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Name: People v. Isom
Case #: C048429
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 12/21/2006
Subsequent History: review granted 3/28/07, S149304

(1) Factors to be considered in determining whether evidence offered pursuant to Evidence Code section 1108 (propensity to commit sexual crimes), should be excluded pursuant to Evidence Code section 352, include the nature, relevance, and possible remoteness of the uncharged act; the degree of certainty of its commission; the similarity to the current offense; the burden to defendant of defending against the uncharged act; the likelihood of confusing the jurors, and the availability of other alternatives. Applying these factors in this case, the appellate court found that trial court did not abuse its discretion in admitting evidence of appellant’s 1991 conviction for assault with intent to commit rape in the prosecution of a 2003 violation of section 288, subdivision (a). (2) Lesser included instruction: under the facts of this case, where appellant allegedly touched the victim’s buttock with his hand and grabbed and squeezed the victims’ buttocks, there was no substantial evidence that a violation of Penal Code section 647.6 was a lesser included offense of Penal Code section 288 under either the elements test or the accusatory pleading test.