Supreme Court of California Justia
Citation 54 Cal. 4th 1152, 281 P.3d 390, 144 Cal. Rptr. 3d 401

People v. Villatoro

Filed 7/30/12



IN THE SUPREME COURT OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

S192531

v.

Ct.App. 2/8 B222214

JUAN JOSE VILLATORO,

Los Angeles County

Defendant and Appellant.

Super. Ct. No. BA339453



Pursuant to Evidence Code1 section 1108, pattern jury instruction CALCRIM No.

1191 explains to a jury that it may consider a defendant‟s uncharged sexual offense as

evidence of his or her propensity to commit a charged sexual offense. Relying on a

recent case, the trial court here modified CALCRIM No. 1191 to permit the jury to

consider the defendant‟s charged sexual offenses as evidence of his propensity to commit

the other charged sexual offenses. (See People v. Wilson (2008) 166 Cal.App.4th 1034,

1052 (Wilson).) The jury subsequently convicted defendant Juan Jose Villatoro of

various counts of kidnapping, robbery, and rape against five women.

On appeal, defendant challenged the modified instruction based on People v.

Quintanilla (2005) 132 Cal.App.4th 572 (Quintanilla), which held that charged offenses

could not be considered as propensity evidence under a similar provision (§ 1109) and its

corresponding jury instruction (CALJIC No. 2.50.02). Relying in part on Wilson, the


1

Further statutory references are to the Evidence Code unless otherwise noted.

1


Court of Appeal below rejected defendant‟s challenges to the modified instruction. For

reasons that follow, we affirm the Court of Appeal‟s judgment.

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 move or look at him or else

he would kill her. Defendant forced R.I. to have vaginal and anal intercourse, then

whipped her on the back for 20 minutes with electrical extension cords. He then took her

cell phone and told her to get out of the car.

The bruises on R.I.‟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.

2



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 nervous. She asked defendant to stop so that she

could use a restroom. Defendant pulled over, handed C.C. some baby wipes, and told her

to relieve herself in the grass. Defendant watched as she did so.

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.

3

Kimberly J.1

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 of one count of kidnapping to commit another crime as to N.G.; and

four counts of robbery, each as to N.G., Beverly G., C.C., and Kimberly J. The jury also

found true allegations that defendant (1) personally used a firearm during the rapes of R.I.

and N.G., and during the kidnapping and robbery of N.G.; and (2) personally used a


1

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.

4

deadly or dangerous weapon as to all of the five rapes and as to the robberies of C.C. and

Kimberly J. The trial court sentenced defendant to 153 years to life. Defendant

appealed.

Relying on Quintanilla, supra, 132 Cal.App.4th 572, defendant challenged the

modified instruction on several grounds: the instruction violated section 1108 because it

allowed the jury to use charged, rather than uncharged, offenses to prove his disposition

to commit the other charged offenses; because it did not identify what standard of proof

was required before the jury could consider the charged offense as propensity evidence;

and because it did not reiterate that despite the inferences the jury could draw from its

finding that a charged offense occurred, defendant still retained the presumption of

innocence. Based in part on Wilson, supra, 166 Cal.App.4th 1034, the Court of Appeal

rejected defendant‟s challenges to the modified instruction. We granted defendant‟s

petition for review.

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.) foll. § 1101, p.

221; see People v. Carter (2005) 36 Cal.4th 1114, 1147.) This ban against admitting

character evidence to prove conduct, however, does not prohibit admission of specific

acts of misconduct to establish a material fact like intent, common design or plan, or

identity (§ 1101, subd. (b)), and does not affect the admissibility of evidence regarding

the credibility of a witness (id., subd. (c)). (See People v. Falsetta (1999) 21 Cal.4th 903,

911 (Falsetta).) The Legislature has also created specific exceptions to the rule against

admitting character evidence in cases involving sexual offenses (§ 1108, subd. (a)), and

5

domestic violence, elder or dependent abuse, or child abuse (§ 1109, subd. (a)(1)-(3)).

(See § 1101(a).)

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 pursuant to Section 352.”1 Enacted in 1995,

section 1108 “implicitly abrogates prior decisions of this court indicating that

„propensity‟ evidence is per se unduly prejudicial to the defense.” (Falsetta, supra, 21

Cal.4th at p. 911.) “As the legislative history indicates, the Legislature‟s principal

justification for adopting section 1108 was a practical one: By their very nature, sex

crimes are usually committed in seclusion without third party witnesses or substantial

corroborating evidence. The ensuing trial often presents conflicting versions of the event

and requires the trier of fact to make difficult credibility determinations. Section 1108

provides the trier of fact in a sex offense case the opportunity to learn of the defendant‟s

possible disposition to commit sex crimes.” (Id. at p. 915.)

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) 29

Cal.4th 1007, 1012-1013 (Reliford); Falsetta, supra, 21 Cal.4th at pp. 917-918; People v.

Fitch (1997) 55 Cal.App.4th 172, 181-182.) The pattern jury instruction explaining the

application of section 1108 (CALCRIM No. 1191) likewise refers to uncharged sexual

offenses. With regard to the admission of uncharged sexual offenses, we have held that

section 1108 satisfies the requirements of due process (Falsetta, supra, 21 Cal.4th at p.


1

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.”

6

917), and that CALJIC No. 2.50.01, the predecessor to CALCRIM No. 1191, is a correct

statement of the law (Reliford, supra, 29 Cal.4th at pp. 1012-1016). (See also People v.

Cromp (2007) 153 Cal.App.4th 476, 480 [“no material difference” between CALJIC No.

2.50.01 & CALCRIM No. 1191].) Notwithstanding their repeated references to

uncharged sexual offenses, these cases significantly did not consider whether section

1108 extended to charged offenses as well. We consider that issue here.

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) 35 Cal.4th 1111, 1121-1122

[“When attempting to ascertain the ordinary, usual meaning of a word, courts

appropriately refer to the dictionary definition of that word”].) This definition of

“another” contains no limitation, temporal or otherwise, to suggest that section 1108

covers only offenses other than those for which the defendant is currently on trial.

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 the 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 conc. &

dis. opn. of Corrigan, J., post, at pp. 6, 11-12.) We are not persuaded.

7



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) 12 Cal.3d 584, 590-591.) Though section 1101 speaks in terms of the

admissibility or inadmissibility of evidence, we have held that the provision (§ 1101(b))

applies not only to evidence of uncharged misconduct (People v. Kelly (2007) 42 Cal.4th

763, 782-783; People v. Ewoldt (1994) 7 Cal.4th 380, 393 (Ewoldt)), but also to evidence

(already admitted) of charged offenses. (People v. Catlin (2001) 26 Cal.4th 81, 153

(Catlin); People v. Ochoa (1998) 19 Cal.4th 353, 410 (Ochoa).) Likewise, though

section 1108 states that evidence is “not made inadmissible by Section 1101,” we

similarly construe this provision to extend to evidence of both uncharged and charged

sexual offenses. (See Housing Authority v. Van de Kamp (1990) 223 Cal.App.3d 109,

116 [“Words or phrases common to two statutes dealing with the same subject matter

must be construed in pari materia to have the same meaning”].)

