People v. Cottone

Opinion

Under Evidence Code section 1108,^[1] in the trial of sexual offense charges, evidence the defendant committed another sexual offense may be admissible to prove that the defendant has a propensity to engage in such conduct. This case raises two questions.

First, if the proffered conduct occurred before the defendant had reached the age of 14, must the prosecution establish that the defendant knew the conduct was wrongful and was thus capable of committing a crime, as required by Penal Code section 26, paragraph One (Penal Code section 26(One))? We conclude such proof is required because section 1108 only permits admission of evidence of another sexual offense that amounts to “a crime” under state or federal law.

Second, does the trial court or the jury ultimately decide if the proffered conduct amounted to a crime? The Court of Appeal held that the question is for the jury and imposed a sua sponte duty to instruct on Penal Code section 26(One)’s presumption of incapacity as it relates to evidence admitted under Evidence Code section 1108 (1108 evidence). We reject that conclusion.

In laying the foundation for admissibility, the prosecution must demonstrate that previously unadjudicated conduct amounts to a crime.^[2] That showing presents a mixed question of law and fact. The trial court rules on the legal issues relating to admissibility and resolves the preliminary factual question of capacity under section 405, subdivision (a). Once the evidence is admitted, the jury does not reassess these determinations. The jury does determine if the act occurred, as well as the weight and significance of the evidence. To that end, the jury may take into account the defendant’s age in considering whether the evidence demonstrates his propensity to commit the charged offenses. The trial court, however, need not instruct the jury on that point absent a request. Accordingly, we reverse the Court of Appeal, which found prejudicial instructional error.

A

. Charged Offenses^[3]

Defendant was charged with committing four lewd acts upon his niece, B.,^[4] who was 19 years old at the time of trial. She testified that defendant began molesting her in 1998, when she was eight. During school breaks and summer vacation, B. stayed overnight with defendant and his wife, Jeanie. Being away from home, B. was afraid to sleep alone all night. So the three shared a bed, with B. sleeping between the two adults.

The first night of this arrangement, B. woke up to find that defendant had placed his hand under her clothing and was massaging her “vagina,” breasts, and buttocks. Although B. moved away from defendant, she did not say anything because she was frightened. She did not awaken Jeanie or tell her what had happened. The next night defendant touched B. the same way. B. did not report the incidents when she returned home because she remained afraid.

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

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

At some point, B. told her mother that she no longer wanted to stay with the Cottones, but did not explain her reluctance. Her mother responded that Jeanie was expecting her, so she should go. Defendant eventually stopped abusing B. in 2003.

In 2006, B. and her mother went to a family event at defendant’s home. On the way, B.’s mother complained about the way defendant made fun of B.’s

brother. B. said, “ ‘Well, if you think that’s bad, you should—you don’t know what he has done to me ... .’ ” She then told her mother about defendant’s conduct.

B. Expert Testimony

Dr. Laura Brodie, a clinical and forensic psychologist, testified for the prosecution. She described child sexual abuse accommodation syndrome, a condition often seen in sexually abused children. Unfamiliar with the facts of this case, Brodie testified generally that it was not unusual for a child to delay reporting abuse for several years.

C. 1108 Evidence

Before trial, the prosecution offered evidence under section 1108 that defendant had sexually abused his sister, L. The incident occurred in 1966, when L. was around five and defendant was nearly 14. No juvenile court allegations were filed.

Defendant opposed the prosecutor’s motion, arguing that the event was remote, dissimilar, and unduly prejudicial. (§ 352.) Citing Penal Code section 26(One), he also argued that the evidence should be excluded because, as a minor under the age of 14 (under 14), he was presumed incapable of committing a crime. '

L. testified at an in limine hearing. One day when L. and a friend were playing, defendant invited them to play a game called “giggy-giggy.” The friend declined and went home. Defendant carried L. downstairs to the basement, where he and his brothers had bedrooms. They were alone. As L. sat on his shoulders, defendant put his finger in her underpants and touched her vaginal area.

