PEOPLE v. COTTONE

Respondent’s Petition for Review

Cal.June 20, 2011

519410% Jn the Supreme Court of the State of California THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, Vv. LEE V. COTTONE, - Defendant and Appellant. Case No. G042923_ Fourth Appellate District, Division Three, Case No. G042923n-neeeme Orange County Superior Court, Case No. 06HFI734 Frecoran 6 i vey tog fad Oo fas ead The Honorable M.Kelly PETITION FOR REVIEW KAMALA D. HARRIS Attorney General of California DANE R. GILLETTE Chief Assistant Attorney General Gary W.SCHONS — Senior Assistant Attorney General GIL GONZALEZ Supervising Deputy Attorney General JAMES H. FLAHERTY III Deputy Attorney General State Bar No. 202818 110 West A Street, Suite 1100 . San Diego, CA 92101 P.O. Box 85266 San Diego, CA 92186-5266 Telephone: (619) 645-2196 Fax: (619) 645-2271 - Email: James.Flaherty@doj.ca.gov Attorneysfor Plaintiffand Respondent GUPE SIS CON4 TABLE OF CONTENTS Page To the Honorable Tani G. Cantil-Sakauye, Chief Justice, and to the honorable associate justices of the California Supreme Court:........ ] Issue Presented .........c cesses eeeteeeeeeenevsegeceneesavsseevsusseerssrsssusessesseeseasanenswel " Statement of the Case..sesacensesceaceasesssuecsecsesaesseesaccassecaceasenseaeeeeensassensenecsensceas 1 The petition should be granted in orderto resolve a conflict in the law and to uphold the Legislature's intent when enacting Evidence Codesection 405.............6 3 A. The Court of Appeal's conclusion creates a —CONPlict im the LAW ...... ce cessssesseseeesenseeseesseeeacserereceneees 4 B. The Court of Appeal's conclusion creates a radical departure from the manner in which evidentiary issues are currently decided...............+1 6 COnclusin ........cccscescscessesesceccecessecsesececeeecsessaesansesesaesseesssesscuaseeesenssaeeeatanes 12 TABLE OF AUTHORITIES il Page CASES DuBois v. Workers’ Comp. Appeals Bd. : (1993) 5 Cal.4th 382 oooeceseesesereeeteeeeeeneeeees vsenseeasavaeeaescesesanesseseseenees 8 Fairbanks v. Hughson (1881) 58 Cal. 3140,seveseaceueeeeseocersacnerseesnceerensesseesesseesestevseceesenseessaeens 5 Hutnick v. United States Fidelity & Guaranty Co. (1988) 47 Cal.3d 456eccccsceeeeescccsseeseseeeseesacersessuseesseeesseeseesonessseseceeens 8 In re Estate ofBudan (1909) 156 Cal. 230oeeecneteecteereteeeeereeesstsessecsecsssasereesnecssceseeueenseeanets 5 In re M1978) 22 Cal.3d 419ccccesecsssesecseesereesseesenseeeiecsssessnsessecnessersesesssesseseeusasaaeasets 4 In re ManuelL. (1994) 7 Cal.4th 229 oooesceceneseceesseeeeseseesscaceresasesessesensaaseeseseseeasaesateee 4 Marshall v. Hancock | (1889)80 Cal. 82 ooteceeecteeeneeeseecenseees boseeesneceseeteressee soenssoneetseenssecsne 5 Miranda v. Arizona (1966) 384 U.S. 436, 16 L.Ed.2d 694 , 86S. Ct. 1602.00eeeeeeetee8 Nickelsberg v. Workers' Comp. Appeals Bd. (1991) 54 Cal.3d 288 ooeeeeesseceseeeeseeeesceceersseesseessssesetseesnssaceeseaseecesseters 8 People v. Aguilar . (1996) 48 CalApp.4th 632 occecccsecerecsscseeeceeeeseesareensntensenseeseeneeesesseees 8 People v. Chapman (1975) 50 Cal.App.3d 882 won. cecccssesesseesceseseeseseecseesecsavsesaserseseeeseveneavaeeneees 9 . People v. Craig ; (1896) 111 Cal. 460oesseeeeeeveceeseestssseesesececsrerseesensesaneneeseatanecey 5 People v. Creegan (1898) 121 Cal. 554 occceceecceeeeessacesesseseesecesseesacsecstseeesseeerenevaenecaeeeeats 5 People v. Ewoldt (1994) 7 Cal4th 380 oo.eeeeseeseseceeesetesseneeseseessnsseseosseseessessesensesenseeereees 10 People v.Keelin (1955) 136 Cal.App.2d 860oeccsesseseceesecssensessnseseerscnseessesssesenseesuereneass 4 People v. Lewis | (2001)26 Cal.4th 334... ssscssstessnssnssessnesssestsetessssssenseansnsesennsens5,10, 11 People v. McCaughan . - (1957) 49 Cal.2d 409eeecesesesnesteesesseesseneseeerensserssessseenecenearsneesssessseaans 5 People v. Pullock (1939) 31 Cal.App.2d 747 o...ccctcccseseersenesseneseesesssresessesersessssenessesesesenseeesaaes 4 People v. Tyree (1913) 21 Cal.App. 701]... ccceessesessscensesscenseecesseeeeeseescenecsacsasentcrecerereted 5 People v. Williams (2010) 49 Cal.4th 405 oocccssseseeseecssesseeeseesceseeseessseeseseesnsesesnsseesnen see 8 * Pineda v. Bank ofAmerica, N.A. (2010) 50 Cal.4th 1389 o....ccseessessecessssssesssstenstensesessnesesesesseesaesssensessenees 9 Simpson Strong-Tie Co., Inc. v. Gore ° (2010) 49 Cal4th 12cccceseessteeceeeteeeessscecesssereeessonsesssersevessas Leseeaeneeeee 10 STATUTES Evidence Code § 310, subd. (a)...eeeceeeereesneeeee ecesecevscsdessanseeesseaeoueseneeseeseensetanensteaees 6 § BSDcece eeceseeceseseeseeeesscesescscesnerenseeeessceasscceesaeesseteraesseeseseenaceeeaetastastetsesiees 1 § 42ceeeeeeesesccseteeseseecesacaceenacnsaeseneasassceerseesaveevsessarsteseesscsaeensareeessenetaers 1 Evidence Code § FOBeee eeecccceectseecseneteesceeseacenecaeseesecsecseeceessaescenseseensseaeeatsessacataasaneaeasae? 6, 9 § 404cceeeteesereerensssscucauesesensseseesanessscsesuesesssesesesesuseeteneceseseatsuseateseneas 6, 9 § FOS. ececcccccscsseseeseccesesseseesessesseceensseeseeseceseaesessesseeeesaeeneseeseepeneateeeneesespassim § 405, subd. (8)... .ceccccccesescsesesesescesescscecesesseensassessessseseeseseseeseseeecsesesesaescenas 8,9 § 1101, subd. (D)neesee eereesVasesaevevscneeecsceaeeesacsasenseseesaseetenseesseneeas 10 808ecceceeestecstececennesessecatersaseseeeeesesersersadsesseseeesereetasesareneespassim § 1108, sUbd. (8)... cece cecccsseecesssseenecseneesersecneedeeesnecesaessaereneerateneseeeeeeeseeeeees 3 § 1108, subd. (A)(1)....cece eeecseseseseecesessseeesesessseecssenensesessseassesenenescsesens 3 § 26.eeeccccscceceesscseesensessessecssesteneecseeseessecessnenseveeesesensesuecasegeesceerenenesseenspassim § 190.38 eeceecsenessseeeseeseceecnerseecnerseessevscsseeaeaeeeeeersseseeseeeeeceestersuessteneraeenes 10 § 288, SUDA. (8)...ccc ccceseececessssseseeeessseneeeecaeeceaceqeaeecseeesessueecseeeseneesseeeeates 2 § 1203.066, subd. (€)(8).......cecsccescerecseceecsesccenesseeesecsesesseetsreetieeeneeeeraeenersrses 2 ili CONSTITUTIONAL PROVISIONS United States Constitution ; Fourth Amendment ............ccccccecscscscessssssccescessreneseccasssseccovsccevstessesscsassnsonses 3 Fifth Amendment ..0..........cccccecescsscesscccsovsccecseesccesseccecenssscsnesssssssensesseneseseeese 3 COURT RULES California Rules of Court, rule 28(D)............... sb eeecansessesareceeeesensneeeeetaueceeseaeeessnees 1 iv TO THE HONORABLETANI G. CANTIL-SAKAUYE, CHIEF JUSTICE, AND TO THE HONORABLE ASSOCIATE JUSTICES OF THE CALIFORNIA SUPREME COURT: | Respondent, the People of the State of California, respectfully petitions this Court to grant review in this matter pursuant to rule 28(b) of the California Rules of Court. Ina published opinion, authored by Justice Kathleen E. O'Leary andfiled on May 9, 2011, the Court of Appeal, Fourth Appellate District, Division Three, reversed appellant's conviction for committing four lewd acts upon a child underthe age of 14 and the jury's finding that he had substantial sexual contact with the victim asto all four counts. A copy of the opinionis attached to this petition as Exhibit A. | ISSUE PRESENTED Does the inquiry of whetheror not an act is an "offense," for purposes of qualifying as Evidence Code, section 1108 propensity evidence, | constitute a preliminary factual determination that must be made exclusively by the trial court, and not the jury, under Evidence Code, section 405? STATEMENT OF THE CASE Appellant repeatedly molested his eight-year-old niece Brandi C. when Brandi C. would spend the night at appellant's home. (6 RT 1223- 1226, 1237, 1242, 1248, 1253-1258.) Attrial, the prosecution introduced, and thetrial court admitted pursuant to Evidence Code, sections 1108 and 352, evidence that appellant had molested his five-year-old sister in 1966. (6 RT 1371-1375.) Before admitting the evidence,the trial court conducted an Evidence Code, section 402 hearing. (4 RT 877.) During that hearing, appellant's sister Lindatestified that in the fall of 1966, appellant touched her vagina. (4 RT 949-959.) While certain that that the incident occurred no earlier than September of 1966, Linda wasunableto specifically state the date of the touching. (4 RT 949-951.) As appellant's dateof birth was - October 8, 1952, the evidence proved that at a minimum he was 13 years and 11 monthsoldat the time of the touching. (4 RT 950-951, 973.) The trial court ruled that appellant appreciated the wrongfulness of his conduct at the timeof