BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Elaine K. Alquist, Chair A
2005-2006 Regular Session B
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AB 114 (Cohn)
As Amended May 31, 2005
Hearing date: June 14, 2005
Evidence Code
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CHARACTER EVIDENCE :
PHYSICAL CHILD ABUSE PROSECUTIONS
As Proposed to be Amended
HISTORY
Source: Author
Prior Legislation: AB 141 (Cohn) - Ch. 116, Stats. 2004
SB 1876 (Solis) - Ch. 261, Stats. 1996
Support: Peace Officers Research Association of California;
Child Abuse Prevention Council of Contra Costa County;
Lambda Letters Project; California Correctional
Supervisors Organization; American Federation of State,
County, and Municipal Employees (AFSCME), AFL-CIO;
Office of the San Bernardino County Sheriff; California
District Attorneys Association; California Sexual
Assault Investigators' Association; Junior Leagues of
California State Public Affairs Committee; California
Peace Officers' Association; Los Angeles District
Attorney's Office; Gay and Lesbian Adolescent Social
Services Inc.
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Opposition:California Alliance Against Domestic Violence;
Family Law Section of the California State Bar;
California Public Defenders Association; American Civil
Liberties Union; California Attorneys for Criminal
Justice; Free Battered Women; and one individual
Assembly Floor Vote: Ayes 61 - Noes 6
NOTE: THIS ANALYSIS IS OF THE BILL AS PROPOSED TO BE AMENDED.
KEY ISSUES
SHOULD EVIDENCE OF A DEFENDANT'S COMMISSION OF A PRIOR MISDEMEANOR
CHILD ABUSE CRIME - THAT IS, ONE NOT LIKELY TO PRODUCE GREAT BODILY
INJURY OR DEATH - BE ALLOWED IN A PROSECUTION INVOLVING MISDEMEANOR
OR FELONY CHILD ABUSE, AS SPECIFIED AND LIMITED BY THIS BILL?
SHOULD EVIDENCE OF A DEFENDANT'S COMMISSION OF A PRIOR FELONY CHILD
ABUSE CRIME - THAT IS, ONE EITHER LIKELY TO PRODUCE GREAT BODILY
INJURY OR DEATH, OR ONE THAT DID CAUSE "TRAUMATIC CONDITION," - BE
ALLOWED IN A PROSECUTION INVOLVING MISDEMEANOR OR FELONY CHILD
ABUSE, AS SPECIFIED AND LIMITED BY THIS BILL?
PURPOSE
The purpose of this bill, as proposed to be amended , is to 1)
allow evidence of a defendant's prior acts of child abuse, as
defined -- so-called "propensity" evidence -- in criminal cases
involving child abuse, as specified; and 2) extend the January
1, 2006 sunset for an advisory counsel under the Department of
Health Services relating to battered women's shelters to 2010,
as specified.
Current law provides that a court may in its discretion exclude
evidence if its probative value is substantially outweighed by
the probability that its admission will necessitate undue
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consumption of time or create substantial danger of undue
prejudice, confusing the issues, or misleading the jury.
(Evidence Code 352.)
Current law provides that, with certain exceptions, evidence of
a person's character or a trait of his or her character, whether
in the form of an opinion, evidence of reputation, or evidence
of specific instances of his or her conduct, is inadmissible
when offered to prove his or her conduct on a specified
occasion. (Evidence Code 1101.)
Current law provides that, with certain exceptions, in a
criminal action in which the defendant is accused of an offense
involving domestic violence, evidence of the defendant's
commission of other domestic violence is not made inadmissible
by the Evidence Code provision set forth directly above if the
evidence is not inadmissible under the general balancing test
weighing probative value against the probability that admission
of the evidence will necessitate undue consumption of time or
will create substantial danger of undue prejudice, confusion, or
misleading the jury. (Evidence Code 1109.)
