CA Evidence Code 1108 (CEC) Admissibility of Prior Sex Offense in California Criminal Prosecution. Sex Crimes Criminal Defense Lawyers Explain CEC 1108 Law & Defense
- Mar 7
- 7 min read
Updated: Mar 15
When a criminal defendant is accused of committing a sex crime in California, evidence of his or her prior criminal history of any sexual offenses might be admissible in the defendant’s present case to prove the defendant’s guilt in the present offense (CEC 1108).
Note: Ordinarily, when a defendant is charged with a non-sex offense, his or her prior criminal history is usually inadmissible to prove his or her guilt in the present offense (CEC 1101). Some exceptions apply to the rule set forth in CEC 1101.
Example: In 2026, David is criminally charged with lewd act upon a child under 14 (PC 288(a)), a sex offense. Per CEC 1108, David’s 2020 conviction for oral copulation (PC 287(a)), a sex offense, may be used in David’s 2026 case as evidence to prove David committed the PC 288(a) offense.
Example II: In 2026, David is criminal charged with lewd act upon a child under 14 (PC 288(a)), a sex offense. Per CEC 1101, David’s 2020 conviction for grand theft (PC 484), may not be used in David’s 2026 case as evidence to prove David committed the PC 288(a) offense.
Note: CEC 1108 is used by district attorney to introduce a defendant’s prior sex crime as evidence in a current case, whereas CEC 1101 is used by criminal defense lawyers in an attempt to exclude a criminal defendant’s prior criminal history as evidence in a current case.
There are some limitations to the use of CEC 1108 evidence in current sex crimes prosecutions. That limitation is found at California evidence code section 352
Evidence Code 352: The court in its discretion may exclude evidence if its probative value 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.
In most sex cases where the district attorney is attempting to introduce evidence of a defendant’s prior sex offense, it is EV 352’s “create substantial danger of undue prejudice” test that presents the hurdle for introduction of evidence of that prior sex offense.
Example: In 2026, David is charged with lewd with child under 14 (PC 288(a)), a sex offense. The district attorney would like to introduce evidence of David’s 2020 conviction for sodomy (PC 286), a sex offense. CEC 1108 will allow the district attorney to introduce that evidence, so long as the introduction of that evidence does not “create substantial danger of undue prejudice” to David in the jury’s view.
Note: The criminal court judge is the arbitrator of whether CEC 1108 prior sex offense evidence “creates substantial danger of undue prejudice” to the defendant in the defendant’s current case. If the judge finds that EV 352 rules would be violated, the judge will not allow the district attorney to introduce evidence of the defendant’s prior sex offense in the current case.
Undue Evidence: Arguably, any evidence of a defendant’s prior sex offense, which is introduced in a current case, is prejudicial to the defendant in the jury’s view, but the question is whether the prejudice is “Undue” prejudice. In other words, does the evidence of the defendant’s prior sex offense have some value to the district attorney’s case other than to prejudice the jury against the defendant?
Example: In 2026, David is charged with sexual battery (PC 243.4), a sex offense. The district attorney would like to introduce David’s prior 2020 conviction for sexual battery to show the jury that David has a propensity to commit sexual battery.
Result: Under EV 1101, the district attorney may not be allowed (with some exceptions) to use evidence of prior criminal offense in a current criminal prosecution; however, in David’s case, the district attorney may introduce, via CEC 1108, David’s prior sexual battery conviction as evidence in David’s current prosecution to show that David has a propensity to commit sexual battery.
Note: In the above example, David is certainly prejudiced in his current case by the prosecution’s use of David’s prior sex offenses, but CEC 1108 allows the district attorney to use this evidence so long as its use does not violate PC 1054.7 disclosure rules (See Below) and EV 352 (See Above).
Non-Prejudicial Uses of CEC 1108 Evidence
Proper uses of CEC 1108 evidence by the district attorney include propensity of the defendant to commit the crime, motive or opportunity for the defendant to commit the crime, lack of mistake alleged by the criminal defendant, identity of the defendant, and more.
This list is not exclusive, but these reasons represent the most common reasons presented by the district attorney to a criminal court judge in the district attorney’s effort to have the CEC 1108 evidence introduced against the criminal defendant.
Evidence Code 1108 Reads
In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352 (CEC 1108(a)).
In an action in which evidence is to be offered under this section, the people shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered in compliance with the requirements of PC 1054.7 [Disclosure Requirements] (CEC 1108(b)).
This section does not limit the admission or consideration of evidence under any other section of this code (CEC 1108(c)).