the touching suchthat, if it applied, the Penal Code, section 26 capacity presumption had been rebutted by the prosecution. (4 RT 944, 973-995.) Therefore, as appellant's 1966 conduct constituted a crime,it was admissible under Evidence Code, section 1108. The jury convicted appellantofall four counts of committing a lewd act upon a child under 14 (Pen. Code, § 288, subd. (a) and foundit to be true that each count involved substantial sexual contact with the child. (Pen. Code, § 1203.066, subd. (a)(8).) On appeal, appellant argued that Evidence Code, section 1108 propensity evidence is evidence of a prior sexual offense that constitutes a crime. And, under Penal Code, section 26, it is presumed that the subject propensity evidence could not have constituted a crime because appellant was 13 years of age when he committedthe alleged act against his younger sister in 1966. Therefore, appellant’s act against his sister could not constitute section1 108 evidence unless the prosecution rebutted the section 26 presumption by showing appellant appreciated the wrongfulness of his conduct when he committedit such thathis conduct constituted a crime. Appellant argued that the trial court erred by failing to submit the capacity question to the jury. Specifically, he claimed that it was the responsibility of the jury to decide if he appreciated the wrongful nature of the act. The Court of Appeal agreed. It held that "the trial court should have submitted the issue to the jury" because, "the issue of whether a minor appreciates the wrongfulness of his conduct is a question for thetrier of fact." (Opn.at pp. 11, 13.) THE PETITION SHOULD BE GRANTED IN ORDERTO RESOLVE A CONFLICTIN THE LAW AND TO UPHOLD THE LEGISLATURE'S INTENT WHEN ENACTING EVIDENCE CopE SECTION 405 The Court of Appeal's conclusion that the trial.court is required to resubmit a preliminary factual question to the jury conflicts with a long line of court decisions holding thatthe duty to determine preliminary factual question lies exclusively with the trial court. The Court of Appeal's conclusionis further at odds with the plain language of Evidence Code, section 405 andthe legislative history supporting it. Moreover, such a radical departure from the manner in which evidentiary determinations are currently resolved will inevitably entitle a criminal defendant to countless mini-trials litigating a wide variety of preliminary issues from hearsay exceptions to Fourth and Fifth Amendmentissues within his orhertrial. Evidence Code, section 1108 allows for the introduction of the defendant's other criminal sexual offenses as propensity evidence. (Evid. Code, § 1108, subds. (a) & (d)(1).) The Court ofAppeal found that the plain language ofEvidence Code, section 1108 “mandates that for evidence of a prior sexual offense to be admissible in a case involving a sexual offense, the prior sexual offense must be a crime.” (Opn.at p. 9, italics in original.) Assuming that the Court of Appealis correct that — section 1108 only allowsfor the introduction ofacts that constitute a "crime," that preliminary factual determination hinged on appellant’s capacity in 1966 as a person capable of committing a crime under Penal Code, section 26. Penal Code, section 26 provides: “All persons are capable of committing crimes except those belongingto the following classes: §] One — Children under the age of 14, in the absence ofclear proof - that at the time of committing the act charged against them, they knewits . wrongfulness.” Section 26 provides a rebuttable presumption that a child under 14 years of age cannot commit a crime unlessit is shown by clear and convincing proof that the child understood the wrongfulnessofhis conductat the time he engaged in it. in re Manuel L. (1994) 7 Cal.4th 229, 238.) The ability of a 13-year-old child to commit a crime presents an issue of capacity because children “cannot entertain general criminal intent, and therefore cannot commit criminalacts.” (See In re M.(1978) 22 Cal.3d 419, 424; Pen. Code, § 26.) Accordingly, appellant's appreciation of the wrongfulness of his 1966 conduct constituted a preliminary fact that was a prerequisite to introduction of the 1966 conductas section 1108 propensity evidence. The Court of Appeal's conclusion that this preliminary fact | should have been resubmitted to the jury creates a conflict in the law and will result in a radical departure from the mannerin which evidentiary issues are currently decided. A. The Court of Appeal's Conclusion Creates a Conflict in the Law Althoughthis specific context has not been previously adjudicated, the approach taken by the Court of Appeal is at odds with the mannerin which numerousother courts have historically addressed the respective duties ofthe trial court and juryconcerningthe determination of preliminary factual disputes which precede the introduction of proffered evidence. For example, in the context of hearsay evidence, courts have long ruled that it is the duty ofthe trial court to decide the preliminary factual question ofwhether a statement offered as a dying declaration was made under a senseof impending death. (People v. Keelin (1955) 136 Cal.App.2d 860, 873 ["It was errorfor the trial court to submit to the jury the issue as to whetheror not the statements admitted in evidence constituted dying declarations of Etherton"]; People v. Pullock (1939) 31 Cal.App.2d 747, 753-754 ["It is the province of the trial judge to determine the sufficiency of the foundation proof which will entitle dying statements to be admitted in evidence"].) Similarly, the trial court is required to decide the preliminary factual question of whethera trial witness possesses the mental capacity to testify. (People v. Lewis (2001) 26 Cal.4th 334, 360 [unlike a witness's personal knowledge, “awitness's competencyto testify is determined exclusively by the court” ; People v. Craig (1896) 111 Cal. 460, 469 [issues of capacity are "to be determined by the trial judge"; People v. Tyree (1913) 21 Cal.App. 701, 706 [the question of a witness's competencyis for the court to determine], disapproved on other grounds in People v. McCaughan (1957) 49 Cal.2d 409, 420.) In the context of opinion evidence, courts have held that the preliminary factual determination as to "whois an ‘intimate acquaintance™ for purposes of determining sanity, is a matter to be determined by the trial court. (In re Estate ofBudan (1909) 156 Cal. 230, 233 ["the matteris necessarily left under the authorities to the discretion of the trial court"].) It is similarly the trial court's decision to determineif a writing is genuine by ‘comparing it to exemplar. (People v. Creegan (1898) 121 Cal. 554, 559 ["The object of introducing the writing was for a comparison with other alleged writings of the defendant, and the judge was requiredto besatisfied that the writing was genuine before he was authorized to admitit for this purpose."]; Marshall v. Hancock (1889) 80 Cal. 82, 85 ["there was positive | evidence to that effect which we must presume wasproofto the satisfaction of the judge that it was genuine"].) Indeed, this Court has stated thatit is error for the judge to submit the preliminary questionregarding the qualification of an expert to the jury. (Fairbanks v. Hughson (1881) 58 Cal. 314, 315 ["This was error. Whether one offered as an expert is qualified to speak as such,is a fact preliminary to his testifying as such, to be determined bythe court at the trial. It cannot be referred to the jury"].) Asthe Court of Appeal's conclusion here requires that such a preliminary matter be referred to the jury, it has created a conflict within the law. B. The Court of Appeal's Conclusion Creates a Radical Departure from the Manner in Which Evidentiary Issues Are Currently Decided Beyond the above discussed conflict which the Court of Appeal's conclusion creates in the law,the court's conclusion fundamentally redefines the duties of the trial court and the jury in an mannerthat will manifestly burden the judicial system andthat is entirely inconsistent with the plain language of Evidence Code, section 405 as well as the legislative history supportingit. . | The Evidence Code makes clear that disputes regarding preliminary facts — including capacity — upon which the admissibility of proffered evidencerests, shall be determined exclusively by the trial courts. As a threshold matter, through Evidence Code, section 310, subdivision (a), the Legislature directs that “the admissibility of evidence”is to be “decided by the court[,]’ and, “[d]Jetermination of issues of fact preliminary to the admission of evidence are to be decided by the court[.