"Domestic violence" under this section has the meaning set forth
in Penal Code Section 13700. In addition, "(s)ubject to a
hearing conducted pursuant to Section 352, which shall include
consideration of any corroboration and remoteness in time,
'domestic violence' has the further meaning as set forth in
Section 6211 of the Family Code if the act occurred no more than
five years before the charged offense." (Evidence Code
1109(d).)
Current law defines "domestic violence" in the Penal Code as
abuse committed against an adult or a minor who is a spouse,
former spouse, cohabitant, former cohabitant, or person with
whom the suspect has had a child or is having or has had a
dating or engagement relationship. (Penal Code 13700.)
"Abuse" is defined as intentionally or recklessly causing or
attempting to cause bodily injury or placing another person in
reasonable apprehension of imminent serious bodily injury to
himself or herself, or another. (Penal Code 13700 (a).)
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Current law defines "domestic violence" in the Family Code as
abuse perpetrated against a spouse or former spouse, a
cohabitant or former cohabitant, a person with whom the
respondent is having or has had a dating or engagement
relationship, a person with whom the respondent has had a child,
a child of a party or a child who is the subject of an action
under the Uniform Parentage Act, where the presumption applies
that the male parent is the father of the child to be protected,
or any other person related by consanguinity or affinity within
the second degree. (Family Code 6211.) "Abuse" in this
section is defined as intentionally or recklessly causing or
attempting to cause bodily injury, sexual assault, to place a
person in reasonable apprehension of imminent serious bodily
injury to that person or to another, or to engage in behavior
that has been or could be enjoined pursuant to Family Code
Section 6320 (orders enjoining assault and harassment). (Family
Code 6203.)
This bill, as proposed to be amended , would provide that when a
defendant is accused of an offense involving child abuse , as
specified, evidence of the defendant's prior commission of child
abuse, as specified, may be admitted to prove the present child
abuse charge(s) against the defendant as follows:
The evidence is "subject to a hearing conducted pursuant
to Section 352, which shall include consideration of any
corroboration and remoteness in time";
The court determines that the probative value of the
evidence is substantially outweighed by the probability
that its admission will (a) necessitate undue consumption
of time or (b) create substantial danger of undue
prejudice, of confusing the issues, or of misleading the
jury (Penal Code 352);
Evidence of acts occurring more than 10 years before the
charged offense is inadmissible under this section, unless
the court determines that the admission of this evidence is
in the interest of justice; and
Evidence of the findings and determinations of
administrative agencies regulating the conduct of health
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facilities licensed under Section 1250 of the Health and
Safety Code is inadmissible under this section.
This bill as proposed to be amended would define "child abuse"
for purposes of this section to mean the following:
Alternate misdemeanor/felony child abuse (Penal Code
273a); and
Corporal punishment or injury of a child (Penal Code
273d).
Sunset Extension
Current law requires the Maternal and Child Health Branch of the
State Department of Health Services to administer a
comprehensive shelter-based services grant program to battered
women's shelters, as specified. (Health and Safety Code
124250.)
Current law further requires that, in implementing this grant
program, the State Department of Health Services must consult
with an advisory council that shall remain in existence until
January 1, 2006. (Id., subdivision (e).)
This bill would extend this sunset until January 1, 2010.
COMMENTS
1. Proposed Author's Amendments
As noted above, this analysis reflects this bill as proposed by
the author to be amended. These amendments, described more
fully above, in summary would:
Limit the scope of the bill to child abuse under Penal Code
Sections 273a and 273d, discussed in more detail below; and
Add additional language requiring a section 352 hearing, as
specified.
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2. What This Bill, As Proposed to Be Amended, Would Do
Under existing law, evidence of a person's character, including
evidence of specific instances of his or her prior conduct,
generally is inadmissible when offered to prove his or her
conduct on a particular occasion. (Evidence Code 1101.) This
type of evidence is sometimes called "propensity" evidence
because it involves a party's propensity to commit certain kinds
of acts.
