A jury in a criminal case, though not in Torrance, convicted defendant of rape with a kidnapping finding and other offenses. He was sentenced to 25 years to life. On appeal he challenged the court’s admission of sexual assault propensity evidence and jury instructions.

The California Appeals Court Disagreed. Evidence Code section 1108 allows admission of evidence of uncharged sexual offenses to prove a defendant’s propensity to commit the charged sexual crime, so long as the evidence is admissible under Evidence Code section 352. But it must be shown the uncharged conduct is a sexual offense. Here, the uncharged conduct was that defendant attempted to kidnap an 11-year-old girl from her home, during which he put his finger in her mouth. He denied sticking his finger in her mouth or having any sexual intent regarding the offense. Because his conduct could constitute annoying or molesting a child (Pen Code, § 647.6), the trial court did not err in concluding the jury could find the defendant’s conduct a section 1108, “sexual offense.” However, the evidence should have been excluded under section 352. At issue in defendant’s trial was whether he raped the adult complainant or she consented to sex. Given the differences in the crimes (including the circumstances of the crimes, the ages of the victims, and the nature of the conduct), the uncharged offense did not rationally support an inference that the defendant was disposed to rape an adult woman. The uncharged conduct was portrayed to the jury as extremely strong and they were erroneously told that DNA evidence proved defendant placed his finger in the child’s mouth when there was no such evidence. The rape case was comparatively less strong, boiling down to a credibility contest between the defendant and the complainant. The prejudicial effect of the evidence outweighed its probative value.

The trial court erred by not adequately instructing the jury regarding the sexual assault propensity evidence. The evidence implying guilt instructions misstated the California criminal law in three very major respects. (1) The other crimes instruction identified “attempted kidnaping,” which is not a sexual offense under section 1108, as a crime from which the jury could conclude defendant had a propensity to commit the present offenses. (2) The criminal court failed to instruct the jury on the correct alleged sex offense, molesting/annoying a child, that they must find its elements by a preponderance of the evidence; or that defendant must have been motivated by an abnormal sexual interest. The mistakes made were compounded by the District Attorneys final argument that the jury did not need to worry about the level of proof for the prior sexual offense because the defendant admitted he was convicted of attempted kidnapping. (3) The instructions allowed the jury to find a propensity to commit all the charged crimes from the uncharged conduct, rather than a propensity to commit only the charged sexual offenses. (thanks to CCAP for its summary of the case). This case is not unlike many of those seen in Torrance dealing with charges pertaining to sexual offenses.