Trial court did not err by instructing the jury with CALCRIM No. 1191 regarding defendant’s prior uncharged sex offenses. Phea was charged with 31 child molestation offenses against three minors and two offenses for furnishing controlled substances to a minor. Two additional witnesses testified about uncharged conduct that occurred many years before when they were under 16 years old. The court instructed the jury that it could consider the uncharged conduct if the prosecution had proven by a preponderance of the evidence that Phea committed those uncharged sexual offenses and, based on that conduct, Phea was likely to commit the charged offenses. (CALCRIM No. 1191.) The jury convicted Phea. On appeal, he argued that the instruction was flawed because it allowed jurors to infer guilt based merely on the commission of other crimes established only by a preponderance of the evidence and that the instruction contradicted CALCRIM No. 224 regarding circumstantial evidence. Held: Affirmed, but remanded on other grounds. Evidence Code section 1108 allows the admission of evidence of uncharged sexual offenses subject to Evidence Code section 352. Requiring section 1108 evidence be proved by a preponderance of the evidence does not reduce the prosecution’s burden of proof as to the charged offenses. (People v. Reliford (2003) 29 Cal.4th 1007, 1012.) CALCRIM No. 224, addressing circumstantial evidence, instructs the jurors that each fact essential to a conclusion of guilt must be proved beyond a reasonable doubt. The two standards are reconciled by the different purposes for which the evidence is used. The court concluded that the jurors could readily understand the distinction drawn, and the differing burdens of proof attached to CALCRIM Nos. 224 and 1191. It is not reasonably likely a jury would conclude that the lower standard of proof would apply to the proof of the charged offenses.

In the Third District, McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378 will not provide a basis for finding Evidence Code section 1108 unconstitutional because the case has no application in the context of uncharged sexual misconduct evidence. To preserve the issue for further review, Phea argued that admission of the section 1108 testimony violated his due process and fair trial rights, citing McKinney and other older cases, while acknowledging that the California Supreme Court has found section 1108 to be constitutional. (See People v. Falsetta (1999) 21 Cal.4th 903.) The Court of Appeal here concluded that the contention that section 1108 is unconstitutional is “completely meritless.” The Third District previously observed that reliance on McKinney in the context of uncharged sexual misconduct evidence is misplaced. In McKinney, the Ninth Circuit held the admission of evidence that was probative only of the defendant’s character violated due process. However, McKinney did not involve uncharged sexual misconduct evidence and was decided before the enactment of the federal and state rules allowing evidence of uncharged sexual assault and child molestation. The Ninth Circuit and other federal courts have long since upheld the constitutionality of these evidentiary rules. (See, e.g., U.S. v. LeMay (9th Cir. 2001) 260 F.3d 1018, 1027.) The court explained that it “expressly reject[s] McKinney v. Rees, supra, 993 F.2d 1378 as grounds upon which to find that section 1108 is constitutionally invalid on its face and conclude[d] that trial counsel’s performance was not deficient for failure to rely upon it.”

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/C080488.PDF