There are various exceptions to this rule, including an
exception for any criminal action in which the defendant is
accused of a domestic violence crime. In such a case, evidence
of the defendant's commission of other domestic violence is not
barred by Evidence Code Section 1101 unless its probative value
is substantially outweighed by the probability that its
admission will necessitate undue consumption of time or create
substantial danger of undue prejudice, confusing the issues, or
misleading the jury. (Evidence Code 1109.)
This bill, as proposed to be amended , would amend Section 1109
to allow, for acts occurring less than 10 years before the
charged offense unless admission of the evidence is determined
by the court to be in the interest of justice, "evidence of the
defendant's commission of child abuse" in prosecutions for child
abuse , as specified, if its probative value is not substantially
outweighed by the undue consumption of time or the substantial
danger of undue prejudice. The bill would require a Section 352
hearing in which the court's consideration would be required to
include "any corroboration and remoteness in time." The
evidence this bill would allow would be of prior acts - "the
defendant's commission of child abuse" - not just prior
convictions .
3. Included Child Abuse Offenses
This bill would allow propensity evidence in child abuse cases
of the commission of prior child abuse. "Child abuse" for this
purpose would include the child abuse proscribed in Penal Code
Sections 273a and 273d.
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As explained in Witkin, there are a number of statutes generally
addressing child abuse:
The Penal Code contains a number of provisions
dealing with acts or omissions harmful to
children. (See generally 2 Cal. Crim. Law, 2d,
832 et seq.) The following are illustrative:
(a) Failure to provide necessaries. It is a
misdemeanor "[i]f a parent of a minor child
willfully omits, without lawful excuse, to furnish
necessary clothing, food, shelter or medical
attendance, or other remedial care for his or her
child." (P.C. 270; see 2 Cal. Crim. Law, 2d,
832.)
(b) Refusing shelter. It is a misdemeanor for a
parent to refuse, without lawful excuse, to accept
the parent's minor child into the parent's home,
or to provide alternative shelter, upon being
requested to do so by a child protective agency.
(P.C. 270.5; see 2 Cal. Crim. Law, 2d, 835.)
(c) Unjustifiable physical pain or mental
suffering. It is a felony-misdemeanor for a
parent (or any other person) to "willfully"
inflict on a child "unjustifiable physical pain or
mental suffering." (P.C. 273a; see People v.
Curtiss (1931) 116 C.A. Supp. 771, 778,
[conviction of school teacher who had punished a
child affirmed; reasonableness of punishment held
a jury question]; 5 So. Cal. L. Rev. 173 . . . .
P.C. 273a requires a willful intent to cause the
results listed. Hence, a minor who ignorantly
gave her baby aspirin and nutritionally
insufficient food could not be made a ward of the
Juvenile Court under Welf.C. 602 (see infra,
728). ( In re Maria R. (1976) 64 C.A.3d 731, 734,
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135 C.R. 2.)
(d) Cruel or inhuman corporal punishment or
injury. It is a felony-misdemeanor for a person
"willfully" to inflict on a child "any cruel or
inhuman corporal punishment or injury resulting in
a traumatic condition." (P.C. 273d; see People v.
Thomas (1976) 65 C.A.3d 854, 857, 135 C.R. 644
[stepfather's beating of 15-year-old stepdaughter;
held that "child" within meaning of P.C. 273d is
any minor, i.e., any person less than 18 years of
age].)<1>
This bill would include Sections 273a and 273d, discussed
immediately below.
Penal Code Section 273a
Penal Code section 273a is a fairly broad section that includes
a wide range of conduct. Depending upon the act, this crime is
punishable as a misdemeanor or an alternate misdemeanor felony:
(a) Any person who, under circumstances or
conditions likely to produce great bodily harm
or death, willfully causes or permits any child
to suffer, or inflicts thereon unjustifiable
physical pain or mental suffering, or having
the care or custody of any child, willfully
causes or permits the person or health of that
child to be injured, or willfully causes or
permits that child to be placed in a situation
where his or her person or health is
endangered, shall be punished by imprisonment
in a county jail not exceeding one year, or in
the state prison for two, four, or six years.
