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19 W. St. U. L. Rev. 107 (1991-1992)
Issues of Severance, Cross-Admissibility and Sua Sponte Instructions in Sexual Offense Cases

handle is hein.journals/wsulr19 and id is 113 raw text is: Issues Of Severance, Cross- Admissibility And Sua Sponte Instructions In Sexual Offense Cases Jacki Brown Evans * The last fifteen years have seen dynamic changes in the manner by which sexual offense cases can properly be tried, and the effect on appeal after an error has occurred. The area of greatest interest, and emerging development, is that of joinder of multiple sexual offenses in a single trial against a single defendant, or the admission of uncharged acts of sexual misconduct in a trial of a similar sexual offense against the defendant.' The issues of severance and admission of similar acts of misconduct continue to be governed generally by Penal Code sections 954,2 1098,' * J.D., University of San Francisco; B.A., Mills College (1974). Ms. Evans was previously Deputy District Attorney for San Mateo and Marin Counties, and a lecturer at Mills College, Sky- line College, and Hastings College of the Law. She is currently personal research attorney on the staff of Presiding Justice David Sills of the Fourth District Court of Appeal. 1. This statement is not to minimize the dynamic consequence of other changes uniquely found in sexual offense cases. See People v. Rincon-Pineda, 14 Cal. 3d 864, 538 P.2d 247 (1975). Rincon-Pineda was convicted of rape at a second trial after his first trial resulted in a hung jury. In the first trial, the jury received the mandatory instruction (former CALJIC No. 10.22) telling them 'A charge such as that made against the defendant in this case is one which is easily made and, once made, difficult to defend against, even if the person accused is innocent. Therefore, the law requires that you examine the testimony of the female person named in the information with cau- tion.' Id. at 871, 538 P.2d at 252. At the second trial, however, the judge refused to give the instruction even in the face of specific judicial mandate. Without the instruction, the jury convicted Rincon-Pineda. On appeal, he complained vociferously of the trial court's abusive error. By doing so, he brought the complete absurdity of the instruction to the attention of the supreme court, which then struck it down, noting the trial court's procedural error but social and philosophical rectitude. That trial judge was Armand Arabian. 2. CAL. PENAL CODE § 954 (Deering 1983). An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different of- fenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated.... provided, that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately. An acquittal of one or more counts shall not be deemed an acquittal of any other count. Id. 3. Id. § 1098. When two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court order separate trials. In order-

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