People v. Hernandez CA4/1

INTRODUCTION

A jury convicted Jose Feliciano Hernandez of one count of raping his 13-year-old niece, Jane Doe, and two counts of committing a forcible lewd act on her person. The jury was unable to reach a verdict on an additional count of forcible oral copulation. It is undisputed that all of the offenses occurred on a single occasion. Hernandez contends his convictions for the two counts of forcible lewd acts must be reversed because the trial court erroneously instructed the jury with CALCRIM No. 1191B on the permissible use of propensity evidence in sex crime cases. The standard instruction was given by the trial court without any material change. It told the jury that, if they found Hernandez committed any one of the charged offenses beyond a reasonable doubt, they were permitted, but not required, to infer he was generally inclined to commit sex offenses, and to then further consider this fact when assessing whether he committed any of the other offenses. Hernandez contends CALCRIM No. 1191B provides a correct statement of the law under most circumstances, but it is incorrect when given in a case in which all of the charged offenses occur on the same occasion. He contends…