PEOPLE v. FALSETTA (1998)

Charles Anthony Falsetta appeals from his convictions for forcible oral copulation (Pen.Code, § 288a, subd. (c));  assault with the intent to rape (Pen.Code, § 220);  assault with force likely to cause great bodily injury (Pen.Code, § 245, subd. (a)(1));  and kidnapping (Pen.Code, § 207), with sentence enhancements for inflicting great bodily injury (Pen.Code, §§ 12022.7, 12022.8).   Sentencing Falsetta under the “Three Strikes” law (Pen.Code, § 667, subds. (a), (e)(2)), the trial court imposed a sentence of 40 years to life.   Falsetta contends that:  (1) his due process rights were violated by the admission of evidence of other uncharged rapes to show his predisposition to commit the charged offenses;  (2) his counsel was ineffective;  (3) the trial court erred by failing to give a limiting instruction to the jury on the use of other crimes evidence;  and (4) the trial court erred by providing no remedy to Falsetta for the violation of his state constitutional right to counsel at a physical lineup conducted before charges against him were filed.   In the published portion of this opinion we hold that Falsetta's due process rights were not violated and the trial court had no duty to instruct the jury where Falsetta's proposed instruction was incorrect, confusing, and verbose.   In the unpublished portion of our opinion we find that Falsetta's attorney was not ineffective and Falsetta was not entitled to a remedy during his trial for any constitutional violation occurring at the preindictment lineup.   Accordingly, we affirm.

FACTUAL BACKGROUND

Rochelle W., who was 16 years old on September 8, 1994, was walking from her home to a convenience store in Hayward at about 8 p.m. on that date, when a man in a red Mustang made a U-turn and drove slowly next to her as she walked.   Rochelle W. testified that Falsetta was the man driving the car.   Falsetta asked Rochelle W. if she wanted a ride.   Rochelle W. refused at first and continued walking, but she then accepted the ride.   Falsetta told Rochelle W. that he lived in Union City off Whipple Road near the drive-in theater.   Falsetta turned in the opposite direction from the convenience store, and when Rochelle W. asked where they were going, Falsetta said, “We're going on a date.”   Rochelle W. told Falsetta several times that she wanted to go home and that she wanted out, but he did not respond.   Falsetta drove on the freeway toward San Jose, and, because Rochelle W. “knew something wasn't right,” she paid attention to the route they took, and to the car's interior.

Falsetta eventually pulled into a darkened parking lot, came around to the passenger side of the car, and sat on top of Rochelle W.   Rochelle W. started screaming, and Falsetta said, “Nobody can hear you.”   Falsetta told Rochelle W., “We're on a date,” and tried to give her money.   Falsetta unsuccessfully tried to undo Rochelle W.'s pants, while biting her cheek and holding her head down.   Rochelle W. hit Falsetta, and he responded by hitting her face and head with both fists.   Falsetta then put his penis near Rochelle W.'s mouth, told her, “Suck it,” and then hit her in the head with his fists until he forced his penis into her mouth.   Rochelle W. bit his penis, not hard enough to draw blood, and Falsetta retaliated by hitting Rochelle W. so hard with his fists that she lost consciousness twice for a couple of seconds.

Rochelle W. told Falsetta that she would do anything he wanted if she could get a drink, so Falsetta drove to a gas station, dropped her off, and left.   Rochelle W. ran crying to a customer, Robert Vanderhorst, asking for help and said, “some guy tried to rape me,” adding that he was in a red Mustang.   The gas station attendant, Scott Wilkerson, called the police.   After the police arrived, Rochelle W. described her assailant to them as a “good-looking” man with a thick mustache, mid-30's, 5 feet, 6 to 8 inches tall, 140 to 150 pounds, with black hair combed straight back, wearing a white tank top and blue jeans.   She also described the car as a 1970's or 1980's Mustang with red interior and exterior, tinted rear and side windows, automatic transmission, automatic door locks that extended into the door panel when locked, something hanging from the rearview mirror, a stereo with green lights, and a black or blue, plaid shirt on the floor of the passenger side.¹

Later that night, at the police station, Rochelle W. looked at six photographs.   She identified one photograph, but said she was unsure.   After a police officer told her to tell him, positively yes or no, if that was her assailant, Rochelle W. said the photograph was of her assailant and signed a statement.   The police eliminated as a suspect the person whose photograph Rochelle W. identified, in part because he had no injury to his penis.

