Trial court did not err by instructing the jury with CALCRIM No. 1191 regarding defendant’s prior uncharged sex offenses against the witness who testified at trial about the charged offenses. At Gonzales’ trial for various child molestation offenses against L.W., she testified about both charged and uncharged sex offenses that Gonzales committed against her. The court instructed the jury that it could consider the uncharged conduct if the prosecution had proven by a preponderance of the evidence that Gonzales in fact committed the uncharged offenses. (CALCRIM No. 1191.) The jury convicted Gonzales. On appeal, he argued that this instruction should only be given where the evidence of uncharged misconduct comes from third parties and not the victim of the charged offenses because the result of allowing the testimony would be to corroborate the victim’s testimony of the charged offenses under a lower burden of proof. Held: Affirmed. Evidence Code section 1108 allows the admission of evidence of uncharged sexual offenses from any witness subject to Evidence Code section 352. Nothing in section 1108 limits its effect to the testimony of third parties. The Court of Appeal noted that it was concerned with the relationship between CALCRIM No. 1191 and section 1108, but concluded CALCRIM No. 1191 correctly instructs the jury regarding its consideration of uncharged sexual misconduct. Gonzales did not challenge the trial court’s ruling admitting the uncharged sexual misconduct evidence for the purposes stated in CALCRIM No. 1191. While the court agreed that a victim’s testimony about uncharged conduct is not as probative as similar testimony from a third party, the court determined that it was not prohibited and the instruction therefore did not violate due process. The court also concluded that any error with the instruction was harmless in this case. [Editor’s Note: In a concurring opinion, Justice Perren explained why it is not appropriate to instruct a jury with CALCRIM No. 1191 when the uncharged offenses were committed against the victim of the charged offenses, but agreed with the majority that any error in giving the instruction was harmless.]

The language in CALCRIM No. 1193, which instructs the jury on permissible ways it may consider the testimony of a CSAAS expert, was not misleading. Gonzales challenged the language of CALCRIM No. 1193, which instructed the jury not to consider the expert’s testimony on child sexual abuse accommodation syndrome (CSAAS) as evidence that the defendant committed any of the charged crimes and that it may consider this evidence only in deciding whether or not the victim’s conduct was not inconsistent with the conduct of someone who has been molested. CSAAS expert testimony is not admissible to prove the complaining witness has in fact been sexually abused. (People v. McAlpin (1991) 53 Cal.3d 1289, 1300.) Rather, it is admissible to rehabilitate a witness’ credibility when the defendant suggests that the child’s conduct after the incident is inconsistent with her testimony. Gonzales argued that this instruction was confusing and allowed the expert’s testimony to be used as proof that the child was molested. The Court of Appeal disagreed. The expert testified that the purpose of CSAAS is to understand the child’s reaction when they have been abused and not as a tool to help diagnose whether a child has actually been abused. The instruction was proper and did not violate due process.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/B276101.PDF