The court allowed L. to testify. It found that defendant was at least 13 years 10 months old at the time of the offense. Clear and convincing evidence showed defendant understood the wrongfulness of his conduct, based on his age and the circumstances of the crime.^[5] The parties’ briefing and argument was limited to whether the trial court should admit or exclude the evidence. Defendant did not argue that the issue of his capacity should be submitted to the jury with appropriate instructions.

L.’s trial testimony was similar to that given in limine.

A. Penal Code Section 26(One) Applies to Evidence Admitted Under Section 1108

Penal Code section 26(One) creates a rebuttable presumption that a child under 14 is incapable of committing a crime.^[6] We have not previously considered whether this legal presumption and attendant burden of proof come into play at a later criminal trial where the prosecution offers evidence under section 1108 of an unadjudicated sexual offense committed when the defendant was under 14. The Court of Appeal noted that section 1108 authorizes admission of evidence that defendant committed another “ ‘[s]exual offense’ ” amounting to “a crime.” (§ 1108, subd. (d)(1).) It reasoned logically that “for prior sexual offense evidence to be admitted the offense must be a crime, and to be a crime, a child under 14 years of age must appreciate the wrongfulness of his conduct,” as required by Penal Code section 26(One). The Attorney General contested this point below. Here, however, she concedes that the Court of Appeal correctly applied the Penal Code’s capacity requirement to 1108 evidence. We accept the concession.

We begin with a brief overview of the relevant statutes and legal principles. As set forth below, the question of capacity under Penal Code section 26(One) for a minor under 14 involves a legal standard, a rebuttable presumption, and a burden of proof. Throughout this opinion, we sometimes refer to the sum of these statutory requirements under the umbrella of “capacity.”^[7]

We have long held that a finding of capacity is a prerequisite to an adjudication of wardship for a minor under 14. (In re Gladys R. (1970) 1 Cal.3d 855 , 867 [ 83 Cal.Rptr. 671 , 464 P.2d 127 ].) The prosecution may rebut Penal Code section 26(One)’s presumption of incapacity by producing “ ‘clear proof’ ” that the minor appreciated the wrongfulness of the conduct when it was committed, “as demonstrated by [the child’s] age, experience, conduct, and knowledge.” (In re Manuel L. (1994) 7 Cal.4th 229 , 232 [ 27 Cal.Rptr.2d 2 , 865 P.2d 718 ] (Manuel L.).) “Clear proof’ in this context means clear and convincing evidence. (Ibid.) While knowledge of wrongfulness may not be inferred from the act alone, “ ‘the attendant circumstances of

103 P.3d 883 ].) On the contrary, the trial court must resolve all questions of fact preliminary to the admission of evidence. (§ 310, subd. (a).)

Evidence Code sections 402 through 405 govern the adjudication of “ ‘preliminary fact[s],’ ” which are facts “upon the existence or nonexistence of which depends the admissibility or inadmissibility of evidence.” (§ 400.) At issue here are sections 403 and 405.^[8] Section 403, subdivision (a)(1) provides that when “[t]he relevance of . . . proffered evidence depends on the existence of [a] preliminary fact . . . ,” the “proponent of the proffered evidence has the burden of producing evidence as to the existence of the preliminary fact, and the proffered evidence is inadmissible unless the court finds that there is evidence sufficient to sustain a finding of the existence of the preliminary fact. . . .” (Italics added.) Section 405 applies to “preliminary fact determinations not governed by Section 403 or 404.” Subdivision (a) of section 405 states that “[w]hen the existence of a preliminary fact is disputed, the court shall indicate which party has the burden of producing evidence and the burden of proof on the issue as implied by the rale of law under which the question arises. The court shall determine the existence or nonexistence of the preliminary fact and shall admit or exclude the proffered evidence as required by the rule of law under which the question arises.”

