1

Filed 7/30/12

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 (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 

 

1 Further statutory references are to the Evidence Code unless otherwise noted.
2

Court of Appeal below rejected defendant‟s challenges to the modified instruction. For 

reasons that follow, we affirm the Court of Appeal‟s judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant was charged with committing various offenses, including rape, against 

five women between 2005 and 2008. 

R.I. 

On May 25, 2005, prostitute R.I. agreed to have sex with defendant for $80 and 

got into his car. After driving to a nearby residential area, defendant stopped the car, 

pulled out a gun from the backseat, and told the victim not to move or look at him or else 

he would kill her. Defendant forced R.I. to have vaginal and anal intercourse, then 

whipped her on the back for 20 minutes with electrical extension cords. He then took her 

cell phone and told her to get out of the car. 

The bruises on R.I.‟s back and vagina, along with the swelling in her legs, were 

consistent with her account of the attack. DNA samples taken from R.I were later found 

to match defendant‟s DNA. R.I. subsequently identified defendant from a six-pack 

photographic lineup.

N.G.

On June 21, 2006, 18-year-old N.G. was walking home late at night when 

defendant drove up in a car, pointed a gun at her, and told her to get in his car or else he 

would kill her. She got in and defendant drove off. He told her not to look at him, and 

held a razor to her ribcage as he drove. When he stopped in a residential area, he forced 

N.G. to have vaginal intercourse, and inserted his fingers into her vagina. Defendant took 

the victim‟s cell phone, rings, and sunglasses, and then let her go. 

DNA samples taken from N.G. were later determined to match defendant‟s DNA. 

Almost two years after the attack, N.G. identified defendant from a six-pack 

photographic lineup. 
3

Beverly G.

On February 3, 2008, prostitute Beverly G. agreed to have sex with defendant for 

$100. After she got into his car, defendant drove a short distance to a residential area. 

When he stopped the car, he pulled out a stun gun, activated it, and told Beverly not to 

move. He held the stun gun to her neck and screamed, “Don‟t look at me.” He forced 

her to have vaginal and anal intercourse. Whenever Beverly looked at defendant, he 

slapped her or spat at her. After he was done, defendant told her to get out; she did not 

retrieve her belongings before getting out of the car.

Beverly eventually told police what had happened and identified defendant from a 

six-pack photographic lineup on May 2, 2008. 

C.C. 

In the early morning of February 10, 2008, defendant offered a ride to C.C., who 

was waiting at a bus stop. She accepted the ride because another man had been harassing 

her. C.C. asked defendant to drive her to Hollywood. When she noticed he had driven to 

Santa Monica, she became worried and nervous. She asked defendant to stop so that she 

could use a restroom. Defendant pulled over, handed C.C. some baby wipes, and told her 

to relieve herself in the grass. Defendant watched as she did so. 

After defendant promised to take her home, C.C. got back into his car. He then 

pulled out a Taser or stun gun, activated it, and placed it near her throat. He ordered C.C. 

to take off her pants, which she did. He told her not to look at him, punched her in the 

face, and made her cover her head with her shirt. Defendant forced C.C. to have vaginal 

intercourse, bit her left breast, and pulled out some of her hair. He took her purse.

C.C.‟s physical injuries — a bite mark and suction injury on C.C.‟s left breast —

were consistent with her account of the attack. DNA samples taken from her body were 

later found to match defendant‟s DNA. In April 2008, C.C. identified defendant from a 

six-pack photographic lineup.
4

Kimberly J.1

On April 4, 2009, around 3:00 a.m., prostitute Kimberly J. got into defendant‟s 

car. He drove a few blocks before parking the car on a secluded street. He then jumped 

on top of Kimberly and said, “Shut up or I‟m going to kill you.” He pulled out a stun gun 

and turned it on to scare her. After defendant ripped off Kimberly‟s underwear and 

pulled down her skirt, he forced her to have vaginal intercourse. He repeatedly pushed 

her head and told her not to look at him. When defendant was done, he took Kimberly‟s 

jewelry and cell phone and ordered her out of the car. 

Kimberly‟s physical injuries — vaginal bruising and abrasions on her hymen —

were consistent with her account of the attack. DNA samples were taken from Kimberly, 

which were later determined to match defendant‟s DNA. Kimberly helped police create a 

composite drawing of her attacker, and she later identified defendant from a six-pack

photographic lineup. 

At trial, the victims (all but Kimberly J.) testified about what had happened to 

them, and indicated they did not know one another before they were attacked. Without 

objection, the trial court instructed the jury with a modified version of CALCRIM No. 

1191, which permitted the jury to use evidence of defendant‟s guilt of one of the charged 

sexual offenses as evidence of his propensity to commit the other charged sexual 

offenses. The jury convicted defendant of five counts of rape, one as to each victim. It 

also convicted him of one count of kidnapping to commit another crime as to N.G.; and 

four counts of robbery, each as to N.G., Beverly G., C.C., and Kimberly J. The jury also 

found true allegations that defendant (1) personally used a firearm during the rapes of R.I. 

and N.G., and during the kidnapping and robbery of N.G.; and (2) personally used a 

 

1 Kimberly refused to testify at trial and the trial court, over defense counsel‟s 

objection, declared her unavailable under section 240. Her preliminary hearing 

testimony, which provided details of the incident, was read into the record at trial. 

Though the admissibility of her testimony was at issue below, it is not an issue here. 
5

deadly or dangerous weapon as to all of the five rapes and as to the robberies of C.C. and 

Kimberly J. The trial court sentenced defendant to 153 years to life. Defendant 

appealed. 

Relying on Quintanilla, supra, 132 Cal.App.4th 572, defendant challenged the 

modified instruction on several grounds: the instruction violated section 1108 because it 

allowed the jury to use charged, rather than uncharged, offenses to prove his disposition 

to commit the other charged offenses; because it did not identify what standard of proof 

was required before the jury could consider the charged offense as propensity evidence; 

and because it did not reiterate that despite the inferences the jury could draw from its 

finding that a charged offense occurred, defendant still retained the presumption of 

innocence. Based in part on Wilson, supra, 166 Cal.App.4th 1034, the Court of Appeal 

rejected defendant‟s challenges to the modified instruction. We granted defendant‟s 

petition for review. 

DISCUSSION

A. Character Evidence and Section 1108

Character evidence, sometimes described as evidence of a propensity or 

disposition to engage in a type of conduct, is generally inadmissible to prove a person‟s 

conduct on a specified occasion. (§ 1101, subd. (a) (section 1101(a)); Cal. Law Revision 

Com. com., reprinted at 29B pt. 3B West‟s Ann. Evid. Code (2009 ed.) foll. § 1101, p. 

221; see People v. Carter (2005) 36 Cal.4th 1114, 1147.) This ban against admitting 

character evidence to prove conduct, however, does not prohibit admission of specific 

acts of misconduct to establish a material fact like intent, common design or plan, or 

identity (§ 1101, subd. (b)), and does not affect the admissibility of evidence regarding 

the credibility of a witness (id., subd. (c)). (See People v. Falsetta (1999) 21 Cal.4th 903, 

911 (Falsetta).) The Legislature has also created specific exceptions to the rule against 

admitting character evidence in cases involving sexual offenses (§ 1108, subd. (a)), and 
6

domestic violence, elder or dependent abuse, or child abuse (§ 1109, subd. (a)(1)-(3)). 

(See § 1101(a).)

As relevant here, section 1108, subdivision (a), provides: “In a criminal action in 

which the defendant is accused of a sexual offense, evidence of the defendant‟s 

commission of another sexual offense or offenses is not made inadmissible by Section 

1101, if the evidence is not inadmissible pursuant to Section 352.”1 Enacted in 1995, 

section 1108 “implicitly abrogates prior decisions of this court indicating that 

„propensity‟ evidence is per se unduly prejudicial to the defense.” (Falsetta, supra, 21 

Cal.4th at p. 911.) “As the legislative history indicates, the Legislature‟s principal 

justification for adopting section 1108 was a practical one: By their very nature, sex 

crimes are usually committed in seclusion without third party witnesses or substantial 

corroborating evidence. The ensuing trial often presents conflicting versions of the event 

and requires the trier of fact to make difficult credibility determinations. Section 1108 

provides the trier of fact in a sex offense case the opportunity to learn of the defendant‟s 

possible disposition to commit sex crimes.” (Id. at p. 915.)

Nearly every published opinion interpreting section 1108 (including some from 

this court) has recognized that this provision allows, when proper, evidence of prior 

uncharged sexual offenses to prove propensity. (See, e.g., People v. Reliford (2003) 29

Cal.4th 1007, 1012-1013 (Reliford); Falsetta, supra, 21 Cal.4th at pp. 917-918; People v. 

Fitch (1997) 55 Cal.App.4th 172, 181-182.) The pattern jury instruction explaining the 

application of section 1108 (CALCRIM No. 1191) likewise refers to uncharged sexual 

offenses. With regard to the admission of uncharged sexual offenses, we have held that 

section 1108 satisfies the requirements of due process (Falsetta, supra, 21 Cal.4th at p. 