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

Falsetta, supra, 21 Cal.4th at p. 911), the qualifying language is not thereby rendered

meaningless with respect to evidence of charged sex offenses. As a general matter,

evidence may have multiple purposes and, consequently, may be “admissible . . . for one

purpose and . . . inadmissible . . . for another purpose.” (§ 355; see People v. Pierce

(1969) 269 Cal.App.2d 193, 203.) Because section 1101(a)‟s prohibition against

propensity evidence is “absolute where it applies” (People v. Alcala (1984) 36 Cal.3d

604, 631), before section 1108 was enacted, evidence admitted to prove the defendant‟s

guilt of a sex offense could not be considered as evidence of the defendant‟s propensity

to commit the other charged sex offenses. (See Falsetta, supra, 21 Cal.4th at p. 915 [§

1108‟s “limited exception to the historical rule against propensity evidence”].) Thus, in

8

authorizing the jury‟s use of propensity evidence in sex offense cases, section 1108

necessarily extends to evidence of both charged and uncharged sex offenses, affirming

that such evidence is not “made inadmissible by Section 1101.”

2.

Section 352 and Quintanilla

Second, with respect to section 352, defendant relies heavily on the reasoning in

Quintanilla, supra, 132 Cal.App.4th 572, and insists that by incorporating a section 352

analysis, section 1108 effectively distinguishes between charged and uncharged offenses

because the former cannot be excluded under section 352. Defendant therefore reasons

that the Legislature must have intended section 1108 to apply only to uncharged offenses

and asserts that the provision‟s legislative history supports this interpretation. We

disagree.

Quintanilla dealt with the parallel provision governing propensity evidence in

domestic violence cases (§ 1109).1 The trial court there modified the pattern jury

instruction implementing section 1109 (CALJIC No. 2.50.02), and instructed the jury that

it could infer the defendant‟s criminal propensity to commit charged domestic violence

offenses from other charged domestic violence offenses. (Quintanilla, supra, 132

Cal.App.4th at p. 581.) Relying on our decision in Falsetta, supra, 21 Cal.4th 903, the

Quintanilla majority concluded that section 1109 permitted only the admission of

uncharged offenses. (Quintanilla, supra, 132 Cal.App.4th at pp. 582-583.) The majority

rejected the Attorney General‟s argument that section 1109‟s plain terms did not

differentiate between charged or uncharged crimes, instead emphasizing that the

provision “expressly conditions the admissibility of propensity evidence on the trial

court‟s power to evaluate the evidence under section 352.” (Quintanilla, supra, 132


1

For purposes of the issue presented here, the precise distinctions between section

1108 and section 1109 are not pertinent. (See People v. Brown (2000) 77 Cal.App.4th
1324, 1333 [“sections 1108 and 1109 can properly be read together as complementary
portions of the same statutory scheme”].)

9

Cal.App.4th at p. 583.) Defendant here advances the same section 352 argument in his

briefing. By contrast, the Attorney General maintains that “it is not the express inclusion

of the reference to section 352 that matters; rather, it is the availability of the weighing

process.” We agree with the Attorney General.1

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 § 1108 explicitly supersedes

§ 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 § 352. [Citations.] [¶] The amendment adopted

at the Judiciary Committee hearing simply makes this point explicit in relation to § 352.”

(Assembly Member Rogan, letter of intent re Assem. Bill No. 882 (1995-1996 Reg.

Sess.) Aug. 24, 1995, reprinted at 29B pt. 3B West‟s Ann. Evid. Code (2009 ed.) foll. §

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, 7

Cal.4th at p. 404 [“to be admissible such evidence „must not contravene other policies

limiting admission, such as those contained in Evidence Code section 352‟ ”]; see also

Assem. Com. on Public Safety, 3d reading analysis of Assem. Bill No. 882 (1995-1996

Reg. Sess.) as amended May 15, 1995, p. 3 (Assembly Committee analysis) [legislation


1

We disapprove People v. Quintanilla, supra, 132 Cal.App.4th 572, to the extent it

is inconsistent with the views expressed in this opinion.

10

puts evidence of similar sexual offenses “on the same footing as other types of relevant

evidence” not subject to a special exclusionary rule].)

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) 60 Cal.App.4th 727, 736 [“the

ultimate object of the section 352 weighing process is a fair trial”].) We discuss below

the trial court‟s section 352 analysis with respect to the modified instruction. (See post,

at p. 17.)

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 of Assem. Bill No. 882,

supra, p. 2 [purpose according to bill‟s author]; Sen. Com. on Crim. Procedure, 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

11

defendant] committed other sex offenses is at least circumstantially relevant to the issue

of his disposition or propensity to commit these offenses.” (Falsetta, supra, 21 Cal.4th at

p. 915; see People v. Jones (1954) 42 Cal.2d 219, 223 [“In the determination of

probabilities of guilt, evidence of character is relevant”].) In light of this clear purpose,

we perceive no reason why the Legislature would exclude charged sexual offenses from

section 1108‟s purview, and no indication that it did so in either the text of section 1108

or its legislative history. Whether an offense is charged or uncharged in the current

prosecution does not affect in any way its relevance as propensity evidence. Indeed,

section 1108‟s legislative history explains that “admission and consideration of evidence

of other sexual offenses to show character or disposition would be no longer treated as

intrinsically prejudicial or impermissible.” (Rogan letter, supra, 29B pt. 3B West‟s Ann.

Evid. Code, p. 352, italics added; see ibid. [“This includes consideration of the other

sexual offenses as evidence of the defendant‟s disposition to commit such crimes . . .”].)1

In cautioning against the “bootstrapping of verdicts” (see conc. & dis. opn. of

Corrigan, J., post, at pp. 10, 14) and the possibility that the jury may “simply conclude

that because it found the defendant guilty of one count, he must be guilty of the others”

(id. at p. 2), the concurring and dissenting opinion merely identifies the general concern

against allowing a jury to consider propensity evidence in a criminal case. (See People v.

Manriquez (2005) 37 Cal.4th 547, 579-580 [modified CALJIC No. 17.02 adequately


1

Notwithstanding isolated references to “uncharged crimes” and “uncharged sexual

acts” in an early analysis by the Senate Committee on Criminal Procedure (see Senate
Com. analysis of Assem. Bill No. 882, supra, at 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 conc. & dis. opn. of Corrigan, J.,
post, at pp. 7-8), 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.