Comments by the Assembly Committee on the Judiciary (Assembly Committee comments) outline the primary distinctions between sections 403 and 405.^[9] (1 Assem. J. (1965 Reg. Sess.) p. 1712 et seq.; see Stats. 1965, ch. 299, § 2, p. 1297 [enacting Evid. Code].) “The preliminary fact questions listed in subdivision (a) [of Evidence Code section 403] ... are not finally decided by the judge because they have been traditionally regarded as jury questions. The questions involve the credibility of testimony or the probative value of evidence that is admitted on the ultimate issues. It is the jury’s function to determine the effect and value of the evidence addressed to it. . . . [T]he judge’s function on questions of this sort is merely to determine whether there is evidence sufficient to permit a jury to decide the question.” (Assem. Com. com., reprinted at 29B pt. 1B West’s Ann. Evid. Code (2011 ed.) foll. § 403, p. 18, citation omitted (West’s Annotated Evidence Code); accord, People v. Lucas (1995) 12 Cal.4th 415 , 466-467 [ 48 Cal.Rptr.2d 525 , 907 P.2d 373 ] (Lucas).) Generally, “all relevant evidence is admissible.” (§ 351.) Yet, “[sjometimes the relevance of evidence depends on the existence of a preliminary fact.” (Lucas, at p. 466.) A judge screening proffered

honored by performing its screening function under section 405. “If the court is in doubt, if the prosecution has not persuaded it of the [criminal nature of the conduct], Section 405 requires the court to exclude the [evidence].” (Assem. Com. com., reprinted at West’s Ann. Evid. Code, supra, foll. § 405, p. 43.)

Conversely, the proffer of this kind of evidence generally does not raise a relevance question under section 403, assuming the defendant’s identity as the perpetrator can be shown. The conduct in this case, which involved' touching the vaginal area of his young sister, was manifestly relevant on the question of whether defendant sexually assaulted another young female relative. (Falsetta, supra, 21 Cal.4th at p. 915; People v. Soto (1998) 64 Cal.App.4th 966 , 991 [ 75 Cal.Rptr.2d 605 ].) Indeed, “ ‘[s]uch evidence “is [deemed] objectionable, not because it has no appreciable probative value, but because it has too much.” . . . [Citations.]’ ” (Falsetta, at p. 915, quoting People v. Alcala (1984) 36 Cal.3d 604 , 631 [ 205 Cal.Rptr. 775 , 685 P.2d 1126 ].) The requirement that these other acts of sexual misconduct constitute crimes revolves around policy, not a case-specific assessment of relevance. Accordingly, when a defendant objects to the admission of 1108 evidence on the ground that the conduct does not amount to a crime, the court reviews any preliminary fact necessary to that determination under section 405, not section 403.^[10]

Respecting the burden of proof, we accept the Attorney General’s concession that the prosecution must prove by clear and convincing evidence that defendant appreciated the wrongfulness of the unadjudicated sexual offense offered under section 1108. This is the standard the trial court applied.

Section 405, subdivision (a) directs the trial court to apply “the burden of proof on the issue as implied by the rule of law under which the question arises.” The general rule is that preliminary fact determinations affecting the admissibility of evidence under section 405 are subject to proof by a preponderance of the evidence unless otherwise provided by .law.

(People v. Tewksbury (1976) 15 Cal.3d 953 , 963, 966 [ 127 Cal.Rptr. 135 , 544 P.2d 1335 ]; see § 115.) The same standard generally applies to proof of unadjudicated conduct admitted under section 1108. (See Reliford, supra, 29 Cal.4th at pp. 1015-1016; cf. Carpenter, supra, 15 Cal.4th at p. 382 [discussing proof of evidence admitted under § 1101, subd. (b)], superseded by statute on other grounds as recognized in Verdin v. Superior Court (2008) 43 Cal.4th 1096 , 1106-1107 [ 77 Cal.Rptr.3d 287 , 183 P.3d 1250 ]; People v. Medina (1995) 11 Cal.4th 694 , 763 [ 47 Cal.Rptr.2d 165 , 906 P.2d 2 ] [same].) Nonetheless, the question of capacity, which is a predicate to admissibility, arises under Penal Code section 26(One), which explicitly imposes a distinct standard of proof by clear and convincing evidence. (Manuel L., supra, 7 Cal.4th at p. 232.) It is that standard the court must apply in resolving whether a minor under 14 appreciated the wrongfulness of his conduct and was thus capable of committing a crime.

