People v. Swogger CA4/1

DISCUSSION

I. Propensity Evidence

Swogger contends the court’s admission of his other stepdaughter’s testimony prejudicially violated his due process rights to a fair trial under the federal Constitution. He argues that Evidence Code section 1108, which permits the trier of fact to consider evidence of uncharged sexual offenses as evidence of a defendant’s disposition to commit such crimes, is unconstitutional. He concedes the California Supreme Court has rejected such a due process challenge in People v. Falsetta (1999) 21 Cal.4th 903, 912, but raises the issue to preserve it for federal review. In light of Falsetta, we

3 must reject this claim. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

II. Prosecutorial Misconduct Claims

Swogger contends the prosecutor committed misconduct during her closing rebuttal arguments by improperly suggesting defense counsel was personally dishonest, therefore depriving him of his due process right to a fair trial. He argues that even if we found he forfeited his prosecutorial error claim by failing to object, we should exercise our discretion to address the matter on the merits. He alternatively contends his counsel…