pulled back B.‘s
covers. Defendant touched her according to his pattern. B. did not tell her sister
or cousin what had happened.
At some point, B. told her mother that she no longer wanted to stay with the
Cottones, but did not explain her reluctance. Her mother responded that Jeanie
was expecting her, so she should go. Defendant eventually stopped abusing B. in
2003.
In 2006, B. and her mother went to a family event at defendant‘s home. On
the way, B.‘s mother complained about the way defendant made fun of B.‘s
brother. B. said, ― ‗Well, if you think that‘s bad, you should—you don‘t know
what he has done to me[.]‘ ‖ She then told her mother about defendant‘s conduct.
B. Expert Testimony
Dr. Laura Brodie, a clinical and forensic psychologist, testified for the
prosecution. She described child sexual abuse accommodation syndrome, a
condition often seen in sexually abused children. Unfamiliar with the facts of this
case, Brodie testified generally that it was not unusual for a child to delay
reporting abuse for several years.
C. 1108 Evidence
Before trial, the prosecution offered evidence under section 1108 that
defendant had sexually abused his sister, L. The incident occurred in 1966, when
L. was around five and defendant was nearly 14. No juvenile court allegations
were filed.
Defendant opposed the prosecutor‘s motion, arguing that the event was
remote, dissimilar, and unduly prejudicial. (§ 352.) Citing Penal Code
section 26(One), he also argued that the evidence should be excluded because, as a
minor under the age of 14 (under 14), he was presumed incapable of committing a
crime.
4


L. testified at an in limine hearing. One day when L. and a friend were
playing, defendant invited them to play a game called ―giggy-giggy.‖ The friend
declined and went home. Defendant carried L. downstairs to the basement, where
he and his brothers had bedrooms. They were alone. As L. sat on his shoulders,
defendant put his finger in her underpants and touched her vaginal area.
The court allowed L. to testify. It found that defendant was at least 13
years and 10 months old at the time of the offense. Clear and convincing evidence
showed defendant understood the wrongfulness of his conduct, based on his age
and the circumstances of the crime.5 The parties‘ briefing and argument was
limited to whether the trial court should admit or exclude the evidence. Defendant
did not argue that the issue of his capacity should be submitted to the jury with
appropriate instructions.
L.‘s trial testimony was similar to that given in limine.
D. Defense Case
C. is defendant‘s granddaughter and B.‘s cousin. She related that she often
spent the night at defendant‘s home with B. and her sister, and that the three girls
usually slept together. Defendant never tried to molest her. B. never mentioned
defendant‘s behavior to C.
Defendant also offered the testimony of two cousins who were in their mid-
20s at the time of trial. They testified that when they were girls about B.‘s age
they frequently spent the night at defendant‘s home. He never touched either of
them inappropriately.
Defendant‘s wife, Jeanie, testified that beginning in 1999 and for the next
couple of years, B. frequently spent the night at their home and asked to join

5
The trial court also found defendant‘s molestation of L. to be highly
probative despite its remoteness, and thus not barred by section 352.
5


defendant in various outings. When B. visited alone, she would sleep with Jeanie
and defendant in their bedroom. Jeanie was unaware of any alleged misconduct
until B.‘s mother told her of the accusations. She contradicted B.‘s testimony that
Jeanie wore earplugs while sleeping.
E. Further Trial and Appellate Proceedings
On its own motion, the court gave CALCRIM No. 1191, which covered
consideration of 1108 evidence and explained the burden of proof. Defendant did
not request, nor did the trial court give, an instruction directing the jury to assess
defendant‘s capacity to commit that offense under Penal Code section 26(One).
The jury convicted defendant on all counts and found true the special
allegations. Defendant was sentenced to six years in prison.
The Court of Appeal reversed the judgment for instructional error. It
imposed a sua sponte duty to instruct that the prosecution must prove by clear and
convincing evidence that defendant appreciated the wrongfulness of his conduct
admitted under section 1108. Applying the prejudicial error standard of Chapman
v. California (1967) 386 U.S. 18, the court concluded that the instructional
omission was not harmless beyond a reasonable doubt.
II. DISCUSSION

A.
Penal Code Section 26(One) Applies to Evidence Admitted Under

Section 1108
Penal Code section 26(One) creates a rebuttable presumption that a child
under 14 is incapable of committing a crime.6 We have not previously considered
whether this legal presumption and attendant burden of proof come into play at a

6
Penal Code section 26 provides in relevant part: ―All persons are capable
of committing crimes except those belonging to the following classes: [¶] One—
Children under the age of 14, in the absence of clear proof that at the time of
committing the act charged against them, they knew its wrongfulness.‖
6


later criminal trial where the prosecution offers evidence under 1108 of an
unadjudicated sexual offense committed when the defendant was under 14. The
Court of Appeal noted that section 1108 authorizes admission of evidence that
defendant committed another ― ‗[s]exual offense‘ ‖ amounting to ―a crime.‖
(§ 1108, subd. (d)(1).) It reasoned logically that ―for prior sexual offense evidence
to be admitted the offense must be a crime, and to be a crime, a child under 14
years of age must appreciate the wrongfulness of his conduct,‖ as required by
Penal Code section 26(One). The Attorney General contested this point below.
Here, however, she concedes that the Court of Appeal correctly applied the Penal
Code‘s capacity requirement to 1108 evidence. We accept the concession.
We begin with a brief overview of the relevant statues and legal principles.
As set forth below, the question of capacity under Penal Code section 26(One) for
a minor under 14 involves a legal standard, a rebuttable presumption, and a burden
of proof. Throughout this opinion, we sometimes refer to the sum of these
statutory requirements under the umbrella of ―capacity.‖7
We have long held that a finding of capacity is a prerequisite to an
adjudication of wardship for a minor under 14. (In re Gladys R. (1970) 1 Cal.3d
855, 867.) The prosecution may rebut Penal Code section 26(One)‘s presumption
of incapacity by producing ― ‗clear proof‘ ‖ that the minor appreciated the
wrongfulness of the conduct when it was committed, ―as demonstrated by [the
child‘s] age, experience, conduct, and knowledge . . . .‖ (In re Manuel L. (1994) 7
Cal.4th 229, 232 (Manuel L.).) ―Clear proof‖ in this context means clear and

7
All references to ―capacity‖ or ―incapacity‖ herein refer to the legal
presumption set out in Penal Code section 26(One) respecting children under 14.
Our discussion of capacity is not intended to govern other aspects of Penal Code
section 26.
7


convincing evidence. (Ibid.) While knowledge of wrongfulness may not be
inferred from the act alone, ― ‗the attendant circumstances of the crime, such as its
preparation, the particular method of its commission, and its concealment‘ may be
considered. [Citation.] Moreover, a minor‘s ‗age is a basic and important
consideration [citation], and, as recognized by the common law, it is only
reasonable to expect that generally the older a child gets and the closer [he]
approaches the age of 14, the more likely it is that [he] appreciates the
wrongfulness of [his] acts.‘ [Citation.]‖ (People v. Lewis (2001) 26 Cal.4th 334,
378 (Lewis).)
Although Penal Code section 26(One) requires the prosecution to prove that
a minor under 14 understood the wrongfulness of his conduct, capacity is not an
―element‖ of the underlying offense that must be proved beyond a reasonable
doubt. (Manuel L., supra, 7 Cal.4th at p. 238.) Rather, the presumption of
incapacity operates to exempt the minor from legal responsibility. (People v.
Roberts (1972) 26 Cal.App.3d 385, 388; see also 1 Witkin & Epstein, Cal.
Criminal Law (4th ed. 2012) Defenses, § 4, pp. 428, 430.) In this respect, capacity
is similar to the issue of sanity, which is not a fact material to guilt but is a
― ‗prerequisite to a valid judgment and sentence.‘ ‖ (Manuel L., at pp. 238-239.)
Accordingly, the prosecution need not rebut the presumption of incapacity beyond
a reasonable doubt. Instead, it must satisfy the distinct standard of proof by clear
and convincing evidence. (Id. at pp. 236, 238.)
Here, however, the issue of capacity did not arise as a prerequisite to a valid
judgment. Instead it was a foundational question to the admissibility of evidence
proffered under section 1108. That section permits evidence that the defendant
committed other sexual offenses to prove his propensity to commit the charged
sexual offenses. (§ 1108, subd. (a); People v. Reliford (2003) 29 Cal.4th 1007,
1012-1013 (Reliford); People v. Falsetta (1999) 21 Cal.4th 903, 915, 917-920
8