 

1 Section 352 provides: “The court in its discretion may exclude evidence if its 

probative value is substantially outweighed by the probability that its admission will (a) 

necessitate undue consumption of time or (b) create substantial danger of undue 

prejudice, of confusing the issues, or of misleading the jury.” 
7

917), and that CALJIC No. 2.50.01, the predecessor to CALCRIM No. 1191, is a correct 

statement of the law (Reliford, supra, 29 Cal.4th at pp. 1012-1016). (See also People v. 

Cromp (2007) 153 Cal.App.4th 476, 480 [“no material difference” between CALJIC No. 

2.50.01 & CALCRIM No. 1191].) Notwithstanding their repeated references to 

uncharged sexual offenses, these cases significantly did not consider whether section 

1108 extended to charged offenses as well. We consider that issue here.

Section 1108 provides that in a sexual offense case, “evidence of the defendant‟s 

commission of another sexual offense or offenses is not made inadmissible by Section 

1101, if the evidence is not inadmissible pursuant to Section 352.” By its terms, the 

statute does not distinguish between charged or uncharged sexual offenses, and refers 

instead to “another sexual offense or offenses.” (Italics added.) As used here, the 

ordinary meaning of the word “another” is “being one more in addition to one or a 

number of the same kind: ADDITIONAL.” (Webster‟s 3d New Internat. Dict. (2002) p.

89; see Wasatch Property Management v. Degrate (2005) 35 Cal.4th 1111, 1121-1122 

[“When attempting to ascertain the ordinary, usual meaning of a word, courts 

appropriately refer to the dictionary definition of that word”].) This definition of 

“another” contains no limitation, temporal or otherwise, to suggest that section 1108 

covers only offenses other than those for which the defendant is currently on trial.

Section 1108‟s qualifying language that such evidence is “not made inadmissible 

by Section 1101, if the evidence is not inadmissible pursuant to Section 352,” also does 

not mandate that the sexual offense be uncharged. The argument is that evidence relating 

to the charged sexual offenses which the defendant is currently facing is independently 

admissible and would not be rendered inadmissible by either section 1101 or section 352; 

in other words, the phrase makes no sense if applied to charged offenses. (See conc. & 

dis. opn. of Corrigan, J., post, at pp. 6, 11-12.) We are not persuaded. 
8

1. “Not Made Inadmissible by Section 1101”

First, we must construe the words of sections 1101 and 1108, which crossreference each other, consistently. (See Isobe v. Unemployment Ins. Appeals Board

(1974) 12 Cal.3d 584, 590-591.) Though section 1101 speaks in terms of the 

admissibility or inadmissibility of evidence, we have held that the provision (§ 1101(b)) 

applies not only to evidence of uncharged misconduct (People v. Kelly (2007) 42 Cal.4th 

763, 782-783; People v. Ewoldt (1994) 7 Cal.4th 380, 393 (Ewoldt)), but also to evidence 

(already admitted) of charged offenses. (People v. Catlin (2001) 26 Cal.4th 81, 153 

(Catlin); People v. Ochoa (1998) 19 Cal.4th 353, 410 (Ochoa).) Likewise, though 

section 1108 states that evidence is “not made inadmissible by Section 1101,” we 

similarly construe this provision to extend to evidence of both uncharged and charged 

sexual offenses. (See Housing Authority v. Van de Kamp (1990) 223 Cal.App.3d 109, 

116 [“Words or phrases common to two statutes dealing with the same subject matter 

must be construed in pari materia to have the same meaning”].)

Also, in making clear that evidence of prior uncharged sex offenses is not made 

inadmissible by section 1101(a)‟s ban on propensity evidence to prove conduct (see 

Falsetta, supra, 21 Cal.4th at p. 911), the qualifying language is not thereby rendered 

meaningless with respect to evidence of charged sex offenses. As a general matter, 

evidence may have multiple purposes and, consequently, may be “admissible . . . for one 

purpose and . . . inadmissible . . . for another purpose.” (§ 355; see People v. Pierce 

(1969) 269 Cal.App.2d 193, 203.) Because section 1101(a)‟s prohibition against 

propensity evidence is “absolute where it applies” (People v. Alcala (1984) 36 Cal.3d 

604, 631), before section 1108 was enacted, evidence admitted to prove the defendant‟s 

guilt of a sex offense could not be considered as evidence of the defendant‟s propensity 

to commit the other charged sex offenses. (See Falsetta, supra, 21 Cal.4th at p. 915 [§ 

1108‟s “limited exception to the historical rule against propensity evidence”].) Thus, in 
9

authorizing the jury‟s use of propensity evidence in sex offense cases, section 1108

necessarily extends to evidence of both charged and uncharged sex offenses, affirming 

that such evidence is not “made inadmissible by Section 1101.”

2. Section 352 and Quintanilla 

Second, with respect to section 352, defendant relies heavily on the reasoning in 

Quintanilla, supra, 132 Cal.App.4th 572, and insists that by incorporating a section 352 

analysis, section 1108 effectively distinguishes between charged and uncharged offenses 

because the former cannot be excluded under section 352. Defendant therefore reasons

that the Legislature must have intended section 1108 to apply only to uncharged offenses 

and asserts that the provision‟s legislative history supports this interpretation. We 

disagree. 

Quintanilla dealt with the parallel provision governing propensity evidence in 

domestic violence cases (§ 1109).1 The trial court there modified the pattern jury 

instruction implementing section 1109 (CALJIC No. 2.50.02), and instructed the jury that 

it could infer the defendant‟s criminal propensity to commit charged domestic violence 

offenses from other charged domestic violence offenses. (Quintanilla, supra, 132 

Cal.App.4th at p. 581.) Relying on our decision in Falsetta, supra, 21 Cal.4th 903, the

Quintanilla majority concluded that section 1109 permitted only the admission of 

uncharged offenses. (Quintanilla, supra, 132 Cal.App.4th at pp. 582-583.) The majority 

rejected the Attorney General‟s argument that section 1109‟s plain terms did not 

differentiate between charged or uncharged crimes, instead emphasizing that the 

provision “expressly conditions the admissibility of propensity evidence on the trial 

court‟s power to evaluate the evidence under section 352.” (Quintanilla, supra, 132 

 

1 For purposes of the issue presented here, the precise distinctions between section 

1108 and section 1109 are not pertinent. (See People v. Brown (2000) 77 Cal.App.4th 

1324, 1333 [“sections 1108 and 1109 can properly be read together as complementary 

portions of the same statutory scheme”].) 
10

Cal.App.4th at p. 583.) Defendant here advances the same section 352 argument in his 

briefing. By contrast, the Attorney General maintains that “it is not the express inclusion 

of the reference to section 352 that matters; rather, it is the availability of the weighing 

process.” We agree with the Attorney General.1

Section 1108‟s legislative history reveals that the legislation was amended after it 

was introduced to include a specific reference to section 352. (Assem. Bill No. 882 

(1995-1996 Reg. Sess.) as amended July 18, 1995.) “While § 1108 explicitly supersedes 

§ 1101‟s prohibition of evidence of character or disposition within its scope of 

application, it does not supersede other provisions of the Evidence Code, such as normal 

restrictions in hearsay and the court‟s authority to exclude evidence presenting an 

overriding likelihood of prejudice under § 352. [Citations.] [¶] The amendment adopted 

at the Judiciary Committee hearing simply makes this point explicit in relation to § 352.”

(Assembly Member Rogan, letter of intent re Assem. Bill No. 882 (1995-1996 Reg. 

Sess.) Aug. 24, 1995, reprinted at 29B pt. 3B West‟s Ann. Evid. Code (2009 ed.) foll. § 

1108, p. 352, italics added (Rogan letter).)

Rather than imposing an additional hurdle to the admissibility of character 

evidence, as defendant suggests, the inclusion of section 352 merely makes “explicit” the 

point that section 1108 does not supersede section 352 or other provisions of the

Evidence Code. In other words, even if section 1108 did not refer to section 352, the 

latter still serves as a limitation on the admission of all evidence. (See Ewoldt, supra, 7 

Cal.4th at p. 404 [“to be admissible such evidence „must not contravene other policies 

limiting admission, such as those contained in Evidence Code section 352‟ ”]; see also 

Assem. Com. on Public Safety, 3d reading analysis of Assem. Bill No. 882 (1995-1996 

Reg. Sess.) as amended May 15, 1995, p. 3 (Assembly Committee analysis) [legislation 

 

1 We disapprove People v. Quintanilla, supra, 132 Cal.App.4th 572, to the extent it 

is inconsistent with the views expressed in this opinion.
11

puts evidence of similar sexual offenses “on the same footing as other types of relevant 

evidence” not subject to a special exclusionary rule].) 

Though recognizing that evidence of the charged offenses may not be excludable 

under section 352, the Court of Appeal below concluded that nothing precludes a trial 

court from considering section 352 factors when deciding whether to permit the jury to 

infer a defendant‟s propensity based on this evidence. It explained: “Even where a 

defendant is charged with multiple sex offenses, they may be dissimilar enough, or so 

remote or unconnected to each other, that the trial court could apply the criteria of section 

352 and determine that it is not proper for the jury to consider one or more of the charged 

offenses as evidence that the defendant likely committed any of the other charged 

offenses.” We agree. (See People v. Harris (1998) 60 Cal.App.4th 727, 736 [“the 

ultimate object of the section 352 weighing process is a fair trial”].) We discuss below

the trial court‟s section 352 analysis with respect to the modified instruction. (See post, 

at p. 17.) 

