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Name: People v. Villatoro
Case #: S192531
Court: CA Supreme Court
District CalSup
Opinion Date: 07/30/2012

Evidence Code section 1108 is not limited to uncharged crimes and the jury may consider crimes charged in the present case to prove propensity. Appellant was convicted of various offenses, including rape, against five women. He challenged the giving of a modified version of CALCRIM No. 1191, which permitted the jury to use evidence of appellant’s guilt in one of the charged sexual offenses as evidence of propensity to commit the other charged sexual offenses. Affirmed. Although character evidence is generally inadmissible to prove a person’s conduct on a specified occasion, Evidence Code section 1108 permits the jury to learn of a defendant’s predisposition to commit sex crimes as a result of his commission of other sex offenses. In this case, the court determined that neither the language of the statute nor Evidence Code sections 1101 and 352 suggest that only offenses other than those for which the defendant is on trial may be considered. Whether an offense is charged or uncharged does not affect its relevance as propensity evidence.

Modified CALCRIM No. 1191 did not lessen the prosecution’s burden to prove the charged crimes beyond a reasonable doubt. The modified instruction explained to the jury that if it decided that defendant committed a charged sex offense, it could conclude he had a disposition to commit the other charged sex offenses. It cautioned that evidence that defendant committed a charged offense, alone, was not sufficient to prove the defendant guilty of another charged offense. The court found the instruction proper as it told the jury all offenses must be proven beyond a reasonable doubt, even those used to draw an inference of propensity. The court did not decide whether courts should give such an instruction in the future.