Is prior sexual misconduct admissible in a sexual assault case?

Nothing in Evidence Code section 1108 suggests that prior sexual misconduct is admissible only if there is sufficient independent evidence that the currently charged sex crime actually involved a sex act. On the contrary, the statute authorizes the admission of such misconduct in criminal actions in which the defendant is accused of enumerated sexual offenses, including attempted rape and other attempted sex crimes. (Evid.Code, 1108, subds. (a), (d)(1)(A), (d)(1)(F).) Evidence Code section 1108 thus permits the admission of prior sexual misconduct to establish charged offenses that require no accomplished sex act, such as attempted rape (People v. Clark (2011) 52 Cal.4th 856, 948 [131 Cal.Rptr.3d 225, 261 P.3d 243] [attempted rape requires only conduct exceeding mere preparation showing that defendant put plan into action] ).

[235 Cal.App.4th 1385]