(Falsetta).) The provision specifically defines ― ‗[s]exual offense‘ ‖ as ―a crime
under the law of a state or of the United States‖ (§ 1108, subd. (d)(1), italics
added), that involves certain listed offenses or types of conduct, including a lewd
or lascivious act on a child (§ 1108, subd. (d)(1)(A); Pen. Code, § 288).
Considering these statutes together, we hold that the presumption of
incapacity set forth in Penal Code section 26(One) applies when the prosecution
seeks to prove that the defendant committed an unadjudicated sexual offense
before reaching age 14. The presumption must be overcome before the evidence
may be admitted. This conclusion is dictated by the statutory language. Section
1108 authorizes admission of such evidence only if the conduct amounts to a
―crime.‖ (§ 1108, subd. (d)(1).) As the Court of Appeal reasoned, ―for prior
sexual offense evidence to be admitted the offense must be a crime, and to be a
crime, a child under 14 years of age must appreciate the wrongfulness of his
conduct.‖

B.
The Trial Court Determines Whether the Prosecutor Has Rebutted
the Presumption of Incapacity
Despite their agreement that Penal Code section 26(One)‘s presumption of
incapacity applies to the evidence proffered here, the parties disagree about
whether the trial court or the jury should ultimately resolve that question. The
Attorney General argues that, upon objection, the court conclusively determines
whether the defendant had the requisite capacity as a fact preliminary to admitting
the evidence. (See § 405, subd. (a).) Defendant counters that there is no
preliminary fact for the court to determine. Rather, the jury must find by clear and
convincing evidence that the defendant was capable of committing a crime
because he understood the wrongfulness of his conduct. Unless it makes that
finding, the jury cannot consider the evidence in resolving the charges. Thus, we
must resolve two questions: who decides, and by what standard?
9


We conclude that the trial court evaluates whether a defendant had the
capacity to understand the wrongfulness of his or her conduct, under Penal Code
section 26(One), as a threshold question to admitting an unadjudicated sexual
offense. Section 1108 addresses the admissibility or inadmissibility of this
evidence. (See People v. Villatoro (2012) 54 Cal.4th 1152, 1161 [discussing §§
1101 & 1108]; Villatoro, at pp. 1169, 1172 (conc. & dis. opn. of Corrigan, J.); id.
at p. 1182 (conc. & dis. opn. of Liu, J.).) The language of section 1108 itself
demands that, before the conduct may be admitted, it must amount to a ―crime.‖
This is a legal question essential for admissibility. ―All questions of law
(including but not limited to questions concerning the construction of statutes and
other writings, the admissibility of evidence, and other rules of evidence) are to be
decided by the court.‖ (§ 310, subd. (a).) For example, the trial court decides
whether the charging document alleges a ―sexual offense‖ before it can consider
admitting 1108 evidence to prove propensity. (See, e.g., People v. Story (2009) 45
Cal.4th 1282, 1289, 1291, 1294-1295; People v. Walker (2006) 139 Cal.App.4th
782, 802; cf. People v. Kelii (1999) 21 Cal.4th 452, 455-457 [trial court must
determine whether a prior conviction qualifies as a serious felony for purposes of
the ―Three Strikes Law‖].)
The legal question of admissibility, in turn, involves a factual component.
To establish ―criminal‖ conduct, the prosecution must show that a minor under 14
knew his or her conduct was wrong at the time it was committed. (Pen. Code,
§ 26(One).) ―The factual nature of the issue, however, does not determine whether
the issue must or should be submitted to a jury.‖ (People v. Betts (2005)
34 Cal.4th 1039, 1048.) On the contrary, the trial court must resolve all questions
of fact preliminary to the admission of evidence. (§ 310, subd. (a).)
Evidence Code sections 402 through 405 govern the adjudication of
― ‗preliminary fact[s],‘ ‖ which are facts ―upon the existence or nonexistence of
10


which depends the admissibility or inadmissibility of evidence.‖ (§ 400.) At issue
here are sections 403 and 405.8 Section 403, subdivision (a)(1) provides that
when ―[t]he relevance of . . . proffered evidence depends on the existence of [a]
preliminary fact,‖ the ―proponent of the proffered evidence has the burden of
producing evidence as to the existence of the preliminary fact, and the proffered
evidence is inadmissible unless the court finds that there is evidence sufficient to
sustain a finding of the existence of the preliminary fact . . . .‖ (Italics added.)
Section 405 applies to ―preliminary fact determinations not governed by Section
403 or 404.‖ Subdivision (a) of section 405 states that ―[w]hen the existence of a
preliminary fact is disputed, the court shall indicate which party has the burden of
producing evidence and the burden of proof on the issue as implied by the rule of
law under which the question arises. The court shall determine the existence or
nonexistence of the preliminary fact and shall admit or exclude the proffered
evidence as required by the rule of law under which the question arises.‖
Comments by the Assembly Committee on the Judiciary outline the
primary distinctions between sections 403 and 405.9 (1 Assem. J. (1965 Reg.
Sess.) p. 1712 et seq. (Assembly Committee Comments); see Stats. 1965, ch. 299,
§ 2, p. 1297 [enacting Evid. Code].) ―The preliminary fact questions listed in
subdivision (a) [of Evidence Code section 403] . . . are not finally decided by the
judge because they have been traditionally regarded as jury questions. The

8
Section 402 outlines the procedure for a hearing to determine foundational
and other preliminary facts. Section 404 deals with a claim of privilege against
self-incrimination. Neither is at issue in this case and we do not discuss them
further.
9
We frequently have looked to such comments as indicative of legislative
intent. (People v. Riccardi (2012) 54 Cal.4th 758, 817, fn. 29; People v. Wiley
(1995) 9 Cal.4th 580, 586, fn. 3; Kaplan v. Superior Court (1971) 6 Cal.3d 150,
158, fn. 4.)
11


questions involve the credibility of testimony or the probative value of evidence
that is admitted on the ultimate issues. It is the jury‘s function to determine the
effect and value of the evidence addressed to it. . . . [T]he judge‘s function on
questions of this sort is merely to determine whether there is evidence sufficient to
permit a jury to decide the question.‖ (Assem. Com. com., reprinted at 29B pt. 1B
West‘s Ann. Evid. Code (2011 ed.) foll. § 403, p. 18 (West‘s Annotated Evidence
Code); accord, People v. Lucas (1995) 12 Cal.4th 415, 466-467 (Lucas).)
Generally, ―all relevant evidence is admissible.‖ (§ 351.) Yet, ―[s]ometimes the
relevance of evidence depends on the existence of a preliminary fact.‖ (Lucas, at
p. 466.) A judge screening proffered evidence under section 403 excludes it only
upon a finding that the showing of such a preliminary fact ― ‗is too weak to
support a favorable determination by the jury.‘ ‖ (Lucas, at p. 466, quoting 3
Witkin, Cal. Evidence (3d ed. 1986) Introduction to Evidence at Trial, § 1716, p.
1675.)
Defendant‘s identity as the person who committed an uncharged act is a
classic example of a preliminary fact necessary to establish relevance. If it cannot
be shown that the defendant did the uncharged act, the fact that ―somebody‖ did it
is irrelevant. (See, e.g., People v. Wade (1959) 53 Cal.2d 322, 330-331,
disapproved on another point in People v. Carpenter (1997) 15 Cal.4th 312, 381-
382 (Carpenter); see also Lucas, supra, 12 Cal.4th at p. 466 [citing examples].)
Under section 403, then, the trial court performs a threshold screening function to
shield the jury from evidence that is so factually weak as to undermine its
relevance. (Lucas, at p. 466.)
By contrast, section 405 ―deals with evidentiary rules designed to withhold
evidence from the jury because it is too unreliable to be evaluated properly or
because public policy requires its exclusion.‖ (Assem. Com. com., reprinted at
West‘s Ann. Evid. Code, supra, foll. § 405, p. 41, italics added.) Some examples
12


