What is the test for admitting evidence of uncharged misconduct in a sexual assault case?

"Subdivision (a) of [Evidence Coe] section 1101 prohibits admission of evidence of a person's character, including evidence of character in the form of specific instances of uncharged misconduct, to prove the conduct of that person on a specified occasion. Subdivision (b) of section 1101 clarifies, however, that this rule does not prohibit admission of evidence of uncharged misconduct when such evidence is relevant to establish some fact other than the person's character or disposition." (People v. Ewoldt (1994) 7 Cal.4th 380, 393, fn. omitted.) Subdivision (b) allows admission of evidence of a person's uncharged misconduct "when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . .) other than his or her disposition to commit such an act." (Evid. Code, 1101, subd. (b).)

Evidence Code section 1108 allows such disposition evidence "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." (People v. Falsetta (1999) 21 Cal.4th 903, 911.) "In a case in which a defendant is accused of a sexual offense, Evidence Code section 1108 authorizes the admission of evidence of a prior sexual offense to establish the defendant's propensity to commit a sexual offense, subject to exclusion under Evidence Code section 352."² (People v. Lewis (2009) 46 Cal.4th 1255, 1286.) Section 1108 permits " ' "consideration of the other sexual offenses as evidence of the defendant's disposition to commit such crimes, and for its bearing on the probability or improbability that the defendant has been falsely or mistakenly accused of such an offense." ' [Citation.]" (People v. Soto (1998) 64 Cal.App.4th 966, 984.) "[T]he clear purpose of section 1108 is to permit the jury's consideration of evidence of a defendant's

Page 10

propensity to commit sexual offenses." (People v. Villatoro (2012) 54 Cal.4th 1152, 1164.)