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Court rules prior uncharged acts committed in foreign country admissible as propensity evidence under 1108


In a decision issued by the California Court of Appeal, Fourth Appellate District, likely to be overruled, the court held that uncharged sexual offenses committed outside the United States are admissible as propensity evidence.

The defendant and appellant, Martin Felipe Miramontes, was convicted in the Superior Court, San Diego County, of sodomy with achild ten years old or younger, lewd acts of a child, attempted lewd acts on a child, oral copulation and sexual penetration with a child ten years old or younger, using harmful matter to seduce a child, and possession of child pornography. At trial, the prosecution introduced the testimony of two children regarding prior uncharged sexual offenses against children committed in Mexico. After conviction on the aforementioned counts, Miramontes appealed the court’s ruling that allowed the prior uncharged acts of molestation of the two children into evidence.

Evidence Code section 1108 creates a statutory exception to the general rule against evidence to demonstrate propensity to commit a crime and allows the admission of evidence of other sexual offenses to prove the defendant’s disposition to commit the charged offense in sexual offense cases.

Miramontes argued for a strict reading of Section 1108, contending that the definitions in Evidence Code section 1108 only expressly prohibit conduct under state or federal law, not foreign law. The court rejected Miramontes’ argument, reasoning that Section 1108 allowed for the testimony because it clearly described conduct prohibited by California law. The code does not require that the sexual offenses have taken place in the United States. Rather, the definitions within Section 1108 describe the substance of the unlawful conduct involved in the prior offense, regardless of where it may have occurred. Thus, the court states, “[t]he principal consideration in this inquiry is whether the comparable prior, essentially similar, conduct occurred, not where it occurred, for purposes of determining…its admissibility under Evidence Code section 1108.”

The court further analogized their interpretation to rules using a comparable analysis in allowing use of prior out-of-state convictions for sentence enhancement and the registered sex offender statute. In sentence enhancements involving prior out-of-state convictions, the court may consider the entire record to determine whether “the offense of which the defendant was previously convicted involved conduct which satisfies all elements of the comparable California…offense.” Additionally, a person who was convicted of a sexual offense in another state will only be required to register as a sex offender in California if the out-of-state offense meets all the statutory elements under California law. Thus, so long as the act committed outside of California meets the statutory elements required under commensurate California law, the court will consider it as compliant with the statute and take it into consideration.

After looking to legislative intent and comparable ways to interpret the law, the court concluded that just because the offenses occurred in Mexico this did not preclude admissibility of the uncharged acts. The acts met the requirements as set forth in Section 1108 and thus the court affirmed the convictions.

All citations taken from People v. Miramontes, 2010 WL 4343324 (Cal.App. 4 Dist.).

Scott Hughes is a criminal defense lawyer in Newport Beach, California practicing in State and Federal Court.

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