C. The Jury Does Not Reassess Defendant’s Capacity When Considering 1108 Evidence

Our application of section 405 in this context does not mean the jury cannot consider the defendant’s age and mental state at the time of his juvenile conduct. Section 405, subdivision (b) anticipates that, in some instances, a preliminary fact decided by the trial court will also bear on a fact at issue in the action. (See Assem. Com. com., reprinted at West’s Ann. Evid. Code, supra, foll. § 405, p. 42.) Accordingly, we must examine the jury’s role in assessing 1108 evidence.

While a sexual offense must qualify as a crime to be admissible under section 1108, the defendant does not stand trial on that uncharged conduct and cannot be convicted of it.^[11] Such evidence is admitted only as circumstantial evidence supporting an inference that the defendant committed the charged offense, by demonstrating the defendant’s propensity and bolstering the victim’s credibility. (Reliford, supra, 29 Cal.4th at pp. 1012-1014; Falsetta, supra, 21 Cal.4th at pp. 911, 915.) “[A] jury may not convict the defendant based solely on evidence of a prior sexual crime.” (People v. Loy (2011) 52 Cal.4th 46 , 72 [ 127 Cal.Rptr.3d 679 , 254 P.3d 980 ], italics added.)

As with evidence admitted under section 1101, the jury must determine whether the defendant committed the act in question. Only if the jury so concludes by a preponderance of the evidence can it consider such

evidence in deciding whether the defendant is guilty of the charged crimes. (Estelle v. McGuire (1991) 502 U.S. 62 , 73-74 [ 116 L.Ed.2d 385 , 112 S.Ct. 475 ]; People v. Ewoldt (1994) 7 Cal.4th 380 , 405 [ 27 Cal.Rptr.2d 646 , 867 P.2d 757 ].) It must also consider the defense response to the evidence. “[W]hen evidence of other crimes or acts has been admitted for some purpose an accused should be allowed to explain or deny the transactions.” (People v. Zerillo (1950) 36 Cal.2d 222 , 230 [ 223 P.2d 223 ].) For example, the defendant may introduce evidence of a previous acquittal of criminal charges relating to acts admitted under section 1101 or 1108. (People v. Griffin (1967) 66 Cal.2d 459 , 465 [ 58 Cal.Rptr. 107 , 426 P.2d 507 ]; People v. Mullens (2004) 119 Cal.App.4th 648 , 665-667, 669 [ 14 Cal.Rptr.3d 534 ].) The defendant also may challenge the inference the prosecution urges should be drawn from the conduct by calling into question his state of mind or motive (Simon, supra, 184 Cal.App.3d at pp. 130-131) or by introducing competing evidence of good character (People v. Callahan (1999) 74 Cal.App.4th 356 , 375-379 [ 87 Cal.Rptr.2d 838 ]).^[12] Finally, the jury must decide whether that act demonstrates the defendant’s propensity to commit the charged sexual offenses. If not, the jury may accord the evidence no weight. (Reliford, supra, 29 Cal.4th at p. 1014; Falsetta, supra, 21 Cal.4th at p. 920.)