In short, we conclude nothing in the language of section 1108 restricts its 

application to uncharged offenses. Indeed, the clear purpose of section 1108 is to permit 

the jury‟s consideration of evidence of a defendant‟s propensity to commit sexual 

offenses. “The propensity to commit sexual offenses is not a common attribute among 

the general public. Therefore, evidence that a particular defendant has such a propensity 

is especially probative and should be considered by the trier of fact when determining the 

credibility of a victim‟s testimony.” (Assem. Com. analysis of Assem. Bill No. 882,

supra, p. 2 [purpose according to bill‟s author]; Sen. Com. on Crim. Procedure, Analysis 

of Assem. Bill No. 882 (1995-1996 Reg. Sess.) as amended May 15, 1995, p. 2 (Senate 

Committee analysis) [same]; Sen. Com. on Judiciary, Analysis of Assem. Bill No. 882 

(1995-1996 Reg. Sess.) as amended June 27, 1995, p. 9 [same]; Sen. Rules Com., Off. of 

Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 882 (1995-1996 Reg. Sess.)

as amended July 18, 1995, p. 5 [same].) “[C]ase law clearly shows that evidence that [a 
12

defendant] committed other sex offenses is at least circumstantially relevant to the issue 

of his disposition or propensity to commit these offenses.” (Falsetta, supra, 21 Cal.4th at 

p. 915; see People v. Jones (1954) 42 Cal.2d 219, 223 [“In the determination of 

probabilities of guilt, evidence of character is relevant”].) In light of this clear purpose, 

we perceive no reason why the Legislature would exclude charged sexual offenses from 

section 1108‟s purview, and no indication that it did so in either the text of section 1108 

or its legislative history. Whether an offense is charged or uncharged in the current 

prosecution does not affect in any way its relevance as propensity evidence. Indeed, 

section 1108‟s legislative history explains that “admission and consideration of evidence 

of other sexual offenses to show character or disposition would be no longer treated as 

intrinsically prejudicial or impermissible.” (Rogan letter, supra, 29B pt. 3B West‟s Ann. 

Evid. Code, p. 352, italics added; see ibid. [“This includes consideration of the other 

sexual offenses as evidence of the defendant‟s disposition to commit such crimes . . .”].)1 

In cautioning against the “bootstrapping of verdicts” (see conc. & dis. opn. of 

Corrigan, J., post, at pp. 10, 14) and the possibility that the jury may “simply conclude 

that because it found the defendant guilty of one count, he must be guilty of the others” 

(id. at p. 2), the concurring and dissenting opinion merely identifies the general concern 

against allowing a jury to consider propensity evidence in a criminal case. (See People v. 

Manriquez (2005) 37 Cal.4th 547, 579-580 [modified CALJIC No. 17.02 adequately 

 

1 Notwithstanding isolated references to “uncharged crimes” and “uncharged sexual 

acts” in an early analysis by the Senate Committee on Criminal Procedure (see Senate 

Com. analysis of Assem. Bill No. 882, supra, at p. 1), section 1108‟s legislative history 

reflects that the Legislature did not consistently use the term “uncharged,” and more 

importantly, the Legislature ultimately did not make such a distinction between 

“uncharged” and “charged” in the text of section 1108. Moreover, contrary to the 

concurring and dissenting opinion‟s suggestion (see conc. & dis. opn. of Corrigan, J., 

post, at pp. 7-8), the Legislature‟s references to “other” (“other victims” and defendant‟s 

commission of crimes “on other occasions”) may also mean that the case in which a 

propensity inference will apply involves multiple victims and multiple sex crimes 

charged against the defendant, as here. 
13

addressed defendant‟s concern jury might base one or more verdicts on multiple murder 

counts on “ „supposed propensity to commit murder‟ ”].) However, in a sex offense case, 

as here, the Legislature has made the careful determination that evidence the defendant 

committed one or more sex offenses may be properly considered pursuant to section 

1108. (See ante, at pp. 11-12; see also Falsetta, supra, 21 Cal.4th at p. 920 [“evidence of 

a defendant‟s other sex offenses constitutes relevant circumstantial evidence that he 

committed the charged sex offenses”].) 

More to the point, the instruction here (as set out in full below) did not permit the 

jury to convict defendant of one count based simply on its guilty “verdict” on any other 

counts. (Cf. conc. & dis. opn. of Corrigan, J., post, at pp. 13-14.) It is not the verdict 

itself, but rather the jury‟s factual finding that defendant has committed a sex offense, 

that the jury relies on to draw an inference of disposition or propensity. Specifically, like 

an instruction based on uncharged sex offenses, the modified CALCRIM No. 1191 

explained to the jury that if it decided that defendant had committed a charged sex 

offense, “from that evidence” it could conclude that defendant had a disposition to 

commit the other charged sex offenses, and that based on that decision, the jury could

also conclude that defendant was likely to and did commit the other charged sex offenses. 

(See post, at p. 16; see also Reliford, supra, 29 Cal.4th at pp. 1012-1013 [addressing 

propriety of CALJIC No. 2.50.01; “jury may use „the evidence of prior sex crimes to find 

that defendant had a propensity to commit such crimes, which in turn may show that he 

committed the charged offenses‟ ”].) Ultimately, the modified instruction affirmed that 

evidence that the defendant committed a charged offense “is not sufficient by itself to 

prove the defendant is guilty of another charged offense.” 

To the extent the Legislature has given greater attention to evidence of uncharged 

(as compared to charged) sex offenses under section 1108, such focus is not surprising. 

Shortly before section 1108‟s enactment, we strongly cautioned that “[e]vidence of 

uncharged offenses „is so prejudicial that its admission requires extremely careful 
14

analysis.‟ ” (Ewoldt, supra, 7 Cal.4th at p. 404; see also People v. Daniels (1991) 52 

Cal.3d 815, 856 [“this type of evidence can be so damaging”].) In enacting section 1108, 

the Legislature recognized that “[g]iven its highly inflammatory nature, uncharged 

misconduct is admissible after various safeguards are met. This is done in recognition 

that when this type of evidence is admitted, the odds of conviction increase 

dramatically.” (Sen. Com. analysis of Assem. Bill No. 882, supra, p. 4.) 

Understandably, the Legislature took special care to ensure that in allowing the jury to 

consider propensity evidence, section 1108 would withstand scrutiny with respect to

uncharged sex offenses. (See Falsetta, supra, 21 Cal.4th at p. 917 [“ „By subjecting 

evidence of uncharged sexual misconduct to the weighing process of section 352, the 

Legislature has ensured that such evidence cannot be used in cases where its probative 

value is substantially outweighed . . .‟ ”].)

Allowing a jury to draw an inference of propensity from other charged offenses is 

also consistent with the use of charged offenses under section 1101, subdivision (b). As 

noted, section 1101, subdivision (b), permits the admission of other crimes evidence to 

establish a material fact like intent, common design or plan, or identity. (See ante, at p.

5.) We have made clear that juries may consider evidence of other charged offenses for 

the purposes outlined in subdivision (b), as well as to establish the charged offenses, if 

the evidence would have been cross-admissible had the charges been tried separately. 

(Catlin, supra, 26 Cal.4th at p. 153 [“under Evidence Code section 1101 the jury properly 

could consider other-crimes evidence in connection with each count, and also could 

consider evidence relevant to one of the charged counts as it considered the other charged 

count”]; Ochoa, supra, 19 Cal.4th at p. 410 [“evidence of each assault could be used 

under Evidence Code section 1101, subdivision (b), to show defendant‟s mental state for 

each other assault, namely his intent”].) It would be anomalous to permit consideration 

of such evidence under section 1101 but not under section 1108, when the latter eases the 

restrictions of the former. (See also Isobe v. Unemployment Ins. Appeals Board, supra, 
15

12 Cal.3d at pp. 590-591.) In his separate opinion in Quintanilla, Justice Pollak also 

succinctly explained another incongruity of prohibiting the consideration of charged 

offenses as character evidence: “Indeed, it is entirely illogical to permit the prosecution 

to show propensity to commit domestic violence with evidence of prior similar 

misconduct that was not felt to warrant prosecution in the same case, but to prohibit the 

use of such evidence when the conduct is deemed sufficiently aggravated to justify a 

separate charge.” (Quintanilla, supra, 132 Cal.App.4th at p. 586 (conc. opn. of Pollak, 

J.).)

It is true that section 1108 does not mention drawing a propensity inference from 

the evidence of charged sex offenses (see conc. & dis. opn. of Corrigan, J., post, at pp. 1, 

6, 9-10, 18), because, in fact, the statute makes no reference to inferences at all. 

