The following excerpt is from Coates v. Grounds, No. CIV S-09-3499 GGH P (E.D. Cal. 2011):
[Petitioner] also contends that, even if not unconstitutional on its face, section 1108, as applied in this case, violated his due process rights to a fair trial. This argument is closely related to the foregoing analysis concluding that the court properly exercised its discretion under section 352, because, the court, in Falsetta, supra, 21 Cal.4th at p. 917, held that "the trial court's discretion to exclude propensity evidence under section 352 saves section 1108 from [the] defendant's due process challenge." "To show a violation of due process, a defendant must show that the statute, as applied, offended a principle of justice so rooted in the traditions and consciousness of the country that it is considered fundamental." (People v. Manning (2008) 165 Cal.App.4th 870, 877.) Where, as here, the court properly exercised its discretion under section 352, it is difficult to conceive of how application of section 1108 could have violated any such fundamental principle of due process.
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