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In People v. Falsetta (1999) 21 Cal.4th 903, 89 Cal. Rptr. 2d 847, 986 P.2d 182 (Falsetta), the California Supreme Court considered a challenge to the constitutionality of Evidence Code section 1108 permitting propensity evidence in sexual offense cases. The court held that the propensity evidence was admissible only if it was also admissible under Evidence Code section 352. "Thus, there is an overriding safety valve built into [the] statute that continues to prohibit admission of such evidence whenever its prejudicial impact substantially outweighs its probative value. The same is true of Evidence Code section 1109. Therefore, although the California Supreme Court has not ruled directly on the constitutionality of Evidence Code section 1109, by parity of reasoning with Falsetta, the Courts of Appeal have uniformly held that Evidence Code Section 1109 does not offend due process.
A jury convicted Shawn Michael Harris of forcible oral copulation. (Pen. Code, § 288a, subd. (c)(2).) It deadlocked on charges of sodomy by force and forcible spousal rape, and the court dismissed those charges. The court sentenced Harris to six years in prison. Harris contended that the court erred in admitting an "excessive" number of prior acts evidence under Evidence Code sections 1108 and 1109, and in failing to instruct the jury on the lesser included offenses of assault, assault with intent to commit oral copulation, attempted oral copulation, and battery.
Did the lower court err in admitting an "excessive" number of prior acts evidence under Evidence Code sections 1108 and 1109?
The court held that the approximately eight prior acts that were admitted into evidence were not excessive. Also, they were not cumulative, in that they showed different ways Harris exerted control over C.H. at different times during their marriage. Next, the court concluded that it was not reasonably likely the prior acts evidence so inflamed the jury that it based its verdict on those incidents. It was not likely the jury was confused regarding the specific charged offense of a forcible oral copulation incident, which was more egregious than the prior act incidents because of its sustained duration, and the sexual aggression it entailed. Further, that incident was unique in that the audiotape documented it from start to finish. By contrast, the prior acts involved discrete acts of shorter duration or relatively less severity, including the snow cone incident, Harris's threat to throw the cat play structure at C.H., and his masturbating in front of her as she readied herself for work. Although Harris objected that a basis for exclusion of the prior acts testimony was the fact they were dissimilar from the charged crimes, the court concluded that in this case their very dissimilarity weighs against his claim the jury was confused by admission of that evidence. Finally, the court noted that Harris denied C.H.'s versions of each of the prior incidents; therefore, the jury was afforded an opportunity to evaluate the conflicting versions and make credibility determinations. Based on the above, the court concluded that the trial court did not err in admitting evidence of Harris's prior domestic violence and sexual assault.