Falsetta was arrested for a parole violation several weeks after the attack, and at the time lived about a half-mile from the Union City drive-in, near the Whipple Road exit.   Falsetta also owned a 1993 Mustang with a red exterior, red seats (without furry seat covers), and red interior.   The car had automatic locks, an automatic transmission with the gearshift in a central console, tinted rear and side windows, and medallions hanging from the rearview mirror.   A black and white plaid flannel shirt was inside the car when Falsetta was arrested.   After his arrest, a police officer also observed a reddish or pinkish mark, a quarter-inch long and one-tenth of an inch wide, on the shaft of Falsetta's penis.

Rochelle W. viewed a corporeal lineup of six people, including Falsetta, after his arrest.   Rochelle W. watched attentively from behind a one-way mirror as each person in the lineup approached the mirror, spoke, and left the room.   Rochelle W.'s demeanor changed as Falsetta approached the mirror;  she began to cry, started shaking, and tried to back up.   She told a police officer present at the lineup that Falsetta tried to change his appearance, and then she positively identified Falsetta.   She also identified Falsetta's car as the one he was driving the night of the assault.

Over Falsetta's objections, the prosecution introduced evidence of two prior uncharged sexual assaults by Falsetta.   In the first, occurring in 1985, Falsetta began jogging beside a woman, asked her where she was going, then tackled her.   The woman screamed and struggled, and Falsetta told her to be quiet, that he had a knife and would poke her eyes out.   Sitting on top of her, Falsetta pressed on her eye, then struck her in the eye with his fist.   Falsetta raped her, told her she was lucky, and ran off.   Falsetta later admitted that he attacked the woman after spotting her from his car, and he pleaded guilty to rape.   In the second assault, in 1987, Falsetta drove his car into a driveway so that it blocked the sidewalk in front of a woman as she walked to her work.   Falsetta asked the woman where she was going and if she needed a ride.   The woman declined and kept walking as Falsetta drove into an apartment complex.   Farther along the woman's route, Falsetta jumped from behind some bushes, grabbed the woman, threw her down into the bushes and told her he would kill her if she screamed.   Sitting on top of the woman, he repeatedly hit her in the nose and the side of her face with his fists.   He pushed his penis toward her and told her to put it in her mouth, and hit her when she jumped back.   Falsetta pulled down his and the woman's pants and raped her.   He threatened to kill the woman and left.   Falsetta later pleaded guilty to rape.

The defense called Wilkerson, the gas station attendant who called the police after Falsetta attacked Rochelle W.   Wilkerson testified that he overheard Rochelle W. tell Vanderhorst, the customer at the gas station, that “my boyfriend beat me up, it's the third time it's happened.”   Although Wilkerson never told the police of this conversation, he related the same conversation to a defense investigator.   Wilkerson admitted that he told the prosecutor several weeks before trial that he did not remember what Rochelle W. said at the gas station, and he admitted on cross-examination that his memory of what happened on the night of the attack was not very good.   On rebuttal, a police officer testified that Wilkerson, several weeks before trial, told the officer that he remembered Rochelle W. saying that someone beat her up, but he could not recall who she said beat her.   The prosecutor also called Vanderhorst, who testified that he was absolutely sure that Rochelle W. did not say that her boyfriend beat her up.

I

EVIDENCE CODE SECTION 1108 DOES NOT OFFEND DUE PROCESS

 Falsetta argues that the admission of evidence, under Evidence Code section 1108,² that he committed two other sex crimes in order to prove his disposition to commit the charged sexual offenses violates his right to a fair trial under the due process clause.   We reject his argument.

 Under section 1108,³ evidence of a prior sexual offense is admissible to show any relevant issue in a sex crime prosecution, including a defendant's propensity to commit the charged crime.  (People v. Harris (1998) 60 Cal.App.4th 727, 730, 70 Cal.Rptr.2d 689.)  Section 1108, subdivision (a) also provides that the admissibility of prior sexual offense evidence is subject to section 352, which permits a court in its discretion to exclude relevant evidence where the probative value of the evidence is substantially outweighed by the undue consumption of time or by a substantial danger of prejudice, confusion of issues, or misleading the jury.  (§ 352.)   Thus, section 1108 requires that the trial court, in every case where evidence of past sex crimes is offered to prove the defendant's propensity, weigh the probative value of the evidence against the other factors in section 352.