}” (Ibid.) As to the determination of disputed preliminary facts, Evidence Code, section 405 similarly states: With respect to preliminary fact determinations not governed by Section 403[' ] or 404[?]: (a) Whenthe existence of a preliminary factis disputed, the court shall indicate which party has the burden of producing evidence and the burden of proofon the issue as implied by the rule of law under which the question arises. The court shall determine the existence or nonexistence of the preliminary fact ' Evidence Code, section 403 involves the “{dJetermination of foundational and other preliminary facts where relevancy, person knowledge, or authenticity is disputed” * Evidence Code, section 404 involved the “{d]etermination of whether proffered evidence is incriminatory.” and shall admit or exclude the proffered evidence as required by the rule of law under which the question arises, (b) Ifa preliminary fact is also a fact in issue in the action: (1) The jury shall not be informed ofthe court's determination as to existence or nonexistence of the preliminary fact. (2) If the proffered evidence is admitted, the jury . shall not be instructed to disregard the evidenceifits determination of the fact differs from the court's determination ofthe preliminary fact. (Emphasis added.) The Court of Appeal’s conclusion that the disputed preliminary fact regarding appellant's capacity “should have [been] submitted to the jury,” | offers no principled basis to limit such determinations to matters involving capacity for purposes of allowing section 1108 propensity evidence. Such an approach, seemingly allowing juries to reconsider any preliminary factual dispute, would severely tax the judicial economy by opening the floodgates for countless mini-trials becauseit effectively unwinds the mandate of Evidence Code, section 405 thattrial courts refrain from “pass[ing] the buck”to the jury when presented with “difficult factual questions.” (1 Assem. J. (1965 Reg. Sess.) p. 1726.) For example, as noted by the Assembly Committee on Judiciary, all hearsay evidence presents two preliminary factual questions: Thefirst relates to authenticity and the second to trustworthiness. (/d. at p. 1724.) The Court of Appeal’s reasoning suggests that every criminal defendant facing trial may be entitled to a jury determination as to thesetwo preliminary factual questions as they mayarise with every hearsay objection. Certainly the same must holdtrue in the Miranda’ context wheretrial courts are tasked with determining the preliminary question ofwhether a waiver was given - knowingly and intelligently. (See People v. Williams (2010) 49 Cal.4th 405, 425; CE. People v. Aguilar (1996) 48 Cal.App.4th 632, 639 [discussing court's duty to decide issues of voluntariness of consent to search].) Similarly, preliminary factual determinations, including, but notlimited to, capacity, expert witness qualifications, sanity, privilege and opinion, may not be submitted to and litigated by the jury. Such an approach, which would effectively entitle a criminal defendant to countless mini-trials within his or hertrial, should be deemedcontrary to existing law and rejected. | The Court of Appeal's conclusion further runs afoul of the plain . language of Evidence Code, section 405. Initially, the plain language of Evidence Code, section 405, subdivision (a), is clear and therefore controlling. A fundamentalrule of statutory construction is that a court shouldascertain the intent of the Legislature so as to effectuate the purpose of the law. (DuBois v. Workers’ Comp. Appeals Bd. (1993) 5 Cal.4th 382, 387, citing Nickelsberg v. Workers' Comp. Appeals Bd. (1991) 54 Cal.3d_ 288, 294.) In construing statute, the reviewing court’s first task is to look to the languageofthe statute itself. (/bid.) When the languageis clear and there is no uncertainty as to the legislative intent, the court looks no further and simply enforces the statute according to its terms. (/d. at pp. 387-388, citing Hutnick v. United States Fidelity & Guaranty Co. (1988) 47 Cal.3d 456, 464.) Here, Evidence Code, section 405 plainly directsthat the determination of the existence or nonexistence ofa preliminary fact, and the subsequent admission of the proffered evidence,is the sole 3 Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602] responsibility of the trial court. (Evid. Code, § 405, subd. (a); People v. Chapman (1975) 50 Cal.App.3d 882, 879 [“section 405 vests the court with the authority to make certain determinations as to the existence or nonexistence of preliminary facts and admit or exclude proffered evidence ‘on the basis of those determinations”’].) If the statutory languageis clear and unambiguousthe inquiry ends. Becausethe plain language of section 405is clear, it must govern. (Pineda v. Bank ofAmerica, N.A. (2010) 50 Cal.4th 1389, 1394 [if there is no ambiguity in the language, the reviewing court presumesthe Legislature meant whatit said and the plain meaningof the statute governs].) The legislative history provides further, albeit unnecessary, confirmation. As stated in the Commentofthe Assembly Committee on the Judiciary to Evidence Code,section 405, “{s]ection 405 requires the judge todeterminethe existence or nonexistence of disputed preliminary facts except in certain situations covered by Sections 403 and 404.” (1 | Assem, J. (1965 Reg. Sess.) p. 1722.) Further, “[i]f the judge is persuaded” that the preliminary fact has been established, he or she “either admits or excludes the proffered evidence as required by the rule of law under which the question arises.” (/d., at p. 1723.) Indeed, the Committee, observing that section 405 was “generally consistent with existing law[,}” discussed instances where section 405 would “substantially change the law” because in those instances,the trial court was formerly permitted to submit preliminary factual issuesto the jury. (Ud. at pp. 1723, 1726.) The Court of Appeal's conclusion further allows for an absurdresult. Specifically, taking the facts of the instant matter, the Court of Appeal's | conclusion reasonably allows for the jury to be tasked with determining the subject preliminary capacity question for purposes of deciding whetheror not it should accept and consider the 1966 evidenceas section 1108 propensity evidence, while simultaneously being instructed bythetrial court to consider the uncharged conductevidence as probative to common design or plan. In People v. Ewoldt (1994) 7 Cal.4th 380, 404, this Court provided that in a prosecution for lewd acts committed against a child under the age of 14 years, the trial court had not abusedits discretion by admitting evidence the defendant had committed other, uncharged lewd acts against the victim andhersister. Although the evidence wasprejudicial to the defendant, it was also probative, strongly suggesting a commondesign or plan under Evidence Code, section 1101, subdivision (b). (/bid.) It would be absurdtoinstruct the jury to considerthe evidence in the context of _ section 1101, subdivision (b), which allowsfor the introduction ofprior -acts as opposedto simplyprior offenses, while simultaneously instructingit to evaluate the evidence for purposes of determining whether or not it should consider it in the context of section 1108. Such an approachis impermissible as it would lead to an absurdresult. (See Simpson Strong- Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12, 27 [statutory interpretation that producesabsurd results must be avoided].) Finally, the support that the Court of Appeal cites for its conclusion is “unavailing. Acknowledging that no published case has discussed the specific issue of whetherthe trial court should have submitted the capacity issue to the jury, the Court of Appeal relied on solely on People v. Lewis, surpra, 26 Cal.4th 334. (See Opn. at pp. 10-13.) In Lewis, discussing the penalty phasein a capital case, this Court noted that the jury was required under Penal Code, section 190.3 to determine the presence or absence of prior criminal activity that Lewis had committed. (/d. at pp. 376-377.) Duringits presentation, the prosecution presented evidence that when Lewis was 13 years and 9 months old he committed a murder. (/bid.) The Lewis court rejected Lewis’ claim