(b) Any person who, under circumstances or
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<1> 10 Witkin Sum. Cal. Law P & C 157(emphasis added) (some
citations omitted).
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conditions other than those likely to produce
great bodily harm or death, willfully causes or
permits any child to suffer, or inflicts thereon
unjustifiable physical pain or mental suffering,
or having the care or custody of any child,
willfully causes or permits the person or health
of that child to be injured, or willfully causes
or permits that child to be placed in a
situation where his or her person or health may
be endangered, is guilty of a misdemeanor.
(Penal Code 273a (a) and (b) (emphasis
added).)
To prove a crime under subdivision (a) - a wobbler - the
following elements must be proved:
[1. A person willfully inflicted unjustifiable
physical pain or mental suffering on a child;]
[or]
[1. A person willfully caused or, willfully and as
a result of criminal negligence, permitted a child
to suffer unjustifiable physical pain or mental
suffering;] [or]
[1. A person who had care or custody of a child
[a.] [willfully caused or, willfully and as a
result of criminal negligence, permitted the child
to be injured;] [or]
[b.] [willfully caused or, willfully and as a
result of criminal negligence, permitted the child
to be placed in a situation where his or her
person or health may be endangered;]] and
2. The person's conduct occurred under
circumstances likely to produce great bodily harm
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or death.<2>
To prove a crime under subdivision (b) - a misdemeanor -
the following elements must be proved:
[1. A person willfully inflicted unjustifiable
physical pain or mental suffering on a child[.]]
[; or]
[1. A person willfully caused or willfully and as
a result of criminal negligence permitted a child
to suffer unjustifiable physical pain or mental
suffering[.]] [; or]
[1. A person had care or custody of a child and:
[a. Willfully caused or willfully and as a result
of criminal negligence permitted the child's
person or health to be injured[.]] [; or]
[b. Willfully caused or willfully and as a result
of criminal negligence permitted the child to be
placed in a situation where his or her person or
health may be endangered].]<3>
The following jury instructions apply to both of these crimes:
. . . The word willfully, as used in this
instruction, means with a purpose or willingness
to commit the act or make the omission in
question. The word willfully does not require any
intent to violate the law, or to injure another,
or to acquire any advantage.
In the crime charged, there must exist a union or
joint operation of act or conduct and either
general criminal intent or criminal negligence.
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<2> CALJIC 9.37.
<3> CALJIC 16.170.
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[To establish general criminal intent it is not
necessary that there should exist an intent to
violate the law. When a person intentionally does
that which the law declares to be a crime, [he]
[she] is acting with general criminal intent, even
though [he] [she] may not know that [his] [her]
act or conduct is unlawful.]
[Criminal negligence refers to negligent conduct
which is aggravated, reckless or flagrant and
which is such a departure from the conduct of an
ordinarily prudent, careful person under the same
circumstances as to be contrary to a proper regard
for [human life] [danger to human life] or to
constitute indifference to the consequences of
that conduct. The facts must be such that the
consequences of the negligent conduct could
reasonably have been foreseen and it must appear
that the [death] [danger to human life] was not
the result of inattention, mistaken judgment or
misadventure but the natural and probable result
of aggravated, reckless or flagrantly negligent
conduct.]
Unjustifiable physical pain or mental suffering is
pain or suffering which, under the circumstances,
is unreasonable either as to necessity or
degree.<4>
As explained succinctly by one court:
The criminal acts proscribed by both the felony and
misdemeanor subdivisions of section 273a are (1)
willfully inflicting or causing or permitting a
child to suffer unjustifiable physical pain or
mental suffering, (2) willfully causing the person
or health of a child under one's care or custody to
be injured, and (3) willfully placing a child under
one's care or custody in a situation where its
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<4> Id.