None of these questions requires the jury to reassess the trial court’s determination that the prosecution established the legal foundation required to support admissibility by rebutting Penal Code section 26(One)’s presumption of incapacity. Rather, in enacting section 1108, the Legislature simply contemplated that the jury would make a “ ‘ “rational assessment ... of evidence so admitted.” ’ ” (Falsetta, supra, 21 Cal.4th at p. 912, quoting Assemblyman Rogan, author of Assem. Bill No. 882 (1995-1996 Reg. Sess.), letter to Speaker of the Assem., Aug. 24, 1995, published in 2 Assem. J. (1995-1996 Reg. Sess.) p. 3278, reprinted at 29B pt. 3B West’s Ann. Evid. Code (2009 ed.) foll. § 1108, p. 352.) This interpretation is consonant with section 406, which makes clear that the weight and credibility of admitted evidence remain proper determinations for the jury.^[13] The Law Revision Commission comment to section 406 notes: “Other sections in this article provide that the judge determines whether proffered evidence is admissible, i.e., whether it may be considered by the trier of fact. Section 406 simply makes it clear that the judge’s decision on a question of admissibility does not preclude the parties from introducing before the trier of fact evidence relevant to weight and credibility. (7 Law Revision Com. Rep. (1965) 1, 70

aggravating evidence in a capital trial. But Lewis is cabined to its facts and provides no meaningful assistance here. Specifically, we did not resolve in Lewis whether the jury must decide the capacity question because the defendant did not claim error on that ground.

In Lewis, the prosecution offered penalty phase evidence that the defendant had committed a previous murder when he was 13 years nine months old. (Pen. Code, § 190.3, factor (b).)^[14] The court admitted the evidence. It instructed the jury to assess the defendant’s capacity to commit the prior murder and to apply the beyond-a-reasonable-doubt standard in doing so. (Lewis, supra, 26 Cal.4th at pp. 379-380.) When the trial court subsequently denied the defendant’s motion to reduce the death verdict, it made an express finding “ ‘beyond any reasonable doubt’ ” that the defendant knew the prior murder was wrong when he committed it. (Id. at p. 377.)

On appeal, we concluded that, even though the earlier killing had occurred 16 years before, it was possible for the trial court and the jury to assess the defendant’s capacity, and that the defendant received a fair adjudication on the question. (Lewis, supra, 26 Cal.4th at pp. 379-380.) We noted that the jury instructions properly explained the law as set out in Penal Code section 26. (Lewis, at p. 380.) The defendant also argued the trial court failed to determine the capacity question as a preliminary fact before admitting the evidence. In addressing that claim, we assumed, but did not decide, that the trial court was obligated to make such a preliminary fact determination. We then concluded any error was harmless because the trial court later made that very finding in denying the defendant’s motion to reduce the death verdict. (Id. at pp. 377, 380.) Finally, we rejected the defendant’s challenge to the evidentiary sequence. In that context, we summarily characterized as “unsupported” the defendant’s “claim that determining a minor’s capacity under Penal Code section 26 should be considered the same as determining the admissibility of a confession as a foundational or preliminary fact. (Evid. Code, § 402, subd. (b) [upon a party’s request, a court must first determine the admissibility of a confession or admission outside the presence and hearing of the jury].)” (Lewis, at p. 380.)

The Court of Appeal “interpret[ed] Lewis as holding that pursuant to [Penal Code] section 26, the issue of whether a minor appreciates the wrongfulness of his conduct is a question for the trier of fact.” We did not so hold. Because the trial court in Lewis submitted the issue of the defendant’s capacity to the jury (Lewis, supra, 26 Cal.4th at pp. 379-380), we had no occasion to

This analysis fails. As previously explained, the admissibility of other sexual offenses amounting to crimes under section 1108, and the resolution of necessarily preliminary facts, are questions for the court to resolve, subject to review on appeal. The jury has an important task in evaluating the evidence. That task does not include reconsidering the court’s legal conclusion.

Defendant urges a minor’s incapacity is a “defense,” and emphasizes that the trial court has a sua sponte duty to instruct on defenses that the defendant is relying on or that are supported by substantial evidence and are not inconsistent with the defendant’s theory of the case. (See People v. Anderson (2011) 51 Cal.4th 989 , 996 [ 125 Cal.Rptr.3d 408 , 252 P.3d 968 ]; People v. Salas (2006) 37 Cal.4th 967 , 982 [ 38 Cal.Rptr.3d 624 , 127 P.3d 40 ].) His argument is misplaced.