 In general, a state law will not violate due process “unless ‘it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.’  [Citations.]”   (Patterson v. New York (1977) 432 U.S. 197, 201-202, 97 S.Ct. 2319, 2322-2323, 53 L.Ed.2d 281.)   It follows that a rule permitting or excluding evidence will not violate a defendant's right to a fair trial unless the rule offends some fundamental principle of justice.  (Montana v. Egelhoff (1996) 518 U.S. 37, 43, 116 S.Ct. 2013, 2017, 135 L.Ed.2d 361 (Egelhoff );  People v. Fitch (1997) 55 Cal.App.4th 172, 178-180, 63 Cal.Rptr.2d 753.)   Historical practice is our primary guide in determining if a principle is fundamental.  (Egelhoff, supra, 518 U.S. at pp. 43-44, 116 S.Ct. at pp. 2017-2018.)   Furthermore, the introduction of relevant evidence will not offend the due process clause unless the evidence is so prejudicial that it renders the defendant's trial fundamentally unfair.  (Estelle v. McGuire (1991) 502 U.S. 62, 68-70, 112 S.Ct. 475, 480-481, 116 L.Ed.2d 385 (McGuire );  Payne v. Tennessee (1991) 501 U.S. 808, 825, 111 S.Ct. 2597, 2608, 115 L.Ed.2d 720.)

Falsetta contends that section 1108 violates due process because the admission of prior bad acts evidence to show propensity offends a fundamental, historical principle of justice.   The Third Appellate District in People v. Fitch examined this very argument and disagreed.   The Fitch court held that section 1108 does not violate a defendant's due process rights both because, historically, prior acts of sexual misconduct have been liberally admitted in prosecutions of sex crimes and because section 1108's incorporation of the section 352 balancing test prevents an unfair trial.   (Fitch, supra, 55 Cal.App.4th at pp. 180-183, 63 Cal.Rptr.2d 753.)   As Fitch noted, in the context of past historical practice, courts have been very ambivalent “about prohibiting character evidence ․ in sex offense cases.”  (Fitch, supra, 55 Cal.App.4th at p. 181, 63 Cal.Rptr.2d 753.)   “Courts have liberally interpreted evidence rules to permit the admission of uncharged sexual misconduct under the rubric of motive, identity and common plan, or more directly admitted it under an exception known as the ‘lustful disposition’ rule.”  (Ibid.) At least 29 states and the District of Columbia “use a special exception to the character evidence rule just for sex offenders called the ‘lustful disposition’ rule.”  (Reed, Reading Gaol Revisited:  Admission of Uncharged Misconduct Evidence in Sex Offender Cases (1993) 21 Am. J.Crim. L. 127, 159, 188-190, fn. 340;  see People v. Sylvia (1960) 54 Cal.2d 115, 119, 4 Cal.Rptr. 509, 351 P.2d 781;  People v. Stewart (1986) 181 Cal.App.3d 300, 305-306, 226 Cal.Rptr. 252.)   We find unpersuasive Falsetta's historical argument that courts have traditionally barred evidence of prior acts of sexual misconduct in a sex offense case to show disposition.   We agree with Fitch that section 1108 does not offend a fundamental principle of justice and therefore comports with due process.   (Fitch, supra, 55 Cal.App.4th at pp. 180-183, 63 Cal.Rptr.2d 753.) ⁴

Falsetta argues that Fitch is wrongly decided because it “ignores the fact that section 1108 totally alters the balancing process under section 352 by declaring that prior sexual misconduct is admissible to prove criminal propensity.”   We disagree.

 Generally, there should be a “ ‘․ compelling reason’ for departing from a decision of another Court of Appeal.”  (Metric Institutional Co-Investment Partners II v. Golden Eagle Ins. Co. (1994) 29 Cal.App.4th 1610, 1617, 35 Cal.Rptr.2d 233.)   First, we reject Falsetta's assertion that Fitch ignored the interplay between sections 1108 and 352.   The court in Fitch explicitly recognized that, in order for evidence to be admissible under section 1108, a trial court must consider the factors under section 352 and weigh the probative value of the prior sex crime evidence against the possibility that the evidence's admission will be prejudicial, misleading, or time-consuming.  Fitch explained that this requirement will exclude highly prejudicial evidence that, although relevant to show propensity, might result in an unfair trial and violate due process.   (Fitch, supra, 55 Cal.App.4th at pp. 182-183, 63 Cal.Rptr.2d 753;  see McGuire, supra, 502 U.S. at pp. 68-70, 112 S.Ct. at pp. 480-481;  Spencer v. Texas (1967) 385 U.S. 554, 561, 87 S.Ct. 648, 652, 17 L.Ed.2d 606.)   Falsetta is incorrect that Fitch ignored section 1108's impact on section 352.