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addressed defendant‟s concern jury might base one or more verdicts on multiple murder

counts on “ „supposed propensity to commit murder‟ ”].) However, in a sex offense case,

as here, the Legislature has made the careful determination that evidence the defendant

committed one or more sex offenses may be properly considered pursuant to section

1108. (See ante, at pp. 11-12; see also Falsetta, supra, 21 Cal.4th at p. 920 [“evidence of

a defendant‟s other sex offenses constitutes relevant circumstantial evidence that he

committed the charged sex offenses”].)

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. 13-14.) 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. 16; see also Reliford, supra, 29 Cal.4th at pp. 1012-1013 [addressing

propriety of CALJIC No. 2.50.01; “jury may use „the evidence of prior sex crimes to find

that defendant had a propensity to commit such crimes, which in turn may show that he

committed the charged offenses‟ ”].) Ultimately, the modified instruction affirmed that

evidence that the defendant committed a charged offense “is not sufficient by itself to

prove the defendant is guilty of another charged offense.”

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

13

analysis.‟ ” (Ewoldt, supra, 7 Cal.4th at p. 404; see also People v. Daniels (1991) 52

Cal.3d 815, 856 [“this type of evidence can be so damaging”].) In enacting section 1108,

the Legislature recognized that “[g]iven its highly inflammatory nature, uncharged

misconduct is admissible after various safeguards are met. This is done in recognition

that when this type of evidence is admitted, the odds of conviction increase

dramatically.” (Sen. Com. analysis of Assem. Bill No. 882, supra, p. 4.)

Understandably, the Legislature took special care to ensure that in allowing the jury to

consider propensity evidence, section 1108 would withstand scrutiny with respect to

uncharged sex offenses. (See Falsetta, supra, 21 Cal.4th at p. 917 [“ „By subjecting

evidence of uncharged sexual misconduct to the weighing process of section 352, the

Legislature has ensured that such evidence cannot be used in cases where its probative

value is substantially outweighed . . .‟ ”].)

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.

5.) 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, 26 Cal.4th at p. 153 [“under Evidence Code section 1101 the jury properly

could consider other-crimes evidence in connection with each count, and also could

consider evidence relevant to one of the charged counts as it considered the other charged

count”]; Ochoa, supra, 19 Cal.4th at p. 410 [“evidence of each assault could be used

under Evidence Code section 1101, subdivision (b), to show defendant‟s mental state for

each other assault, namely his intent”].) It would be anomalous to permit consideration

of such evidence under section 1101 but not under section 1108, when the latter eases the

restrictions of the former. (See also Isobe v. Unemployment Ins. Appeals Board, supra,

14

12 Cal.3d at pp. 590-591.) In his separate opinion in Quintanilla, Justice Pollak also

succinctly explained another incongruity of prohibiting the consideration of charged

offenses as character evidence: “Indeed, it is entirely illogical to permit the prosecution

to show propensity to commit domestic violence with evidence of prior similar

misconduct that was not felt to warrant prosecution in the same case, but to prohibit the

use of such evidence when the conduct is deemed sufficiently aggravated to justify a

separate charge.” (Quintanilla, supra, 132 Cal.App.4th at p. 586 (conc. opn. of Pollak,

J.).)

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. 1,

6, 9-10, 18), 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 commit the charged offense.” (Reliford,

supra, 29 Cal.4th at pp. 1012-1013 [evidence of uncharged sex offenses].) These

“reasonable” and “legitimate” inferences (ibid.) are made no less relevant merely because

the evidence is based on charged, rather than uncharged, sex offenses. (Id. at p. 1013

[“when the evidence is admissible, it may support an inference—as the instruction

provides—that the defendant is predisposed to commit the sex offenses”].)

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

15

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. [¶] 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.”1

Unlike the standard pattern instruction CALCRIM No. 1191 which refers to the

use of uncharged offenses, the modified instruction did not provide that the charged

offenses used to prove propensity must be proven by a preponderance of the evidence.

Instead, the instruction clearly told the jury that all offenses must be proven beyond a

reasonable doubt, even those used to draw an inference of propensity. Thus, there was no


1

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.”

16

risk the jury would apply an impermissibly low standard of proof. (Cf. Quintanilla,

supra, 132 Cal.App.4th at p. 583 [referring to “mental gymnastics” of having jury apply

beyond reasonable doubt standard for charged offense but preponderance of evidence

standard for purposes of propensity].) Moreover, the court instructed the jury with

CALCRIM No. 220, which defines the reasonable doubt standard and reiterates that the

defendant is presumed innocent; it also explains that only proof beyond a reasonable

doubt will overcome that presumption. The modified version of CALCRIM No. 1191

did not impermissibly lower the standard of proof or otherwise interfere with defendant‟s

presumption of innocence.

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) 11 Cal.4th 891, 924 (Padilla)), the Court of Appeal next

inferred the trial court‟s “implicit weighing,” apparently based on the following statement

the trial court made to the parties: “[CALCRIM No.] 1191, for the record, I‟ve given you

both a copy based on the instruction given in Wilson.” The Court of Appeal concluded:

“The trial court‟s express reliance on a key case in this area, considered in light of the

entire record, allows us to infer that the trial court gave the instruction because it found

that all the requirements of the holding in Wilson, including a section 352 analysis, had

been satisfied.” The Attorney General adds that because section 1108 expressly refers to

section 352, the trial court “presumably” conducted the requisite section 352 analysis.

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, 11

Cal.4th at p. 924, italics added.)

17

In any event, any error in failing to conduct such an analysis was harmless.

(Padilla, supra, 11 Cal.4th at p. 925 [“assuming the trial court did not evaluate the

evidence under Evidence Code section 352, had he done so he would have admitted it in

any event”].) As the Court of Appeal pointed out, although the victims‟ accounts of their

respective attacks had minor differences, their versions were strikingly similar in various

respects. Defendant forced or lured each woman into his car and drove to a residential

area, where he forced each woman to submit to sexual acts by pointing a weapon at them.

He yelled at each victim not to look at him, and afterwards ordered each out of his car.

The evidence was highly probative of defendant‟s propensity to commit such crimes, and

its value substantially outweighed any prejudice.

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.

CHIN, J.

WE CONCUR:


CANTIL-SAKAUYE, C. J.
KENNARD, J.
BAXTER, J.


18












CONCURRING AND DISSENTING OPINION BY CORRIGAN, J.

I respectfully dissent from the majority‟s analysis. The majority concludes

Evidence Code section 11081 permits the jury to draw a propensity inference from

evidence that the defendant committed multiple charged crimes. In my view, such an

instruction contradicts long-standing precedent, expands multiple sections of the

Evidence Code in ways not contemplated by the Legislature, and sows the seeds for

confusion and unintended consequences. Because the error in this case was clearly

harmless, however, I concur in the result.

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 also People v. Reliford (2003) 29 Cal.4th


1

All statutory references are to the Evidence Code.