cited in the Assembly Committee comments to this section include the mental
capacity of a witness to testify, the admissibility of a confession, the qualification
of an expert, the existence of an evidentiary privilege, and the admissibility of
hearsay evidence under a recognized exception. (Assem. Com. com. at pp. 41-43.)
The procedures outlined in section 405 reflect the general policy that it is for the
trial court to decide questions of law, ― ‗including the admissibility of testimony,
[and] the facts preliminary to such admission . . . .‘ ‖ (Assem. Com. com. at p. 41,
quoting former Code of Civ. Proc., § 2102, superseded by § 310.) The rule
protects the defendant by ensuring that the trial court reviews the legal basis for
admissibility before evidence is submitted to the jury. (Assem. Com. com. at p.
44.) Under section 405, the court‘s ruling on the question of admissibility is final
and not subject to the jury‘s redetermination. (Assem. Com. com. at p. 43.) As
explained in the committee comments: ―The rules of admissibility being applied
by the judge under Section 405 are designed to withhold evidence from the jury
because it is too unreliable to be evaluated properly or because public policy
requires its exclusion. The policies underlying these rules are served only by the
exclusion of the evidence. No valid public or evidentiary purpose is served by
submitting the admissibility question again to the jury.‖ (Ibid.)
Finally, the Assembly Committee comments note: ―To eliminate
uncertainties of classification, subdivision (a) lists the kinds of preliminary fact
questions that are to be determined under the standard prescribed in Section 403.
And to eliminate any uncertainties that are not resolved by this listing, various
Evidence Code sections state specifically that admissibility depends on ‗evidence
sufficient to sustain a finding‘ of certain facts. See, e.g., Evidence Code §§ 1222,
1223, 1400.‖ (Assem. Com. com., reprinted at West‘s Ann. Evid. Code, supra,
foll. § 403, p. 18.)
13


In light of this statutory scheme, we hold that whether a defendant
understood the wrongfulness of an unadjudicated sexual offense allegedly
committed before age 14 is an evidentiary question for the court to determine
under section 405. Competence under Penal Code section 26 is not included in
section 403, subdivision (a)‘s list or in the Assembly Committee on Judiciary‘s
comments to that section. Nor does section 1108 include the other uncertainty-
resolving phrase, ―evidence sufficient to sustain a finding.‖
The requirement that 1108 evidence amount to a crime reflects a policy
limitation on the admission of evidence akin to other rules of exclusion covered
under section 405. The general public policy on character or propensity evidence
is that it is not admissible to prove conduct on a given occasion. (§ 1101,
subd. (a); see also Falsetta, supra, 21 Cal.4th at p. 913.) Section 1108 creates a
narrow exception to this rule based on the recognition that ― ‗[t]he propensity to
commit sexual offenses is not a common attribute among the general public.‘ ‖
(People v. Johnson (2010) 185 Cal.App.4th 520, 532, fn. 9, quoting 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. 8.) ― ‗ ―In child molestation
actions a history of similar acts tends to be exceptionally probative because it
shows an unusual disposition of the defendant—a sexual or sado-sexual interest in
children—that simply does not exist in ordinary people.‖ ‘ ‖ (Johnson, at p. 532,
fn. 9, quoting Sen. Com. on Criminal Proc., Analysis of Assem. Bill No. 882
(1995-1996 Reg. Sess.) as amended May 15, 1995, p. 6.)
At the same time, the Legislature placed a significant restriction on the
scope of section 1108 by limiting admissibility to certain enumerated sexual
offenses amounting to crimes. A bill analysis before the Assembly Committee on
Public Safety observed that ―[t]his legislation would not generally authorize the
admission of evidence of other ‗bad acts‘ by the defendant, but only evidence of
14


criminal sexual offenses of the same type as those with which he is formally
charged.‖ (Assem. Com. on Public Safety, Analysis of Assem. Bill No. 882
(1995-1996 Reg. Sess.) as amended May 4, 1995, p. 2.) The express limitation in
the statute means that ―[n]o far-ranging attacks on the defendant‘s character can
occur under section 1108.‖ (Falsetta, supra, 21 Cal.4th at p. 916.) It reflects a
policy choice striking a balance between the general ban on character evidence to
prove conduct, and an exception permitted in strictly limited circumstances. The
trial court ensures that the policy choice is honored by performing its screening
function under section 405. ―If the court is in doubt, if the prosecution has not
persuaded it of the [criminal nature of the conduct], Section 405 requires the court
to exclude the [evidence].‖ (Assem. Com. com., reprinted at West‘s Ann. Evid.
Code, supra, foll. § 405, p. 43.)
Conversely, the proffer of this kind of evidence generally does not raise a
relevance question under section 403, assuming the defendant‘s identity as the
perpetrator can be shown. The conduct in this case, which involved touching the
vaginal area of his young sister, was manifestly relevant on the question of
whether defendant sexually assaulted another young female relative. (Falsetta,
supra, 21 Cal.4th at p. 915; People v. Soto (1998) 64 Cal.App.4th 966, 991.)
Indeed, ― ‗[s]uch evidence ―is [deemed] objectionable, not because it has no
appreciable probative value, but because it has too much.‖ . . . [Citations.]‘ ‖
(Ibid., quoting People v. Alcala (1984) 36 Cal.3d 604, 631.) The requirement that
these other acts of sexual misconduct constitute crimes revolves around policy, not
a case-specific assessment of relevance. Accordingly, when a defendant objects to
the admission of 1108 evidence on the ground that the conduct does not amount to
15


a crime, the court reviews any preliminary fact necessary to that determination
under section 405, not section 403.10
Respecting the burden of proof, we accept the Attorney General‘s
concession that the prosecution must prove by clear and convincing evidence that
defendant appreciated the wrongfulness of the unadjudicated sexual offense
offered under section 1108. This is the standard the trial court applied.
Section 405, subdivision (a) directs the trial court to apply ―the burden of
proof on the issue as implied by the rule of law under which the question arises.‖
The general rule is that preliminary fact determinations affecting the admissibility
of evidence under section 405 are subject to proof by a preponderance of the
evidence unless otherwise provided by law. (People v. Tewksbury (1976) 15
Cal.3d 953, 963, 966; see also § 115.) The same standard generally applies to
proof of unadjudicated conduct admitted under section 1108. (See Reliford, supra,
29 Cal.4th at pp. 1015-1016; cf. Carpenter, supra, 15 Cal.4th at p. 382 [discussing
proof of evidence admitted under § 1101, subd. (b)], Carpenter superseded by
statute on other grounds as recognized in Verdin v. Superior Court (2008) 43

10
By comparison, the provisions of section 405 would not necessarily apply
to evidence admitted under section 1101, subdivision (b). That section, unlike
section 1108, does not require the conduct to be a crime, but rather applies more
broadly to ―evidence that a person committed a crime, civil wrong, or other act.‖
(§ 1101, subd. (b).) The appellate courts have recognized that admission of such
evidence under section 1101, subdivision (b) may entail preliminary fact
determinations under section 403, subdivision (a)(1), such as the fact that the
conduct occurred and the defendant‘s connection to it. (See, e.g., People v.
Garelick (2008) 161 Cal.App.4th 1107, 1115; People v. Simon (1986) 184
Cal.App.3d 125, 129-131 (Simon); accord, Huddleston v. United States (1988) 485
U.S. 681, 687-689 [analyzing procedure for admitting other crimes evidence under
Fed. Rules of Evid., rule 404(b), 28 U.S.C.].) This analysis differs from the trial
court‘s legal and factual determination that the defendant‘s conduct amounts to a
crime under section 1108 as a predicate to admissibility.
16


Cal.4th 1096, 1106-1107; People v. Medina (1995) 11 Cal.4th 694, 763 [same].)
Nonetheless, the question of capacity, which is a predicate to admissibility, arises
under Penal Code section 26(One), which explicitly imposes a distinct standard of
proof by clear and convincing evidence. (Manuel L., supra, 7 Cal.4th at p. 232.)
It is that standard the court must apply in resolving whether a minor under 14
appreciated the wrongfulness of his conduct and was thus capable of committing a
crime.

