Villatoro

Pursuant to Evidence Code 1 section 1108, pattern jury instruction CALCRIM No. 1191 explains to a jury that it may consider a defendant’s uncharged sexual offense as evidence of his or her propensity to commit a charged sexual offense. Relying on a recent case, the trial court here modified CALCRIM No. 1191 to permit the jury to consider the defendant’s charged sexual offenses as evidence of his propensity to commit the other charged sexual offenses. (See People v. Wilson (2008) 166 Cal.App.4th 1034, 1052 [ 83 Cal.Rptr.3d 326 ] (Wilson).) The jury subsequently convicted defendant Juan Jose Villatoro of various counts of kidnapping, robbery, and rape against five women.

On appeal, defendant challenged the modified instruction based on People v. Quintanilla (2005) 132 Cal.App.4th 572 [ 33 Cal.Rptr.3d 782 ] (Quintanilla), which held that charged offenses could not be considered as propensity evidence under a similar provision (§ 1109) and its corresponding jury instruction (CALJIC No. 2.50.02). Relying in part on Wilson , the Court of Appeal below rejected defendant’s challenges to the modified instruction. For reasons that follow, we affirm the Court of Appeal’s…

I respectfully dissent from the majority’s analysis. The majority concludes Evidence Code section 1108 1 permits the jury to draw a propensity inference from evidence that the defendant committed multiple charged crimes. In my view, such an instruction contradicts long-standing precedent, expands multiple sections of the Evidence Code in ways not contemplated by the Legislature, and sows the seeds for confusion and unintended consequences. Because the error in this case was clearly harmless, however, I concur in the result.

Section 1108 governs the admission of evidence, nothing more. It creates a narrowly crafted exception to the long-standing ban on propensity evidence. Specifically, it provides that evidence of a defendant’s sex crimes on other occasions can be admitted in a new sex crime trial to prove the defendant’s propensity to commit such offenses. Section 1108 addresses evidence of uncharged crimes. It says nothing about the inferences permissible from evidence of charged crimes.

A. General Principles

The majority’s reasoning fails to distinguish between evidence and inferences a jury may draw from the evidence. “ ‘Evidence’ means testimony, writings, material…

The court holds that Evidence Code section 1108 applies to charged as well as uncharged offenses. (Maj. opn., ante, at pp. 1160-1167; further statutory references are to the Evidence Code.) However, neither the language nor the legislative history of section 1108 supports this construction. (See cone. & dis. opn. of Corrigan, J., ante, at pp. 1172-1175.) Section 1101 and, in turn, section 1108 govern whether evidence is admissible or inadmissible. These statutes do not govern how evidence that has been properly admitted—here, evidence of charged sex crimes—may be used by a jury. As Justice Corrigan explains: “The present case does not concern the admission of evidence, nor does it concern evidence of a defendant’s uncharged sex crimes. The question here is whether the jury should be instructed that it can infer, from a finding that the defendant committed one of the charged sex crimes, that he has a propensity to commit such offenses and, thus, may have committed the other sex crimes for which he is on trial. Section 1108 simply does not address this question.” (Cone. & dis. opn. of Corrigan, J., ante, at p. 1175.) I agree with Justice Corrigan that the trial court erred in…

Filed 7/30/

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

) Plaintiff and Respondent, ) ) S192531 v. ) ) Ct.App. 2/8 B222214

JUAN JOSE VILLATORO, )

) Los Angeles County Defendant and Appellant. ) Super. Ct. No. BA339453 ___________________________________ )

Pursuant to Evidence Code1 section 1108, pattern jury instruction CALCRIM No. 1191 explains to a jury that it may consider a defendant‟s uncharged sexual offense as evidence of his or her propensity to commit a charged sexual offense. Relying on a recent case, the trial court here modified CALCRIM No. 1191 to permit the jury to consider the defendant‟s charged sexual offenses as evidence of his propensity to commit the other charged sexual offenses. (See People v. Wilson (2008) 166 Cal.App.4th 1034, 1052 (Wilson).) The jury subsequently convicted defendant Juan Jose Villatoro of various counts of kidnapping, robbery, and rape against five women. On appeal, defendant challenged the modified instruction based on People v. Quintanilla (2005) 132 Cal.App.4th 572…