1



1007, 1014 (Reliford) [describing this distinction].) “[A]n inference is not itself

evidence; it is the result of reasoning from evidence.” (Assem. Com. on Judiciary, com.

on § 600, reprinted at 29B pt. 2 West‟s Ann. Evid. Code (1995 ed.) p. 4.)

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.1 A corollary of this rule is that the

jury is free to apply its factual findings on one count in deciding any other count to which

those facts are relevant. (People v. Beagle (1972) 6 Cal.3d 441, 456.) However, while

the jury is free to apply relevant factual findings across counts, it is admonished that it

must return a separate verdict on each count (CALCRIM No. 3515; CALJIC No. 17.02)

and must decide each charge “uninfluenced by its verdict as to any other count.” (People

v. Bias (1959) 170 Cal.App.2d 502, 510, italics added, cited with approval in People v.

Beagle, supra, 6 Cal.3d at p. 456.) In other words, the jury may not simply conclude that

because it found the defendant guilty of one count, he must be guilty of the others. The

majority‟s holding casts aside this established precedent. This aspect of the case is

discussed at greater length below. (See, post, at pp. 12-14.)

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. 3 West‟s Ann.


1

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.”

2



Evid. Code (2009 ed.) foll. § 1101, pp. 221-222.)1 This is the familiar ban on propensity

evidence: Uncharged conduct generally cannot be admitted to prove the defendant is

disposed to commit crimes. Section 1101(a) codifies this general rule. Notwithstanding

that rule, section 1101, subdivision (b) (section 1101(b)) clarifies that uncharged acts can

be admitted for other relevant purposes, such as proving motive, opportunity, intent, and

so on, but they may not be admitted to prove the defendant had a disposition to commit

similar bad acts. When a defendant‟s uncharged acts are admitted for a relevant purpose

other than to support a propensity inference, an instruction is often given that explains

this limited purpose to the jury. (§ 355; CALCRIM No. 375.)

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) 36 Cal.3d 604,

630-631; 1 Wigmore, Evidence (3d ed. 1940) § 194, pp. 646-647; see also People v.

Falsetta (1999) 21 Cal.4th 903, 913 (Falsetta).) “The ban on propensity evidence dates

back to English cases of the seventeenth century.” (United States v. Castillo (10th Cir.

1998) 140 F.3d 874, 881.)2 Early American courts retained the rule, and it has been

enforced throughout our nation‟s history. (McKinney v. Rees, supra, 993 F.2d at

pp. 1380-1381; United States v. Castillo, at p. 881; see, e.g., Boyd v. United States (1892)
142 U.S. 450, 458 [admission of defendants‟ prior crimes was prejudicial error].) Today,

“[c]ourts that follow the common-law tradition almost unanimously have come to

disallow resort by the prosecution to any kind of evidence of a defendant‟s evil character


1

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.

2

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) 993 F.2d 1378, 1380.)

3



to establish a probability of his guilt.” (Michelson v. United States (1948) 335 U.S. 469,

475, fn. omitted; see also People v. Ewoldt (1994) 7 Cal.4th 380, 392; McKinney v. Rees,

at p. 1381 & fn. 2 [listing the 37 states where the rule has been codified and asserting the

rule persists in the common law precedents of the 12 other states and the Dist. of

Columbia].)

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, 993

F.2d at p. 1380.) “The inquiry is not rejected because character is irrelevant; on the

contrary, it is said to weigh too much with the jury and to so overpersuade them as to

prejudge one with a bad general record and deny him a fair opportunity to defend against

a particular charge. The overriding policy of excluding such evidence, despite its

admitted probative value, is the practical experience that its disallowance tends to prevent

confusion of issues, unfair surprise and undue prejudice.” (Michelson v. United States,

supra, 335 U.S. at pp. 475-476, fn. omitted.)

C.

Section 1108(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(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,

4



supra, 29 Cal.4th at p. 1009; Falsetta, supra, 21 Cal.4th at pp. 911, 917-919; People v.

Medina (2003) 114 Cal.App.4th 897, 902; People v. Britt (2002) 104 Cal.App.4th 500,

506; but see People v. Wilson (2008) 166 Cal.App.4th 1034 [approving instruction that

invited the jury to infer specific intent from findings on the charged offenses].)

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, subd. (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., ante, at p. 9)

because the Legislature intended to authorize reliance on propensity evidence with

respect to sex offenses, and charged offenses are just as relevant as uncharged ones. This

argument misconstrues the difference between evidence and inferences based on

evidence. Section 1108 authorizes the admission of uncharged sex crime evidence, even

when its only relevance is to show propensity. As a result, the statute necessarily allows

a propensity inference to be drawn from evidence of uncharged sex crimes. (See

Reliford, supra, 29 Cal.4th at pp. 1014-1015.) However, nothing in the language of

section 1108 sanctions or encourages the drawing of a propensity inference from all

evidence of sex crimes, as the majority assumes. The statute does not even mention the

inference at issue here.

5



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,

subd. (a), italics added.) The significance of this reference to section 352 is discussed at

pages 10-12, 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) 16

Cal.4th 1023, 1030.) The majority does not attempt to resolve this problem.

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 defendant had committed sexual offenses “against other victims is not

necessarily admissible in a trial where the defendant is being accused of a subsequent

sexual offense.” (Id. at p. 3, italics added, capitalization omitted.)

6



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 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.

7



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, 21

Cal.4th at p. 911, italics added.) Because of the serious and secretive nature of sex

crimes, the general policy of exclusion is outweighed by a more pressing need to permit

admission of evidence that would otherwise be excluded. (Ibid.) But the case before us

does not involve the admission of otherwise impermissible evidence. Rather, the

instruction here invites the jury to draw a specific inference from evidence that was

admissible without regard to section 1108. An inference is not evidence. (§ 600.)

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

8



such as the one set forth in section 1108 must be narrowly construed. (City of National

City v. Fritz (1949) 33 Cal.2d 635, 636.)

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.

1.

A Propensity Inference Based on Charged Crimes Lacks the







Safeguard of Section 352

In Falsetta, supra, 21 Cal.4th 903, this court considered a due process challenge to

section 1108. We observed that, “[f]rom the standpoint of historical practice,” the

general rule against admitting propensity evidence was “unquestionably . . . one of long-

standing application.” (Falsetta, at p. 913.) Given recent developments relaxing this rule

in the context of sex offenses, we found it “unclear whether the rule against „propensity‟

evidence in sex offense cases should be deemed a fundamental historical principle of

justice” not subject to legislative alteration. (Id. at p. 914.) However, even assuming the

rule could be considered fundamental from a historical perspective, we concluded

section 1108‟s “limited exception” to it did not offend due process because section 352

would prevent unfairness to the defense. (Falsetta, at p. 915.)