C.
The Jury Does Not Reassess Defendant’s Capacity When
Considering 1108 Evidence
Our application of section 405 in this context does not mean the jury cannot
consider the defendant‘s age and mental state at the time of his juvenile conduct.
Section 405, subdivision (b) anticipates that, in some instances, a preliminary fact
decided by the trial court will also bear on a fact at issue in the action. (See
Assem. Com. com., reprinted at West‘s Ann. Evid. Code, supra, foll. § 405, p. 42.)
Accordingly, we must examine the jury‘s role in assessing 1108 evidence.
While a sexual offense must qualify as a crime to be admissible under
section 1108, the defendant does not stand trial on that uncharged conduct and
cannot be convicted of it.11 Such evidence is admitted only as circumstantial
evidence supporting an inference that the defendant committed the charged
offense, by demonstrating the defendant‘s propensity and bolstering the victim‘s
credibility. (Reliford, supra, 29 Cal.4th at pp. 1012-1014; Falsetta, supra, 21
Cal.4th at pp. 911, 915.) ―[A] jury may not convict the defendant based solely on

11
This case does not involve the circumstance presented in People v.
Villatoro, supra, 54 Cal.4th 1152. There we held that section 1108 authorizes the
jury to draw propensity inferences from other charged sexual offenses. (Villatoro,
at pp. 1164-1165.)
17


evidence of a prior sexual crime.‖ (People v. Loy (2011) 52 Cal.4th 46, 72, italics
added.)
As with evidence admitted under section 1101, the jury must determine
whether the defendant committed the act in question. Only if the jury so
concludes by a preponderance of the evidence can it consider such evidence in
deciding whether the defendant is guilty of the charged crimes. (Estelle v.
McGuire (1991) 502 U.S. 62, 73-74; People v. Ewoldt (1994) 7 Cal.4th 380, 405.)
It must also consider the defense response to the evidence. ―[W]hen evidence of
other crimes or acts has been admitted for some purpose an accused should be
allowed to explain or deny the transactions.‖ (People v. Zerillo (1950) 36 Cal.2d
222, 230.) For example, the defendant may introduce evidence of a previous
acquittal of criminal charges relating to acts admitted under section 1101 or 1108.
(People v. Griffin (1967) 66 Cal.2d 459, 465; People v. Mullens (2004) 119
Cal.App.4th 648, 665-667, 669.) The defendant also may challenge the inference
the prosecution urges should be drawn from the conduct by calling into question
his state of mind or motive (Simon, supra, 184 Cal.App.3d at pp. 130-131) or by
introducing competing evidence of good character (People v. Callahan (1999) 74
Cal.App.4th 356, 375-379).12 Finally, the jury must decide whether that act
demonstrates the defendant‘s propensity to commit the charged sexual offenses. If
not, the jury may accord the evidence no weight. (Reliford, supra, 29 Cal.4th at p.
1014; Falsetta, supra, 21 Cal.4th at p. 920.)
None of these questions requires the jury to reassess the trial court‘s
determination that the prosecution established the legal foundation required to

12
As previously noted (ante, at p. 16, fn. 10), evidence admitted under section
1101, subdivision (b) need not constitute a crime. That distinction does not
change the analysis here, however.
18


support admissibility by rebutting Penal Code section 26(One)‘s presumption of
incapacity. Rather, in enacting section 1108, the Legislature simply contemplated
that the jury would make a ― ‗ ―rational assessment . . . of evidence so
admitted.‖ ‘ ‖ (Falsetta, supra, 21 Cal.4th at p. 912, quoting Letter by
Assemblyman Rogan regarding Assem. Bill No. 882 (1995-1996 Reg. Sess.)
published in 2 Assem. J. (1995-1996 Reg. Sess.) p. 3278, reprinted at 29B pt. 3B
West‘s Ann. Evid. Code (2009 ed.) foll. § 1108, p. 352.) This interpretation is
consonant with section 406, which makes clear that the weight and credibility of
admitted evidence remain proper determinations for the jury.13 The Law Revision
Commission comment to section 406 notes: ―Other sections in this article provide
that the judge determines whether proffered evidence is admissible, i.e., whether it
may be considered by the trier of fact. Section 406 simply makes it clear that the
judge‘s decision on a question of admissibility does not preclude the parties from
introducing before the trier of fact evidence relevant to weight and credibility.‖ (7
Law Revision Com. Rep. (1965) 1, 70, reprinted at West‘s Ann. Evid. Code,
supra, foll. § 406, p. 53; see People v. Thornton (1974) 11 Cal.3d 738, 767,
overruled on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 685, fn. 12,
and People v. Martinez (1999) 20 Cal.4th 225, 232-238.) While it is up to the jury
to assess the weight of the evidence, that analysis differs from assessing the
threshold legal question of admissibility. The judge determines whether the
proffered evidence is legally admissible because the required foundational element
of capacity has been satisfied. The jury does not revisit that legal ruling.
In this regard the respective roles of judge and jury are similar to those at
play when a defendant‘s confession is offered against him. The defendant may

13
Section 406 provides: ―This article does not limit the right of a party to
introduce before the trier of fact evidence relevant to weight or credibility.‖
19


seek to bar its admission arguing that the statement was obtained in violation of
Miranda v. Arizona (1966) 384 U.S. 436, and its progeny. (See § 402, subd. (b).)
If the Miranda requirements were violated, ―public policy [and binding precedent]
require[] its exclusion.‖ (Assem. Com. com., reprinted at West‘s Ann. Evid.
Code, supra, foll. § 405, p. 41.) In ruling on such a motion, the trial court
determines whether, as a matter of law, the statement is barred by Fifth
Amendment jurisprudence. If the statement is admitted, the jury is not then
instructed on the nuanced legal principles related to interrogation and waiver.
This is because the jury is not permitted to revisit the court‘s legal determination
of admissibility. (People v. Burton (1971) 6 Cal.3d 375, 389-390, disapproved on
another ground in People v. Lessie (2010) 47 Cal.4th 1152, 1168; see also § 405,
subd. (b)(2).) As we observed in People v. Thornton, supra, 11 Cal.3d 738,
―section 405 of [the Evidence Code] clearly indicates that the court‘s decision on
the issue of admissibility of confessions is final and not subject to a ‗second look‘
by the jury . . . .‖ (Id. at p. 767, fn. omitted.)
The defense is free, however, to ―present evidence of the circumstance
under which a confession . . . was made where such evidence is relevant to the
credibility of the statement, even though such evidence may duplicate to some
degree the evidence presented to the court on the issue of admissibility.‖ (Assem.
Com. com., reprinted at West‘s Ann. Evid. Code, supra, foll. § 405, p. 44.) Based
on such evidence, the defense may argue that the defendant did not make the
statement or that the evidence carries no weight because the defendant was
confused, fatigued, or tricked, thus depriving the statement of any probative value.
―But the jury‘s sole concern is the truth or falsity of the facts stated, not the
admissibility of the statement.‖ (Ibid.; accord, People v. Jimenez (1978) 21
Cal.3d 595, 607, disapproved on another ground in People v. Cahill (1993) 5
Cal.4th 478, 510, fn. 17; Jackson v. Denno (1964) 378 U.S. 368, 386, fn. 13.)
20