that it was prejudicial error for thetrial court to submit to the jury the question of whether Lewis possessed the Penal Code, section 26 capacity to commit murder. (/bid.) 10 The Court of Appeal here characterizes Lewis as instructive to the question of whether the subject Penal Code, section 26 capacity issue should have been decided by court or jury because Lewis concludedthat “the trial court was not required to find as a preliminary fact that defendant appreciated the wrongfulness of his conduct before submitting the issue to the jury.” (Opn. at p. 13.) The Court of Appeal’s conclusion is errant because the Lewis court rejected the defendant's argument that submission of the section 26 issue to the jury caused Lewis to be denieda fairtrial: Contrary to defendant's suggestion,the trial court ensured that defendant received a fair hearing on this - matter. Thetrial court submitted the question to the jury and also imposed a reasonable doubt standard, ‘ which is morestringent than a clear proof standard undersection 26. (citation) Thetrial court itself also determinedit was‘satisfied beyond a reasonable doubt’ that defendant knew the wrongfulnessofhis conduct. (People v. Lewis, supra, 26 Cal.4th at pp. 379-380.) Lewisdoes notstand for the conclusionthat the trial court was _ “clearly” required to submit the Penal Code, section 26 capacity question to the jury. (Opn. at p. 13.) In reaching this conclusion, the Court of Appeal does not address Evidence Code,section 405. Indeed, Lewis reasonably implies that the issue maybesatisfactorily determined bythetrial court employing a “clear proof” standard. If Mf //! H/ Hf I! ii! 1] CONCLUSION The petition for review should be granted. Dated: June 16, 2011 JHF/ode $D2010700068 80515769.doc Respectfully submitted, KAMALAD. HARRIS Attorney General of California DANER. GILLETTE Chief Assistant Attorney General GARY W. SCHONS Senior Assistant Attorney General GIL GONZALEZ Supervising Deputy Attorney General font JAMES H. FLAHERTY III Deputy Attorney General Attorneysfor Plaintiffand Respondent 12 CERTIFICATE OF COMPLIANCE I certify that the attached PETITION FOR REVIEW usesa 13 point Times New Romanfont and contains 3,324 words. Dated: June 16, 2011 KAMALA D: HARRIS Attorney General of California CtJAMES H. FLAHERTY III Deputy Attorney General Attorneysfor Plaintiffand Respondent Filed 5/9/11 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT THE PEOPLE, Plaintiff and Respondent, Vv. LEE VINCENT COTTONE, Defendant and Appellant. DIVISION THREE G042923 (Super. Ct. No. O6HF1734) OPINION Appeal from a judgmentof the Superior Court of Orange County, M. Mare Kelly, Judge. Reversed. William J. Kopeny for Defendant and Appellant. Edmund G. Brown,Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez, James H. Flaherty I, and Meredith Strong, Deputy Attorneys General, for Plaintiff and Respondent. Lee Vincent Cottone appeals from a judgmentafter a jury convicted him of four counts of committing a lewd act upon a child underthe age of 14, and found true he had substantial sexual conduct with a child as to all counts. Relying on Penal Code ~ section 26" and Evidence Codesection 1108, Cottone argues thetrial court erroneously admitted evidence that approximately 32 years ago he committed a lewdactonhissister. Cottone argues: (1) section 26 is applicable to Evidence Codesection 1108; (2) the prosecutorfailed to present clear and convincing evidence Cottone appreciated the wrongfulness ofthe 32-year old prior sexual misconduct;(3) the prior sexual misconduct evidence was not admissible pursuant to Evidence Codesection 1108 becauseit was irrelevant, remote, and prejudicial; and (4) the trial court was required to submit to the jury the issue ofwhether Cottoneappreciated the wrongfulnessof his conduct. , As weexplain below, we agree section 26 is applicable to Evidence Code section 1108, and the trial court erred in not submitting to the jury the issue of whether Cottone appreciated the wrongfulnessofhis prior sexual misconduct. Becausethe jury, andnotthetrial court, should have determined whether the prosecutor offered clear and convincing evidence Cottone appreciated the wrongfulnessofhis prior sexual misconduct, and the evidence of guilt was not overwhelming, we conclude Cottone was prejudiced by the error. We reverse the judgment. | | | FACTS B., who waseight years old, lived in the South Bay. During school breaks and summervacation B. would visit Cottone, her uncle, and Jeanie Cottone (Jeanie), her | aunt, in Irvine for multiday visits. B. enjoyed spending time with Jeanie because they would go to the movies, shop, and play games. Because B. wasscared to sleep alone, she _ would sleep between Jeanie, who wore earplugs, and Cottone, in their bed. ' All further statutory references are to the Penal Code, unless otherwise indicated. The first evening she slept in the Cottones’ bed, B. woke up because Cottone was touching her vagina, breasts, and buttocks with his hand. B. moved to get Cottone to stop, but she did not tell him to stop. She did not wake up Jeanie,tell her what happened, or say anything to Cottone because she was scared. She did notaskto sleep in the empty bedroom because she wasscared to sleep alone. The next night, the same thing happened. When B.returned home,she did not tell anyone what happened because shewasscared. On her secondvisit to the Cottone residence, B. again slept with the Cottones. Cottone again touched her vagina, breasts, and buttocks. When B.was11 or 12 years old, B.’s sister, K., and B.’s cousin, C., began spending the night at the Cottone residence; this occurred approximately 10 to 15 times. Thethree girls slept in a bed in the guestroom; B. and C. would sleep on the outside and K. would sleep in the middle. During the night, Cottone would enter the dark room,sit on the bed, and pull back the covers. Cottone would touch B.’s vagina, breasts, and buttocks. B. did nottell her sister or cousin what had happened because she wasscared. B. spent the night at the Cottone residence between two and four days, three to four times a year for approximately four years, and Cottonetouched B. inappropriately every time she spent the night. ' At some point, B. began telling her mother, J., she did not want to spend the night at her uncle and aunt’s house. J. would tell B. that Jeanie was expecting her, and B. would go. B. did not tell her mother whyshe did not want to spend the night. A few years later, B. and her mother were going to a family bridal shower. J. was complaining about how Cottone treated her son, and B. said, “‘Well, if you think that’s bad, you should -- you don’t want to know whathe haf[d] doneto [her][.]’” B. told her mother what had happened. An information charged Cottone with four counts of committing a lewd act upon a child underthe age of 14 (§ 288, subd. (a)) (count 1). The informationalleged he had substantial sexual conduct with a child as to all counts (§ 1203.066, subd.(a)(8)). Cottone’sfirst trial ended with a hung jury and a mistrial. Before his secondtrial, Cottone moved to exclude evidence of a covertly recorded telephonecall and evidence of prior sexual misconduct. The prior sexual misconduct consisted of a 1966 incident where 13- or 14-year-old Cottone allegedly touched the vaginaofhis five- or six-year-old sister, L. The covertly recorded telephone ~ call concerned telephonecall L. made to Cottone in 2006 to get him to confess to ~ touchinghervagina in 1966. The following month, Cottonefiled a supplementto his | motion. The prosecutor respondedto the motion, and Cottonereplied. At an Evidence Code section 402 hearing,L. testified she was born in July 1961. L. stated she started kindergarten in 1966 when she wasfive years old. She said _school started in September and she mether friend, L.P., on the first day of kindergarten. L. stated herhome had a basement, and her brothers’ bedrooms werein the basement, and her andhersisters’ bedrooms were on the ground level. She testified L.P. was at her house when Cottone asked them if they wantedto play a gamecalled, “giggy-gigey.” L. stated L.P. went home, and Cottone picked her up and carried her downstairs; they were alone. Shesaid that just outside the doorway to Cottone’s bedroom, Cottoneput his finger in her underpants and touched her vagina. L. also testified to another incident where L.P. spent the night and Cottone entered L.’s bedroom and puthis hands on L.P.L. told Cottoneto leave, which