Nonetheless, despite no mention of inferences, we concluded that pursuant to section 

1108, CALJIC No. 2.50.01 properly instructed that jurors may “infer the defendant has a 

disposition to commit sex crimes from evidence the defendant has committed other sex 

offenses,” and that jurors “may—but are not required to—infer from this predisposition 

that the defendant was likely to commit and did commit the charged offense.” (Reliford, 

supra, 29 Cal.4th at pp. 1012-1013 [evidence of uncharged sex offenses].) These 

“reasonable” and “legitimate” inferences (ibid.) are made no less relevant merely because 

the evidence is based on charged, rather than uncharged, sex offenses. (Id. at p. 1013 

[“when the evidence is admissible, it may support an inference—as the instruction 

provides—that the defendant is predisposed to commit the sex offenses”].)

B. Modified CALCRIM No. 1191

We next address whether the trial court erred in instructing the jury with a 

modified version of CALCRIM No. 1191. Defendant argues that the modified 

instruction failed to designate clearly what standard of proof applied to the charged 

offenses before the jury could draw a propensity inference from them. He insists that 

without such guidance, a juror could have used any standard of proof, or no standard at 
16

all, to convict him based on even a minimal amount of evidence supporting another 

sexual offense, thus depriving him of the presumption of innocence. We disagree.

The modified instruction given here provided: “The People presented evidence 

that the defendant committed the crime of rape as alleged in counts 2, 4, 7, 9, 12 and 15 

and the crime of sodomy as alleged in count 14. These crimes are defined for you in the 

instructions for these crimes. [¶] If you decide that the defendant committed one of these 

charged offenses, you may, but are not required to, conclude from that evidence that the 

defendant was disposed or inclined to commit the other charged crimes of rape or 

sodomy, and based on that decision also conclude that the defendant was likely to and did 

commit the other offenses of rape and sodomy charged. If you conclude that the 

defendant committed a charged offense, that conclusion is only one factor to consider 

along with all the other evidence. It is not sufficient by itself to prove the defendant is 

guilty of another charged offense. The People must still prove each element of every 

charge beyond a reasonable doubt and prove it beyond a reasonable doubt before you 

may consider one charge as proof of another charge.”1

Unlike the standard pattern instruction CALCRIM No. 1191 which refers to the 

use of uncharged offenses, the modified instruction did not provide that the charged 

offenses used to prove propensity must be proven by a preponderance of the evidence. 

Instead, the instruction clearly told the jury that all offenses must be proven beyond a 

reasonable doubt, even those used to draw an inference of propensity. Thus, there was no 

 

1 Although the written version of the modified instruction included this last 

sentence, it also referred to “specific intent” as follows: “The People must still prove 

each element of every charge beyond a reasonable doubt and must prove it beyond a 

reasonable doubt before you may consider one charge as proof of specific intent of 

another charge.” (Italics added.) Because the prosecution did not argue that evidence of 

the other charged offenses could be proof of defendant‟s specific intent, we, like the 

Court of Appeal below, have not considered this limitation when evaluating the 

instruction. In that regard, we reject defendant‟s contention that the modified instruction 

included the reasonable doubt standard only with respect to proof of a “specific intent of 

another charge.” 
17

risk the jury would apply an impermissibly low standard of proof. (Cf. Quintanilla, 

supra, 132 Cal.App.4th at p. 583 [referring to “mental gymnastics” of having jury apply 

beyond reasonable doubt standard for charged offense but preponderance of evidence 

standard for purposes of propensity].) Moreover, the court instructed the jury with 

CALCRIM No. 220, which defines the reasonable doubt standard and reiterates that the 

defendant is presumed innocent; it also explains that only proof beyond a reasonable 

doubt will overcome that presumption. The modified version of CALCRIM No. 1191 

did not impermissibly lower the standard of proof or otherwise interfere with defendant‟s 

presumption of innocence.

Defendant also argues that the trial court did not undertake a section 352 analysis 

here before giving the modified instruction. In concluding to the contrary, the Court of 

Appeal first recognized that the record does not include an express statement by the trial 

court that it undertook such an analysis. Noting that an express statement is not required 

(see People v. Padilla (1995) 11 Cal.4th 891, 924 (Padilla)), the Court of Appeal next 

inferred the trial court‟s “implicit weighing,” apparently based on the following statement 

the trial court made to the parties: “[CALCRIM No.] 1191, for the record, I‟ve given you 

both a copy based on the instruction given in Wilson.” The Court of Appeal concluded: 

“The trial court‟s express reliance on a key case in this area, considered in light of the 

entire record, allows us to infer that the trial court gave the instruction because it found 

that all the requirements of the holding in Wilson, including a section 352 analysis, had 

been satisfied.” The Attorney General adds that because section 1108 expressly refers to 

section 352, the trial court “presumably” conducted the requisite section 352 analysis. 

We agree with the Court of Appeal that the trial court implicitly conducted a 

section 352 analysis. “[W]e are willing to infer an implicit weighing by the trial court on 

the basis of record indications well short of an express statement.” (Padilla, supra, 11 

Cal.4th at p. 924, italics added.) 
18

In any event, any error in failing to conduct such an analysis was harmless. 

(Padilla, supra, 11 Cal.4th at p. 925 [“assuming the trial court did not evaluate the 

evidence under Evidence Code section 352, had he done so he would have admitted it in 

any event”].) As the Court of Appeal pointed out, although the victims‟ accounts of their 

respective attacks had minor differences, their versions were strikingly similar in various 

respects. Defendant forced or lured each woman into his car and drove to a residential 

area, where he forced each woman to submit to sexual acts by pointing a weapon at them. 

He yelled at each victim not to look at him, and afterwards ordered each out of his car. 

The evidence was highly probative of defendant‟s propensity to commit such crimes, and 

its value substantially outweighed any prejudice. 

In sum, under the facts of this case, the trial court did not err in giving the 

modified instruction. We do not decide, however, whether courts should give such an 

instruction in the future.

CONCLUSION

Based on the foregoing, we affirm the Court of Appeal‟s judgment.

CHIN, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.

KENNARD, J.

BAXTER, J.
1

CONCURRING AND DISSENTING OPINION BY CORRIGAN, J.

I respectfully dissent from the majority‟s analysis. The majority concludes

Evidence Code section 11081 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 

objects, or other things presented to the senses that are offered to prove the existence or 

nonexistence of a fact.” (§ 140.) “An inference is a deduction of fact that may logically 

and reasonably be drawn from another fact or group of facts found or otherwise

established in the action.” (§ 600, subd. (b); see also People v. Reliford (2003) 29 Cal.4th 

 

1 All statutory references are to the Evidence Code.
2

1007, 1014 (Reliford) [describing this distinction].) “[A]n inference is not itself 

evidence; it is the result of reasoning from evidence.” (Assem. Com. on Judiciary, com. 

on § 600, reprinted at 29B pt. 2 West‟s Ann. Evid. Code (1995 ed.) p. 4.)

The issues presented here implicate another important distinction about how the 

jury can reach conclusions from the evidence in a multiple-count case. In the absence of 

a statute to the contrary, all relevant evidence is admissible at trial. (§ 351.) Unless

evidence is admitted for a limited purpose, or against a specific party, evidence admitted 

at trial may generally be considered for any purpose.

1 A corollary of this rule is that the 

jury is free to apply its factual findings on one count in deciding any other count to which 

those facts are relevant. (People v. Beagle (1972) 6 Cal.3d 441, 456.) However, while 

the jury is free to apply relevant factual findings across counts, it is admonished that it 

must return a separate verdict on each count (CALCRIM No. 3515; CALJIC No. 17.02) 

and must decide each charge “uninfluenced by its verdict as to any other count.” (People 

v. Bias (1959) 170 Cal.App.2d 502, 510, italics added, cited with approval in People v. 

Beagle, supra, 6 Cal.3d at p. 456.) In other words, the jury may not simply conclude that 

because it found the defendant guilty of one count, he must be guilty of the others. The 

majority‟s holding casts aside this established precedent. This aspect of the case is 

discussed at greater length below. (See, post, at pp. 12-14.)

B. The Long-standing Rule Against Propensity Evidence

One example of limited admissibility arises in the context of other crimes

evidence. Evidence of a person‟s character, also known as propensity evidence, is 

inadmissible to prove conduct in conformity with that character trait. (§ 1101, subd. (a)

(section 1101(a)); Cal. Law Revision Com. com., reprinted at 29B pt. 3 West‟s Ann. 

 

1 If evidence has been admitted for a limited purpose, the jury will be instructed to 

restrict its consideration of the evidence accordingly. (§ 355.) To this end, CALCRIM 

No. 303 states: “During the trial, certain evidence was admitted for a limited purpose. 

You may consider that evidence only for that purpose and for no other.”
3

Evid. Code (2009 ed.) foll. § 1101, pp. 221-222.)1 This is the familiar ban on propensity 

evidence: Uncharged conduct generally cannot be admitted to prove the defendant is 

disposed to commit crimes. Section 1101(a) codifies this general rule. Notwithstanding 

that rule, section 1101, subdivision (b) (section 1101(b)) clarifies that uncharged acts can 

be admitted for other relevant purposes, such as proving motive, opportunity, intent, and 

so on, but they may not be admitted to prove the defendant had a disposition to commit 

similar bad acts. When a defendant‟s uncharged acts are admitted for a relevant purpose 

other than to support a propensity inference, an instruction is often given that explains 

this limited purpose to the jury. (§ 355; CALCRIM No. 375.)