The principles are the same in other section 405 determinations cited by the
Assembly Committee comments. If the court finds a witness competent to testify,
opposing counsel may still argue that the witness‘s testimony was not credible or
that the witness lacked personal knowledge. (§ 701; Assem. Com. com., reprinted
at West‘s Ann. Evid. Code, supra, foll. § 405, p. 41; Lewis, supra, 26 Cal.4th at
pp. 360-361; People v. Anderson (2001) 25 Cal.4th 543, 572-574.) The court may
find an expert qualified to give an opinion, and that the opinion is founded on
sound logic and reliable theory or technique. Yet an opponent may argue that the
jury should not accept it. (§§ 720, 801, subd. (b), 802; Assem. Com. com., at p.
41; Sargon Enterprises, Inc. v. University of Southern California (2012) 55
Cal.4th 747, 769-773; People v. Penny (1955) 44 Cal.2d 861, 866; 3 Witkin, Cal.
Evidence (5th ed. 2012) Presentation, § 204, p. 301; see also People v. Pizarro
(2003) 110 Cal.App.4th 530, 553-558 & fns. 28 & 29, disapproved on another
ground in People v. Wilson (2006) 38 Cal.4th 1237, 1245-1246, 1251.) The court
may find a proffered hearsay statement factually satisfies an exception permitting
its admissibility, but counsel may still argue that the statement is unreliable.
(People v. Blacksher (2011) 52 Cal.4th 769, 834-835; Assem. Com. com., at pp.
42, 44.) In each case the jury examines the evidence to determine what, if
anything, it proves. It does so as a matter of logic, not by applying the legal rules
for competence, expert qualification, or hearsay exceptions.
Similarly, the defendant‘s youth may inform the jury‘s assessment of what
the 1108 evidence proves. The circumstances of the conduct, including the
defendant‘s age, may lead the jury to conclude that the evidence does little to
demonstrate a propensity to commit the charged sex crime. Accordingly, the jury
would be free to reject the inference the prosecution urged. This important factual
assessment differs from the court‘s legal inquiry on the question of admissibility,
including its finding that the prosecution has rebutted the presumption of
21


incapacity set forth in Penal Code section 26(One). Once the 1108 evidence is
admitted, the jury is not permitted to reassess the court‘s evidentiary ruling. It
simply determines whether, as a factual matter, the evidence establishes the
defendant‘s propensity to commit the charged sexual offenses.
In reaching a different conclusion, the Court of Appeal relied heavily on
Lewis, supra, 26 Cal.4th 334. There, we briefly touched on the application of
Penal Code section 26(One) to an uncharged violent crime offered as aggravating
evidence in a capital trial. But Lewis is cabined to its facts and provides no
meaningful assistance here. Specifically, we did not resolve in Lewis whether the
jury must decide the capacity question because the defendant did not claim error
on that ground.
In Lewis, the prosecution offered penalty phase evidence that the defendant
had committed a previous murder when he was 13 years 9 months old. (Pen.
Code, § 190.3, factor (b).)14 The court admitted the evidence. It instructed the
jury to assess the defendant‘s capacity to commit the prior murder and to apply the
beyond-a-reasonable-doubt standard in doing so. (Lewis, supra, 26 Cal.4th at pp.
379-380.) When the trial court subsequently denied the defendant‘s motion to
reduce the death verdict, it made an express finding ― ‗beyond any reasonable
doubt‘ ‖ that the defendant knew the prior murder was wrong when he committed
it. (Id. at p. 377.)
On appeal, we concluded that, even though the earlier killing had occurred
16 years before, it was possible for the trial court and the jury to assess the
defendant‘s capacity, and that the defendant received a fair adjudication on the

14
That section sets forth, as an aggravating factor, ―[t]he presence or absence
of criminal activity by the defendant which involved the use or attempted use of
force or violence or the express or implied threat to use force or violence.‖
22


question. (Lewis, supra, 26 Cal.4th at pp. 379-380.) We noted that the jury
instructions properly explained the law as set out in Penal Code section 26.
(Lewis, at p. 380.) The defendant also argued the trial court failed to determine the
capacity question as a preliminary fact before admitting the evidence. In
addressing that claim, we assumed, but did not decide, that the trial court was
obligated to make such a preliminary fact determination. We then concluded any
error was harmless because the trial court later made that very finding in denying
the defendant‘s motion to reduce the death verdict. (Id. at pp. 377, 380.) Finally,
we rejected the defendant‘s challenge to the evidentiary sequence. In that context,
we summarily characterized as ―unsupported‖ the defendant‘s ―claim that
determining a minor‘s capacity under Penal Code section 26 should be considered
the same as determining the admissibility of a confession as a foundational or
preliminary fact. (Evid. Code, § 402, subd. (b) [upon a party‘s request, a court
must first determine the admissibility of a confession or admission outside the
presence and hearing of the jury].)‖ (Lewis, at p. 380.)
The Court of Appeal ―interpret[ed] Lewis as holding that pursuant to [Penal
Code] section 26, the issue of whether a minor appreciates the wrongfulness of his
conduct is a question for the trier of fact.‖ We did not so hold. Because the trial
court in Lewis submitted the issue of the defendant‘s capacity to the jury (Lewis,
supra, 26 Cal.4th at pp. 379-380), we had no occasion to consider whether it must
necessarily do so (see People v. Soto (2011) 51 Cal.4th 229, 247). Moreover, our
brief observation that the defendant‘s argument equating the issue of a minor‘s
capacity to the admissibility of a confession was ―unsupported‖ (Lewis, supra, 26
Cal.4th at p. 380), sheds little light on the issue now before us. We did not discuss
the point in depth, given our conclusion that any failure to hold a preliminary fact
hearing was harmless on that record. (Ibid.)
23


Now that the question is squarely presented, we hold that upon the
defendant‘s timely objection, the trial court must find by clear and convincing
evidence that the defendant had the capacity to commit an unadjudicated juvenile
offense before admitting that evidence under section 1108. ―In enacting section
1108, the Legislature recognized that ‗[g]iven its highly inflammatory nature,
uncharged misconduct is admissible after various safeguards are met.‘ ‖ (People
v. Villatoro, supra, 54 Cal.4th at p. 1165, quoting Sen. Com. on Crim. Proc.,
Analysis of Assem. Bill No. 882 (1995–1996 Reg. Sess.) as amended May 15,
1995, p. 4.) This policy is served by the requirement that the conduct amount to a
crime. If the conduct occurred when the defendant was under 14, the question of
capacity must be resolved. Once the trial court has made that legal determination,
section 405 does not permit the jury to delve into the nuances of evidentiary rules.
Instead, the jury turns to the essential question of what, if anything, the evidence
proves.

D.
The Trial Court Was Not Required to Instruct the Jury, Sua Sponte,
to Consider Whether Defendant Appreciated the Wrongfulness of the
Sexual Offense Admitted Under Section 1108
Our analysis of the evidentiary issue necessarily informs the trial court‘s
instructional duties respecting the defendant‘s capacity to commit a sexual offense
admitted under section 1108. Here, on its own motion, the trial court instructed
the jury with CALCRIM No. 1191, explaining the proper use of the 1108
evidence. The instruction stated that the prosecution must prove by a
preponderance of the evidence that defendant committed the offense against his
sister. If that burden was not met, the evidence must be disregarded. If the burden
was met, the jury could, but was not required, to conclude that defendant had a
propensity to commit sexual offenses. Defendant did not request an instruction on
capacity.
24


The Court of Appeal imposed a sua sponte duty to instruct the jury that ―it
had to determine by clear and convincing evidence whether Cottone appreciated
the wrongfulness of his conduct,‖ which it characterized as a ―general legal
principle[] closely and openly connected with the facts in the case.‖ This analysis
fails. As previously explained, the admissibility of other sexual offenses
amounting to crimes under section 1108, and the resolution of necessarily
preliminary facts, are questions for the court to resolve, subject to review on
appeal. The jury has an important task in evaluating the evidence. That task does
not include reconsidering the court‘s legal conclusion.
Defendant urges a minor‘s incapacity is a ―defense,‖ and emphasizes that
the trial court has a sua sponte duty to instruct on defenses that the defendant is
relying on or that are supported by substantial evidence and are not inconsistent
with the defendant‘s theory of the case. (See People v. Anderson (2011) 51
Cal.4th 989, 996; People v. Salas (2006) 37 Cal.4th 967, 982.) His argument is
misplaced.
This case does not involve the trial court‘s sua sponte duty to instruct the
jury on a defense to a charged crime. Rather, it presents the much narrower issue
of how the jury evaluates 1108 evidence. We have long recognized that ―the trial
court ordinarily has no sua sponte duty to instruct the jury as to the admissibility
or use of other crimes evidence.‖ (Falsetta, supra, 21 Cal.4th at p. 924; accord,
Reliford, supra, 29 Cal.4th at p. 1015, fn. 2; People v. Collie (1981) 30 Cal.3d 43,
63-64; People v. Jennings (2000) 81 Cal.App.4th 1301, 1316-1318.) This
principle is consistent with section 355, which provides that the trial court, ―upon
request,‖ shall instruct the jury about evidence admitted for a limited purpose.
More specifically, the jury‘s role in considering the defendant‘s age at the
time of an act admitted under section 1108 is not consonant with any recognized
category of sua sponte instruction. Whether the evidence proves what the
25