Second, as we understand his argument, Falsetta essentially takes issue with the legislative policy determination that propensity evidence may be considered in sex crime cases.   Falsetta relies on case law holding that evidence of prior bad acts to show criminal disposition alone is inadmissible.  (See, e.g., People v. Kelley (1967) 66 Cal.2d 232, 238, 57 Cal.Rptr. 363, 424 P.2d 947.)   This rule is embodied in section 1101.  (See Cal. Law Revision Com. com., 29B West's Ann. Evid.Code (1995 ed.)  § 1101, pp. 438-439.)   Under this previous case law, prior bad act evidence that was offered only for the purpose of showing criminal propensity was excluded for the “extrinsic policy reason” that, despite the evidence's recognized relevancy and probative value, a judge or jury will tend to give excessive weight to the evidence and convict the defendant not for the current crime, but for his or her criminal record.  (People v. Schader (1969) 71 Cal.2d 761, 772-773, 80 Cal.Rptr. 1, 457 P.2d 841, fns. 4, 6.) ⁵

 We presume that the Legislature was aware of prior judicial decisions holding that propensity evidence was inadmissible, and enacted section 1108 intending to change the law.  (Dix v. Superior Court (1991) 53 Cal.3d 442, 461, 279 Cal.Rptr. 834, 807 P.2d 1063.)   Moreover, the Legislature actually recognized that prior decisions determined, as a matter of policy, that character evidence was inherently more prejudicial than probative, and specifically disagreed with that policy determination in the context of prior sexual offense evidence.  “The [enactment of section 1108] does ․ affect the practical operation of § 352 balancing, because admission and consideration of evidence of other sexual offenses to show character or disposition would be no longer treated as intrinsically prejudicial or impermissible.   Hence, evidence offered under § 1108 could not be excluded on the basis of § 352 unless ‘the probability that its admission will ․ create substantial danger of undue prejudice’ (or other adverse effects identified in § 352) substantially outweighed its probative value concerning the defendant's disposition to commit the sexual offense or offenses with which he is charged and other matters relevant to the determination of the charge.   As with other forms of relevant evidence that are not subject to any exclusionary principle, the presumption will be in favor of admission.”  (Assembly Member Rogan's Letter Clarifying Intent of Assem.   Bill No. 882 (Aug. 24, 1995) Assem.   J. (1995-1996 Reg. Sess.) pp. 3278-3279, italics added.)   This explicit statement of section 1108's purpose, and its effect on the analysis under section 352, indicates the Legislature's intent to overrule previous case law determining that evidence of prior sexual misconduct to show disposition to commit other sexual offenses is categorically inadmissible.   To the extent that Falsetta asks us to examine the correctness of the Legislature's policy decisions underlying section 1108 and its effect on the section 352 balancing test, we will not do so.   (Fitch, supra, 55 Cal.App.4th at p. 184, 63 Cal.Rptr.2d 753;  Buhl v. Hannigan (1993) 16 Cal.App.4th 1612, 1621, 20 Cal.Rptr.2d 740.)   Because Falsetta fails to provide a compelling reason to depart from the holding in Fitch, we reject his entreaty to do so and agree with the reasoning in Fitch that section 1108 does not violate due process.⁶

II**

III

THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY ON THE USE OF PRIOR SEXUAL MISCONDUCT EVIDENCE, IF ERRONEOUS, IS HARMLESS

Before trial, Falsetta filed a motion in which he asserted that the only fact at issue at the guilt phase of the trial is the identity of Rochelle W.'s attacker.   Falsetta declared that he “does not plan to contest” the facts that Rochelle W. was sexually assaulted and beaten against her will or to contest the attacker's “motive, opportunity, intent, preparation, plan, knowledge, absence of mistake, or [lack of reasonable belief in Rochelle W.'s consent].”  The obvious purpose of this declaration, as Falsetta candidly reveals in his briefs, was an attempt to limit the relevance of the other crimes evidence to proving Falsetta's propensity to commit the charged offenses.