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person or health may be endangered. If the act is
done under circumstances or conditions likely to
produce great bodily injury or death, it is a
felony; if not, the same proscribed act is a
misdemeanor.<5>
Penal Code Section 273d
Unlike Section 273a, Penal Code Section 273d requires actual
corporal punishment or an injury resulting in a traumatic
condition:
a) Any person who willfully inflicts upon a child
any cruel or inhuman corporal punishment or an
injury resulting in a traumatic condition is
guilty of a felony and shall be punished by
imprisonment in the state prison for two, four, or
six years, or in a county jail for not more than
one year, by a fine of up to six thousand dollars
($6,000), or by both that imprisonment and fine.
(emphasis added)
As explained in California Jury Instructions:
In order to prove this crime, each of the
following elements must be proved:
1. A person willfully inflicted cruel or inhuman
punishment or an injury upon the body of a child;
and
2. The infliction of this punishment or this
injury resulted in a traumatic condition.<6>
The Difference between These Provisions
The following appellate court opinion summarizes and explains
the difference between prosecutions under these two sections:
Violation of section 273a, subdivision (a) "can
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<5> People v. Deskin (1992) 10 Cal.App.4th 1397 (emphasis
added).
<6> CALJIC 9.36.
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occur in a wide variety of situations: the
definition broadly includes both active and
passive conduct, i.e., child abuse by direct
assault and child endangering by extreme neglect."
[Citation.] . . . Section 273a [subdivision (a)]
is "intended to protect a child from an abusive
situation in which the probability of serious
injury is great." [Citation.] "[T]here is no
requirement that the actual result be great bodily
injury." [Citation.] [Citation.]" (People v.
Valdez (2002) 27 Cal.4th 778, 784 [118 Cal.Rptr.2d
3, 42 P.3d 511].) Section 273d, however, requires
the defendant to inflict a cruel or inhuman
corporal punishment or injury upon a child and the
actual result is an injury resulting in a
traumatic condition. (Fn. 7 at p. 1157, ante.)
Thus, CALJIC No. 9.36 describes "traumatic
condition" as "a condition of the body, such as a
wound or external or internal injury, whether of a
minor or a serious nature, caused by a physical
force.
" 'Corporal punishment' is that administered to
the body.
"In order to prove this crime, each of the
following elements must be proved:
"1. A person willfully inflicted cruel or inhuman
punishment or an injury upon the body of a child;
and
"2. The infliction of this punishment or this
injury resulted in a traumatic condition." (See
People v. Thomas (1976) 65 Cal.App.3d 854, 857
[135 Cal. Rptr. 644].)<7>
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<7> People v. Cockburn (2003) 109 Cal. App. 4th 1151(emphasis
added) (some citations omitted).
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The California Alliance Against Domestic Violence submitted the
following in opposition to the author's bill as proposed to be
amended:
The California Alliance Against Domestic Violence
strongly opposes the inclusion of PC 273a in the
definition of child abuse in AB 114.
While we realize that your intent is to follow the
logic of "apples to apples" mentioned by Senator
Cedillo in Committee on June 7, we believe that
the original intent of AB 114 was to provide a
tool for the prosecuting of physical and/or sexual
child abuse.
Child abuse as defined under 273a includes child
endangerment, namely mental suffering and
permitting a child to suffer. We see this as
opening the door to including child witnessing of
domestic violence as child abuse and we strongly
oppose that concept.
SHOULD EVIDENCE OF A DEFENDANT'S COMMISSION OF A PRIOR
MISDEMEANOR CHILD ABUSE CRIME - THAT IS, ONE NOT LIKELY TO
PRODUCE GREAT BODILY INJURY OR DEATH - BE ALLOWED IN A
PROSECUTION INVOLVING MISDEMEANOR OR FELONY CHILD ABUSE?
