July 19, 2013

Prior-sexual-offense-evidence opinion filing Monday

On Monday morning, the Supreme Court will file its opinion in People v. Cottone, which raises the issues: Did the Court of Appeal err by holding (a) that a prior sexual offense committed by defendant when he was under the age of 14 could not be admitted as propensity evidence under Evidence Code section 1108 without a finding by the jury that he appreciated the wrongfulness of his actions at the time he committed the prior offense, and (b) that the failure to instruct the jury on this question constituted reversible error?

Cottone was argued on the court’s early-May calendar. A month before the argument, the court partially granted the People’s request for judicial notice, taking notice of an Assembly committee comment but rejecting the request as to a partial transcript of proceedings on the proposed Evidence Code. The court’s opinion might or might not explain these rulings. If it does, it could give guidance regarding what legislative history materials are relevant and judicially noticeable.

The opinion can be viewed online Monday beginning at 10:00 a.m.

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