Jury instruction allowing one proved sexual offense to be used to show a defendant’s propensity to commit the other charged sex offenses correctly stated the law. A jury found defendant guilty of four counts of committing a lewd act upon a child and found One Strike, multiple victim sentencing allegations true. On appeal he argued the trial court erred by instructing the jury it could rely on currently charged offenses to find he had committed the other charged offenses (CALCRIM No. 1191B). Held: Affirmed. The jury was instructed that if the prosecution proved beyond a reasonable doubt that defendant committed one or more of the charged crimes, it may conclude from that evidence that he was disposed to commit sexual offenses and therefore find he was likely to commit, and did commit, the other charged sex offenses. The jury was also told the prosecution must still prove each charge beyond a reasonable doubt. In People v. Villatoro (2012) 54 Cal.4th 1152, the California Supreme Court held that Evidence Code section 1108 permits the jury to draw a propensity inference from a currently charged sex offense and approved giving an instruction similar to the one given in this case. CALCRIM No. 1191B was properly given to the jury.

The prosecutor did not mislead the jurors in her closing argument to believe the prosecution’s burden could be met based on a reasonable interpretation of the evidence. Defendant argued the prosecution misstated its burden of proof on three occasions during closing argument by telling the jury that so long as the prosecution’s interpretation of the evidence was reasonable, the prosecution had met its burden of proof. Though advocates are given significant leeway in discussing the legal and factual merits of a case in argument, a prosecutor may not misstate the law generally or attempt to absolve the prosecution from its obligation to overcome reasonable doubt on all elements. Here, the majority of the prosecutor’s argument focused on evaluating the witnesses’ testimony and credibility. The prosecutor did make one statement during argument regarding the jury’s duty to reject any unreasonable interpretation of the evidence and said that if there was one reasonable interpretation, it must convict. However, in the context of the entire argument and jury instructions given it was not reasonably likely the jury understood or applied the statement in an improper manner.

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/G055942.PDF