he did, before L-P. woke up. After discussing the applicable case law,thetrial court ruled section 26 was applicable to Evidence Code section 1 108. Thetrial court stated the prosecutor rebutted with clear and convincing evidence section 26’s presumption by establishing “the minor appreciated the wrongfulness of the charged conduct at the time it was committed.” The court opined that based on the uncertainty of the evidence, it appeared Cottone wasjust 4 short of his 14th birthday. Concerning the circumstancesof the prior sexual misconduct, the court stated Cottone turned the sexual contact into a game. In concluding Cottone appreciated the wrongfulness of his conduct, the court explained: “He attempted to lure the witness downstairs. And it shows to me concealment. He went down to the bedroom area with no one else around. Heinitially also wanted to play the game with [L.P.], she declined, whichto the court, based on what happened,is evidencethat he had a propensity for sexual contact with young girls even at a young age.” In concluding Cottone appreciated the wrongfulness of his conduct, the court also relied on the incident where Cottone cameinto her bedroom and touched L.P. Thetrial court, after reviewing the moving papers and hearing argument, ruled the evidence of the 1966 incident regarding L. was admissible pursuant to Evidence Codesection1108. The court explained the prior sexual misconduct evidence washighly probative becauseit wassimilar to the charged offenses. The court noted the female victims were young family members, and the touching was similar in type (touching of the vagina) and whereit occurred (his home). The court stated the prior sexual misconduct evidence was highly probative because defense counsel planned to attack B.’s credibility. The court believed the prior sexual misconduct evidence wasless inflammatory than the charged offenses. The court opined the possibility of confusing the issues wasslight because the jury was notlikely to convict.Cottonein this case based on the fact he was not convicted of the prior sexual misconduct, and L.’s testimony would likely be brief. The court correctly stated the issue of whether the prior sexual misconduct evidence was too remote wasthecritical issue in its analysis. The court stated: “The main big issue is remoteness, the fact that he’s lived a blamelesslife for 32 years and there is no, no doubt aboutit that is a long time, you know. Andif [Cottone] is convicted I don’t know what[the] [C]ourt of [A]ppeal will do with that. It’s my call in termsofthe discretion ofthetrial court. I’m trying to. analyze everything I possibly can to makea fair call on this. It’s a tough issue. I’m goingto find that there are significant 5 similarities with respect to the [Evidence Code section] 1108 conduct andthese instances here with [B.] that I’ve already mentioned that in my mind balance out the remoteness or offset it somewhat as to make it more probative.” The court concludedit did not believe the evidence would evoke an emotional bias against Cottone. In concluding the probative value of the prior sexual misconduct evidence outweighed any undueprejudice, the court relied on the fact two jurors voted for acquittal in Cottone’s firsttrial.’ The prosecutor offered B.’s testimony as detailed above. Defense counsel cross-examined B. thoroughly about when the visits began, when thevisits ended, the frequency ofthe visits, and the number of times Cottone molested her. Defense counsel used B.’s prior testimony to challenge her credibility. The prosecutoralso offered the testimony of Dr. Laura Brodie,a clinical and forensic psychologist, who is an expert in child sexual abuse accommodation syndrome, a syndrome whereit is assumed a child was sexually abused to evaluate the child’s behavior. Brodie, who wasnot familiar with the facts of this case, testified it was normalfor a child to delay reporting sexual abuse for five years. The prosecutoroffered the testimony of L., Cottone’s sister, who stated she is eight to nine years younger than Cottone; Cottone was 56 years old at the time oftrial. L. testified to the following: when she wasfiveor six years old she was in the kitchen with her friend and Cottone, and shedid not think anyone else was home. Cottone asked them if they wanted to go into the basement and play a gamecalled “giggy giggy.” Her friend went home. Cottone picked up L., put her on his shoulder, and carried her downstairs. When they were in the basement, just outside oneofthe bedrooms, Cottone With respect to admission ofthe covertly recorded telephone conversation, the trial court stated that although it ruled the evidence admissible in thefirsttrial, the court would not admitit in thetrial. put his finger in her underwear and touched her vagina. L. did not think he put his finger inside her vagina. Cottone offered C.’s testimony. C., 14 years oldat the timeoftrial, testified Cottone was her grandfather. Cc confirmed she frequently spent the night at her grandfather’s home with B. and K.andthethree girls slept together either in a bedroom, in the hallway, or on the sofa. She stated Cottone nevertried to touch her or touched her inappropriately. She said B. nevertold her that Cottone touched her inappropriately. Cottone also offered the testimony of his cousins, who werein their ' mid-20s at the timeoftrial. Theytestified that whenthey were young girls, approximately the same age as B., they frequently spentthe night at Cottone’s house, and he never touchedeither of them inappropriately. . | Finally, Cottone offered his wife’s testimony. Jeanie testified that beginning in 1999 and for the next couple years, B. frequently asked to join Cottone in various outings. Jeanie claimed she did not wear earplugs when B. spentthe night. The jury convicted Cottoneof all counts and found true the enhancement allegations. Thetrial court sentenced Cottone to six years in prison. DISCUSSION The facts before us can be summarized as follows: To prove Cottone sexually molested B. in 1998 to 2001, the prosecutor sought to admit evidencethat in 1966 13-year-old Cottone engaged in similar conduct with his five-year-old sister, L. Thetrial court ruled L.’s testimony was admissible for the reasons we discuss in detail above. On appeal, Cottone arguesthetrial court erroneously admitted the evidence. I. Does section 26 apply to Evidence Code section 1108? Based on Evidence Code section 1108's plain language, Cottone argues section 26 is applicable to Evidence Code section 1108.. We agree. Evidence of uncharged acts is generally inadmissible to prove criminal disposition. (Evid. Code, § 1101, subd. (a).) However, Evidence Code section 1108, subdivision (a), states, “In a criminal action in which the defendantis accused ofa sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by [Evidence Code] [s]ection 1101, if the evidenceis not inadmissible pursuant to [Evidence Code][s]ection 352.” (Italics added.) Evidence Codesection 1108, subdivision (d)(1), defines “‘sexual offense’” as “a crime underthe law ofa state or of the United States that involved any of the following... .” (Italics added.) Oneof those crimes is the commission of a lewdor lascivious act on a child under 14 years of age with the intent of arousing the passionsofthe perpetrator or the victim (§ 288, subd. (a)). Evidence of uncharged conduct need only be proved by a preponderanceofthe evidence. (People v. Reliford (2003) 29 Cal.4th 1007, 1015.) Section 26 states: “All persons are capable of committing crimes except those belonging to the following classes: [{] One—Children under the age of 14, in the absenceofclear proofthatat the time of committing the act charged against them, they knew its wrongfulness.” Section 26provides a rebuttable presumption that a child under 14 yearsof age cannot: commit a crime unless it is shown by clear and convincing proof that the child understood the wrongfulness of his conductat the time he engaged in it. (People v. Lewis (2001) 26 Cal.4th 334, 378 (Lewis).) The “‘clear proof” standard articulated in section 26 requires “the [prosecutor] prove by clear and convincing evidence the minor appreciated the wrongfulness of the charged conduct at the timeit was committed.” (In re ManuelL. (1994) 7 Cal.4th 229, 232 (ManuelL.), italics added.) There are no published cases on the issue before us—whethersection 26 is applicable when a prosecutor seeks to admit evidence of a prior uncharged sexual