1191. Evidence of Uncharged Sex Offense
The People presented evidence that the defendant committed the crime[s] of <insert description of offense[s]> that (was/ were) not charged in this case. (this/these) crime[s] (is/are) defined for you in these instructions.
You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged offense[s]. Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true.
If the People have not met this burden of proof, you must disregard this evidence entirely.
If you decide that the defendant committed the uncharged offense[s], you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses, and based on that decision, also conclude that the defendant was likely to commit [and did commit] <insert charged sex offense[s]>, as charged here. If you conclude that the defendant committed the uncharged offense[s], that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of <insert charged sex offense[s]>. The People must still prove each element of (the/every) charge beyond a reasonable doubt.
[Do not consider this evidence for any other purpose [except for the limited purpose of <insert other permitted purpose, e.g., determining the defendant's credibility>].]
The court must give this instruction on request when evidence of other sexual offenses has been introduced. (See People v. Falsetta (1999) 21 Cal.4th 903, 924 [89 Cal.Rptr.2d 847, 986 P.2d 182] [error to refuse limiting instruction on request]; People v. Jennings (2000) 81 Cal.App.4th 1301, 1317-1318 [97 Cal.Rptr.2d 727] [in context of prior acts of domestic violence]; but see CJER Mandatory Criminal Jury Instructions Handbook (CJER 13th ed. 2004) sua sponte Instructions, § 2.1112(e) [included without comment within sua sponte instructions]; People v. Willoughby (1985) 164 Cal.App.3d 1054, 1067 [210 Cal.Rptr. 880] [general limiting instructions should be given when evidence of past offenses would be highly prejudicial without them].)
Evidence Code section 1108(a) provides that "evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101." Subdivision (d)(1) defines "sexual offense" as "a crime under the law of a state or of the United States that involved any of the following[,]" listing specific sections of the Penal Code as well as specified sexual conduct. In the first sentence, the court must insert the name of the offense or offenses allegedly shown by the evidence. The court must also instruct the jury on elements of the offense or offenses.
In the fourth paragraph, the committee has placed the phrase "and did commit" in brackets. One appellate court has criticized instructing the jury that it may draw an inference about disposition. (People v. James (2000) 81 Cal.App.4th 1343, 1357, fn. 8 [96 Cal.Rptr.2d 823].) The court should review the Commentary section below and give the bracketed phrase at its discretion.
Give the bracketed sentence that begins with "Do not consider" on request.
CALCRIM No. 852, Evidence of Uncharged Domestic Violence.
CALCRIM No. 853, Evidence of Uncharged Abuse to Elder or Dependent Person.
Instructional Requirement. Evid. Code, § 1108(a); see People v. Reliford (2003) 29 Cal.4th 1007, 1012-1016 [130 Cal.Rptr.2d 254, 62 P.3d 601]; People v. Frazier (2001) 89 Cal.App.4th 30, 37 [107 Cal.Rptr.2d 100]; People v. Falsetta (1999) 21 Cal.4th 903, 923-924 [89 Cal.Rptr.2d 847,986 P.2d 182] [dictum].
Sexual Offense Defined. Evid. Code, § 1108(d)(1).
Other Crimes Proved by Preponderance of Evidence. People v. Carpenter (1997) 15 Cal.4th 312, 382 [63 Cal.Rptr.2d 1, 935 P.2d 708]; People v. James (2000) 81 Cal.App.4th 1343, 1359 [96 Cal.Rptr.2d 823]; People v. Van Winkle (1999) 75 Cal.App.4th 133, 146 [89 Cal.Rptr.2d 28].
Propensity Evidence Alone Is Not Sufficient to Support Conviction Beyond a Reasonable Doubt. People v. Hill (2001) 86 Cal.App.4th 273, 277-278 [103 Cal.Rptr.2d 624]; see People v. Younger (2000) 84 Cal.App.4th 1360, 1382 [101 Cal.Rptr.2d 624] [in context of prior acts of domestic violence]; People v. James (2000) 81 Cal.App.4th 1343, 1357-1358, fn. 8 [96 Cal.Rptr.2d 823] [same].
1 Witkin, California Evidence (4th ed. 2003) Circumstantial Evidence, §§ 96-97.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes Against the Person, § 142.23[e][ii],  (Matthew Bender).
The fourth paragraph of this instruction tells the jury that they may draw an inference of disposition. (See People v. Hill (2001) 86 Cal.App.4th 273, 275-279 [103 Cal.Rptr.2d 127]; People v. Brown (2000) 77 Cal.App.4th 1324, 1334-1335 [92 Cal.Rptr.2d 433] [in context of prior acts of domestic violence].) One appellate court, however, suggests using more general terms to instruct the jury how they may use evidence of other sexual offenses, "leaving particular inferences for the argument of counsel and the jury's common sense." (People v. James (2000) 81 Cal.App.4th 1343, 1357, fn. 8 [96 Cal.Rptr.2d 823] [includes suggested instruction].) If the trial court adopts this approach, the fourth paragraph may be replaced with the following:
If you decide that the defendant committed the other sexual offense[s], you may consider that evidence and weigh it together with all the other evidence received during the trial to help you determine whether the defendant committed <insert charged sex offense>. Remember, however, that evidence of another sexual offense is not sufficient alone to find the defendant guilty of <insert charged sex offense>. The People must still prove each element of <insert charged sex offense> beyond a reasonable doubt.
Evidence Code section 1108 does not violate a defendant's rights to due process (People v. Falsetta (1999) 21 Cal.4th 903, 915-922 [89 Cal.Rptr.2d 847, 986 P.2d 182]; People v. Branch (2001) 91 Cal.App.4th 274, 281 [109 Cal.Rptr.2d 870]; People v. Fitch (1997) 55 Cal.App.4th 172, 184 [63 Cal.Rptr.2d 753]) or equal protection (People v. Jennings (2000) 81 Cal.App.4th 1301, 1310-1313 [97 Cal.Rptr.2d 727]; People v. Fitch, supra, 55 Cal.App.4th at pp. 184-185).
Evidence Code section 1108 does not authorize expert opinion evidence of sexual propensity during the prosecution's case-in-chief. (People v. McFarland (2000) 78 Cal.App.4th 489, 495-496 [92 Cal.Rptr.2d 884] [expert testified on ultimate issue of abnormal sexual interest in child].)
When the prosecution has introduced evidence of other sexual offenses under Evidence Code section 1108(a), the defendant may introduce rebuttal character evidence in the form of opinion evidence, reputation evidence, and evidence of specific incidents of conduct under similar circumstances. (People v. Callahan (1999) 74 Cal.App.4th 356, 378-379 [87 Cal.Rptr.2d 838.)
Subsequent Offenses Admissible
"[E]vidence of subsequently committed sexual offenses may be admitted pursuant to Evidence Code section 1108." (People v. Medina (2003) 114 Cal.App.4th 897, 903 [8 Cal.Rptr.3d 158].)
Evidence of Acquittal
If the court admits evidence that the defendant committed a sexual offense that the defendant was previously acquitted of, the court must also admit evidence of the acquittal. (People v. Mullens (2004) 119 Cal.App.4th 648, 663 [14 Cal.Rptr.3d 534].)
See also the Related Issues section of CALCRIM No. 375, Evidence of Uncharged Offense to Prove Identity, Intent, Common Plan, etc.
(New January 2006)