Mullens

In this case, we hold that in a sex offense prosecution in which the trial court has admitted Evidence Code section 1108 propensity evidence that the defendant has committed an uncharged sex offense, it is error to exclude admission of evidence that the defendant has been acquitted of that offense, and such error is reversible if it is prejudicial under the Watson harmless error test (People v. Watson (1956) 46 Cal.2d 818, 836 [ 299 P.2d 243 ]). We conclude, as we shall explain, there is prejudicial error, and reverse the judgment. We reject the remaining legal contentions.

INTRODUCTION

A. Prior Prosecution

In a five-count amended information, the District Attorney of San Diego County originally charged Patrick R. Mullens with four counts of committing a lewd act upon his stepdaughter, S.S., a child under the age of 14 years, in violation of Penal Code section 288, subdivision (a) (hereafter Penal Code section 288(a)) and one count of committing a lewd act upon V.A., a child under the age of 14 years, by kissing her on the mouth in violation of Penal Code section 288(a).

B. Mistrial

In March 2002, a jury found Mullens not guilty as to the alleged offense against…