Evidence Code section 1108 allows the sexual misconduct history to be considered for whatever light it might shed on issues, including the defense claim of mistaken identity, so long as there is weighing of prejudice versus the probative value. Twelve-year-old Monique disappeared from her bedroom on an evening when appellant, her uncle, helped to deliver her intoxicated brother to his bedroom. Her badly decomposed, nude body was found several days later. The opinion for cause of death was by asphyxia which is the “most common sex-associated way of killing people.” There was scant evidence to suggest a sexual assault. The prosecution presented evidence that appellant was convicted in 1975 and 1981 of rape, oral copulation, and sodomy. During both sexual assaults, he choked the women with his hands around the front part of their necks. Appellant challenged the constitutionality of Evidence Code section 1108, but there was no basis to reconsider People v. Falsetta (1999) 21 Cal.4th 903, 910-922. The evidence was admissible in a trial in which appellant was charged with murder during the commission of a lewd and lascivious act on a child under the age of 14, a sexual offense within section 1108, subdivision (d)(1). The evidence was found admissible after Evidence Code section 352 weighing and no abuse of discretion was found. The common characteristic weighing in favor of admission was that Monique’s death by asphyxia was similar to the choking in the other cases.

The instruction on the other sex crimes evidence, CALJIC No. 2.50.01 (6th Ed. 1996), is not unconstitutional. The instruction allowed the jury to infer, based on the prior sex offenses, that appellant was “likely to commit and did commit the crime of which he’s accused.” (CALJIC no. 2.50.01 (6th Ed. 1996), emphasis added.) A similar constitutional challenge was rejected in People v. Reliford (2003) 29 Cal.4th 1007, 1013. Despite the reliance in Reliford on an admonition that was not given in this case, the analysis is similar. The jury was not instructed that such an inference itself constituted proof beyond a reasonable doubt. There is no reasonable likelihood that the jurors viewed the instructions as permitting them to find the defendant guilty of Monique’s murder based solely on his prior sex offenses. Justice Kennard filed a dissent in which she took the position the instruction allowed an improper inference, but agreed that there was no prejudice to the defense. (Note: The current instruction on this issue is CALCRIM 1191.)