We described section 352 as “a safeguard that strongly supports the

constitutionality of section 1108” (Falsetta, supra, 21 Cal.4th at p. 916) and concluded,

“the trial court‟s discretion to exclude propensity evidence under section 352 saves

section 1108 from defendant‟s due process challenge.” (Falsetta, at p. 917.) “ „By

subjecting evidence of uncharged sexual misconduct to the weighing process of

section 352, the Legislature has ensured that such evidence cannot be used in cases where

its probative value is substantially outweighed by the possibility that it will consume an

9



undue amount of time or create a substantial danger of undue prejudice, confusion of

issues, or misleading the jury. (. . . § 352.) This determination is entrusted to the sound

discretion of the trial judge who is in the best position to evaluate the evidence.

[Citation.] With this check upon the admission of evidence of uncharged sex offenses in

prosecutions for sex crimes, we find that . . . section 1108 does not violate the due

process clause.‟ ([People v.] Fitch [(1997)] 55 Cal.App.4th [172,] 183, italics added.)”

(Falsetta, at pp. 917-918.)

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.

The majority opinion attempts to graft a section 352 safeguard onto its holding by

stating that trial courts should “ „apply the criteria of section 352‟ ” in determining

whether to instruct the jury to draw a propensity inference from the charged offenses.

(Maj. opn., ante, at p. 11.) The opinion offers no guidance on how this analysis should

be conducted, and there is none to be found elsewhere. Conducting a section 352

analysis to decide whether to give a jury instruction is unprecedented. This novel

expansion of the analysis required in deciding upon instructions is created because the

majority is extending section 1108 to allow something the Legislature never

contemplated.

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

10



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.

2.

A Propensity Inference for Charged Crimes Improperly







Bootstraps Verdicts on Multiple Counts

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

11



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) 217 Cal.App.2d 443, 468, the court found

no error in an instruction telling the jury to “consider the evidence applicable to each

offense separately from the other offenses and state its finding as to each count

uninfluenced by its verdict as to any other count or defendant.” Likewise, in People v.

Bias, supra, 170 Cal.App.2d at page 510, the court approved of a CALJIC instruction

telling the jury to consider the evidence on each alleged offense as if each count were the

only accusation and make findings on each count uninfluenced by its verdict as to any

other count. This was a proper statement of law because “the instruction does not tell the

jury to disregard its findings on the facts as regards any count in determining any other

count in which those facts are relevant. It merely tells the jury that if based on those

findings it finds that the crime charged in a particular count was or was not committed,

such finding should not influence the jury in determining whether or not the facts so

found proved the other crimes charged.” (People v. Bias, at p. 510, italics added.) We

cited People v. Bias with approval in People v. Beagle, supra, 6 Cal.3d at page 456,

noting that an instruction telling the jury to decide each count separately, uninfluenced by

its verdicts on other counts, would not have allowed the jury to disregard factual findings

in determining other counts to which those facts were relevant.

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 stated in a separate verdict.”

CALCRIM No. 3515 states: “Each of the counts charged in this case is a separate crime

12



[except for Counts . . . ]. You must consider each count separately and return a separate

verdict for each one [except for counts . . . ].”

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.1

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, 29 Cal.4th 1007.) A similar instruction advises jurors how to

consider other crimes evidence that was admitted for a noncharacter purpose pursuant to


1

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) 44 Cal.3d 589,
605.) The majority provides no guidance as to whether, in cases alleging multiple sex
crimes, this analysis will now have to consider the potential prejudice from a “propensity
instruction” like the one given here.

13



section 1101(b). (CALCRIM No. 375; CALJIC No. 2.50.) These instructions are valid

and necessary because they explain the limited purpose for which evidence of a

defendant‟s other crimes has been admitted. Section 1101(b) clarifies that evidence of

other crimes may be admitted for a purpose other than proof of the defendant‟s character.

An instruction is needed to advise the jury of the permissible purpose, such as intent,

motive, or identity, for which the evidence has been admitted. Similarly, section 1108

describes a narrow exception to the general rule against admitting character evidence.

When extensive evidence of a defendant‟s prior or subsequent bad conduct has been

presented, the jury needs to hear why this potentially inflammatory, collateral evidence is

relevant and how it may properly be considered in deciding whether the defendant

committed the charged crimes.

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, 7

Cal.4th 380, 402, “ „[T]he recurrence of a similar result . . . tends (increasingly with each

instance) to negative accident or inadvertence or self-defense or good faith or other

innocent mental state, and tends to establish (provisionally, at least, though not certainly)

the presence of the normal, i.e., criminal, intent accompanying such an act . . . .‟

[Citation.]”

14



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,

21 Cal.4th at p. 924) but not permit the same instruction for charged offenses because

both are equally relevant to show a propensity to commit sex crimes. There is no

anomaly. An instruction explaining the proper use of evidence admitted for a limited

purpose under a narrow statutory exception is analytically and qualitatively different

from an instruction inviting the jury to draw a specific, typically impermissible, inference

from evidence that was admitted for all purposes.

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 support an inference of intent with respect to the other charged offenses?

If the charged offenses would not be similar enough to be admissible under People v.

Ewoldt, supra, 7 Cal.4th 380, would the defense be entitled to an instruction limiting how

this otherwise admissible evidence should be used? We have never so held, in either

case.

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

15



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) 132 Cal.App.4th 572, 581, there is a

serious risk of confusion. Requiring the jury to apply two standards of proof to evidence

of the same crime would inevitably lead to confusion and could potentially erode the

presumption of innocence. (See id. at p. 583.) If a reasonable doubt standard is applied

to the charged offenses instead, as was the case here, the instructions would require the

jury to juggle two separate standards of proof for the same type of evidence—a

preponderance standard for uncharged misconduct, and a reasonable doubt standard for

misconduct that has been charged—before they could draw the inferences in question. It

is difficult to imagine that a juror would not be confused by such a set of instructions.

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 explain the relevance of evidence admitted for a

limited purpose, because the evidence is not limited. Further, the inference the

instruction encourages is not authorized by section 1108. The instruction risks confusing

the jury and, in some circumstances, prejudicing the defendant. It will set a precedent for

a similarly confusing instruction under section 1101(b), and may require clarifying

instructions for the defense in cases involving a mixture of sex crimes and other offenses.

Inferences arising from the charged offenses are best considered at the joinder and

severance stage of trial, not as part of the jury‟s charge. For these reasons, I believe the

instruction is seriously flawed and should not be given. Indeed, courts and advocates

16



should note that the majority was careful to point out the limits of its holding. It

expressly did not decide whether an instruction like the one here should be given in

future cases.

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 noncharacter purposes, as we discussed in People v.

Ewoldt, supra, 7 Cal.4th at page 402. On this record, it is not reasonably probable that

the defendant would have obtained a more favorable result absent the propensity

instruction. (People v. Watson (1956) 46 Cal.2d 818, 837.)

CORRIGAN, J.

I CONCUR:

WERDEGAR, J.

17










CONCURRING AND DISSENTING OPINION BY LIU, J.

