Orange County Super. Ct. Nos. 06HF1734, Ct.App. 4/3 G042923 M. Marc Kelly Judge
Law Offices of William J. Kopeny and William J. Kopeny for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons and Julie L. Garland, Assistant Attorneys General, Steven T. Oetting, Gil Gonzalez, James H. Flaherty III and Meredith Strong, Deputy Attorneys General, for Plaintiff and Respondent.
Under Evidence Code section 1108,  in the trial of sexual offense charges, evidence the defendant committed another sexual offense may be admissible to prove that the defendant has a propensity to engage in such conduct. This case raises two questions.
First, if the proffered conduct occurred before the defendant had reached the age of 14, must the prosecution establish that the defendant knew the conduct was wrongful and was thus capable of committing a crime, as required by Penal Code section 26, subdivision One (Penal Code section 26(One))? We conclude such proof is required because section 1108 only permits admission of evidence of another sexual offense that amounts to “a crime” under state or federal law.
Second, does the trial court or the jury ultimately decide if the proffered conduct amounted to a crime? The Court of Appeal held that the question is for the jury and imposed a sua sponte duty to instruct on Penal Code section 26(One)’s presumption of incapacity as it relates to evidence admitted under section 1108 (1108 evidence). We reject that conclusion.
In laying the foundation for admissibility, the prosecution must demonstrate that previously unadjudicated conduct amounts to a crime. That showing presents a mixed question of law and fact. The trial court rules on the legal issues relating to admissibility and resolves the preliminary factual question of capacity under section 405, subdivision (a). Once the evidence is admitted, the jury does not reassess these determinations. The jury does determine if the act occurred, as well as the weight and significance of the evidence. To that end, the jury may take into account the defendant’s age in considering whether the evidence demonstrates his propensity to commit the charged offenses. The trial court, however, need not instruct the jury on that point absent a request. Accordingly, we reverse the Court of Appeal, which found prejudicial instructional error.
A. Charged Offenses
Defendant was charged with committing four lewd acts upon his niece, B.,  who was 19 years old at the time of trial. She testified that defendant began molesting her in 1998, when she was eight. During school breaks and summer vacation, B. stayed overnight with defendant and his wife, Jeanie. Being away from home, B. was afraid to sleep alone all night. So the three shared a bed, with B. sleeping between the two adults.
The first night of this arrangement, B. woke up to find that defendant had placed his hand under her clothing and was massaging her “vagina, ” breasts, and buttocks. Although B. moved away from defendant, she did not say anything because she was frightened. She did not awaken Jeanie or tell her what had happened. The next night defendant touched B. the same way. B. did not report the incidents when she returned home because she remained afraid.
B. estimated that she stayed at the Cottone’s home two to four days at a time, three to four times a year for approximately four years. Defendant touched B. the same way every time she spent the night, using his hand to rub her breasts, buttocks, and “vagina.” The touching did not involve penetration and defendant never forced B. to touch him.
When B. was 11 or 12 years old, her sister and her cousin, C., also began spending the night with the Cottones. B. estimated that the three girls slept over together approximately 10 or 15 times, sharing a bed in the guestroom. Every night, defendant entered the dark room, sat on the bed, and pulled back B.’s covers. Defendant touched her according to his pattern. B. did not tell her sister or cousin what had happened.
At some point, B. told her mother that she no longer wanted to stay with the Cottones, but did not explain her reluctance. Her mother responded that Jeanie was expecting her, so she should go. Defendant eventually stopped abusing B. in 2003.
In 2006, B. and her mother went to a family event at defendant’s home. On the way, B.’s mother complained about the way defendant made fun of B.’s brother. B. said, “ ‘Well, if you think that’s bad, you should—you don’t know what he has done to me[.]’ ” She then told her mother about defendant’s conduct.
B. Expert Testimony
Dr. Laura Brodie, a clinical and forensic psychologist, testified for the prosecution. She described child sexual abuse accommodation syndrome, a condition often seen in sexually abused children. Unfamiliar with the facts of this case, Brodie testified generally that it was not unusual for a child to delay reporting abuse for several years.
C. 1108 Evidence
Before trial, the prosecution offered evidence under section 1108 that defendant had sexually abused his sister, L. The incident occurred in 1966, when L. was around five and defendant was nearly 14. No juvenile court allegations were filed.
Defendant opposed the prosecutor’s motion, arguing that the event was remote, dissimilar, and unduly prejudicial. (§ 352.) Citing Penal Code section 26(One), he also argued that the evidence should be excluded because, as a minor under the age of 14 (under 14), he was presumed incapable of committing a crime.
L. testified at an in limine hearing. One day when L. and a friend were playing, defendant invited them to play a game called “giggy-giggy.” The friend declined and went home. Defendant carried L. downstairs to the basement, where he and his brothers had bedrooms. They were alone. As L. sat on his shoulders, defendant put his finger in her underpants and touched her vaginal area.
The court allowed L. to testify. It found that defendant was at least 13 years and 10 months old at the time of the offense. Clear and convincing evidence showed defendant understood the wrongfulness of his conduct, based on his age and the circumstances of the crime. The parties’ briefing and argument was limited to whether the trial court should admit or exclude the evidence. Defendant did ...