Trial court erred by not submitting to the jury the question whether the defendant appreciated the wrongfulness of conduct he committed when he was a minor under the age of 14 years, before admitting Evidence Code section 1108 testimony regarding that prior. A jury convicted appellant of four counts of lewd acts upon a child, and found true substantial sexual conduct as to all counts. Appellant challenged the trial court’s admission of 1108 evidence regarding a lewd act he committed on his sister 32 years ago, when he was 13 years old. The Court of Appeal found that to be admissible under Evidence Code section 1108, the prior sexual offense must be a crime. Penal Code section 26 creates a rebuttable presumption that a child under 14 years of age is incapable of committing a crime unless it is shown by clear and convincing evidence that the child understood the wrongfulness of his conduct at the time of the prior offense. Thus, section 26 is applicable when the prosecution seeks to admit propensity evidence under Evidence Code section 1108 and the offense was committed when the defendant was under the age of 14. While Evidence Code section 1101, subdivision (b) allows admission of other bad acts to prove certain things like motive, intent, etc., section 1108 reflects a Legislative determination that the prior acts must amount to crimes. Thus, where the prior conduct was committed by a person under the age of 14 years, the prosecution must prove that the defendant appreciated the wrongfulness of his acts at the time he committed them.
The issue whether the defendant appreciated the wrongfulness of acts committed when he was a minor under the age of 14 must be submitted to the jury. To overcome Penal Code sections 26’s presumption, the prosecution must show by clear and convincing evidence that at the time the defendant committed the prior act he knew of its wrongfulness. This knowledge may be inferred from the circumstances attending the commission of the act, such as evidence of preparation, method of commission, concealment, etc. Thus, the trial court erred by not instructing the jury sua sponte, that it had to determine by clear and convincing evidence whether appellant appreciated the wrongfulness of his conduct when, as a 13 year old, he touched his sister. The error was prejudicial under Chapman because the evidence in the current case was not overwhelming and involved a credibility contest.
With respect to the nature of the prior act evidence, it was appropriately admitted under Evidence Code section 1108. Although prior act evidence need not be sufficiently similar to the charged offense to be admissible, here the prior act evidence was similar to the charged offenses. In each instance, appellant inappropriately touched a relative in the same manner. The prior evidence was no more inflammatory than the charged offense and did not create a risk of confusing the jury or consuming undue time. Although the offense was 32 years ago, the trial court concluded the similarities of the offenses outweighed the remoteness of the prior act. Had the offenses been dissimilar, remoteness would likely have rendered the evidence inadmissible.