People v. Gentile CA2/6

Discussion As indicated, appellant’s first contention is waived on appeal and even on the merits, the contention fails. CALCRIM No. 1191A provides: “The People presented evidence that the defendant committed the crime of possessing matter that shows a minor engaged in or simulating sexual conduct at times that were not charged in this case. The crime is defined for you in these instructions. [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged offense. Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. [¶] If the People have not met this burden of proof, you must disregard this evidence entirely. [¶] If you decide that the defendant committed the uncharged offense, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses, and based on that decision, also conclude that the defendant was likely to commit [the crime] of possessing…