This case does not involve the trial court’s sua sponte duty to instruct the jury on a defense to a charged crime. Rather, it presents the much narrower issue of how the jury evaluates 1108 evidence. We have long recognized that “the trial court ordinarily has no sua sponte duty to instruct the jury as to the admissibility or use of other crimes evidence.” (Falsetta, supra, 21 Cal.4th at p. 924; accord, Reliford, supra, 29 Cal.4th at p. 1015, fn. 2; People v. Collie (1981) 30 Cal.3d 43 , 63-64 [ 177 Cal.Rptr. 458 , 634 P.2d 534 ]; People v. Jennings (2000) 81 Cal.App.4th 1301 , 1316-1318 [ 97 Cal.Rptr.2d 727 ].) This principle is consistent with section 355, which provides that the trial court, “upon request,” shall instruct the jury about evidence admitted for a limited purpose.

More specifically, the jury’s role in considering the defendant’s age at the time of an act admitted under section 1108 is not consonant with any recognized category of sua sponte instruction. Whether the evidence proves what the prosecution urges is a question of fact and logic requiring no additional sua sponte instruction. (See Carpenter, supra, 15 Cal.4th at p. 383.) Notably, the trial court is under no sua sponte duty to instruct that a jury must determine other preliminary facts, such as identity, that bear on the ultimate relevance of the evidence, or to disregard such evidence unless the jury finds that the preliminary fact exists. (See Lewis, supra, 26 Cal.4th at p. 362 [discussing § 403, subd. (c)(1)]; Carpenter, at p. 383.)^[15]

Our conclusion is consistent with cases explaining the duty to instruct on the use of a defendant’s violent criminal activity offered as a circumstance in aggravation in a capital case. (Pen. Code, § 190.3, factor (b).) In that context, we have long held that “[a] trial court has no sua sponte duty to instruct on the elements of ‘other crimes’ offered under section 190.3, factor (b).” (People v. Gonzales and Soliz (2011) 52 Cal.4th 254 , 324 [ 128 Cal.Rptr.3d 417 , 256 P.3d 543 ].) Such instructions are “not vital to a proper consideration of the evidence on the issue of penalty” (People v. Anderson, supra, 25 Cal.4th at p. 588) because “the ultimate question for the sentencer is simply whether the aggravating circumstances, as defined by California’s death penalty law ([Pen. Code,] § 190.3), so substantially outweigh those in mitigation as to call for the penalty of death, rather than life without parole” (Anderson, at p. 589). We have noted that “a defendant, for tactical reasons, may not want the penalty phase instructions overloaded with a series of lengthy instructions on the elements of alleged other crimes because he may fear that such instructions could lead the jury to place undue emphasis on the other crimes rather than on the central question of whether he should live or die.” (People v. Davenport (1985) 41 Cal.3d 247 , 281 [ 221 Cal.Rptr. 794 , 710 P.2d 861 ]; accord, Anderson, at p. 588.) Defense counsel took a similar approach to the 1108 evidence admitted here.^[16]

Accordingly, we decline to impose a sua sponte duty to instruct that the jury reconsider a fact relating to evidentiary admission. Counsel remains free to argue that the evidence does not support the propensity inference. If the defense relies on the defendant’s age to undermine the propensity conclusion, it may request a proper pinpoint instruction on that topic. (See People v. Anderson, supra, 51 Cal.4th at pp. 996-997; People v. Saille (1991) 54 Cal.3d 1103 , 1119 [ 2 Cal.Rptr.2d 364 , 820 P.2d 588 ].) But such an instruction should not include a reference to Penal Code section 26(One) or its presumption. Because there was no sua sponte duty to instruct, there was no error.