prosecution urges is a question of fact and logic requiring no additional sua sponte
instruction. (See Carpenter, supra, 15 Cal.4th at p. 383.) Notably, the trial court
is under no sua sponte duty to instruct that a jury must determine other preliminary
facts, such as identity, that bear on the ultimate relevance of the evidence, or to
disregard such evidence unless the jury finds that the preliminary fact exists. (See
Lewis, supra, 26 Cal.4th at p. 362 [discussing § 403, subd. (c)(1)]; Carpenter, at
p. 383.)15
Our conclusion is consistent with cases explaining the duty to instruct on
the use of a defendant‘s violent criminal activity offered as a circumstance in
aggravation in a capital case. (Pen. Code, § 190.3, factor (b).) In that context, we
have long held that ―[a] trial court has no sua sponte duty to instruct on the
elements of ‗other crimes‘ offered under section 190.3, factor (b).‖ (People v.
Gonzales and Soliz (2011) 52 Cal.4th 254, 324.) Such instructions are ―not vital
to a proper consideration of the evidence on the issue of penalty‖ (People v.
Anderson, supra, 25 Cal.4th at p. 588) because ―the ultimate question for the
sentencer is simply whether the aggravating circumstances, as defined by
California‘s death penalty law ([Pen. Code,] § 190.3), so substantially outweigh
those in mitigation as to call for the penalty of death, rather than life without
parole‖ (Anderson, at p. 589). We have noted that ―a defendant, for tactical
reasons, may not want the penalty phase instructions overloaded with a series of

15
We do note that such matters are covered in the standard CALCRIM
instruction given to this jury. (CALCRIM No. 1191.) That instruction told the
jury to disregard the 1108 evidence in its entirety if the jury was not convinced by
a preponderance of the evidence that it had been proved. The instruction also
emphasized that the jury was not required to draw an inference of propensity from
the evidence. We do not suggest that the giving of that instruction is
inappropriate. We merely clarify that, ordinarily, there is no sua sponte obligation
to do so.
26


lengthy instructions on the elements of alleged other crimes because he may fear
that such instructions could lead the jury to place undue emphasis on the other
crimes rather than on the central question of whether he should live or die.‖
(People v. Davenport (1985) 41 Cal.3d 247, 281; accord, Anderson, at p. 588.)
Defense counsel took a similar approach to the 1108 evidence admitted here.16
Accordingly, we decline to impose a sua sponte duty to instruct that the
jury reconsider a fact relating to evidentiary admission. Counsel remains free to
argue that the evidence does not support the propensity inference. If the defense
relies on the defendant‘s age to undermine the propensity conclusion, it may
request a proper pinpoint instruction on that topic. (See People v. Anderson,
supra, 51 Cal.4th at pp. 996-997; People v. Saille (1991) 54 Cal.3d 1103, 1119.)
But such an instruction should not include a reference to Penal Code
section 26(One) or its presumption. Because there was no sua sponte duty to
instruct, there was no error.

16
Defense counsel argued directly and persuasively against drawing an
inference of propensity from such conduct: ―And what is it [L.] says? She is on
her brother‘s shoulders and he touches her vagina. Is that anything like what is
alleged here? Does that tell you that he has a propensity to go after little girls
because when he is 13 with his sister on his shoulders he‘s touching her vagina?
That‘s like saying when he was 13 years old he was playing with matches and you
know what you should infer from that, he started the station fire where a bunch of
people got killed. That is how much sense it makes. ¶ Think about it, this
prosecution has looked back from now from the time of this trial backwards, it‘s
almost a half a century, to show propensity, to show this attraction to young girls,
that is what he says this is for. Think of all the young girls who spent the night
there. Nothing. Nothing. Nothing. ¶ . . . They put on a span of nearly half a
century. What do they have that shows a propensity? An act when he is
prepubescent in the ‘60s. That does not show a propensity or prove he did this or
[to corroborate B.]‖
27


III. DISPOSITION
The judgment of the Court of Appeal is reversed, and the matter is
remanded to that court for further proceedings consistent with this opinion.
CORRIGAN, J.
WE CONCUR:

CANTIL-SAKAUYE, C. J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
LIU, J.
28


See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Cottone __________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 195 Cal.App.4th 245
Rehearing Granted

__________________________________________________________________________________

Opinion No. S194107
Date Filed: July 22, 2013
__________________________________________________________________________________

Court: Superior
County: Orange
Judge: M. Marc Kelly

__________________________________________________________________________________

Counsel:
Law Offices of William J. Kopeny and William J. Kopeny for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant
Attorney General, Gary W. Schons and Julie L. Garland, Assistant Attorneys General, Steven T. Oetting,
Gil Gonzalez, James H. Flaherty III and Meredith Strong, Deputy Attorneys General, for Plaintiff and
Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):
William J. Kopeny
Law Offices of William J. Kopeny
8001 Irvine Center Drive, Suite 400
Irvine, CA 92618-2956
(949) 754-2944

James H. Flaherty III
Deputy Attorneys General
110 West A Street, Suite 1100
San Diego, CA 92101
(619) 645-2196

Petition for review after the Court of Appeal reversed a judgment of conviction of criminal offenses. This case presents the following issue: Did the Court of Appeal err by holding (a) that a prior sexual offense committed by defendant when he was under the age of 14 could not be admitted as propensity evidence under Evidence Code section 1108 without a finding by the jury that he appreciated the wrongfulness of his actions at the time he committed the prior offense, and (b) that the failure to instruct the jury on this question constituted reversible error?

Defendant was convicted of four counts of lewd and lascivious acts on a child under 14 (his niece) in Orange County Superior Court (No. 06HF1734, M. Marc Kelly, J.). Defendant appealed, and Court of Appeal reversed the judgment (195 Cal. App. 4th 245 (2011)), finding that the court erred by not instructing the jury to consider whether the defendant appreciated the wrongfulness of alleged prior sexual misconduct. The alleged prior misconduct was introduced at trial to show his propensity to commit sexual crimes (in 1966, when he was 14, defendant allegedly touched the vagina of his 5-year-old sister and attempted to touch her friend). The California Supreme Court found that there was no need for this instruction, and that there was no prejudicial instructional error.

The judgment of the appellate court was reversed, and case was remanded for further proceedings.

People v. Cottone, 195 Cal. App. 4th 245, VACATED.

CANTIL–SAKAUYE, C.J., KENNARD, BAXTER, WERDEGAR, CHIN, LIU, JJ. CONCURRING

HISTORY:
A) People v. Cottone, 195 Cal. App. 4th 245 (2011)
B) People v. Cottone, 257 P.3d 1130 (2011), granting review and superseding the opinion in A
C) People v. Cottone, 57 Cal. 4th 269 (2013), reversing judgment in A
D) People v. Cottone, WL 118799, Jan. 14, 2014 (unpublished/noncitable), rehearing denied Feb. 10, 2014, review denied Apr. 30, 2014

Opinion Information
Date:Citation:Docket Number:
Mon, 07/22/201357 Cal. 4th 269 (2013), 159 Cal. Rptr. 3d 385, 303 P.3d 1163, 13 Cal. Daily Op. Serv. 7676, 2013 Daily Journal D.A.R. 9463S194107

Opinion Authors
OpinionJustice Carol A. Corrigan

Jun 28, 2014
Annotated by Jennifer Binger

FACTS:
Lee Vincent Cottone (defendant) was charged with committing four lewd acts upon his niece. She testified that defendant began molesting her in 1998, when she was eight. During school breaks and summer vacation, his niece, B., stayed overnight with defendant and his wife. B. slept between her aunt and uncle because she was afraid to be away from home.

