Supreme Court of California

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People v. Cottone, S194107

The Court of Appeal erred in reversing defendant's judgment of conviction based on instructional error, where: 1) if the proffered conduct of a prior sexual offense, offered to prove a defendant's propensity to commit the charged sexual offenses, occurred before the defendant reached the age of 14, the prosecution must establish that the defendant knew the conduct was wrongful and was thus capable of committing a crime; 2) the presumption of incapacity set forth in Penal Code section 26(One) applies when the prosecution seeks to prove that the defendant committed an unadjudicated sexual offense before reaching age 14; 3) upon the defendant‘s timely objection, the trial court must find by clear and convincing evidence that the defendant had the capacity to commit an unadjudicated juvenile offense before admitting that evidence under Evidence Code section 1108; and 4) the Court of Appeal erred in imposing a sua sponte duty to instruct on Penal Code section 26(One)'s presumption of incapacity as it relates to evidence admitted under Evidence Code section 1108.

Appellate Information

  • Decided 07/22/2013
  • Published 07/22/2013




  • Supreme Court of California