offense pursuant to Evidence Code section 1108. In answering this question,the plain language of Evidence Code section 1108 is dispositive. “A fundameital rule of statutory construction is that a court should ascertain the intent of the Legislature so as to effectuate the purpose ofthe law. [Citations.] In construing statute, our first task is to look to the language ofthe statute itself. [Citation.] When the languageis clear and there is no uncertainty as to the legislative intent, we look no further and simply enforce the statute according to its terms. [Citations.]” (DuBois v. Workers’ Comp. Appeals Bd. (1993) 5 Cal.4th 382, 387-388.) . Evidence Code section 1108 authorizes the admission of evidence of another sexual offense when a defendantis charged with committing a sexual offense. ‘Evidence Codesection 1108, subdivision (d)(1), defines “sexual offense’” as “a crime.” Thus, the plain languageof Evidence Code section 1108 mandates that for evidence of a prior sexual offense to be admissible in a case involving a sexual offense, the prior sexual offense must be a crime. Section 26 creates a rebuttable presumption that a child under 14 years of age cannot commit a crime absent clear and convincing evidence the child appreciated the wrongfulness ofhis conduct. Based on Evidence Codesection 1108’s plain language, weconcludesection 26 is applicable when a prosecutor seeks to admit evidence a person underthe age of 14 committed a prior sexual offense pursuant to Evidence Code section 1108 to prove a defendant had the propensity to commit the charged offense. The Attorney General argues section 26 doesnotapply to evidence admitted pursuant to Evidence Code section 1108 because (1) “[s}Juch evidence is admitted to show propensity, and is relevant to the issues of identity and credibility[,]” and (2) Evidence Codesection 352 provides the necessary safeguard. Neither contention is persuasive. Astoitsfirst claim, the Attorney General confuses Evidence Code section 1108 with Evidence Codesection 1101, subdivision (b). Evidence Code section 1101,subdivision (a), prohibits the admission of propensity evidence, but Evidence Code section 1101, subdivision (b), permits admission of other bad acts evidencenot amounting to a crime to prove amongotherthings,intent, planning, knowledge,or identity. Evidence Code section 1108, however, represents a legislative determination evidence of prior sexual crimes is admissible in the prosecution of sex crimes as propensity evidence. (People v. Falsetta (1999) 21 Cal.4th 903, 911 (Falsetta).) Thus, for prior sexual offense evidence to be admitted the offense must be a crime, and to bea . crime, a child under 14 years of age must appreciate the wrongfulness of his conduct. With respect to its secondclaim, arguably Evidence Codesection 352 does ‘provide the necessary safeguards to ensure a defendant appreciated the wrongfulness of his prior sexual misconductin a sexual offense case. For example, when evaluating whether the undue prejudice of the evidence outweighsits probative value,a trial court may concludethe prior sexual misconduct evidenceisoflittle probative value because the defendant was too young to appreciate the wrongfulness of his conduct and the emotional bias invoked by the prior sexual misconduct outweighsits slight probative value. But as we explain above, Evidence Code section 1108’s plain language requires prior sexual misconduct evidenceto be a “crime.” Therefore, we concludethe trial court correctly concluded section 26 is applicable to Evidence Code section 1108. Il. Was there clear and convincing evidence Cottone appreciated the wrongfulnessofhis prior sexual misconduct and did thetrial courterr in not submitting the issue to thejury? Cottone contendsthetrial court erroneously concluded clear and convincing evidence demonstrated he appreciated the wrongfulness of his conduct because he thought he was playing a game,he did not attempt to conceal his conduct, and the subsequent incident with L.P. was irrelevant to his prior conduct. Relying on Lewis, supra, 26 Cal.4th 334, Cottonealso argues the trial court erroneously failed to instructthe 10 jury on the issue of whether he appreciated the wrongfulness of his conduct. We express no opinion on whetherclear and convincing evidence established nearly 14-year-old Cottone appreciated touching his sister’s vagina was wrong.becausethetrial court should have submitted the issueto the jury. “[S]ection 26 articulates a presumption that a minor underthe age of 14 is incapableof committing a crime. [Citations.] To defeat the presumption, the People must show by‘clear proof’ that at the time the minor committed the charged act, he or | she knew ofits wrongfulness.” (Manuel L., supra, 7 Cal.4th at pp. 231-232,fn. omitted.) “Although a minor’s knowledge of wrongfulness may not be inferred from the commissionoftheact itself, ‘the attendant circumstances of the crime, such asits preparation, the particular method of its commission, and its concealment’ may be considered. [Citation.] Moreover, a minor’s ‘age is a basic and important consideration [citation], and, as recognized by the commonlaw,it is only reasonable to expect that generally the older a child gets and the closer [he] approaches the age of 14,the more likely it is that [he] appreciates the wrongfulness of[his] acts.’ [Citation.]” (Lewis, supra, 26 Cal.4th at p. 378.) . In Lewis, supra, 26 Cal.4th at pages 376-377, a capital case, the trial court admitted evidence that when defendant was 13 years and nine monthsold, he and two friends murdered a man as an aggravating factor pursuant to section 190.3, subdivision (b). Defendant argued: (1)it violated due process to determine whether defendant appreciated the wrongfulnessofhis conduct nearly 16 years after the fact; (2) the trial court should have determinedas a preliminary fact whether defendant appreciated the wrongfulness of his conduct; and (3) the jury instructions were improper. (Lewis, supra, 26 Cal.4th at pp. 377-378.) With respect to defendant’sfirst claim, the Lewis court stated: “A trier of fact making a section 26 determination does not attempt to read the mind of the minor, but considers the objective attendant circumstances of the crime—suchasits preparation, 1 the methodof its commission, and its concealment—to determine whether the minor understood the wrongfulnessofhis or her conduct. [Citation.] . .. [Citation.] Though deliberating nearly 16 years after [the] murder, the jury andtrial court could ascertain the _ circumstances of the crime from the testimonial witnesses.” (Lewis, supra, 26 Cal.4th at p. 379.) Asto defendant’s second claim, the Lewis court opined: “Wealso reject — defendant’s related argumentthat the trial court should have determined that defendant’s knowledge of wrongfulness was a preliminary fact that the trial court should have decided before submitting evidence of [the] murder to the jury. Assumingthetrial court was required to do so, any failure by the court to make suchfindingasa ‘preliminary fact,’ as defendant contends, was harmless becausethetrial court later determined that defendant had known the wrongfulnessofthe act. Defendantfails to point to any prejudice based on this evidentiary sequence. Indeed,a trial court has discretion to ‘admit conditionally the proffered evidence . . . subject to evidence of the preliminary fact being supplied later in the courseofthetrial.’ [Citation.] We reject defendant’s unsupported claim that determining a minor’s capacity under section 26 should be considered the same as determining the admissibility of a confession as a foundational or preliminary fact. [Citation.]” (Lewis, supra, 26 Cal.4th at p. 380.) Finally, as to defendant’s third claim, the Lewis court concluded the trial’ court did noterr in instructing the jury with the language of section 26. (Lewis, supra, 26 Cal.4th at p. 380.) Although Lewis did not address the same issue we have,° wefindit instructive. ; Ourresearch uncovered no published case addressing the issue we face here—whetherthetrial court should have submitted to the jury the issue of whether Cottone appreciated the wrongfulness of his conduct. This is understandable as section 26’s rebuttable presumption concerning minorsis most oftenlitigated in juvenile court where a minoris not entitled to a jury trial. (McKeiver v. Pennsylvania (1971) 403 U.S. 528; Alfredo A. v. Superior Court (1994) 6 Cal.4th 1212, 1225.) 