The prohibition on propensity evidence is not merely statutory, however. In 

enacting section 1101(a), the Legislature codified a rule of evidentiary exclusion that is at 

least three centuries old in the common law. (People v. Alcala (1984) 36 Cal.3d 604, 

630-631; 1 Wigmore, Evidence (3d ed. 1940) § 194, pp. 646-647; see also People v. 

Falsetta (1999) 21 Cal.4th 903, 913 (Falsetta).) “The ban on propensity evidence dates 

back to English cases of the seventeenth century.” (United States v. Castillo (10th Cir. 

1998) 140 F.3d 874, 881.)2 Early American courts retained the rule, and it has been 

enforced throughout our nation‟s history. (McKinney v. Rees, supra, 993 F.2d at 

pp. 1380-1381; United States v. Castillo, at p. 881; see, e.g., Boyd v. United States (1892) 

142 U.S. 450, 458 [admission of defendants‟ prior crimes was prejudicial error].) Today, 

“[c]ourts that follow the common-law tradition almost unanimously have come to 

disallow resort by the prosecution to any kind of evidence of a defendant‟s evil character 

 

1 The issue in this case concerns character evidence offered to prove conduct. 

Character evidence admitted to attack or support a witness‟s credibility is addressed in 

sections 786 through 790, and is not implicated here.

2 Reference was made in Hampden’s Trial (K.B. 1684) 9 How.St.Tr. 1053, 1103, to 

a forgery case in which the court had excluded evidence of a defendant‟s prior forgeries. 

“Similarly, in Harrison’s Trial, the Lord Chief Justice excluded evidence of a prior 

wrongful act of a defendant who was on trial for murder, saying to the prosecution: 

„Hold, what are you doing now? Are you going to arraign his whole life? Away, away, 

that ought not to be; that is nothing to the matter.‟ 12 How.St.Tr. 834 (Old Bailey 

1692).” (McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378, 1380.)
4

to establish a probability of his guilt.” (Michelson v. United States (1948) 335 U.S. 469, 

475, fn. omitted; see also People v. Ewoldt (1994) 7 Cal.4th 380, 392; McKinney v. Rees, 

at p. 1381 & fn. 2 [listing the 37 states where the rule has been codified and asserting the 

rule persists in the common law precedents of the 12 other states and the Dist. of 

Columbia].)

Thus, allowing a defendant to be convicted because of his bad character is 

generally impermissible not only under California law (§ 1101(a)) and the Federal Rules 

of Evidence (Fed. Rules Evid., rule 404(b), 28 U.S.C.), but is also “contrary to firmly 

established principles of Anglo-American jurisprudence.” (McKinney v. Rees, supra, 993 

F.2d at p. 1380.) “The inquiry is not rejected because character is irrelevant; on the 

contrary, it is said to weigh too much with the jury and to so overpersuade them as to 

prejudge one with a bad general record and deny him a fair opportunity to defend against 

a particular charge. The overriding policy of excluding such evidence, despite its 

admitted probative value, is the practical experience that its disallowance tends to prevent 

confusion of issues, unfair surprise and undue prejudice.” (Michelson v. United States, 

supra, 335 U.S. at pp. 475-476, fn. omitted.)

C. Section 1108(a) Is a Narrow Exception to the Rule Against

Propensity Evidence

In enacting section 1108, the Legislature created a narrow exception to the

venerable rule prohibiting the use of uncharged bad acts to prove propensity. The 

narrowness of the lawmakers‟ intention is reflected in both the language of the statute and 

the legislative history.

1. Statutory Language Is Limited to Admitting Evidence of 

Uncharged Crimes

Section 1108(a) states that, when a defendant is on trial for a sex offense, 

“evidence of the defendant‟s commission of another sexual offense or offenses is not 

made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to 

Section 352.” Until recently, courts have generally interpreted this language to mean that 

section 1108(a) permits the admission into evidence of a defendant‟s uncharged sex 

crimes even if this evidence is relevant only to show criminal propensity. (E.g., Reliford, 
5

supra, 29 Cal.4th at p. 1009; Falsetta, supra, 21 Cal.4th at pp. 911, 917-919; People v. 

Medina (2003) 114 Cal.App.4th 897, 902; People v. Britt (2002) 104 Cal.App.4th 500, 

506; but see People v. Wilson (2008) 166 Cal.App.4th 1034 [approving instruction that 

invited the jury to infer specific intent from findings on the charged offenses].)

Although section 1108 does not expressly state that evidence of the other sex 

offense to be admitted must relate to an uncharged crime, this conclusion is fairly 

implied from its wording. The statute states that “[i]n a criminal action in which the 

defendant is accused of a sexual offense, evidence of the defendant‟s commission of 

another sexual offense or offenses is not made inadmissible by Section 1101, if the 

evidence is not inadmissible pursuant to section 352.” (§ 1108, subd. (a), italics added.) 

The majority‟s analysis relies heavily on the absence of language limiting the provision 

to “uncharged” offenses and the dictionary definition of “another.” But, read in context, 

the word “another” clearly suggests the statute is referring to offenses “other” than those 

for which the defendant is currently on trial. The whole point of section 1108 is to make 

admissible a certain type of “bad act” evidence that is otherwise inadmissible under 

section 1101. Evidence pertaining to the crimes for which the defendant is on trial is 

admissible in its own right and not “made inadmissible by Section 1101.”

Despite this clear limitation, the majority insists section 1108 “necessarily extends 

to evidence of both charged and uncharged sex offenses” (maj. opn., ante, at p. 9)

because the Legislature intended to authorize reliance on propensity evidence with 

respect to sex offenses, and charged offenses are just as relevant as uncharged ones. This 

argument misconstrues the difference between evidence and inferences based on 

evidence. Section 1108 authorizes the admission of uncharged sex crime evidence, even 

when its only relevance is to show propensity. As a result, the statute necessarily allows 

a propensity inference to be drawn from evidence of uncharged sex crimes. (See 

Reliford, supra, 29 Cal.4th at pp. 1014-1015.) However, nothing in the language of 

section 1108 sanctions or encourages the drawing of a propensity inference from all

evidence of sex crimes, as the majority assumes. The statute does not even mention the 

inference at issue here.
6

The statute also requires that the other crimes evidence “is not made inadmissible 

by Section 1101, if the evidence is not inadmissible pursuant to Section 352.” (§ 1108, 

subd. (a), italics added.) The significance of this reference to section 352 is discussed at 

pages 10-12, post.

Finally, the Legislature‟s intent that section 1108 govern the admission of 

uncharged misconduct is clear from subdivision (b), which requires that the prosecution 

disclose other crimes evidence to the defense before trial. Subdivision (b) makes no 

sense when the evidence at issue relates to charged offenses. Pretrial discovery rules 

already require disclosure of evidence pertaining to the charged crimes. When applied to 

evidence of charged offenses, subdivision (b) is superfluous. We generally avoid 

interpretations that render any part of a statute superfluous. (People v. Aguilar (1997) 16 

Cal.4th 1023, 1030.) The majority does not attempt to resolve this problem.

2. Legislative History Supports a Limited Reading of

Section 1108(a)

In addition to the statutory language, the legislative history uniformly shows that 

the Legislature was concerned with admitting evidence of uncharged sex crimes when it 

enacted section 1108. For example, an analysis prepared by the Senate Committee on 

Criminal Procedure described the “key issue” presented by Assembly Bill No. 882 as 

follows: “Under current law evidence that a defendant has committed other uncharged 

crimes, for which the defendant has not been convicted, is generally inadmissible to 

prove a specific crime. [¶] Should an exception to that rule be made to allow the 

introduction of evidence of uncharged sexual acts to show that the defendant committed 

the sexual offense in question?” (Sen. Com. on Criminal Procedure, Analysis of Assem. 

Bill No. 882 (1995-1996 Reg. Sess.) as amended May 15, 1995, pp. 1-2, italics added, 

capitalization omitted.) In the same report, the bill‟s author explained that, under current 

law, evidence the defendant had committed sexual offenses “against other victims is not 

necessarily admissible in a trial where the defendant is being accused of a subsequent

sexual offense.” (Id. at p. 3, italics added, capitalization omitted.)
7

A floor analysis from the Assembly was in accord. It stated that the bill would 

establish a general rule of admissibility in sex crime cases “for evidence that the 

defendant has committed offenses of the same type on other occasions.” (Assem. Com. 

on Public Safety, Off. of Assem. Floor Analyses, 3d reading analysis of Assem. Bill No. 

882 (1995-1996 Reg. Sess.) as amended May 15, 1995, p. 1, italics added.) The author 

also described the bill as establishing “a presumption of admissibility for evidence that 

the defendant has committed similar crimes on other occasions.” (Id. at p. 2, italics 

added.) In these statements, “other” logically means “other than the case for which the 

defendant is on trial.”