Falsetta also requested that the court give a lengthy instruction to the jury on the use and interpretation of the evidence of other sex crimes that Falsetta committed.⁷  The instruction, in summary form, informed the jury that:  (1) the other sexual crimes evidence may be used for the limited purpose of establishing that Falsetta had a trait of character that predisposes him “to the commission of certain crimes”;  (2) the jury was not permitted to use the evidence for any purpose other than that set forth in the instruction;  (3) they must “approach th[e] evidence with caution,” and “be careful not to give this evidence undue weight and not to use it for any improper purpose”;  (4) they must “make several decisions” and apply a number of analytical steps before weighing and determining the relevance of the evidence;  (5) they could not convict Falsetta merely because they believe that he was predisposed to commit the charged offenses, but only if they believed he was guilty of the charged crimes beyond a reasonable doubt;  and (6) the question for the jury is whether Falsetta is guilty of the charged offenses, not whether he is guilty of any prior offenses.

Falsetta contends that the trial court committed reversible error by failing to give this instruction, or by failing to give a modified version of the instruction.   We disagree.

 The court must instruct the jury on the principles of law that are connected to the facts in evidence and that are necessary for the jury's understanding of the case.   (People v. Montoya (1994) 7 Cal.4th 1027, 1047, 31 Cal.Rptr.2d 128, 874 P.2d 903.)  “At a minimum, it is the court's duty to ensure the jury is adequately instructed on the law governing all elements of the case submitted to it to the extent necessary for a proper determination in conformity with the applicable law.”  (People v. Iverson (1972) 26 Cal.App.3d 598, 604-605, 102 Cal.Rptr. 913.)   An instruction must be given if it is necessary for a proper consideration of the evidence by the jury.  (People v. Baker (1954) 42 Cal.2d 550, 576, 268 P.2d 705.)   The court may be required to give a cautionary instruction relating to certain kinds of evidence where it is necessary to protect the defendant against mistake or misguided action by the jury.  (People v. Sutton (1964) 231 Cal.App.2d 511, 515, 41 Cal.Rptr. 912.)   On the other hand, the court has no duty to correct a proposed instruction which is partially incorrect, and must avoid giving the jury confusing instructions.  (People v. Wright (1988) 45 Cal.3d 1126, 1153, 248 Cal.Rptr. 600, 755 P.2d 1049;  People v. Gonzales (1992) 8 Cal.App.4th 1658, 1664, 11 Cal.Rptr.2d 267.)   Finally, we will not reverse if an instruction is erroneous, but harmless.   Under the test for harmless error, the trial court's judgment may be overturned only if “it is reasonably probable that a result more favorable to the [defendant] would have been reached in the absence of the error.”  (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.)

 The first problem with the proposed instruction is its statement that evidence of other sex crimes is relevant only to prove Falsetta's propensity to rape.   This is an incorrect statement of the law.   Under section 1108, proof of other sexual crimes may be used to prove any relevant issue, including propensity.  (Harris, supra, 60 Cal.App.4th at p. 730, 70 Cal.Rptr.2d 689.)  Section 1108 does not limit the introduction of prior sex crimes evidence to proof of propensity only.   Thus, such evidence would be relevant to bolster Rochelle W.'s credibility, which became an issue when Wilkerson testified that he heard Rochelle W. say that her boyfriend beat her, and to prove, among other things, Falsetta's intent, his lack of belief that Rochelle W. consented, and his lack of mistake.

 Falsetta's attempt to narrow the factual issues in the trial to the perpetrator's identity in the hope that the other crimes evidence would be admissible only to show propensity was ineffective.   Because he did not plead guilty, Falsetta put into issue all of the elements of the charged crime, including his intent at the time of the charged crimes.  (People v. Balcom (1994) 7 Cal.4th 414, 422-423, 27 Cal.Rptr.2d 666, 867 P.2d 777;  People v. Ewoldt (1994) 7 Cal.4th 380, 400, fn. 4, 27 Cal.Rptr.2d 646, 867 P.2d 757.) The prosecution's burden of proving every element of the crimes is not relieved simply because Falsetta chooses not to contest an essential element of the crime.  (McGuire, supra, 502 U.S. at p. 69, 112 S.Ct. at p. 480.)   Because the proposed instruction unduly limited the relevance of the other crimes evidence, the trial court did not err by refusing to give the incorrect portion of the instruction.

