Trial court did not err under Evidence Code section 352 by admitting propensity evidence during defendant’s murder and child sex offense trial that he had previously sexually assaulted his adult ex-girlfriend. A 13-year-old girl was found dead in a park. She had been shot in the head and there was evidence of sexual intercourse. Years later, a cold hit on DNA found on the girl was matched to Shorts. During his murder and sex assault trial, Shorts moved to exclude propensity evidence under section 352 that three years earlier he took his ex-girlfriend to a park, threatened her at gunpoint, and forced her to have sex with him. The trial court admitted the evidence. The jury ultimately convicted him and he appealed. Held: Affirmed. Pursuant to Evidence Code section 1108, evidence that the defendant committed a previous sexual offense is admissible in a subsequent trial for a sex offense to prove propensity subject to section 352 balancing. Shorts argued that the propensity evidence was superfluous because the sex assault charges in the present case, unlike those in the prior case, were not predicated on a lack of consent but on the victims age. But while the circumstances surrounding consent may have been different, other circumstances are very similar: Shorts used a gun when committing both sex offenses, both crimes occurred in a park, he strangled both victims, and he engaged in oral and anal sex with both. “That propensity is relevant to [the current] case regardless of how the lack of consent is established.” Furthermore, the five factors set forth in People v. Harris (1998) 60 Cal.App.4th 727, each support the court’s admission of the evidence over Shorts’ section 352 objection.
Reciprocity rule articulated in Wardius v. Oregon (1973) 412 U.S. 470, does not require that a trial court allow the defendant to admit third-party propensity evidence in a case where the prosecution has used propensity evidence against the defendant. During trial, Shorts admitted that he had sex with the victim but argued another man, Rodriguez, shot and killed her. Shorts attempted to introduce evidence that Rodriguez had previously shot at his ex-girlfriend trying to kill her. Shorts argued that reciprocity required that he be allowed to admit evidence that Rodriguez had a propensity for violence because the prosecution was using propensity evidence against him. The Court of Appeal disagreed. Wardius concerned reciprocity in the pretrial discovery context, not in the propensity evidence context. But regardless of whether it also applies in a propensity context, the Rodriguez propensity evidence is simply inadmissible under Evidence Code section 1109 since there was no evidence that Rodriguez was in a domestic relationship with the victim in the present case. The evidence was properly excluded.
The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/C078041.PDF
