What is the test for admitting or denying a finding of fact in a sexual assault case?

During trial, the court decides whether to admit all types of evidence (see Evid.Code, 310, subd. (a), 400-405), making findings of fact as to all preliminary matters (see id., 400-405), some of which, again, overlap the facts of the crime charged, such as the existence of a conspiracy to commit the crime in question (see, e.g., People v. Herrera (2000) 83 Cal.App.4th 46, 54-66, 98 Cal.Rptr.2d 911), and others that involve factual determinations unrelated to the crime, such as the qualifications of an expert called to the witness stand (see, e.g., People v. Ashmus (1991) 54 Cal.3d 932, 970-972, 2 Cal.Rptr.2d 112, 820 P.2d 214).

After the trial has concluded, the court decides whether to order a new trial ( 1179 et seq.), making findings of fact that overlap those of the crime of which the defendant was found guilty (as when relief is sought on the ground of insufficiency of the evidence [ 1181, subd. 6] or newly discovered evidence [ 1181, subd. 8]), as well as factual determinations distinct from the crime (as when relief is sought on the ground of jury misconduct [ 1181, subd. 3]), and yet others that may involve factual determinations in part related and in part unrelated to the crime (as when relief is sought on the ground of ineffective assistance of counsel [see, e.g., People v. Fosselman (1983) 33 Cal.3d 572, 582-583, 189 Cal.Rptr. 855, 659 P.2d 1144]).

Thus, although questions of fact relating to the substantive issue of guilt or innocence are within the province of the jury, questions of law concerning procedural issues that do not themselves determine guilt or innocence including any underlying questions of fact are within the province of the court. (See People v. Simon, supra, 25 Cal.4th at p. 1110, fn. 18, 108 Cal.Rptr.2d 385, 25 P.3d 598.)