Falsetta

In this case we resolve a due process challenge to legislation (Evid. Code, § 1108) 1 permitting the admission, in a sex offense case, of the defendant’s other sex crimes for the purpose of showing a propensity to commit such crimes. Although this provision represents a deviation from the historical practice of excluding such “propensity” evidence (see § 1101, subd. (a)), the provision preserves trial court discretion to exclude the evidence if its prejudicial effect outweighs its probative value (§ 352). We conclude, consistent with prior state and federal case law, that section 1108 is constitutionally valid. We also reject defendant’s additional contention that the judgment should be reversed because the trial court erred in refusing to give defendant’s special limiting instruction regarding the jury’s consideration of the other crimes evidence.

*908 Charles Anthony Falsetta appeals from his convictions for forcible oral copulation (Pen. Code, § 288a, subd. (c)), assault with the intent to rape (Pen. Code, § 220), assault with force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(1)), and kidnapping (Pen. Code, § 207), with sentence enhancements for…

I concur in the judgment. Although evidence of prior sexual offenses has traditionally been excluded under California law to show propensity, there appears to be no constitutional barrier to its admission; its use does not appear to “ ‘offend[] some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.’ ” (Medina v. California (1992) 505 U.S. 437, 446 [ 112 S.Ct. 2572, 2577 , 120 L.Ed.2d 353 ].). As the majority emphasize, the trial court must still determine, on a case-by-case basis under Evidence Code section 352, whether the evidence should be excluded as too prejudicial or because it will necessitate an undue consumption of time. The present case, moreover, involves the admission only of convictions for rapes as to which defendant pleaded guilty.

I write separately because I am concerned that the majority leave open troubling questions. What is the procedure if a defendant pleaded not guilty to the previous offenses? Or pleaded guilty, or nolo contendere, but now alleges that he was not, in fact, the perpetrator? I question the majority’s conclusion that defendants in such circumstances “will not be burdened unduly by…

I concur generally in the analysis and conclusions of the majority. I write separately only to disavow the majority’s endorsement of CALJIC No. 2.50.01 (1999 rev.) (6th ed. pocket pt.) as “adequately set[ting] forth the controlling principles under [Evidence Code] section 1108.” (Maj. opn., ante, at p. 924; id. at p. 922 [CALJIC No. 2.50.01 “contains language appropriate for cases involving the admission of disposition evidence”]; id. at p. 924 [trial court’s “failure to instruct the jury along the lines of CALJIC No. 2.50.01 . . . was clearly harmless”].) The efficacy of this instruction is not before us. Moreover, the instruction suggests the charged and uncharged sex offenses must be “the same or similar type.” (CALJIC No. 2.50.01, supra.) I perceive no such requirement in Evidence Code section 1108. Rather than endorsing this instruction, I would simply state that a defendant may request the jury be instructed that if it finds the defendant committed a prior sexual offense, that is not sufficient by itself to prove he committed the charged crime, and that the weight and significance of the evidence are for the jury to decide.

Certiorari Denied April 24, 2000. See 120 S.Ct. 1723 .

In this case we resolve a due process challenge to legislation (Evid.Code, § 1108) [1] permitting the admission, in a sex offense case, of the defendant's other sex crimes for the purpose of showing a propensity to commit such crimes. Although this provision represents a deviation from the historical practice of excluding such "propensity" evidence (see § 1101, subd. (a)), the provision preserves trial court discretion to exclude the evidence if its prejudicial effect outweighs its probative value (§ 352). We conclude, consistent with prior state and federal case law, that section 1108 is constitutionally valid. We also reject defendant's additional contention that the judgment should be reversed because the trial court erred in refusing to give defendant's special limiting instruction regarding the jury's consideration of the other crimes evidence.

Charles Anthony Falsetta appeals from his convictions for forcible oral copulation (Pen.Code, § 288a, subd. (c)), assault with the intent to rape (Pen.Code, § 220), assault with force likely to cause great bodily injury (Pen.Code, § 245, subd. (a)(1)), and kidnapping…