Chapter 4 - §4. Character evidence of other acts offered for nonpropensity purposes

• Jurisdiction: United States

§4. Character evidence of other acts offered for nonpropensity purposes

While character evidence is generally inadmissible to establish propensity, specific acts of character evidence can be presented under certain conditions if relevant to a disputed fact other than propensity. See "Exception—Victim's negative character," ch. 4-A, §3.3; "Character evidence offered to prove ultimate fact in dispute," ch. 4-A, §5. Additionally, there are other circumstances under which a party can introduce specific-acts evidence to establish a disputed fact other than the person's propensity to commit other similar acts, such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. See Evid. C. §1101(b); People v. Gonzalez (2021) 12 Cal.5th 367, 408; People v. Molano (2019) 7 Cal.5th 620, 664; People v. Jackson (2016) 1 Cal.5th 269, 300; People v. Jones (1st Dist.2018) 28 Cal.App.5th 316, 323. Although ordinarily applied to a criminal defendant, Evid. C. §1101(b) does not contain this textual restriction and permits the admission of "evidence that a person committed a crime," even a witness, for certain nonpropensity purposes if the evidence is relevant and meets the other statutory requirements. See People v. Rhoades (2019) 8 Cal.5th 393, 416-17. To be admissible under Evid. C. §1101(b), the specific-acts evidence must meet several conditions.

Federal Comparison
Like Evid. C. §1101(b), FRE 404(b) allows for the admission of other acts to establish nonpropensity facts, regardless of whether the acts resulted in a conviction. See FRE 404(b); U.S. v. Long (D.C.Cir.2003) 328 F.3d 655, 661 (party can prove other acts for limited purpose even if D was acquitted of other misconduct and even if his conduct was entirely lawful); see, e.g., U.S. v. Flores-Blanco (9th Cir.2010) 623 F.3d 912, 919-20 (upholding trial court's ruling that "prior apprehensions" were admissible as uncharged misconduct to show intent, plan, and knowledge). Unlike Evid. C. §1101(b), FRE 404(b) does not expressly permit other-acts evidence to prove a defendant's good-faith belief that a victim of a sexual offense consented, although such evidence is admissible under FRE 404(a)(2)(B). See FRE 404(a)(2)(B); Evid. C. §1101(b); 1972 Notes to FRE 404(a) at ¶3. FRE 404(b) also contains a notice requirement, while Evid. C. §1101(b) does not. See FRE 404(b)(3); Evid. C. §1101(b).

§4.1. Admitting Evid. C. §1101(b) evidence. Evidence that a defendant committed another specific act or offense can be presented under Evid. C. §1101(b) only if all the following are established: (1) the defendant is charged with an offense, (2) the defendant committed some other act or offense, (3) the other offense is sufficiently proved by the prosecution, and (4) the other-offense evidence meets the restrictions on admission (i.e., it is relevant to prove a material fact and does not violate a rule or policy requiring exclusion).

Federal Comparison
Other-acts evidence under FRE 404(b) is admissible only if it meets four conditions: "(1) the evidence tends to prove a material point, (2) the prior act is not too remote in time, (3) the evidence is sufficient to support a finding that the defendant committed the other act, and (4) (in cases where knowledge and intent are at issue) the act is similar to the offense charged." See U.S. v. Charley (9th Cir.2021) 1 F.4th 637, 647; U.S. v. Flores-Blanco (9th Cir.2010) 623 F.3d 912, 919. Evidence under FRE 404(b) must also withstand scrutiny under the FRE 403 balancing test. Charley, 1 F.4th at 643; Flores-Blanco, 623 F.3d at 919; see Huddleston v. U.S. (1988) 485 U.S. 681, 691.

1. Nature of charged offense. Evidence of the defendant's other specific act or offense can be admitted under Evid. C. §1101(b) regardless of the nature of the currently charged offense. See Evid. C. §1101(b). There is no requirement that the charged offense be a completed offense, as all offenses are included under Evid. C. §1101(b), including attempts or conspiracies. See id.

2. Nature of other offense. Evidence of the defendant's other specific act or offense can be admitted under Evid. C. §1101(b) only if the other act or offense is presented through specific-acts evidence; opinion or reputation evidence is not admissible. See Evid. C. §1101(b). As with the charged offense, the specific act or offense can be a completed offense, an attempt, or a conspiracy to commit an offense. See People v. Quartermain (1997) 16 Cal.4th 600, 626; People v. Wills-Watkins (2d Dist.1979) 99 Cal.App.3d 451, 456.