There is more. In a Senate Judiciary Committee analysis, the question was raised 

whether “the proposed use of character evidence of the defendant‟s commission of 

another sexual offense to prove the commission of the charged offense [should] be 

limited to other similar sexual offenses.” (Sen. Com. on Judiciary, Analysis of Assem. 

Bill No. 882 (1995-1996 Reg. Sess.) as amended June 27, 1995, p. 3, italics added, 

capitalization omitted.) In the same report, the bill‟s author was quoted as saying that, 

under current law, evidence the defendant had committed sex crimes “ „against other 

victims‟ ” was often not admissible, and the bill would “ „amend the Evidence Code so as 

to establish, in sexual offense actions, a presumption of admissibility for evidence that the 

defendant has committed similar crimes on other occasions.‟ ” (Id. at p. 9, italics added.) 

These repeated references to inadmissibility of other crimes evidence make no sense if 

understood to refer to charged crimes because evidence of charged offenses is clearly 

admissible.

This sampling of the available legislative history consistently shows that 

section 1108 was intended only to permit the admission of uncharged offenses. 

Significantly, nothing in the available legislative history for Assembly Bill No. 882

suggests the Legislature ever contemplated the use of section 1108 to support an 

instruction that invites jurors to draw a propensity inference from evidence pertaining 

solely to charged sex crimes.
8

Moreover, the contemplated instruction does not serve the legislative purpose 

behind section 1108. “Available legislative history indicates section 1108 was intended 

in sex offense cases to relax the evidentiary restraints section 1101, subdivision (a), 

imposed, to assure that the trier of fact would be made aware of the defendant‟s other sex 

offenses in evaluating the victim‟s and the defendant‟s credibility.” (Falsetta, supra, 21 

Cal.4th at p. 911, italics added.) Because of the serious and secretive nature of sex 

crimes, the general policy of exclusion is outweighed by a more pressing need to permit 

admission of evidence that would otherwise be excluded. (Ibid.) But the case before us 

does not involve the admission of otherwise impermissible evidence. Rather, the 

instruction here invites the jury to draw a specific inference from evidence that was 

admissible without regard to section 1108. An inference is not evidence. (§ 600.)

D. Extending Section 1108(a) to Permit a Propensity Inference for

Charged Crimes Conflicts with Fundamental Principles

Section 1108 is a narrow rule authorizing the admission of evidence of the 

defendant‟s uncharged sex crimes, subject to section 352, even if those crimes are only 

relevant to show the defendant‟s propensity to commit sex crimes.

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. Although section 1108 may reflect the Legislature‟s increased 

willingness to tolerate propensity evidence in the context of sex crimes, the statute was 

carefully crafted to permit the admission of evidence of uncharged crimes subject to the 

balancing test of section 352. In light of the historically grounded, constitutionally 

significant rule against propensity evidence (see Falsetta, supra, 21 Cal.4th at pp. 914-

915), this court is not free to expand section 1108‟s exception to this rule beyond its 

narrow boundaries. The majority‟s analysis violates the canon that statutory exceptions 
9

such as the one set forth in section 1108 must be narrowly construed. (City of National 

City v. Fritz (1949) 33 Cal.2d 635, 636.) 

Moreover, the inference the challenged instruction encourages is not a permissible 

one. The jury is generally forbidden from inferring criminal propensity from the 

existence of multiple charges. Although section 1108(a) implicitly allows the jury to 

infer propensity from evidence that the defendant committed uncharged sex crimes, it 

does not abrogate the broader rule that a conviction on one count cannot be relied upon to 

convict on other counts. Section 1108 says nothing about a propensity inference drawn 

from charged crimes. Because it amounts to a bootstrapping of verdicts in multiple-count 

cases, such an inference remains improper.

1. A Propensity Inference Based on Charged Crimes Lacks the

Safeguard of Section 352

In Falsetta, supra, 21 Cal.4th 903, this court considered a due process challenge to 

section 1108. We observed that, “[f]rom the standpoint of historical practice,” the 

general rule against admitting propensity evidence was “unquestionably . . . one of longstanding application.” (Falsetta, at p. 913.) Given recent developments relaxing this rule 

in the context of sex offenses, we found it “unclear whether the rule against „propensity‟

evidence in sex offense cases should be deemed a fundamental historical principle of 

justice” not subject to legislative alteration. (Id. at p. 914.) However, even assuming the 

rule could be considered fundamental from a historical perspective, we concluded 

section 1108‟s “limited exception” to it did not offend due process because section 352 

would prevent unfairness to the defense. (Falsetta, at p. 915.)

We described section 352 as “a safeguard that strongly supports the 

constitutionality of section 1108” (Falsetta, supra, 21 Cal.4th at p. 916) and concluded, 

“the trial court‟s discretion to exclude propensity evidence under section 352 saves 

section 1108 from defendant‟s due process challenge.” (Falsetta, at p. 917.) “ „By 

subjecting evidence of uncharged sexual misconduct to the weighing process of 

section 352, the Legislature has ensured that such evidence cannot be used in cases where 

its probative value is substantially outweighed by the possibility that it will consume an 
10

undue amount of time or create a substantial danger of undue prejudice, confusion of 

issues, or misleading the jury. (. . . § 352.) This determination is entrusted to the sound 

discretion of the trial judge who is in the best position to evaluate the evidence. 

[Citation.] With this check upon the admission of evidence of uncharged sex offenses in 

prosecutions for sex crimes, we find that . . . section 1108 does not violate the due 

process clause.‟ ([People v.] Fitch [(1997)] 55 Cal.App.4th [172,] 183, italics added.)” 

(Falsetta, at pp. 917-918.)

Clearly, the trial court‟s broad discretion to exclude propensity evidence under 

section 352 was critical to our holding that section 1108 was constitutional. (Falsetta, 

supra, 21 Cal.4th at pp. 917-918.) However, section 352 has no logical application to the 

issue in this case, which is whether the jury can be instructed to draw a propensity 

inference from evidence properly admitted to show that the defendant committed the 

charged offenses. As noted, section 352 concerns only the admission of evidence. It 

allows the court to exclude relevant evidence if it is unduly prejudicial, time consuming, 

or confusing. The familiar section 352 balancing test can be easily applied in deciding 

whether to admit evidence of uncharged offenses; however, it provides no basis to 

exclude otherwise competent and appropriate evidence of the charged offenses.

The majority opinion attempts to graft a section 352 safeguard onto its holding by 

stating that trial courts should “ „apply the criteria of section 352‟ ” in determining 

whether to instruct the jury to draw a propensity inference from the charged offenses. 

(Maj. opn., ante, at p. 11.) The opinion offers no guidance on how this analysis should 

be conducted, and there is none to be found elsewhere. Conducting a section 352 

analysis to decide whether to give a jury instruction is unprecedented. This novel 

expansion of the analysis required in deciding upon instructions is created because the 

majority is extending section 1108 to allow something the Legislature never 

contemplated.

Like sections 1101 and 1108, section 352 specifically addresses the discretion of 

the trial court to exclude relevant evidence. It confers this authority when the proffered 

evidence would (1) require undue consumption of time, (2) create a substantial danger 
11

that the jury might be confused or misled, or (3) create a substantial danger of undue 

prejudice. (§ 352.) The first two factors authorize a trial court to exclude evidence of 

uncharged offenses entirely if it poses a substantial risk of undue confusion or time 

consumption. But these factors are necessarily inapplicable when the evidence is 

relevant and admissible to prove a charged offense. Moreover, at the jury instruction 

stage, presentation of the evidence will have concluded. Unduly confusing or misleading 

evidence relating to the charges will have been excluded under normal application of the 

rules of evidence. 

All that would remain of a purported section 352 analysis would be the question of 

undue prejudice. Yet the majority does not explain how a defendant could possibly be 

prejudiced by a correct explanation of the applicable law, which is the only question 

before the court in considering proposed jury instructions. The majority gives no 

guidance on how a prejudice analysis should be performed in such a context. What 

factors should the court rely upon in deciding whether to give or reject a propensity 

instruction? The majority is silent.

Although section 352 can operate as a reasonable safeguard to prevent unfairness 

in the context of admitting evidence of uncharged crimes, it cannot serve the same 

purpose in the context of an instruction that encourages the drawing of a propensity 

inference from charged crimes. Without the safeguard of section 352, or a reasonable 

means of assessing undue prejudice to the defendant, it is questionable whether a 

propensity instruction like the one here is consistent with due process.

2. A Propensity Inference for Charged Crimes Improperly

Bootstraps Verdicts on Multiple Counts

The majority‟s analysis elides an important distinction between the crossadmissibility of evidence on multiple counts and the jury‟s duty to decide each count 

separately, uninfluenced by its verdict on any other count.

A propensity instruction is not needed to permit the jury to consider evidence 

across multiple counts if the evidence is relevant to prove a fact at issue in other counts. 

Jurors can consider all the evidence admitted in a case to the extent that evidence is 
12

relevant to prove any count. If a fact is relevant in deciding multiple charges, the jury 

can consider the admitted evidence with regard to each count that fact has “any tendency 

in reason” to prove. (§ 210 [defining relevant evidence].)