The court holds that Evidence Code section 1108 applies to charged as well as

uncharged offenses. (Maj. opn., ante, at pp. 7-15; further statutory references are to the

Evidence Code.) However, neither the language nor the legislative history of section

1108 supports this construction. (See conc. & dis. opn. of Corrigan, J., ante, at pp. 5-8.)

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.” (Conc. & dis. opn. of Corrigan, J.,

ante, at p. 8.) 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.

Even if the court were correct that section 1108 applies to charged offenses, I see

no convincing basis to conclude from the record here that the trial court “implicitly

conducted a section 352 analysis.” (Maj. opn., ante, at p. 17; see § 352 [authorizing

courts to exclude evidence upon weighing its probative value against its prejudicial

impact].) The trial court‟s statement — “[CALCRIM No.] 1191, for the record, I‟ve

given you both a copy based on the instruction given in Wilson” — is too slender a reed

to support an inference that the trial court found all the requirements in People v. Wilson

1



(2008) 166 Cal.App.4th 1034, including a section 352 analysis, to have been satisfied.

Although we said in People v. Padilla (1995) 11 Cal.4th 891 that “we are willing to

infer an implicit weighing by the trial court on the basis of record indications well short

of an express statement,” those indications in Padilla included the prosecution‟s pretrial

brief stating “that an Evidence Code section 352 weighing was required as a condition

of admitting the evidence” and defense counsel‟s oral argument “[taking] the position

that what he referred to as the „extreme prejudice‟ likely to follow on the admission of

such evidence should bar its use.” (Id. at p. 924.) The record in Padilla, we said,

“signal[ed] that counsel and the trial court had in mind the appropriate analytic

framework for passing on the admissibility of the evidence, that the court was therefore

aware of the need to weigh the evidence under section 352, and thus that it must have

done so.” (Ibid.) Even with those signals, we said in Padilla that “[t]he scantiness of

the transcript makes the issue a close one.” (Id. at p. 925.)

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) 21 Cal.4th 903 (Falsetta), we recognized that the use of

2



propensity evidence implicates a serious danger of undue prejudice. (Id. at p. 915,

citing People v. Alcala (1984) 36 Cal.3d 604, 631 [“Such evidence „is [deemed]

objectionable, not because it has no appreciable probative value, but because it has too

much.‟ ” (italics added in Alcala)] and Michelson v. United States (1948) 335 U.S. 469,

476 [propensity evidence tends to “overpersuade” the jury].) In the face of that concern,

we considered in Falsetta whether section 1108 violates the constitutional principle of

due process.

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, 21

Cal.4th at p. 915.) Central to our analysis was section 1108‟s language stating that

other-sex-crimes evidence “is not made inadmissible by Section 1101, if the evidence is

not inadmissible pursuant to Section 352.” (§ 1108, subd. (a), italics added.) We said

that even as “trial courts may no longer deem „propensity‟ evidence unduly prejudicial

per se,” they “must engage in a careful weighing process under section 352.” (Falsetta,

at pp. 916-917.) The requirement that trial courts undertake a careful section 352

analysis was critical, we held, to saving section 1108 from constitutional doubt.

(Falsetta, at p. 917 [“In summary, we think the trial court‟s discretion to exclude

propensity evidence under section 352 saves section 1108 from defendant‟s due process

challenge.”]; id. at p. 916 [“[W]e believe section 352 provides a safeguard that strongly

supports the constitutionality of section 1108.”]; id. at p. 918 [“ „With this check upon

the admission of evidence of uncharged sex offenses in prosecutions for sex crimes, we

find that . . . section 1108 does not violate the due process clause.‟ [Citation.]” (italics

added in Falsetta)].) The vital protective function of section 352 analysis, repeatedly

emphasized in Falsetta, requires a more specific indication than is present on the record

here that the trial court actually conducted the required analysis.

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

3



multiple-count case. (See conc. & dis. opn. of Corrigan, J., ante, at p. 15 [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) 45

Cal.2d 228, 233; People v. Thornton (1979) 88 Cal.App.3d 795, 803-804; People v.

Jackson (1975) 45 Cal.App.3d 67, 70.) But it remains an open question whether a

defendant charged with multiple nonsexual offenses may be entitled to such an

instruction upon request. It also remains open whether a defendant charged with

multiple sexual offenses may be entitled to such an instruction upon request if he is able

to show that drawing a propensity inference from evidence of a charged offense would

be unduly prejudicial and thus improper in light of “such as factors as 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, [and] its similarity to [another] charged offense.” (Falsetta, supra, 21

Cal.4th at p. 917.)

LIU, J.

4



See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Villatoro
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted
XXX 194 Cal.App.4th 241
Rehearing Granted

__________________________________________________________________________________

Opinion No.
S192531
Date Filed: July 30, 2012
__________________________________________________________________________________

Court:
Superior
County: Los Angeles
Judge: William N. Sterling

__________________________________________________________________________________

Counsel:

Edward J. Haggerty, under appointment by the Supreme Court, for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney
General, Pamela C. Hamanaka and Lance E. Winters, Assistant Attorneys General, Lawrence M. Daniels, Chung
L. Mar and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.















Counsel who argued in Supreme Court (not intended for publication with opinion):

Edward J. Haggerty
20955 Pathfinder Road, Suite 100
Diamond Bar, CA 91765
(626) 912-5551

William H. Shin
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 897-2038


Petition for review after the Court of Appeal affirmed a judgment of conviction of criminal offenses. The court limited review to the following issue: Was the modification of CALJIC No. 1191, which told the jurors they could consider evidence of a charged offense in determining defendant's propensity to commit the other charged offenses (see Evid Code, § 1108), reversible error when the court also informed the jurors that all charged offenses must be proved beyond a reasonable doubt?

Opinion Information
Date:Citation:Docket Number:
Mon, 07/30/201254 Cal. 4th 1152, 281 P.3d 390, 144 Cal. Rptr. 3d 401S192531

Parties
1People (Plaintiff and Respondent)
Represented by Edmund G. Brown
Attorney General
2People (Plaintiff and Respondent)
Represented by Kamala D. Harris
Attorney General
3People (Plaintiff and Respondent)
Represented by Dane R. Gillette
Chief Assistant Attorney General
4People (Plaintiff and Respondent)
Represented by Pamela C. Hamanaka
Assistant Attorney General
5People (Plaintiff and Respondent)
Represented by Lance E. Winters
Assistant Attorney General
6People (Plaintiff and Respondent)
Represented by Lawrence M. Daniels
Deputy Attorney General
7People (Plaintiff and Respondent)
Represented by Chung L. Mar
Deputy Attorney General
8People (Plaintiff and Respondent)
Represented by William H. Shin
Deputy Attorney General
9Juan Jose Villatoro (Defendant and Appellant)
Represented by Edward J. Haggerty
Edward J. Haggerty, P.C.
20955 Pathfinder Road, Ste. 100
Diamond Bar, CA 91765
(626) 912-5551


Opinion Authors
OpinionJustice Ming W. Chin
ConcurJustice Carol A. Corrigan, Justice Goodwin Liu
DissentJustice Carol A. Corrigan, Justice Goodwin Liu

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May 30, 2013
Annotated by Marcus Gulley

FACTS:
Between 2005 and 2009, the defendant picked five women up, used weapons to force them to have sex with him, and robbed them of their belongings. He began on May 25, 2005, when he picked up a prostitute and drove her to a nearby residential area. He then pulled out a gun and forced the prostitute to have intercourse with him. Afterwards, he whipped her on the back for 20 minutes with an electrical extension cord. He then took her cell phone and told her to get out of the car.