The first night she slept between them, B. woke up to find that defendant had placed his hand under her clothing and was massaging her vagina, breasts, and buttocks. Although B. moved away from defendant, she did not say anything because she was frightened. She did not awaken her aunt or tell her what had happened. The next night defendant touched B. the same way. B. did not report the incidents out of fear.

B. estimated that she stayed at her uncle's home two to four days at a time, three to four times a year for approximately four years. Defendant touched B. the same way every time she spent the night, using his hand to rub her breasts, buttocks, and vagina. The touching did not involve penetration and defendant never forced B. to touch him.

When B. was 11 or 12 years old, her sister and her cousin also began spending the night with the Cottones. B. estimated that the three girls slept over together approximately 10 or 15 times, sharing a bed in the guestroom. Every night, defendant entered the dark room, sat on the bed, and pulled back B.'s covers. Defendant touched her according to his pattern. B. did not tell her sister or cousin what had happened.

Defendant eventually stopped abusing B. in 2003. In 2006, B. told her mother about defendant's conduct.

The prosecution wanted to offer evidence under that defendant had sexually abused his sister, L. The incident occurred in 1966, when L. was around five and defendant was nearly 14. No juvenile court allegations had been filed. L. testified that one day when L. and a friend were playing, defendant invited them to play a game. The friend declined and went home. Defendant carried L. downstairs to the basement, where he and his brothers had bedrooms. They were alone. As L. sat on his shoulders, defendant put his finger in her underpants and touched her vaginal area.

Defense presented witnesses (B.'s cousins and defendant's granddaughter) who testified that defendant never touched them even though they had spent the night at his house often when they were young.

The jury convicted defendant on all counts and found true the special allegations. Defendant was sentenced to six years in prison.

PROCEDURAL HISTORY:
A jury convicted defendant in the Superior Court of Orange County, CA, of four counts of committing a lewd act upon a child under the age of 14. The California Court of Appeal, Fourth Appellate District, Division Three, concluded that the trial court erred in failing to instruct the jury on the issue of whether defendant appreciated the wrongfulness of an unadjudicated sexual offense defendant had committed when he was under the age of 14.

The Court of Appeal reversed the judgment for instructional error. It imposed a sua sponte duty to instruct that the prosecution must prove by clear and convincing evidence that defendant appreciated the wrongfulness of his conduct admitted under Section 1108 of the California Evidence Code. Applying the prejudicial error standard of Chapman v. California, 386 U.S. 18 (1967), the court concluded that the instructional omission was not harmless beyond a reasonable doubt.

Review was granted, superseding the opinion of the Court of Appeals.

ISSUES:
If conduct is asserted that occurs before a defendant is 14 years old, does the prosecution need to show that the defendant knew the conduct was wrongful (and was thus capable of committing a crime, as required by Cal. Penal Code § 26(one)?

Does the trial court ultimately decide if the conduct amounted to a crime, or does the jury?

HOLDING:
1) When prosecution seeks to prove that a defendant committed an unadjudicated sexual offense before reaching age 14, the presumption of incapacity applies (prosecution must rebut the presumption);

2) The court (not the jury) determines the evidentiary question of whether a defendant understood the wrongfulness of the unadjudicated sexual offense allegedly committed before age 14;

3) The prosecution must prove by clear and convincing evidence that the defendant appreciated the wrongfulness of the unadjudicated alleged sexual offense (thus rebutting the presumption of incapacity);

4) Once the court admits the evidence, the jury only determines whether the evidence establishes the defendant's propensity to commit the charged sexual offenses, and does not reassess the court's evidentiary ruling;

and, 5) A court does not have a duty to instruct the jury sua sponte to consider whether the defendant appreciated the wrongfulness of the conduct (although defense may request a jury instruction on whether the evidence, including the defendant's age at the time of the alleged unadjudicated offense, undermines the propensity conclusion).

ANALYSIS:
Prior to trial, the prosecution moved, pursuant to California Evidence Code section 1108, to introduce evidence that defendant had sexually abused his younger sister when he was 13. Defendant opposed the motion on multiple grounds, including that because he was under the age of 14 at the time, he was presumed incapable of committing a crime. The trial court found by clear and convincing evidence that, given his age at the time (13 years, 10 months) and the circumstances of the incident, defendant understood the wrongfulness of his conduct. It therefore allowed his sister to testify about the incident at trial.

The Supreme Court considered a number of issues, including whether Penal Code section 26(one) applies to evidence admitted under Evidence Code section 1108.

The Court of Appeal noted that section 1108 authorizes admission of evidence that defendant committed another sexual offense amounting to a crime. It reasoned that “for prior sexual offense evidence to be admitted the offense must be a crime, and to be a crime, a child under 14 years of age must appreciate the wrongfulness of his conduct,” as required by Penal Code section 26(one). The question of capacity under Penal Code section 26(one) for a minor under 14 involves a legal standard, a rebuttable presumption, and a burden of proof.

The Court differentiated between determining capacity as a prerequisite to a valid judgment and determining capacity as an evidentiary question. The Court found that it was a foundational question to the admissibility of evidence proffered under section 1108. That section permits evidence that the defendant committed other sexual offenses to prove his propensity to commit the charged sexual offenses.

The Court found that the statutory language makes it so that the presumption of incapacity set forth in Penal Code section 26(one) applies when the prosecution seeks to prove that the defendant committed an unadjudicated sexual offense before reaching age 14. The presumption must be overcome before the evidence may be admitted.

The next question, that of "who decides, and by what standard?" required further analysis.

The Court found that the trial court evaluates whether a defendant's capacity to understand the wrongfulness of his conduct, under Penal Code section 26(one), as a threshold question to admitting an unadjudicated sexual offense. This is a legal (as opposed to factual) question, which is for the court to determine.

Even though the legal question of admissibility involves a factual component (because the prosecution must show that a minor under 14 knew his or her conduct was wrong at the time it was committed), simply because it has a factual component does not automatically make it a question for the jury to decide. California Evidence Code requires that the trial court resolve all questions of fact before the admission of evidence.

The Court then compared Section 403 and Section 405 of the California Evidence Code, and determined that Section 405 governs because it “deals with evidentiary rules designed to withhold evidence from the jury because it is too unreliable to be evaluated properly or because public policy requires its exclusion.” To the Court, the factual determination required in this case was similar to factual determinations needed in other cases involving things like mental capacity of a witness to testify, the admissibility of a confession, the qualification of an expert, and others. The Court held that the question of capacity, which is a predicate to admissibility, requires a standard of proof by clear and convincing evidence. It is that standard that courts must apply in resolving whether a minor under 14 appreciated the wrongfulness of his conduct and was thus capable of committing a crime.

The Court noted that the jury could still consider the defendant's age and mental state at the time of his juvenile conduct. As with evidence admitted under Section 1101 of the California Evidence Code, the jury must determine whether the defendant committed the act in question. The jury must decide whether that act demonstrates the defendant's propensity to commit the charged sexual offenses. If not, the jury may accord the evidence no weight.

While the jury assesses the weight of the evidence, that analysis differs from assessing the threshold legal question of admissibility. The judge determines whether evidence is legally admissible when the required foundational element of capacity has been satisfied. The jury does not revisit that legal ruling. It simply determines whether, as a factual matter, the evidence establishes the defendant's propensity to commit the charged sexual offenses.

The Court then noted how the Court of Appeal erred in its analysis. The Court noted that it never said in the Lewis case whether the jury must decide the capacity question, because the defendant never claimed error on that ground. The Court did not hold that an express finding of capacity was necessary, nor was that even the issue before it.

Finally, the Court determined that if the defense wants to undermine the propensity conclusion, it may request a proper pinpoint instruction on that topic. But because there was no sua sponte duty to instruct, there was no error.

CASE REVERSED AND REMANDED.