Whereas the jury is generally free to apply evidence admitted on one count when it 

is relevant to other charges, courts in this state have long held that the jury may not allow 

its verdict on one count to influence its determination about whether the other counts 

have been proven. In People v. Magee (1963) 217 Cal.App.2d 443, 468, the court found 

no error in an instruction telling the jury to “consider the evidence applicable to each 

offense separately from the other offenses and state its finding as to each count 

uninfluenced by its verdict as to any other count or defendant.” Likewise, in People v. 

Bias, supra, 170 Cal.App.2d at page 510, the court approved of a CALJIC instruction

telling the jury to consider the evidence on each alleged offense as if each count were the 

only accusation and make findings on each count uninfluenced by its verdict as to any 

other count. This was a proper statement of law because “the instruction does not tell the 

jury to disregard its findings on the facts as regards any count in determining any other 

count in which those facts are relevant. It merely tells the jury that if based on those 

findings it finds that the crime charged in a particular count was or was not committed, 

such finding should not influence the jury in determining whether or not the facts so 

found proved the other crimes charged.” (People v. Bias, at p. 510, italics added.) We 

cited People v. Bias with approval in People v. Beagle, supra, 6 Cal.3d at page 456, 

noting that an instruction telling the jury to decide each count separately, uninfluenced by 

its verdicts on other counts, would not have allowed the jury to disregard factual findings 

in determining other counts to which those facts were relevant.

Pattern jury instructions today are consistent with this settled law. CALJIC No. 

17.02 states: “Each Count [other than Count[s] . . . ] charge[s] a distinct crime. You 

must decide each Count [other than Count[s] . . . ] separately. The defendant may be 

found guilty or not guilty of [any or all] [either or both] of the crimes charged [in 

Count[s] . . . ]. Your finding as to each Count must be stated in a separate verdict.” 

CALCRIM No. 3515 states: “Each of the counts charged in this case is a separate crime
13

[except for Counts . . . ]. You must consider each count separately and return a separate 

verdict for each one [except for counts . . . ].”

The instruction the majority now approves invited the jury to do exactly what 

these instructions, and 50 years of precedent, forbid. The modified version of CALCRIM 

No. 1191 given here told the jury, in part: “If you decide that the defendant committed 

one of these charged offenses, you may, but are not required to, conclude from that 

evidence that the defendant was disposed or inclined to commit the other charged crimes 

of rape or sodomy, and based on that decision also conclude that the defendant was likely 

to and did commit the other offenses of rape and sodomy charged.” (Italics added.) 

Thus, if the jury reached a particular “decision,” or verdict, as to one of the charges, the 

instruction told the jury it could rely on this decision to conclude “that the defendant was 

likely to and did commit” the other charged offenses. The instruction sanctions a 

bootstrapping of verdicts we have long considered improper. For the jury to apply a 

verdict against the defendant on one count to conclude the defendant was likely to 

commit, and did commit, the other counts violates the well-settled rule that the jury must

decide each count uninfluenced by its verdict on other counts.1

E. A Propensity Instruction Is Unnecessary and Potentially Confusing

In Reliford, we approved the giving of CALJIC No. 2.50.01 to explain how jurors 

are to evaluate evidence of uncharged sexual misconduct admitted pursuant to section 

1108. (Reliford, supra, 29 Cal.4th 1007.) A similar instruction advises jurors how to 

consider other crimes evidence that was admitted for a noncharacter purpose pursuant to 

 

1 Instructing the jury to draw a propensity inference from charged crimes also runs 

counter to our joinder jurisprudence. The potential prejudice that can result from the 

presentation of evidence on multiple charged crimes is generally assessed at the joinder 

and severance stage of proceedings. The joinder and severance rules presuppose that a 

jury can legitimately consider evidence of all counts in deciding each count. In ruling on 

a severance motion, the court must determine whether trial of the various charges 

together will create a risk of undue prejudice. (People v. Ruiz (1988) 44 Cal.3d 589, 

605.) The majority provides no guidance as to whether, in cases alleging multiple sex 

crimes, this analysis will now have to consider the potential prejudice from a “propensity 

instruction” like the one given here.
14

section 1101(b). (CALCRIM No. 375; CALJIC No. 2.50.) These instructions are valid 

and necessary because they explain the limited purpose for which evidence of a 

defendant‟s other crimes has been admitted. Section 1101(b) clarifies that evidence of 

other crimes may be admitted for a purpose other than proof of the defendant‟s character. 

An instruction is needed to advise the jury of the permissible purpose, such as intent, 

motive, or identity, for which the evidence has been admitted. Similarly, section 1108 

describes a narrow exception to the general rule against admitting character evidence. 

When extensive evidence of a defendant‟s prior or subsequent bad conduct has been 

presented, the jury needs to hear why this potentially inflammatory, collateral evidence is 

relevant and how it may properly be considered in deciding whether the defendant

committed the charged crimes.

The instruction here is different. Evidence pertaining to the charged crimes is not 

admitted for a limited purpose, and no instruction is needed to tell the jury of its possible 

relevance. Evidence that the defendant committed the charged crimes is, by definition, 

relevant and admissible. This instruction draws the judge into the adversarial process by 

encouraging the jury to draw a specific, and generally prohibited, conclusion from the 

evidence. The case against a defendant is obviously strengthened when the evidence 

shows he committed a series of similar crimes. This holds true for any type of criminal 

trial, not just sex offenses. The prosecution‟s case is stronger in a multiple-count case not

because the jury can, or should be encouraged to, judge the defendant based on his 

character, but rather because repeated instances of the same behavior logically tend to 

show that the defendant acted with a plan or harbored a certain mental state when 

committing the crimes in question. As we explained in People v. Ewoldt, supra, 7 

Cal.4th 380, 402, “ „[T]he recurrence of a similar result . . . tends (increasingly with each 

instance) to negative accident or inadvertence or self-defense or good faith or other 

innocent mental state, and tends to establish (provisionally, at least, though not certainly) 

the presence of the normal, i.e., criminal, intent accompanying such an act . . . .‟ 

[Citation.]”
15

The majority opinion contends it would be anomalous for us to require that a 

“propensity instruction” be given on request for uncharged offenses (see Falsetta, supra, 

21 Cal.4th at p. 924) but not permit the same instruction for charged offenses because 

both are equally relevant to show a propensity to commit sex crimes. There is no 

anomaly. An instruction explaining the proper use of evidence admitted for a limited 

purpose under a narrow statutory exception is analytically and qualitatively different 

from an instruction inviting the jury to draw a specific, typically impermissible, inference 

from evidence that was admitted for all purposes.

An example from outside the sex offense context illustrates the point: When a 

defendant‟s similar uncharged conduct is offered under section 1101(b), the court will 

instruct the jury that evidence of the uncharged offense has been offered for a limited 

purpose and may only be considered in support of an inference related to that limited 

purpose. (CALCRIM No. 375.) If other similar offenses have been charged, does the 

court also have to instruct that evidence generally admitted to prove the charged offenses

can be used to support an inference of intent with respect to the other charged offenses? 

If the charged offenses would not be similar enough to be admissible under People v. 

Ewoldt, supra, 7 Cal.4th 380, would the defense be entitled to an instruction limiting how 

this otherwise admissible evidence should be used? We have never so held, in either 

case.

Moreover, the majority‟s holding will potentially create confusion and inconsistent 

results. For example, suppose the defendant is on trial for five murders and five rapes. 

Five victims were each raped and then murdered in a similar manner. A propensity 

instruction like the one at issue here tells the jury that, if it decides the defendant 

committed one of the charged rapes, it can infer he had a propensity to commit rape and 

thus may have committed the other charged rapes. The giving of such an instruction 

raises problems, however, because a propensity inference is impermissible in deciding the 

multiple murders. In such a case, one could argue that a propensity-to-rape instruction 

would make the jury more inclined to draw a forbidden propensity inference with respect 

to the charged murders. Should the defendant be entitled to an instruction that directs the 
16

jury not to infer a propensity to murder from those charges? If so, might not defendants 

be entitled to the same instruction in any case involving multiple charges of similar, 

nonsexual offenses? Again, we have never so held.

The issue becomes even more complicated if the prosecution has also presented 

evidence of uncharged misconduct under section 1101(b) or 1108. CALCRIM Nos. 375 

and 1191 explain that the jury need only find that the defendant committed the uncharged 

acts by a preponderance of the evidence before it can rely on the uncharged acts to 

support a specific inference. If the same preponderance standard is applied to charged 

offenses, as it was in People v. Quintanilla (2005) 132 Cal.App.4th 572, 581, there is a 

serious risk of confusion. Requiring the jury to apply two standards of proof to evidence 

of the same crime would inevitably lead to confusion and could potentially erode the

presumption of innocence. (See id. at p. 583.) If a reasonable doubt standard is applied 

to the charged offenses instead, as was the case here, the instructions would require the 

jury to juggle two separate standards of proof for the same type of evidence—a 

preponderance standard for uncharged misconduct, and a reasonable doubt standard for 

misconduct that has been charged—before they could draw the inferences in question. It 

is difficult to imagine that a juror would not be confused by such a set of instructions.

