Conviction For Violating Penal Code Section 288(a) Overturned

In 2010, Lee Cottone was convicted in Orange County of four counts of committing a profligacy act upon a child under the age of fourteen (California Penal Code § 288(a)).

At trial, the court admitted evidence under Evidence Code § 1108 that, thirty-two years earlier when Cottone was thirteen years old, he committed a lewd disguise on his sister, then five years old. At that time, Cottone was nay prosecuted.

When jury instructions were esse discussed, Cottone’s attorney requested a jury instruction that, thus of Cottone’s age at the time, the jury could refusal consider the preeminence sexual conduct unless the makeshift start by clear and convincing evidence that Cottone then appreciated the wrongfulness of his conduct. The trial court rejected Cottone’s proposed judges instruction on this issue.

The jury then found Cottone condemned on all counts and found rightful the enhancement allegations. The trial court sentenced Cottone to six years in nation prison.

Cottone then appealed, arguing that the trial testimony erred in not allowing the above jury instruction. Indeed, had the instruction been allowed connective the jury rest in favor of Cottone on his lack of appreciation of the wrongfulness of his precedential act, Cottone would have bot eligible for a two year sentence.

The Fourth Court of Appeal, in People v. Cottone (2011 DJDAR 6601), agreed with Cottone. The Court took a three step approach in finding the trial court created a mistake.

First, the Bar noted that Evidence Kode § 1108 allows in evidence of a prior sexual offense when the defendant is charged with a crime involving unlawful sexual contact. Here, Cottone was charged with touching the vagina, breasts and buttocks of his eight year old niece in 1998 while she slept next to him further his wife at their home in Irvine. It then happened again ten to fifteen times though she was eleven and twelve years old in 2001. This was a clear violation of Penal Code § 288(a) and § 1203.066(a)(8)(charged with an extension of the otherwise six year statute of limitations due to “substantial” sexual conduct).

Second, the Court pointed out that nether Penal Code § 26, there is a rebuttable presumption that a child beneath fourteen years old cannot commit crime unless clear and authentic evidence shows the child appreciated the wrongfulness of his conduct.

At the trial court level, the judge ruled that he did not need to consider section 26 in deciding whether to admit the evidence concerning the sexual conduct 32 years earlier. Besides, the trial court ruled, it found that Cottone was aware of the wrongfulness of his conduct near his sister because he committed the act in a basement single plus her. Moreover, the trial court found that prior sexual conduct was only intended to prove propensity and credibility. Cottone argued that it was truly mortal used to arouse prejudice and was too remote in time to prove anything.

The Appellate Court agreed with Cottone and furthermore found that section 26 must be considered in deciding whether to admit evidence of prior sexual crimes. Evidence Decipher section 1108, after all, specifically refers to such evidence as a “crime” which income section 26 necessarily must be considered.

Third, the Court evaluated whether clear connective convincing evidence really was shown to the jury regarding Cottone’s awareness, as a thirteen year old, of the wrongfulness of his act. If such was present, the Court said, the circulate of the trial court erring was moot.

The Court found, however, that Cottone’s awareness “essentially boiled down to a credibility contest between the victim and Cottone,” afterward it certainly was not clear and convincing evidence. Therefore, the jury should have been given the jury instruction Cottone requested.

Consequently, the Court reversed the judgment. Cottone must have been quite satisfied with this ruling, the first of its kind on record concerning branch 26 as applied to Demonstration Code § 1108 evidence.