McFarland

Here we conclude that Evidence Code section 1108 1 does not allow a psychiatrist called as an expert witness to render an opinion about the accused’s sexual proclivities during the prosecution’s case-in-chief. Section 1108 permits the prosecution to prove a defendant’s sexual propensity through evidence of specific instances of conduct. It does not alter section 1102’s rule that opinion evidence about a defendant’s character is inadmissible unless the defendant first places his character in issue.

Procedural History

A jury convicted appellant Dennis McFarland of annoying or molesting a child, under Penal Code section 647.6. Before his trial began, appellant admitted two prior felony convictions for lewd conduct with a child under 14 years of age. (Pen. Code, § 288, subd. (a).) These prior convictions elevated the current offense from a misdemeanor to a felony, and rendered appellant eligible for sentencing under the “Three Strikes” law. (Pen. Code, §§ 647.6, subd. (c)(2), 1170.12.) Appellant was sentenced to prison for a term of 25 years to life. We reverse.

Facts

Amparo G. has three children: 11-year-old Robert, six-year-old Breana, and four-year-old Isabella. She…