This confusion is entirely avoidable. Juries have never been instructed about the

reasonable inferences they can draw from the relevant facts of the charged crimes. There 

is no need for them to be so instructed in cases involving multiple charged sex offenses. 

The instruction is not necessary to explain the relevance of evidence admitted for a 

limited purpose, because the evidence is not limited. Further, the inference the 

instruction encourages is not authorized by section 1108. The instruction risks confusing 

the jury and, in some circumstances, prejudicing the defendant. It will set a precedent for 

a similarly confusing instruction under section 1101(b), and may require clarifying 

instructions for the defense in cases involving a mixture of sex crimes and other offenses.

Inferences arising from the charged offenses are best considered at the joinder and 

severance stage of trial, not as part of the jury‟s charge. For these reasons, I believe the 

instruction is seriously flawed and should not be given. Indeed, courts and advocates 
17

should note that the majority was careful to point out the limits of its holding. It 

expressly did not decide whether an instruction like the one here should be given in 

future cases.

However, because the case against this defendant was particularly strong, the error 

was harmless. In addition to testimony from each of the five victims, DNA testing 

confirmed defendant‟s involvement in four of the rapes. Strong similarities among the 

crimes also mitigated prejudice from the instruction, because the jury could have properly 

considered these similarities for noncharacter purposes, as we discussed in People v. 

Ewoldt, supra, 7 Cal.4th at page 402. On this record, it is not reasonably probable that

the defendant would have obtained a more favorable result absent the propensity 

instruction. (People v. Watson (1956) 46 Cal.2d 818, 837.)

CORRIGAN, J.

I CONCUR:

WERDEGAR, J. 
1

CONCURRING AND DISSENTING OPINION BY LIU, J.

The court holds that Evidence Code section 1108 applies to charged as well as 

uncharged offenses. (Maj. opn., ante, at pp. 7-15; further statutory references are to the 

Evidence Code.) However, neither the language nor the legislative history of section 

1108 supports this construction. (See conc. & dis. opn. of Corrigan, J., ante, at pp. 5-8.) 

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.” (Conc. & dis. opn. of Corrigan, J., 

ante, at p. 8.) I agree with Justice Corrigan that the trial court erred in instructing the 

jury with a modified version of CALCRIM No. 1191 but that the error was harmless in 

this case.

Even if the court were correct that section 1108 applies to charged offenses, I see

no convincing basis to conclude from the record here that the trial court “implicitly 

conducted a section 352 analysis.” (Maj. opn., ante, at p. 17; see § 352 [authorizing 

courts to exclude evidence upon weighing its probative value against its prejudicial 

impact].) The trial court‟s statement — “[CALCRIM No.] 1191, for the record, I‟ve 

given you both a copy based on the instruction given in Wilson” — is too slender a reed 

to support an inference that the trial court found all the requirements in People v. Wilson
2

(2008) 166 Cal.App.4th 1034, including a section 352 analysis, to have been satisfied. 

Although we said in People v. Padilla (1995) 11 Cal.4th 891 that “we are willing to 

infer an implicit weighing by the trial court on the basis of record indications well short 

of an express statement,” those indications in Padilla included the prosecution‟s pretrial 

brief stating “that an Evidence Code section 352 weighing was required as a condition 

of admitting the evidence” and defense counsel‟s oral argument “[taking] the position 

that what he referred to as the „extreme prejudice‟ likely to follow on the admission of 

such evidence should bar its use.” (Id. at p. 924.) The record in Padilla, we said, 

“signal[ed] that counsel and the trial court had in mind the appropriate analytic 

framework for passing on the admissibility of the evidence, that the court was therefore 

aware of the need to weigh the evidence under section 352, and thus that it must have 

done so.” (Ibid.) Even with those signals, we said in Padilla that “[t]he scantiness of 

the transcript makes the issue a close one.” (Id. at p. 925.)

In this case, the record offers even less to indicate that the court conducted a 

section 352 analysis. The trial court‟s reference to Wilson indicates only that the 

modified instruction was “based on the instruction given in Wilson” and not that the trial 

court conducted a section 352 analysis. That statement was preceded by two brief 

discussions outside the presence of the jury. During voir dire, the prosecutor advised 

the court and defense counsel that she would request a modified version of CALCRIM 

No. 1191. During the presentation of the defense case, the court stated that the 

prosecutor asked that the preponderance of the evidence standard of proof in CALCRIM 

No. 1191 be replaced by proof beyond a reasonable doubt. The prosecutor added that 

the words “uncharged or prior” also should be changed to “other charged offenses” so 

that the modified instruction would “make sense.” Section 352 was not discussed, and 

the record contains no briefs or other material bearing on this issue.

The court‟s unfounded inference that the trial court actually conducted a section 

352 analysis weakens the crucial protective role of that analysis in the statutory scheme. 

In People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta), we recognized that the use of 
3

propensity evidence implicates a serious danger of undue prejudice. (Id. at p. 915, 

citing People v. Alcala (1984) 36 Cal.3d 604, 631 [“Such evidence „is [deemed] 

objectionable, not because it has no appreciable probative value, but because it has too 

much.‟ ” (italics added in Alcala)] and Michelson v. United States (1948) 335 U.S. 469, 

476 [propensity evidence tends to “overpersuade” the jury].) In the face of that concern, 

we considered in Falsetta whether section 1108 violates the constitutional principle of 

due process.

We concluded that “in light of the substantial protections afforded to defendants 

in all cases to which section 1108 applies, we see no undue unfairness in its limited 

exception to the historical rule against propensity evidence.” (Falsetta, supra, 21 

Cal.4th at p. 915.) Central to our analysis was section 1108‟s language stating that 

other-sex-crimes evidence “is not made inadmissible by Section 1101, if the evidence is 

not inadmissible pursuant to Section 352.” (§ 1108, subd. (a), italics added.) We said 

that even as “trial courts may no longer deem „propensity‟ evidence unduly prejudicial 

per se,” they “must engage in a careful weighing process under section 352.” (Falsetta, 

at pp. 916-917.) The requirement that trial courts undertake a careful section 352 

analysis was critical, we held, to saving section 1108 from constitutional doubt. 

(Falsetta, at p. 917 [“In summary, we think the trial court‟s discretion to exclude 

propensity evidence under section 352 saves section 1108 from defendant‟s due process 

challenge.”]; id. at p. 916 [“[W]e believe section 352 provides a safeguard that strongly 

supports the constitutionality of section 1108.”]; id. at p. 918 [“ „With this check upon 

the admission of evidence of uncharged sex offenses in prosecutions for sex crimes, we 

find that . . . section 1108 does not violate the due process clause.‟ [Citation.]” (italics 

added in Falsetta)].) The vital protective function of section 352 analysis, repeatedly 

emphasized in Falsetta, requires a more specific indication than is present on the record 

here that the trial court actually conducted the required analysis.

I agree with Justice Corrigan that absent a statutory exception, the general rule 

against propensity evidence informs the proper use of evidence of charged offenses in a 
4

multiple-count case. (See conc. & dis. opn. of Corrigan, J., ante, at p. 15 [inferring 

criminal propensity from evidence of a charged offense in a multiple-count case is 

“typically impermissible”].) Courts have generally held that a trial court has no duty to 

instruct the jury sua sponte in a multiple-count case that evidence of one charged 

offense may not be considered as evidence of general criminality tending to prove a 

defendant‟s guilt of another charged offense. (E.g., People v. Holbrook (1955) 45 

Cal.2d 228, 233; People v. Thornton (1979) 88 Cal.App.3d 795, 803-804; People v. 

Jackson (1975) 45 Cal.App.3d 67, 70.) But it remains an open question whether a 

defendant charged with multiple nonsexual offenses may be entitled to such an 

instruction upon request. It also remains open whether a defendant charged with 

multiple sexual offenses may be entitled to such an instruction upon request if he is able 

to show that drawing a propensity inference from evidence of a charged offense would 

be unduly prejudicial and thus improper in light of “such as factors as its nature, 

relevance, and possible remoteness, the degree of certainty of its commission and 

the likelihood of confusing, misleading, or distracting the jurors from their main 

inquiry, [and] its similarity to [another] charged offense.” (Falsetta, supra, 21 

Cal.4th at p. 917.)

LIU, J.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Villatoro

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 194 Cal.App.4th 241

Rehearing Granted

__________________________________________________________________________________

Opinion No. S192531

Date Filed: July 30, 2012

__________________________________________________________________________________

Court: Superior

County: Los Angeles

Judge: William N. Sterling

__________________________________________________________________________________

Counsel:

Edward J. Haggerty, under appointment by the Supreme Court, for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney 

General, Pamela C. Hamanaka and Lance E. Winters, Assistant Attorneys General, Lawrence M. Daniels, Chung 

L. Mar and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Edward J. Haggerty

20955 Pathfinder Road, Suite 100

Diamond Bar, CA 91765

(626) 912-5551

William H. Shin

Deputy Attorney General

300 South Spring Street, Suite 1702

Los Angeles, CA 90013

(213) 897-2038