SHOULD EVIDENCE OF A DEFENDANT'S COMMISSION OF A PRIOR FELONY
CHILD ABUSE CRIME - THAT IS, ONE EITHER LIKELY TO PRODUCE GREAT
BODILY INJURY OR DEATH, OR ONE THAT DID CAUSE "TRAUMATIC
CONDITION," AS DEFINED ABOVE - BE ALLOWED IN A PROSECUTION
INVOLVING MISDEMEANOR OR FELONY CHILD ABUSE?
3. Character Evidence Generally
The "character evidence rule" - that is, the general rule
barring the use of character to show conduct - has "undergone
significant erosion in recent years. The rule also has been
subjected to withering criticism. But the character evidence
rule - which bars the 'circumstantial' use of character - is not
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yet dead. Moreover, the character evidence rule still has many
defenders. (Indeed, in the legal community the rule's defenders
seem to outnumber its critics.)"<8>
As observed by one legal commentator:
The rules governing the use of character evidence
were not written for the lay person. They are not
the equivalent of criminal rules whose infraction
can subject its violator to fines, jail, or worse.
The rules are not concerned with shaping human
conduct in everyday affairs, but rather with the
kinds of information jurors should consider in
discharging their functions. The
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<8> Tillers, Symposium: "What is Wrong with Character
Evidence?" 49 Hastings L.J. 781 (March 1998) (footnotes
omitted).
rules are directed at lawyers who try cases,
judges who preside over those cases, and appellate
judges who review those cases. They are directed
at individuals trained in the law. Although
needless complexity and lack of clarity in
statutes are surely undesirable, the chief focus
in assessing the continued vitality of the
character evidence rules must be on whether the
benefits of excluding predisposition evidence are
outweighed by the costs of withholding the
evidence from the jurors.<9>
A 1998 law review article explains that , until relatively
recently character evidence has been inadmissible - going back
to English common law - as unduly prejudicial:
For hundreds of years, common law prohibited the
use of character evidence against a defendant in a
criminal trial. It was believed that although
character evidence may be relevant, it was so
prejudicial that its introduction would deny the
defendant a fair trial. . . .
. . .
Character evidence means evidence of a person's
moral character: the propensity to do something
because of the kind of person one is. Before
section 1108 was enacted, the prohibition against
the prosecution's introduction of character
evidence in its case in chief was "the universal
rule." If prior crimes evidence was admitted,
"the prosecutor could not argue, nor could the
court instruct, that the jury could consider such
evidence to prove the defendant's character (as
opposed to some valid, non-character purpose), let
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<9> Mendez, Symposium: "Character Evidence Reconsidered:
People Do Not Seem to be Predictable Characters," 49 Hastings
L.J. 871 (March 1998) (footnotes omitted).
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alone that proof of the defendant's character
could be used to prove the defendant's guilt in
the current offense."
. . .
Character evidence is excluded because of its
inflammatory effect on juries. Witkin states:
"such evidence is some indication of the
likelihood of [the defendant's] guilt and is
therefore relevant, but it would be highly
prejudicial in its tendency to draw the attention
of the jury away from the evidence dealing with
the crime charged." One aspect of the presumption
of innocence is the fundamental axiom that the
accused must be tried only for what he did, not
for who he is.<10>
WOULD THIS BILL PERMIT THE INTRODUCTION OF EVIDENCE THAT WOULD
HAVE AN "INFLAMMATORY EFFECT" ON JURORS?
OR, WOULD THE COURT'S ABILITY UNDER THIS BILL TO EXCLUDE THIS
EVIDENCE IF DEEMED TO BE PREJUDICIAL PROVIDE AN EFFECTIVE GUARD
AGAINST THE INTRODUCTION OF INFLAMMATORY EVIDENCE?
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<10> McGuinness, Sliding Backwards: The Impact of California
Evidence Code Section 1108 on Character Evidence, Rape Shield
Laws and the Presumption of Innocence (9 Hastings L.J. 97 (1998)
(footnotes omitted).