(1) Conviction unnecessary. The other act or offense can be admitted even if the defendant was never charged or convicted because Evid. C. §1101(b) allows for the introduction of a crime, civil wrong, or other act, not merely a criminal offense. E.g., People v. Leon (2015) 61 Cal.4th 569, 597 (evidence that D committed robberies was admissible under Evid. C. §1101(b) despite fact that charges were dismissed at preliminary hearing); see Evid. C. §1101(b); see, e.g., People v. Rogers (2006) 39 Cal.4th 826, 862 (evidence that deputy sheriff was fired and then reinstated with warning after complaint filed against him by prostitute was admissible under Evid. C. §1101(b) despite lack of criminal charge or civil suit alleging misconduct); People v. Wilson (2005) 36 Cal.4th 309, 329 (evidence of uncharged offense of solicitation admissible under Evid. C. §1101(b)); see also People v. Abrahamian (2d Dist.2020) 45 Cal.App.5th 314, 326 (although Evid. C. §1101(b) evidence is at times inaccurately described as "prior offense" or "bad act," statute permits admission of crime, civil wrong, or "other act"). The other act or offense can be admitted even if the defendant was acquitted of the conduct as long as the defendant is permitted to rebut the other-offense evidence with proof of his acquittal. People v. Mullens (4th Dist.2004) 119 Cal.App.4th 648, 665; see, e.g., People v. Beamon (1973) 8 Cal.3d 625, 633 (finding evidence of charged offense of hijacking admissible under Evid. C. §1101(b) despite D's acquittal on charge and noting Evid. C. §1101 codified previously existing common law); cf. People v. Griffin (1967) 66 Cal.2d 459, 464-65 (error to exclude D's acquittal by Mexican court for offense prosecution presented under existing common law).

(2) Can be pending charge. The other act or offense can consist of admitted evidence of another charged offense in the current trial, although such evidence may be barred under Evid. C. §352. See People v. Villatoro (2012) 54 Cal.4th 1152, 1161; People v. Jones (1st Dist.2018) 28 Cal.App.5th 316, 323; see also Leon, 61 Cal.4th at 597 (concluding that offenses dismissed at preliminary hearing could be used as Evid. C. §1101(b) evidence). Additionally, Evid. C. §1101(b) analysis is appropriate when deciding if charges should be severed to avoid the possibility of prejudice or to alleviate other concerns. See People v. Lucas (2014) 60 Cal.4th 153, 214-15, disapproved on other grounds, People v. Romero (2015) 62 Cal.4th 1; People v. Kraft (2000) 23 Cal.4th 978, 1030. In determining whether charges should be severed, courts must determine whether the pending charges would be cross-admissible in separate trials or whether Evid. C. §1101(b) would bar their admission. See Lucas, 60 Cal.4th at 214-15; People v. Scott (2011) 52 Cal.4th 452, 470; Kraft, 23 Cal.4th at 1030. If each of the pending charges would be admissible in separate trials, they can be joined (i.e., tried together) as long as the other requirements for consolidation are met. Lucas, 60 Cal.4th at 214-15; Kraft, 23 Cal.4th at 1030; see Pen. C. §§954 to 954.1.

(3) Date of other offense. The other act or offense can be admitted regardless of whether it occurred before or after the charged offense. See Leon, 61 Cal.4th at 597; People v. Scott (2015) 61 Cal.4th 363, 398-400; People v. Foster (2010) 50 Cal.4th 1301, 1326.

(4) Location of other offense. The other act or offense can be admitted regardless of where it occurred—in California or in another state or country. See, e.g., People v. Rogers (2013) 57 Cal.4th 296, 326-27 (admitting evidence of acts occurring in other states); People v. Miramontes (4th Dist.2010) 189 Cal.App.4th 1085, 1092 (admitting evidence of acts occurring in another country).

3. Proof of other offense. The other act or offense can be admitted only if the proponent of the evidence establishes that the person committed the other act by a preponderance of the evidence. Leon, 61 Cal.4th at 597; People v. Garelick (6th Dist.2008) 161 Cal.App.4th 1107, 1115.

4. Restrictions on admission of other offense. The other act or offense can be admitted only if it has been scrutinized carefully because of its highly inflammatory potential. People v. Cage (2015) 62 Cal.4th 256, 273; People v. Hovarter (2008) 44 Cal.4th 983, 1002. Courts should use extreme caution in admitting evidence of another act or offense, resolving any doubt about its admissibility in favor of the defendant. People v. Alcala (1984) 36 Cal.3d 604, 631; People v. Guerrero (1976) 16 Cal.3d 719, 724; see People v. Clark (3d Dist.2021) 62 Cal.App.5th 939, 957 (courts subject other crimes evidence to "extremely careful analysis"). Generally, admissibility depends on three factors: (1) the materiality of the facts to be proved, (2) the tendency of the other act or offense to prove those facts, and (3) the existence of any rule or policy requiring exclusion of the other act or offense. People v. Fayed (2020) 9 Cal.5th 147, 191; People v. Thompson (2016) 1 Cal.5th 1043, 1114; People v. Lindberg (2008) 45 Cal.4th 1, 22; People v. Hendrix (3d Dist.2013) 214 Cal.App.4th 216, 238. While courts must also consider the similarity between the charged offense and the other act to be admitted, this analysis depends on the purpose for which the evidence is offered (e.g., to prove identity, common plan or design, intent).

(1) Must be relevant. Evidence of another act or offense can be...