12 The Lewis court concluded thetrial court was not required to find as a preliminary fact that defendant appreciated the wrongfulness of his conduct before submitting the issue to the jury. Thus, the Lewis court clearly rejected the Attorney General’s argumentherethat the trial court was not required to submitto the jury the issue of whether Cottone appreciated the wrongfulnessofhis prior sexual misconduct. Weinterpret Lewis as holding that pursuant to section 26, the issue of whether a minor appreciates the wrongfulness of his conduct is a question for the trier of fact. " Here,the trial court instructed the jury with CALCRIM No. 1191, “Evidence ofUncharged Sexual Offense,” on the proper use of prior sexual misconduct evidence, including that the jury may consider this evidence only if the prosecutor proved by a preponderance ofthe evidence Cottone committed the prior sexual misconduct. But the trial court did not instruct the jury on the issue of whether Cottone appreciated the wrongfulnessofhis prior sexual misconduct. It does not appear from the record before us that Cottone requested the jury be instructed on that issue buta trial court has a sua sponte duty to instruct the jury on the general legalprinciples closely and openly connected with the facts in the case (People v. Gutierrez (2009) 45 Cal.4th 789, 824). Based on Lewis, supra, 26 Cal.4th 334, the trial court should haveinstructed the jury it | had to determine by clear and convincing evidence whether Cottone appreciated the wrongfulness of his conduct whenhe touchedhissister’s vagina in 1966. Although wehave concludedthetrial court erred in failing to instruct the jury on the issue of whether Cottone appreciated the wrongfulness of his conduct, we must now determine whether he wasprejudiced by the court’s error. We conclude he wasprejudiced. Based onthe entire record, we cannot conclude beyond a reasonable doubt the trial court’s failure to instruct the jury on whether Cottone appreciated the wrongfulness of his conduct did not contribute to the verdict. (People v. Frazier (2001) 89 Cal.App.4th 30, 37-38 (Frazier) [Chapman v. California (1967) 386 U.S. 18, standard 13 of review applicable where defendant argued CALJIC No. 2.50.01 lowered prosecutor’s burden of proofby permitting jury to convict defendant of charged offense based solely on prior sexual offense]; People v. James (2000) 81 Cal.App.4th 1343, 1360-1361 [same with respect to CALJIC No. 2.50.02]; but see Falsetta, supra, 21 Cal.4th at pp. 924-925 [any error failing to instructjury on how to use propensity evidence harmless under People v. Watson (1956) 46 Cal.2d 818, 836].)° The evidence was not overwhelming,and essentially boiled down to a credibility contest between B. and Cottone. The jury heard B.’s testimony about how overthe course of approximately four years Cottone touched hervagina, breasts, and buttocks every time she spent the night at Cottone’s. But the jury also heard evidence there was someonein the bed other than Cottone and B.every timeB.spentthe night, which understandably makes one wonder whyneither Jeanie, K., nor C. ever saw any inappropriate touching. Further, the jury heard evidence B. repéatedly asked to join Cottone on numerousoutings during the time she claimed Cottone wassexually molesting her. And Cottone’s first trial ended in a hungjury, andin thatcase, the trial court admitted the evidence Cottone touched L. many years ago. Based on the record before us, we cannot conclude beyond a reasonable doubtthe instructional error was harmless. Because we have concluded the trial court erred in not submitting to the jurythe issue of whether Cottone appreciated the wrongfulnessof his prior sexual misconduct, and failed to instruct the jury accordingly, we need not address Cottone’s claim insufficient evidence supports the trial court’s finding the prosecutor presented clear and convincing evidence on the issue, orwhether there wassufficient evidence for the jury to make that-determination. That is for the jury to decide at Cottone’s thirdtrial. 4 Cottone arguesthe error is reversible under any standard of review. The Attorney General does not address the prejudice argument. Our research uncovered no published case addressingthe applicable standard of review (see fn. 2). 14 II. Did the trial court properly admit L.’s testimonypursuantto Evidence Code section — 1108? Cottone arguesthe trial court erroneously admitted L.’s testimony because the evidence was not similar to the charged conductand it is uncertain whether and what occurred, the evidence was unduly prejudicial, and the evidence was too remote. None of his contentions have merit. | In People v. Harris (1998) 60 Cal.App.4th 727, 737-741, the court articulated the following factors to determine whether evidenceofprior sexual acts was properly admitted pursuant to Evidence Code section 1108: (1) the probative value of the evidence; (2) the inflammatory nature of the evidence; (3) the possibility of confusion of the issues; (4) the amountof time involvedin introducing and refuting the evidence of uncharged offenses; and (5) remotenessin time of the uncharged offenses. Evidence Code section 352, however, authorizes a trial court to exclude prior sexual offenses evidence offered pursuantto Evidence Code section 1108. Evidence Code 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 timeor (b) create substantial danger of undue prejudice, of confusingthe issues, or of misleading the jury.” “The twocrucial components of [Evidence Code] section 352 are ‘discretion,’ because the trial court’s resolution of such matters is entitled to deference, and ‘undue prejudice,’ because the ultimate object of the [Evidence Code] section 352 weighing processis a fair trial.” (Harris, supra, 60 Cal.App.4th at p. 736.) We are mindful that “‘“[t]he prejudice which [Evidence Code section 352] is designed to avoid is not the prejudice or damageto a defense that naturally flows from relevant, highly probative evidence.” [Citations.] “Rather, the statute uses the word in its etymological sense of ‘prejudicing’ a person or cause on the basis of extraneousfactors.”’ [Citation] Painting a person faithfully is not, of itself, unfair.” (Harris, supra, 60Cal.App.4th at 15 p. 737.) We review thetrial court’s admission of evidence pursuant to Evidence Code sections 1108 and 352 for an abuseof discretion. (People v. Wesson (2006) 138 Cal.App.4th 959, 969.) A, Relevance “[E]vidence of a ‘prior sexual offense is indisputably relevant in a prosecution for another sexual offense.’ [Citation.]” .People v. Branch (2001) 91 Cal.App.4th 274, 282-283.) “The charged and uncharged crimes need not be sufficiently similar that evidence of the latter would be admissible under Evidence Code section 1101, otherwise Evidence Code section 1108 would serve no purpose.It is enough the charged and unchargedoffenses are sex offenses asdefined in [Evidence Code] section 1108.” (Frazier, supra, 89 Cal.App.4th at pp. 40-41, fn. omitted.) However,“if the prior offenses are very similar in nature to the charged offenses, the prior offenses have greater probative value in proving propensity to commit the charged offenses.” (Branch, supra, 91 Cal.App.4th at p. 285.) Although evidenceofpast sexual misconduct need not be sufficiently similar to the charged misconduct, here, the evidence Cottone touched L.’s vagina was sufficiently similar to the charged offenses. In both cases, Cottone inappropriately toucheda relative, first his sister and later his niece. And both cases involved the same type of touching. In both cases, Cottone touched their vaginas; he did notputhis finger inside their vaginas. Cottone’s claim it is uncertain whether and whatoccurredis a factual determination to be made by the jury. Thus, evidence Cottone touchedL.’s _ vagina wasrelevant to prove he touchedB.’s vagina. B. Inflammatory In Harris, the court, relying on People v. Ewoldt (1994) 7 Cal.4th 380, “deemedit important in evaluating prior uncharged acts pursuant to [Evidence Code] . section 352, whether ‘[t]he testimony describing the defendant’s unchargedacts . . . was 16 no stronger and no moreinflammatory than the testimony concerning the charged offenses.’” (Harris, supra, 60 Cal.App.4th at pp. 737-738.) Here, the evidence Cottone touchedhis sister’s vagina was no more inflammatory than the charged offenses. The incident involved a touching, not a penetration, and occurred one time. This was less inflammatory than the charged offenses, which involved multiple touchings of B.’s vagina, breasts, and buttocks over an | approximately four-year period. Evidence Cottone touched L.’s vagina one time would not evoke an emotionalbias against him. C. Confusion ofthe Issues It is possible the risk ofjuror confusion may increase when uncharged offensesare introduced as.evidence. “If the prior offense did notresult in a conviction, that fact increases the dangerthat the jury may wish to punish the defendantfor the uncharged offenses and increasesthelikelihood of confusing the issues ‘because the jury [has] to determine whether the uncharged offenses [in fact] occurred.’ [Citation.]” (Branch, supra, 91 Cal.App.4th at p. 284.) “This risk, however, is counterbalanced by instructions on reasonable doubt,the necessity of proof as to each of the elements of a lewd act with a minor, and specifically that the jury ‘must not convict the defendant of any crime with whichheis not charged.’” (Frazier, supra, 89 Cal.App.4th at p. 42.) Cottone does not contend admission of L.’s testimony would confuse the issues. The prior sexual misconduct evidence concerned onevictim, not involved in the charged offenses, on one occasion. Additionally, any remaining risk of confusion was sufficiently countered bythetrial court’s instructions. Thetrial court instructed the jury on the elements ofthe charged offenses, reasonable doubt, and the proper use of evidence of prior sexual offenses. There is nothing in the record to indicate the jury was confused by L.’s testimony. (Branch, supra, 91 Cal.App.4th at p. 284.) 17 D. Amount ofTime “Conceivably a case couldarise in which the time consumedtrying the uncharged offenses so dwarfed thetrial on the current charge as to unfairly prejudice the defendant . . . and we cannot say spending less than a third of the totaltrial time on these issues was prejudicial as a matter of law.” (Frazier, supra, 89 Cal.App.4th at p. 42 [uncharged offense evidence that comprised 27 percentofthetotaltrial transcript did not consume an unreasonable amountoftime].) Cottone does not contend admissionofL.’s testimony consumed too muchtime. Indeed, L.’s testimony consists of four pages of -reporter’s transcript, and required one additional jury instruction. E. Remoteness | “Remoteness of prior offenses relates to ‘the question of predisposition to commit the charged sexual offenses.’ [Citation.] In theory, a substantial gap between the prior offenses and the charged offenses meansthatit is less likely that the defendant had the propensity to commit the charged offenses.” (Branch, supra, 91 Cal.App.4th at p. 285.) “No specific time limits have been established for determining when an unchargedoffense is so remote as to be inadmissible. [Citation.]” (/d. at p. 284.) Courts have found previous sexual offenses up to 30 years old not to be so. | remote in time as to preclude admission where the prior sexual misconduct and the charged offenses are similar. “[SJignificant similarities between the prior and the charged offenses may ‘balance[] out the remoteness.’ [Citation.]” (Branch, supra, 91 Cal.App.4th at pp. 284-285 [30-year gap between offenses was not remote where prior and current offenses “remarkably similar”]; People v. Waples (2000)79 Cal.App.4th 1389, 1395 [15-to 22-year gap was not remote where prior and currentacts similar]; People v. Soto (1998) 64 Cal.App.4th 966, 992 [passage of 20 to 30 years did not automatically render prior incidents prejudicial where prior sexual offenses and charged offenses similar].) However, where the prior sexual misconduct and the charged offenses are not similar, courts have excluded prior sexual misconduct evidence where the passage 18 of time renders the prior sexual misconduct evidenceoflittle probative value, and of high undue prejudice. (People v. Abilez (2007) 41 Cal.4th 472, 535 [prior offense evidence inadmissible where lack ofsimilarities between prior and current offenses bolstered by remotenessofprior offense]; Harris, supra, 60 Cal.App.4th at p. 739 [prior sexual misconduct evidence inadmissible where 23-year-old prior offense and charged offenses totally dissimilar and defendantled blameless life].) Although thetrial court was concernedthe prior sexual misconduct evidence was possibly too remote to have any probative value, the court clearly wrestled with the issue and painstakingly provided its reasoning on the record forits finding the evidence was not too remote. The court concluded the similarities of the prior sexual misconduct evidenceto the charged offenses outweighed the remoteness. Weagree the passage of 32 years does not automatically make the prior sexual offenses too remote when the prior sexual misconduct and the charged offenses are similar. But 32 years is a long time, and if the prior sexual misconduct evidence were not similar we likely would reach a different result. Becauseit is solely within thetrial court’s discretion to determine whetherprior sexual misconductevidenceis too remote, and wherethe record demonstrates the court wrestled with the issue and exercised its discretion, we will not disturb the court’s ruling on appeal. As in Branch, supra, 91 Cal.App.4th 274, which contrary to Cottone’s assertion otherwise was an Evidence Codesection 1108 case, the passage of 30 years did not render the prior sexual misconduct evidence too remote wheretheprior sexual misconduct and the charged offenses aresimilar. Finally, Cottone’s reliance on Harris, supra, 60 Cal.App.4th 721, for the proposition a 23-year-old prior offense was too remote is misplaced. In that case, the court found “striking dissimilarities” between the prior offense and the charged offense. Here, on the other hand, the incidents were similar, Thus, the trial court properly admitted L.’s testimony. 19 IV. Were Cottone’s Sixth Amendmentconfrontation rights violated when the trial court ruled the covertly recorded telephonecall inadmissible and “suggested”it would reconsiderits ruling ifdefense counselplaced L.’s credibility in issue? Because wehave concluded Cottone wasprejudiced for the reasons stated above, we need not address Cottone’s claim the trial court denied his Sixth Amendment right to cross-examine L. by suggesting it may admit evidence of the covertly recorded telephonecall if defense counsel placed her credibility in issue. DISPOSITION The judgmentis reversed. CERTIFIED FOR PUBLICATION O’LEARY, ACTINGP.J. WE CONCUR: ARONSON,J. IKOLA,J. 20 DECLARATION OF SERVICE BY U.S. MAIL Case Name: People v. Lee V. Cottone No.: G042923 I declare: I am employedin the Office of the Attorney General, whichis the office of a member ofthe California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondencefor mailing with the United States Postal Service. In accordance with that practice, correspondence placed in the internal mail collection system at the Office of the Attorney Generalis deposited with the United States Postal Service that same day in the ordinary course ofbusiness. On June 17, 2011, I served the attached PETITION FOR REVIEWbyplacing a true copy - thereof enclosed in a sealed envelope with postage thereon fully prepaid, inthe internal mail collection system at the Office of the Attorney General at 110 West A Street, Suite 1100, P.O. Box 85266, San Diego, CA 92186-5266, addressed as follows: Hon. M.Kelly Court ofAppeal of the State of California c/o Alan Carlson, Chief Executive Officer Fourth Appellate District Orange County Superior Court Division Three 700 Civic Center Drive West c/o Clerk of the Court Santa Ana, CA 92701 P.O. Box 22055 Santa Ana, CA 92702 William J. Kopeny, Esq. 8001 IrvineCenter Drive, Suite 400 Tony Rackauckas, District Attorney Irvine, CA 92618-2956 Orange County District Attorney's Office (Atty. for Def. Lee V. Cottone) 401 Civic Center Drive West (2 copies). . Santa Ana, CA 92701 Appellate Defenders,Inc. 555 West BeechStreet, Suite 300 San Diego, CA 92101 and furthermore declare, I electronically served a copy of the above document from the Office of the Attorney General’s electronic notification address ADIEService@doj.ca.gov on June 17, 2011 to Appellate Defender’s, Inc’s electronic notification address, eservice-criminal@adi- ‘sandiego.com. I declare under penalty ofperjury under the lawsof the State of California the foregoing is true and correct and that this declaration was executed on June 17, 2011, at San Diego, California. Olivia de la Cruz M)Dusre Xe Dw Cur, Declarant Signature