California Criminal Jury Instructions (CALCRIM) (2017)

1191a. Evidence of Uncharged Sex Offense

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1191A.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 (the/each) (charge/ [and] allegation)
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> ].]
New January 2006; Revised April 2008, February 2013, February 2014, March
2017
BENCH NOTES
Instructional Duty
Although there is ordinarily no sua sponte duty (People v. Cottone (2013) 57
Cal.4th 269, 293, fn. 15 [159 Cal.Rptr.3d 385, 303 P.3d 1163]), 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].)
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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.
Related Instructions
CALCRIM No. 375, Evidence of Uncharged Offense to Prove Identity, Intent,
Common Plan, etc.
CALCRIM No. 1191B, Evidence of Charged Sex Offense.
CALCRIM No. 852A, Evidence of Uncharged Domestic Violence.
CALCRIM No. 852B, Evidence of Charged Domestic Violence.
CALCRIM No. 853A, Evidence of Uncharged Abuse of Elder or Dependent
Person.
CALCRIM No. 853B, Evidence of Charged Abuse of Elder or Dependent Person.
AUTHORITY
• 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, supra, 21 Cal.4th at pp. 923–924 [dictum].
• Previous Version of CALCRIM No. 1191 Upheld. People v. Schnabel (2007)
150 Cal.App.4th 83, 87 [57 Cal.Rptr.3d 922]; People v. Cromp (2007) 153
Cal.App.4th 476, 480 [62 Cal.Rptr.3d 848].
• 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,
supra, 81 Cal.App.4th at p. 1359; 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 127]; 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.
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James, supra, 81 Cal.App.4th at pp. 1357–1358, fn. 8 [same].
• Charged Offenses Proved Beyond a Reasonable Doubt May Be Evidence of
Propensity. People v. Cruz (2016) 206 Cal.Rptr.3d 835, 2 Cal.App.5th 1178,
1186–1186]; People v. Villatoro (2012) 54 Cal.4th 1152, 1161 [144 Cal.Rptr.3d
401, 281 P.3d 390].
Secondary Sources
1 Witkin, California Evidence (5th ed. 2012) Circumstantial Evidence, §§ 98–100.
6Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142,
Crimes Against the Person, § 142.23[3][e][ii], [4] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure § 12:9 (The Rutter
Group).
COMMENTARY
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, supra, 81
Cal.App.4th at p. 1357, fn. 8 [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 (the/each) (charge/ [and] allegation) of
<insert charged sex offense> beyond a reasonable doubt.
RELATED ISSUES
Constitutional Challenges
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).
Expert Testimony
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
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Cal.App.4th 489, 495–496 [92 Cal.Rptr.2d 884] [expert testified on ultimate issue
of abnormal sexual interest in child].)
Rebuttal Evidence
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.
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