On June 21, 2006, the defendant kidnapped an 18-year-old girl at gunpoint as she was walking down the street. He again proceeded to a residential area and forced the girl to have intercourse with him. He then took her cell phone, rings, and sunglasses, and let her go. On February 3, 2008, the defendant picked up another prostitute and drove to a residential area. He put a stun gun to the prostitute’s neck and forced her to have intercourse with him. She then left the car, leaving her belongings behind in his car.

February 10, 2008, the defendant offered a ride to a woman at a bus stop. The defendant proceeded to put a stun gun to this woman’s neck and forced her to have intercourse with him. He also abused her, biting her breast and pulling her hair. He then took her purse and let her go. Finally, on April 4, 2009, the defendant picked up another prostitute and took her to a secluded street. He pulled a stun gun on the woman and forced her to have sex with him. He then took her jewelry and cell phone and ordered her to leave.

With all five women, the defendant was very adamant that they not look at him. He made some of them put their shirts over their heads, and he punched, slapped, or spat at them if they looked at him. Three of the victims had injuries that matched their accounts of the rapes, four of the victims provided DNA samples after their rapes that were later matched to the defendant’s DNA, and all five victims were able to select the defendant out of a six-person line-up. At trial, four of the victims testified about what happened to them and indicated that they did not know each other before they were attacked.

PROCEDURAL HISTORY:
Defendant was charged with committing various counts of kidnapping, robbery, and rape against five women. The trial court instructed the jury with a modified version of CALCRIM No. 1191, permitting the jury to use evidence of the defendant’s guilt in one of the charged rapes as evidence of the likelihood that he committed all of the other charged rapes. The jury convicted the defendant of five counts of rape, one count of kidnapping to commit another crime, and four counts of robbery. The jury also found it to be true that the defendant used a firearm during two of the rapes and used a deadly or dangerous weapon in all five rapes and robberies. The court sentenced the defendant to 152 years to life.

Defendant challenged the modified jury instruction on appeal. Relying on People v. Quintanilla, 132 Cal. App. 4th 572 (2005), the defendant asserted that the instruction violated Evidence Code Section 1108 because it allowed the jury to use charged, rather than uncharged, offenses to prove the likelihood he committed the other rapes. He also claimed that the jury instruction did not identify what standard of proof was required before the jury could consider the charged offense as evidence of guilt in the other rapes and that it did not reiterate that the defendant maintained an assumption of innocence. Based in part on People v. Wilson, 166 Cal. App. 4th 1034 (2008), the Court of Appeal rejected the defendant’s challenges to the modified instructions. The California Supreme Court granted review.

ISSUES:
The issue in the case is whether the trial court made an error in modifying jury instructions to allow the jury to consider evidence of the defendant’s guilt in one of the charged rapes to infer the likelihood of his guilt in the other four charged rapes.

HOLDING:
The California Supreme Court affirmed the court of appeals ruling, holding that the trial court did not err in giving the modified instruction, but did not decide whether courts should give such an instruction in the future.

ANALYSIS:
Opinion given by Chin, J.

Concurring: Cantil-Sakauye, C. J., Kennard, J., and Baxter, J.

Generally, character evidence, meaning evidence of a propensity, disposition, or likelihood to engage in a type of conduct, is inadmissible to prove a person’s guilt on a specific occasion. (Evidence Code section 1101(a)) However, prior specific acts can be admitted to prove an intent, common design or plan, or identity. (Evidence Code section 1101(b)) Also, the California Legislature has created specific exceptions to the ban on character evidence in cases involving sexual offenses. (1108(a)) The Legislature reasoned that, because sex crimes often lack witnesses and involve conflicting versions of events, it is necessary to admit evidence of prior acts to allow the jury to learn more about the defendant’s disposition to commit sex crimes.

The text of Section 1108 says that “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.” Previously, the rule had only been extended in prior cases to uncharged sexual offenses that were not involved in the current trial. However, the court here held that there was no indication within the rule that its application did not also extended to admissibility of charged sexual offenses that are part of the current litigation, as was the case in this trial.

The defendant made the argument that, since the evidence of the other rapes was already admissible in the current trial, the evidence was “not made inadmissible by Section 1101” in the first place, so the Section 1108 exception to the ban on character evidence should not apply. However, the court was not persuaded by this argument, and reasoned that that the language of the character evidence ban in Section 1101 and the exception of prior sexual offenses in Section 1108 were complimentary and necessarily included both charged and uncharged sexual offenses.

The defendant made another argument that because Section 1108 includes the limitation of Section 352, it cannot apply to charged offenses. Section 352 is California’s balancing test to determine whether the probative value of evidence is substantially outweighed by the possibility of undue consumption of time or by substantial danger of undue prejudice, confusing the issues or misleading the jury. However, Section 352 does not apply to charged offenses. As such, the defendant argues that since Section 352 is included in Section 1108, the Legislature must have meant for Section 1108 to only apply to uncharged offenses. The defendant based this reasoning on the court’s holding in Quintanilla, supra, 132 Cal. App. 4th 572 , where the court followed the defendant’s theory in application to a parallel evidence rule dealing with domestic violence. In that case, the court found that the rule only applied to uncharged crimes because the rule expressly conditioned the admissibility of the propensity evidence on the trial court’s power to evaluate the evidence under Section 352.

Here, the court held that Section 1108’s inclusion of the limitation of Section 352 did not limit admissibility to prior charged sexual offenses. Instead, the court held that the limitation of Section 352 was included just to make explicit that Section 1108 did not trump Section 352’s balancing evaluation before evidence of prior uncharged or charged sexual offenses were admitted. Simply put, even if Section 1108 did not mention Section 352, it would still trump in governing what evidence is admissible.

The court found no language in Section 1108, the sexual offense exception to the character evidence ban, that limited the section’s application to charged offenses. Although there is the danger of “bootstrapping,” or the practice of the jury interpreting guilt in one offense to infer guilt in all other offenses, the Legislature in drafting Section 1108 made it clear that this was an acceptable risk. The jury instruction did not permit the jury to convict the defendant simply based on its guilty verdict on other counts. The instruction only permits factual findings that the defendant has committed one sex offense to infer a propensity to commit such offenses again.

