People v. Cottone
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Defendant was charged with committing four lewd acts upon his niece. Before trial, the prosecution offered evidence under Cal. R. Evid. 1108 that Defendant had sexually abused his sister when Defendant was nearly fourteen. Defendant opposed the prosecutor's motion, arguing that the evidence should be excluded because, as a minor under the age of fourteen, he was presumed incapable of committing a crime. The court allowed the evidence. During trial, the trial court did not give an instruction directing the jury to assess Defendant's capacity to commit the offense admitted under section 1108 under Cal. Penal Code 26(1). The jury convicted Defendant on all counts. The court of appeal reversed, holding that the trial court erred by not sua sponte instructing the jury that the prosecution must prove by clear and convincing evidence that Defendant appreciated the wrongfulness of his conduct admitted under section 1108. The Supreme Court reversed, holding (1) proof was required that Defendant knew the conduct at issue was wrongful and was thus capable of committing a crime; and (2) the trial court was not required to sua sponte instruct the jury to consider Defendant's age at the time of his act admitted under section 1108. Remanded.
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