REFERENCED CASES (in order referenced in opinion):
Chapman v. California, 386 U.S. 18 (1967), 87 S. Ct. 824, 17 L. Ed. 2d 705
In re Gladys R., 1 Cal. 3d 855 (1970), 83 Cal. Rptr. 671, 464 P.2d 127
In re Manuel L., 7 Cal. 4th 229 (1994), 27 Cal. Rptr. 2d 2, 865 P.2d 718
People v. Lewis, 26 Cal. 4th 334 (2001), 110 Cal. Rptr. 2d 272, 28 P.3d 34
People v. Roberts, 26 Cal. App. 3d 385 (1972), 103 Cal. Rptr. 25
People v. Reliford, 29 Cal. 4th 1007 (2003), 130 Cal. Rptr. 2d 254, 62 P.3d 601
People v. Falsetta, 21 Cal. 4th 903 (1999), 89 Cal. Rptr. 2d 847, 986 P.2d 182
People v. Villatoro, 54 Cal. 4th 1152 (2012), 144 Cal. Rptr. 3d 401, 281 P.3d 390
People v. Story, 45 Cal. 4th 1282 (2009), 91 Cal. Rptr. 3d 709, 204 P.3d 306
People v. Walker, 139 Cal. App. 4th 782 (2006), 43 Cal. Rptr. 3d 257
People v. Kelii, 21 Cal. 4th 452 (1999), 87 Cal. Rptr. 2d 674, 981 P.2d 518
People v. Betts, 34 Cal. 4th 1039 (2005), 23 Cal. Rptr. 3d 138, 103 P.3d 883
People v. Lucas, 12 Cal. 4th 415 (1995), 48 Cal. Rptr. 2d 525, 907 P.2d 373
People v. Wade, 53 Cal. 2d 322 (1959), 1 Cal. Rptr. 683, 348 P.2d 116
People v. Carpenter, 15 Cal. 4th 312 (1997), 63 Cal. Rptr. 2d 1, 935 P.2d 708
People v. Johnson, 185 Cal. App. 4th 520 (2010), 110 Cal. Rptr. 3d 515
People v. Soto, 64 Cal. App. 4th 966 (1998), 75 Cal. Rptr. 2d 605
People v. Tewksbury, 15 Cal. 3d 953 (1976), 127 Cal. Rptr. 135, 544 P.2d 1335
People v. Medina, 11 Cal. 4th 694 (1995), 47 Cal. Rptr. 2d 165, 906 P.2d 2
People v. Loy, 52 Cal. 4th 46 (2011), 127 Cal. Rptr. 3d 679, 254 P.3d 980
Estelle v. McGuire, 502 U.S. 62 (1991), 112 S. Ct. 475, 116 L. Ed. 2d 385
People v. Ewoldt, 7 Cal. 4th 380 (1994), 27 Cal. Rptr. 2d 646, 867 P.2d 757
People v. Zerillo, 36 Cal. 2d 222 (1950), 223 P.2d 223
People v. Griffin, 66 Cal. 2d 459 (1967), 58 Cal. Rptr. 107, 426 P.2d 507
People v. Mullens, 119 Cal. App. 4th 648 (2004), 14 Cal. Rptr. 3d 534
People v. Callahan, 74 Cal. App. 4th 356 (1999), 87 Cal. Rptr. 2d 838
People v. Thornton, 11 Cal. 3d 738 (1974), 114 Cal. Rptr. 467, 523 P.2d 267
People v. Martinez, 20 Cal. 4th 225 (1999), 83 Cal. Rptr. 2d 533, 973 P.2d 512
Miranda v. Arizona, 384 U.S. 436 (1966), 86 S. Ct. 1602, 16 L. Ed. 2d 694
People v. Burton, 6 Cal. 3d 375 (1971), 99 Cal. Rptr. 1, 491 P.2d 793
People v. Jimenez, 21 Cal. 3d 595 (1978), 147 Cal. Rptr. 172, 580 P.2d 672
Sargon Enterprises, Inc. v. University of Southern California, 55 Cal. 4th 747 (2012), 149 Cal. Rptr. 3d 614, 288 P.3d 1237
People v. Penny, 44 Cal. 2d 861 (1955), 285 P.2d 926
People v. Pizarro, 110 Cal. App. 4th 530 (2003), 3 Cal. Rptr. 3d 21
People v. Blacksher, 52 Cal. 4th 769 (2011), 130 Cal. Rptr. 3d 191, 259 P.3d 370
People v. Anderson, 51 Cal. 4th 989 (2011), 125 Cal. Rptr. 3d 408, 252 P.3d 968
People v. Salas, 37 Cal. 4th 967 (2006), 38 Cal. Rptr. 3d 624, 127 P.3d 40
People v. Collie, 30 Cal. 3d 43 (1981), 177 Cal. Rptr. 458, 634 P.2d 534
People v. Jennings, 81 Cal. App. 4th 1301 (2000), 97 Cal. Rptr. 2d 727
People v. Gonzales & Soliz, 52 Cal. 4th 254 (2011), 128 Cal. Rptr. 3d 417, 256 P.3d 543
People v. Davenport, 41 Cal. 3d 247 (1985), 221 Cal. Rptr. 794, 710 P.2d 861
People v. Saille, 54 Cal. 3d 1103 (1991), 2 Cal. Rptr. 2d 364, 820 P.2d 588

(For free access to most of these cases, see: Court Listener Cottone Authorities)

STATUTES AND CODES:
CALCRIM No. 1191
CALCRIM Jury Instructions

Cal. Evidence Code § 352
Cal. Evidence Code § 402
Cal. Evidence Code § 403
Cal. Evidence Code § 404
Cal. Evidence Code § 405
Cal. Evidence Code § 406
Cal. Evidence Code § 701
Cal. Evidence Code § 720
Cal. Evidence Code § 801
Cal. Evidence Code § 802
Cal. Evidence Code § 1108
California Evidence Code

Cal. Penal Code § 26
Cal. Penal Code § 190
Cal. Penal Code § 288
California Penal Code

GLOSSARY:
Clear and convincing: a medium level of burden of proof which is a more rigorous standard to meet than the preponderance of the evidence standard, but a less rigorous standard to meet than proving evidence beyond a reasonable doubt. In order to meet the standard and prove something by clear and convincing evidence, a party must prove that it is substantially more likely than not that it is true.

Incapacity: 1) A lack of physical or mental abilities that results in a person's inability to manage his or her own personal care, property, or finances. 2) A lack of ability to understand one's actions when making a will or other legal document.

Lewd and lascivious: conduct that is sexual in nature and deemed by judges to be criminal. Examples include indecent exposure, prostitution, and indecent acts.

Prejudicial: in evidence law, a judge might exclude a piece of evidence as “prejudicial” if it would unfairly bias the jury against a party. See Federal Rule of Evidence 403.

Sua sponte: Latin for "of one's own accord; voluntarily." Used to indicate that a court has taken notice of an issue on its own motion without prompting or suggestion from either party. For example, when a court takes action on its own motion, rather than at the request of one of the parties, it is acting sua sponte.

Unadjudicated: not settled or determined (an issue or dispute) judicially.

TAGS:
288, 288(a), admissibility, admission of evidence, admitting evidence, amounts, appeal, appreciated, Burton, CALCRIM, Cal. Evidence Code, Cal. Penal Code, Cal. Penal Code § 288, California, California evidence, child, clear and convincing evidence, comments, commit, confession, credibility, criminal law, Culpability, determinations, evidence, evidentiary, incapacity, instruct, jury instructions, lewd and lascivious, molest, niece, night, past act, policy, prejudicial instructional error, preliminary fact, proffered evidence, propensity, questions, relevance, requires, Sex Offense, sexual, sister, sua sponte duty, touched, trial court, unadjudicated, uncle, Witkin

PARTIES AND ATTORNEYS:
Lee Vincent Cottone : Defendant and Appellant
California Rehabilitation Center
P.O. Box 3535
Norco, CA 92860
CDC Number: AB8021

William J. Kopeny
Law Offices of William J. Kopeny
2102 Business Center Drive, Suite 130
Irvine, CA

The People : Plaintiff and Respondent
James H. Flaherty, III
Office of the Attorney General
110 West "A" Street, Suite 1100
San Diego, CA

Annotated by J. Binger