As used in CEC 1108, the following definitions shall apply: A “Sexual offense” means a crime, or conspiracy to commit a crime, under the law of a state or of the United States that involved any of the following (CEC 1108(d)(1)(A-F) Abbrev.):
PC 236.1 Sex Trafficking
PC 243.4 Sexual Battery
PC 261(a) Rape
PC 261.5 Statutory Rape
PC 264.1 Rape in Concert
PC 266c Sex by False Pretense
PC 269 Sexually Abuse Child
PC 286 Sodomy
PC 287 Oral Copulation
PC 288 Lewd Act on Child
PC 288.2 Send Harmful Matter
PC 288.5 Cont. Sexual Abuse
PC 289 Sexual Penetration
PC 311.2 Bring Child Porn
PC 311.3 Produce Child Porn
PC 311.4 Use Minor Dist. CP
PC 311.10 Dist. Child Porn
PC 311.11 Poss. Child Porn
PC 314 Indecent Exposure
PC 647.6 Annoy or Molest
PC 220(a) Sexual Assault
Conviction of Prior Offense Not Required
Per CEC 1108, the district attorney’s use of evidence of a prior sex offense in a current criminal prosecution does not require the district attorney to prove the prior sex offense resulted in a criminal conviction.
Example: In 2026, David is charged with oral copulation (PC 287), a sex offense. Per CEC 1108, the district attorney wants to introduce evidence of David’s 2020 arrest for the same offense to prove that David has a propensity to commit oral copulation.
Result: The judge may allow the district attorney to introduce David’s 2020 arrest for oral copulation even if David’s arrest did not result in a criminal conviction, and so long as the limitations of Evidence Code 352 and the requirements PC 1054.7 are met.
Of course, in a situation where the defendant’s prior sex offense did not lead to criminal conviction, the district attorney will have a difficult task of convincing a judge that CEC 1108 evidence does not violate the limitations of EV 352 (i.e., the prejudice to defendant is greater than the tendency of the evidence to prove a fact in dispute, or the non-conviction prior will confuse the issues for the jury as evidence will be needed to prove the defendant’s non-conviction prior).
CEC 1108 & CEC 1101 Balancing Act
CEC 1108 is an exception to the CEC 1101 rule that limits the district attorney from presenting evidence of a defendant’s prior criminal convictions in a current prosecution (with some exceptions). The reason for Evidence code 1101 is that evidence of a defendant’s prior criminal conviction is obviously very prejudicial against the criminal defendant in his or her current criminal prosecution.
However, CEC 1108 allows evidence of a defendant’s prior sex arrest in a current prosecution for a sex crime even though the prior arrest was not proved beyond a reasonable doubt (so long as the judge agrees to allow the district attorney to use the evidence of a prior arrest for sex offense).
The law finds balance of this CEC 1101 v. 1108 admissibility of evidence in the fact that a criminal judge has discretion to allow, or not allow, CEC 1108 prior sex offense evidence.
Example: In 2026, David is charged with possession of child pornography (PC 311.11), a sex offense. The district attorney would like to introduce evidence, via CEC 1108, of David’s prior 2010 arrest for sending harmful matter to a minor (PC 288.2), a sex offense.
Result: The judge, in his or her discretion, may find that that David’s arrest, without conviction, from sixteen (16) years before David’s current criminal prosecution, has no probative value to David’s current case, and that the lack of a criminal conviction of David’s prior alleged sex offense means the district attorney will have to present disputed evidence of the facts surrounding David’s prior arrest; therefore, the judge may exclude the district attorney’s evidence of David’s prior PC 288.2 arrest.
Only Enumerated Sex Offenses Apply
By the language of CEC 1108, some sex offenses do apply to the rule. For these non-enumerated sex offenses, Evidence Code 1101 applies.
Example: In 2026, David is charged with solicitation of prostitution (PC 647(b)), a sex offense. David has a prior conviction for solicitation of prostitution. The district attorney would like to use evidence of David’s prior conviction for prostitution in David’s current case. However, the crime of prostitution is not a sex crime listed in CEC 1108; therefore, the district attorney may not use evidence of David’s prior conviction per CEC 1101 (with some exceptions listed in CEC 1101).
Pretrial Motion Regarding CEC 1108 Evidence
CEC 1108 evidence is an issue that is handled before a criminal trial starts. In other words, the criminal defendant’s attorney will argue, long before, trial, that both evidence code 1101 and evidence code 352 do not permit the district attorney’s evidence of the defendant’s prior sex offense in the current case for various reasons.
The important thing to remember is that not all sex crimes criminal defense lawyers are the same. It is absolutely vital to your future that you retain an experience sex crimes criminal defense lawyer familiar with the arguments that have the greatest chance of success in any CEC 1108 or Evidence Code 352 motion.
To learn more about California Evidence code section 1108 (admissibility of prior sex crimes evidence), contact our sex crimes criminal defense lawyers for a free consultation. Our team of highly successful criminal defense lawyers have successfully defended hundreds of misdemeanor and felony crimes in Riverside, San Bernardino, Orange & Los Angeles County.
Our award-winning criminal defense trial lawyers defend misdemeanor and felony sex crimes, including lewd act on a child, oral copulation, possession of child porn, indecent exposure, statutory rape, rape crime, sexual battery, prostitution, annoying a child, incest, harmful matter sent to minor, and more. Call today!
909-913-3138
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