The Legislature, in drafting Section 1108, gave more attention to consideration of uncharged offenses because of their greater inflammatory nature. However, that is sensible and does not preclude application of the section to charged offenses. As stated previously,Section 1101(b) lays out circumstances where evidence of prior acts can be admissible to establish a common design or plan, etc. The court reasoned that if Section 1101(b) allows for charged offenses to be admitted, it would not be sensible to hold that Section 1108, which removes restrictions from Section 1101, does not also allow for charged offenses to be admitted as well.

The defendant challenged the jury instruction, claiming that it did not specify the standard of proof the jury should consider before deciding guilt in a prior offense and using that guilt as evidence against him in another offense. However, the court held that the instructions (CALJIC No. 2.50.01) properly defined the standard of proof the jury needed to use to consider guilt in the prior offense. The instructions told the jury that all offenses must be proven beyond a reasonable doubt, even those used as propensity evidence. The court also instructed the jury with CALCRIM No. 220, which defines the reasonable doubt standard and reiterates that the defendant is presumed innocent.

The defendant asserted that the trial court had not conducted a Section 352 analysis before admitting the evidence, because the trial court never explicitly stated that it had done so. However, the Supreme Court of California was willing to infer that the trial court implicitly conducted such an analysis. Prior cases had allowed for such inferences even when there was nothing close to an express statement made to verify the inference. People v. Padilla, 11 Cal. 4th 891 (1995). Further, the court held that even had the trial court not conducted such an analysis, the mistake would have been harmless. The similarity between the stories of the victims was so great that the probative value of the evidence certainly outweighed any possibility of prejudice.

Concurring and Dissenting: Corrigan, J. (Werdegar, J., concurred)

Judge Werdegar concurred in the guilty holding, but dissented in the court’s extension of Section 1108 to charged offenses. The judge expressed that she felt the majority’s decision incorrectly applied Section 1108 to charged offenses, expanded evidence law, contradicted precedent, misrepresented the intent of the legislature and sowed seeds of confusion. However, because the error was harmless, she concurred in the judgment.

The judge felt that the majority’s opinion did not separate between evidence and inferences properly. While, in a multiple count case, the jury may apply facts from one count to another count, they must come to verdicts for each count separately. Therefore, the majority should not have allowed the guilty verdict in one count to apply to the consideration of other charges. The judge expressed the importance and long standing history of the ban on the use of character evidence to establish likelihood of guilt.

The judge reasoned that Section 1108 was a narrow exception to the ban on character evidence, applying to only uncharged sexual offenses. She suggested the word “another” as used in Section 1108 implies an act other than the ones for which the defendant is currently on trial. She asserted that Section 1108 only applies to uncharged sexual offenses not involved in the current trial because in Section 1108(b) the prosecution is required to disclose other crimes that it plans to use as evidence to the defense before trial. This requirement would make no sense if it applied to charges the defendant is facing at trial, and, typically, the court avoids interpreting statutes in a way that would make any part of them superfluous.

She stressed that the legislative history firmly indicated that the section was meant to apply to uncharged crimes. Throughout the bill-making process, the legislature consistently referred to “uncharged crimes” and incidents occurring “on another occasion.” Further, Section 1108 was enacted because of the serious and secretive nature of sex crimes, and in cases like this the circumstances surrounding the other sex acts are already on the record before the jury. Therefore, the rationale behind including the past acts does not apply.

She said that the majority violated the long-standing tradition of narrowly interpreting statutory exceptions like the one in Section 1108. Juries are forbidden to infer guilt because a defendant is facing multiple charges. In a prior case, People v. Falsetta, 21 Cal. 4th 903 (1999), the court had considered whether Section 1108 violated due process, but held that it was saved because the Legislature put in place the safeguard of the Section 352 balancing. However, the majority’s implication that Section 352 can be utilized to balance a jury instruction is unworkable and not within the purpose of Section 352. Further, the considerations of the Section 352 balancing test don’t apply to evidence of charged offenses that are currently on trial. It does not make sense for a court to ask whether a defendant faces undue prejudice from a correct explanation of the law, which a jury instruction is supposed to be.

The jury can already consider all of the evidence of all charged offenses without an instruction that allows them to consider a guilty verdict in one of the offense as evidence of guilt of all offenses. People v. Bias, 170 Cal. App. 2d 502 (1959). Other cases have held that a correct jury instruction tells the jury to consider the facts of all charged offenses when deciding the verdict for each offense, but not to consider the verdict of one offense when applying the facts of that offense to a separate charge. The modified instruction provided in this case allows the jury, instead, to use a guilty verdict in one offense to “bootstrap” the other offenses to a guilty verdict as well.

The prosecution’s case is already stronger in a case with multiple counts because the evidence of the multiple crimes is already admissible at trial. The judge’s instructions to the jury that they can use the verdict of one offense as evidence of guilt in another offense places the judge in the adversary process, encouraging the jury to draw specific conclusions. The instruction would be even more problematic in a case that involved both sexual offenses and non-sexual offenses because it would encourage the jury to draw similar inferences in the non-sexual offenses, which are not part of the Section 1108 exception.

Further, the jury could be confused by multiple standard of proofs. The jury may be instructed that the standard of proof for using specific incidents as evidence is a reasonable doubt standard for the charged offenses and a preponderance standard for uncharged misconduct. This confusion could erode the defendant’s presumption of innocence. Because the instruction is such an improper extension of Section 1108 and presents such possibilities of confusion, the instruction should not be given. However, because of the strength of the case against the defendant in all of the counts, the judge concurred in the holding that the defendant was guilty.

Concurring and Dissenting: Liu, J.

Section 1101 and Section 1108 apply to admissibility of evidence, not how the jury can use the evidence. There is no convincing basis to believe that the trial court conducted a proper Section 352 balancing analysis. Although the court said in Padilla, supra, 11 Cal. 4th 891 that they were willing to infer that a balancing test had occurred, there was much firmer evidence in that case that such a test had been utilized. Section 352 was never discussed in the case, and the record contains no briefs or other material on the issue.

Judge Liu repeated that in Falsetta, supra, 21 Cal. 4th 903 the court held that Section 1108 only survived a due process challenge because of the protections of a careful Section 352 balancing test. That protection must be afforded to the defendant, and in this case there is no evidence that it was. The judge suggests that because of the lack of balancing in this case, it is unclear moving forward whether a defendant can request a that jury instruction not tell the jurors to draw inferences because of undue prejudice and likelihood of confusing, misleading, or distracting the jurors from their main inquiry. However, the judge concurred in the guilty holding.

Key Statutes and Jury Instructions:
California Evidence Code Section 1101
California Evidence Code Section 1108
California Evidence Code Section 352
CALCRIM No. 1191

Annotation by: Marcus Peyton Gulley