 The instruction was also incorrect because it cautioned the jury to approach the evidence with caution, told them not to give the evidence undue weight, and gave them a detailed procedure on how to approach and weigh the evidence.  “[I]nstructions bearing on the weight to be attached to a particular piece of evidence are properly refused.”  (People v. Hill (1946) 76 Cal.App.2d 330, 342, 173 P.2d 26.)   Furthermore, the portion of the instruction requiring that the jury proceed through a number of steps before determining the evidence's weight and relevance was both lengthy and confusing.   The court rightly refused this part of the instruction.   (Gonzales, supra, 8 Cal.App.4th at p. 1664, 11 Cal.Rptr.2d 267.)   Finally, the admonition that the jury was not to use the evidence for an improper purpose was based on the incorrect assumption that the evidence could be used only to prove propensity, and therefore was properly refused.

There were two useful nuggets in the instructions.   The first was the direction that the jury could use the evidence of prior sex crimes to find that Falsetta had a propensity to commit sex crimes, which in turn may show that he committed the charged offenses.   As Wigmore recognizes, the relevance of prior bad acts to show a person's disposition to commit a subsequent act turns on a two-step process.  “It may be argued, ‘A once committed a robbery;  (1) therefore he probably has a thieving disposition;  (2) therefore he probably committed this rob[b]ery’․”  (1A Wigmore, Evidence (Tillers rev. ed.   1983) § 55.1, p. 1160.)   An instruction to the jury on this two-step inference would guide the jury in its proper consideration of evidence of prior sex crimes admitted under section 1108.

 The second useful part of Falsetta's proposed instruction was the admonition that the jury could not convict Falsetta solely on the evidence that he committed prior sex crimes.   Although propensity evidence is extremely probative, the danger of admitting evidence of other crimes is that the defendant will be tried and convicted for who he is, rather than what he did.  (See Harris, supra, 60 Cal.App.4th at p. 737, 70 Cal.Rptr.2d 689.)   Trial courts have the power and duty to reject evidence of prior sex crimes under sections 1108 and 352 that paints the defendant unfairly.   The danger still exists that, although the trial court properly applies sections 1108 and 352 in admitting propensity evidence, a jury without further guidance may decide that the nature of the defendant's past crimes warrant a conviction, even if the prosecution has not met its burden of proving the charged crime beyond a reasonable doubt.   A cautionary instruction to the jury that they may not convict the defendant solely on the basis of evidence of past sex crimes would help protect the defendant against misguided action by the jury and prevent the possibility that the admission of prejudicial evidence will result in an unfair trial in violation of a defendant's due process rights.  (See McGuire, supra, 502 U.S. at pp. 74-75, 112 S.Ct. at pp. 483-484;  Spencer, supra, 385 U.S. at p. 561, 87 S.Ct. at p. 652.)

 We next consider whether the trial judge erred by failing to instruct the jury on these two legal principles.   We think not.   As an initial matter, the trial court had no sua sponte duty to instruct the jury as to these concepts.   Our Supreme Court has held that the trial court has no sua sponte duty to give a limiting instruction on evidence of past criminal conduct admitted under section 1101 unless the evidence is a dominant part of the prosecution's case, and is both highly prejudicial and minimally relevant to any legitimate purpose.  (People v. Collie (1981) 30 Cal.3d 43, 63-64, 177 Cal.Rptr. 458, 634 P.2d 534.)   If the trial court has no sua sponte duty to instruct on the limited admissibility of section 1101 evidence, we fail to see why a different rule for evidence admitted under section 1108 should apply.   The evidence of Falsetta's two past rape convictions were not a dominant part of the prosecution's case.   The evidence was also not highly prejudicial, and was relevant to show not only his propensity to commit sex crimes, but also to show identity and lack of mistake, and to bolster Rochelle W.'s credibility.   We conclude that the trial court had no sua sponte duty to instruct the jury on the use of the prior sex crime evidence.

 Upon proper request, however, a trial court would have a duty to instruct the jury on the correct use of prior sex crimes evidence.   A sufficiently complete instruction on the requested principles would be as follows:  “Evidence has been introduced for the purpose of showing that the defendant committed sexual offenses other than those charged against the defendant in this case.   If you find that the defendant committed a prior sexual offense, you may infer that the defendant had a disposition to commit sexual offenses.   If you find that the defendant had this disposition, you may also infer that he was likely to commit and did commit the crimes charged against him.   However, evidence that the defendant committed prior sexual offenses is not sufficient by itself to prove that he committed the charged offenses.   The weight and significance of the evidence, if any, are for you to decide.”

