Rape conviction reversed where trial court admitted propensity evidence that was more prejudicial than probative. A jury 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. Held: Reversed. 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 propensity evidence instructions misstated the law in three 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 court failed to instruct the jury on the correct alleged sex offense, molesting/annoying a child (Pen Code, § 647.6); that they must find its elements by a preponderance of the evidence; or that defendant must have been motivated by an abnormal sexual interest. This error was compounded by the prosecutor’s closing 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.

Cumulative error requires reversal. Under People v. Watson (1956) 46 Cal.2d 818 and the cumulative error doctrine, there is a reasonable possibility that the combined impact of the evidentiary and instructional errors affected the jury’s decision to convict defendant on the rape charge. The rape case was a credibility contest between defendant and the complainant. Thus, any substantial error which tends to discredit the defense or corroborate the prosecution is prejudicial. The propensity evidence seriously impeached defendant’s credibility, particularly the supposed DNA evidence (which turned out to be nonexistent) that defendant put his finger inside the child’s mouth. The jury’s verdict finding defendant not guilty of one crime and a note from the jury during deliberations demonstrate that the jury did not believe all of the complainant’s testimony. The prejudicial effect of the evidentiary error was compounded by the instructional errors, as the jury may have been left with the incorrect impression that the requisite sexual offense had been proved and could be considered in connection with all the charged offenses.