Background
Robert Hrbac was charged with continuous sexual abuse of a child under 14 years old and dissuading a witness by conspiracy after his daughter disclosed that he had sexually abused her beginning when she was three or four years old. The abuse came to light in April 2023 when the six-year-old made a comment to a relative about conduct with Hrbac, and after a second forensic interview in May 2023 she disclosed repeated abuse. The information also alleged a 2006 conviction for lewd or lascivious acts with a child under 14.
Before trial, the prosecution moved to introduce evidence of uncharged sexual offenses against five other minors under Evidence Code section 1108, which permits prior-sex-offense propensity evidence in a sex-crime prosecution. The uncharged offenses spanned roughly 1993 to 2005. Hrbac moved to exclude them under Evidence Code section 352 as minimally probative, inflammatory, time-consuming, and confusing. The trial court admitted the evidence as probative and more probative than prejudicial.
A jury convicted Hrbac as charged and found the prior conviction allegation true; the trial court imposed an aggregate prison term of 43 years. On appeal, Hrbac argued that the trial court abused its discretion in admitting the uncharged-offense evidence, erred by not instructing sua sponte on unconsciousness, and that the cumulative effect of those claimed errors required reversal.
The Court’s Holding
The Court of Appeal affirmed, holding that the trial court did not abuse its discretion under section 352 in admitting the section 1108 evidence. Reviewing the information before the trial court when it ruled, the court found substantial similarities between the charged and uncharged offenses: the victims were female minors, the abuse involved similar sexual touching or penetration, and it occurred when Hrbac was alone with victims to whom he had access. The court rejected the remoteness argument, explaining that the 15-to-28-or-30-year gap could be balanced out by those similarities, and it found no undue prejudice, excessive time consumption, or confusion of issues.
The court declined to decide whether the unconsciousness instruction was required, instead holding that any error was harmless beyond a reasonable doubt. The jury was instructed that conviction required a finding that Hrbac 'willfully touched' the child and that a person acts willfully when he acts 'willingly or on purpose.' The guilty verdict therefore necessarily found purposeful conduct, which cannot be reconciled with unconsciousness.
Because the court found no error in admitting the uncharged-offense evidence and treated any instructional error as harmless, it rejected the cumulative-error claim: there was nothing to cumulate. The judgment was affirmed.
Key Takeaways
- Uncharged sexual-offense evidence may be admitted under Evidence Code section 1108 despite a 15-to-30-year gap when the prior and charged offenses share substantial similarities in victims, conduct, and access.
- Multiple prior victims and repeated abuse can increase probative value rather than make propensity evidence unduly prejudicial.
- Section 1108 and section 352 rulings are reviewed for abuse of discretion based on what the trial court knew when it ruled, not on later trial evidence.
- A failure to instruct on unconsciousness can be harmless beyond a reasonable doubt when the jury's guilty verdict on a willful-conduct offense necessarily resolves consciousness against the defendant.
- A defendant's youth when committing uncharged offenses is less important to probative value than the similarity between the charged and uncharged crimes.
Why It Matters
The decision illustrates the broad discretion trial courts have to admit decades-old uncharged sexual-offense evidence under section 1108 when the offenses are sufficiently similar, and it confirms that remoteness can be outweighed by a consistent pattern of abuse of accessible underage victims.
The harmless-error analysis also shows that a properly instructed jury's finding of willful conduct can defeat an unconsciousness-defense claim without the appellate court needing to decide whether the instruction was required.