 Falsetta, however, did not submit a proper request for a jury instruction.   The proposed instruction was partially erroneous, prolix, and potentially confusing.   The trial judge had no duty to dig through the dross of a lengthy, incorrect, and misleading proposed instruction, like a pig after truffles, in order to unearth the appropriate morsel of law.   Concluding as we do that the trial judge had no duty to instruct the jury by editing the partially incorrect proposed instruction (Gonzales, supra, 8 Cal.App.4th at p. 1664, 11 Cal.Rptr.2d 267), we must observe that the better practice for trial courts would be to instruct the jury on the proper consideration of section 1108 evidence on request, even if the request is accompanied by an erroneous instruction.

 In any case, if we were to find that the trial court erred by failing to instruct the jury on its use and consideration of the section 1108 evidence, the error was harmless.   Considering first the evidence of the two prior rapes, the testimony on these crimes was neither lengthy nor cumulative.   The prior rapes shared many similarities to the charged crimes, and were not inflammatory when compared to the charged offenses.   Falsetta was convicted of the prior rapes, so it is unlikely that the jury would be tempted to convict him again of these crimes.   The prosecutor did not argue to the jury that they should convict Falsetta based on the past crimes.   In all, the propensity evidence was circumscribed and sufficiently related to the charged offenses such that there was very little likelihood that the jury would convict Falsetta based on the prior crimes alone.

Moreover, the other evidence against Falsetta was overwhelming.   Without cataloguing everything pointing toward Falsetta's guilt, we will note some of the more obvious pieces of evidence:  Rochelle W. accurately described Falsetta to the police, and when she identified him at the lineup, she was visibly shocked.   Rochelle W. gave an accurate and detailed description of his car, from the medallions hanging from the rearview mirror to the plaid shirt (which was still in the car at his arrest).   Falsetta lived near the Union City drive-in theater and near the Whipple Road exit, which is just where he told Rochelle W. he lived.   The similarities between Falsetta and Rochelle W.'s attacker cannot be chance;  the evidence fully points to Falsetta and no one else.   Any error in failing to instruct the jury on how to use the propensity evidence was harmless.  (Watson, supra, 46 Cal.2d at p. 836, 299 P.2d 243.)

IV ***

V

DISPOSITION

Affirmed.

FOOTNOTES

1.   Rochelle W. gave very similar descriptions of both Falsetta and his car during her testimony.   Rochelle W. testified at the preliminary hearing that Falsetta had a Spanish or Mexican accent, but testified at trial that she was confused and that he did not have an accent.   He does not have an accent.   Rochelle W. also testified at the preliminary hearing that the Mustang had red furry seat covers and a gearshift on the steering column.

2.   All further statutory references are to the Evidence Code, unless otherwise noted.

3.   Section 1108 states, in its entirety:  “(a) In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.“(b) In an action in which evidence is to be offered under this section, the people shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least 30 days before the scheduled date of trial or at such later time as the court may allow for good cause.“(c) This section shall not be construed to limit the admission or consideration of evidence under any other section of this code.“(d) As used in this section, the following definitions shall apply:“(1) ‘Sexual offense’ means a crime under the law of a state or of the United States that involved any of the following:“(A) Any conduct proscribed by Section 243.4, 261, 261.5, 262, 264.1, 266c, 286, 288, 288a, 288.2, 288.5, or 289, or subdivision (b), (c), or (d) of Section 311.2 or Section 311.3, 311.4, 311.10, 311.11, 314, or 647.6, of the Penal Code.“(B) Contact, without consent, between any part of the defendant's body or an object and the genitals or anus of another person.“(C) Contact, without consent, between the genitals or anus of the defendant and any part of another person's body.“(D) Deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on another person.“(E) An attempt or conspiracy to engage in conduct described in this paragraph.“(2) ‘Consent’ shall have the same meaning as provided in Section 261.6 of the Penal Code, except that it does not include consent which is legally ineffective because of the age, mental disorder, or developmental or physical disability of the victim.”

4.   Falsetta chiefly relies on McKinney v. Rees (9th Cir.1993) 993 F.2d 1378, 1384, to support his due process argument.   The court in McKinney did not analyze whether the admission of evidence of uncharged sex crimes in a sexual crime prosecution violated due process.   The issue in McKinney was whether the admission of evidence of a murder defendant's fascination with knives, which was probative only of his character, violated due process.  (Ibid.)McKinney thus failed to recognize that most states now permit the admission of uncharged sexual misconduct evidence in sex crime prosecutions in order to prove “lustful disposition.”   Accordingly, McKinney 's assumption that all 50 states bar propensity evidence is incorrect in the context of prior uncharged sexual misconduct evidence.  (See id. at p. 1381.)

