Trial court properly instructed jury that it could conclude alleged victim’s character for truthfulness was good based on lack of discussion of character in community where one witness testified regarding lack of discussion, but other witnesses testified that the victim is known to lie. During Jimenez’s trial for having sex with his niece Doe while she was unconscious, a prosecution witness, Hoffman, testified that he had known Doe for over 15 years and her character for untruthfulness had never been discussed among family members. However, defense witnesses (including Doe’s mother) testified that Doe tells lies. The trial court instructed the jury with optional language in CALCRIM No. 105, that “if the evidence establishes that a witness’s character for truthfulness has not been discussed among the people who know him or her, you may conclude from the lack of discussion that the witness’s character for truthfulness is good.” The jury convicted Jimenez and he appealed, challenging the instruction on various grounds. Held: Affirmed. The optional language in CALCRIM No. 105 is not legally erroneous. It reiterates the principle articulated in People v. Adams (1902) 137 Cal. 580, and a number of subsequent decisions, that the lack of discussion in the community regarding a person’s character trait may be used by the trier of fact to infer that the person’s character for that trait is good. Hoffman’s testimony provided relevant evidence to support the instruction. The instruction did not create a false impression that Doe’s character for truthfulness was good because the jury received and could consider other evidence that Doe was not truthful. The instruction is not an unconstitutional permissive inference because there is a rational connection between the proven fact (lack of discussion of Doe’s character for truthfulness) and the permissive inference (that Doe is truthful).

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/C079201.PDF