5.   Neither the Supreme Court nor any California court has held that this policy of excluding criminal propensity evidence is based on the due process clause.  (See McGuire,supra, 502 U.S. at p. 75, fn. 5, 112 S.Ct. at p. 484, fn. 5;  Fitch,supra, 55 Cal.App.4th at pp. 180-184, 63 Cal.Rptr.2d 753.)

6.   In both his opening brief and at oral argument, Falsetta argued that he was raising both facial and as-applied due process challenges to section 1108.   A facial challenge to the constitutionality of a statute requires a showing that no set of circumstances exists under which the statute will be valid.  (United States v. Salerno (1987) 481 U.S. 739, 745, 107 S.Ct. 2095, 2100, 95 L.Ed.2d 697.)   An as-applied challenge entails showing that, under the particular facts of the case, a statute was applied in an unconstitutional manner.  (Id. at p. 745, fn. 3, 107 S.Ct. at p. 2100, fn. 3.) Falsetta did not distinguish between the two challenges, and he primarily argues that section 1108 can never comport with due process.   Following his lead, we have analyzed his claim as a facial challenge to section 1108.   The closest he comes to an as-applied challenge is his contention, made for the first time at oral argument, that the trial court abused its discretion in applying the section 352 weighing process to the prior sex crimes evidence.   That contention fails.   The degree of similarity between the prior sex crimes admitted under section 1108 and the charged offense is the primary consideration in determining the probative value of the evidence.   (Harris,supra, 60 Cal.App.4th at p. 740, 70 Cal.Rptr.2d 689.)   In both the prior crimes and the charged offenses, Falsetta used a car to gain access to his victims who were walking or running along public streets.   In all of the crimes Falsetta sat on top of his victims and struck them in the face or head in order to facilitate his sexual assaults.   Based on the similarity of these opportunistic, predatory sexual attacks, the prior rapes had great probative value.   Falsetta argues that the evidence is prejudicial because the jury may think that a six-year sentence for the prior crimes was not sufficient and they will want to punish him more for those crimes.   We think this concern is highly speculative.   Moreover, we cannot say that the trial court abused its discretion by determining that the possibility of prejudice substantially outweighs the probative value of the evidence.  (Id. at pp. 736-737, 70 Cal.Rptr.2d 689.)   Falsetta's contention fails.

FOOTNOTE.   See footnote *, ante.

7.   The complete instruction follows:  “Evidence has been (will be) introduced for the purpose of showing that the defendant committed crimes other than that for which he is on trial.  [¶] Such evidence, if believed, may be used by you for the limited purposes described in these instructions, but you must approach this evidence with caution.   You must be careful not to give this evidence undue weight and not to use it for any improper purpose.   Evidence that the defendant committed crimes other than the one from [sic ] which he is on trial, if believed, may be evidence that he has a trait of character that predisposes him to the commission of certain crimes.   You may use evidence that the defendant committed other offenses for the limited purpose of deciding whether he has a particular character trait that tends to predispose him to commission of the charged offenses.   In weighing evidence of prior offenses, you must make several decisions.   First, you must decide whether prior offenses have been proved.   Second, you must decide whether proof of the prior offenses proved a character trait of the defendant.   The mere commission of other offenses does not necessarily prove a trait of character.  [¶] If you decide that a character trait of the defendant has been proved, you must decide whether the proved character trait is relevant to whether he committed the charged offenses.   If you find that the proved character trait is not relevant to whether the defendant committed the current offenses you must disregard the evidence of character.  [¶] If you find that a character trait of the defendant has been proved and that the proved character trait is relevant to whether he committed the charged offenses, then you may consider this evidence together with other evidence to decide whether he committed the charged offenses.   You may not convict the defendant merely because you believe that he committed other offenses, or because you believe that he has a character trait that tends to predispose him to committing the charged offenses.  [¶] The question before you is whether the defendant is guilty of the crimes charged in this case, not whether he is guilty of any other prior offenses.   You may return a verdict of guilty only if you are convinced beyond a reasonable doubt that the defendant committed the offenses charged against him in this case.   For the limited purposes for which you may consider such evidence, of prior offenses, you must weigh it as I have described in this instruction.  [¶] You are not permitted to consider such evidence for any other purpose.”

FOOTNOTE.   See footnote *, ante.

WALKER, Associate Justice.

CORRIGAN, Acting P.J., and PARRILLI, J., concur.