Brief Bank # B-517
VI
CLEAR AND CONVINCING PROOF CONNECTING
THE DEFENDANT WITH THE UNCHARGED OFFENSE
WAS NECESSARY FOR ITS ADMISSIBILITY
In ruling on the admissibility of the uncharged offenses, the trial court utilized the preponderance of evidence standard. (CT 573.) However, the court should have used the clear and convincing evidence standard as to the question of whether defendant was sufficiently connected with the uncharged offenses.
In People v. Albertson (1944) 23 Cal.2d 550, 577, the plurality opinion stated that the trial court should be guided by the rule that proof of other offenses is to be “received with ‘extreme caution,’ and if its connection with the crime charged is not clearly perceived, the doubt is to be resolved in favor of the accused, instead of suffering the minds of the jurors to be prejudiced by an independent fact, carrying with it no proper evidence of the particular guilt. [Citation.]” However, despite the “clearly perceived” language of the plurality opinion, Justice Traynor, whose concurrence established the majority necessary to reverse the judgment, stated that “this evidence, in my opinion, was insufficient to enable a reasonable juror to conclude that it was more probable that defendant committed the assault than he did not.” (Id. at 581.)
Subsequent to Albertson two lines of Supreme Court cases developed regarding the appropriate standard. One line generally held that the preponderance standard should be utilized without differentiating between the determination of whether the defendant is connected with the offense as opposed to the materiality and relevance of the offense itself. (See, People v. Durham (1969) 70 Cal.2d 171, 187, fn. 15; accord. People v. McClellan (1969) 71 Cal.2d 793, 805; People v. Cavanaugh (1968) 69 Cal.2d 262, 273‑274, fn. 9; People v. Haston (1968) 69 Cal.2d 233, 253; People v. Polk (1965) 63 Cal.2d 443, 451; see also, People v. Tewksbury (1976) 15 Cal.3d 953, 965, fn. 12.)
The other line of cases relied on Albertson for the proposition that the “clear and convincing” standard applies to the determination of whether the accused has been connected with the collateral offense. (People v. Wade (1959) 53 Cal.2d 322, 330; People v. Terry (1970) 2 Cal.3d 362, 396; People v. Rosenfield (1966) 243 Cal.App.2d 60, 68.) In People v. Simon (1986) 184 Cal.App.3d 125, the Court of Appeal resolved this conflict in favor of utilizing the preponderance standard for all determinations with respect to the admissibility of uncharged offenses. Simon declined to reconcile the two lines of cases on the basis that the defendant’s connection with the offense should be proved by clear and convincing evidence while the circumstances of the offense itself should be proved by a preponderance of the evidence. (Id., at 134, fn. 6.) The court concluded that it could “conceive of no rational basis for utilizing a different standard of proof depending on the nature of the preliminary fact which determines whether the evidence can be offered.” (Ibid.)
This court should decline to follow Simon. The Simon court failed to recognize an essential underpinning of the judicially declared rules regarding other crimes evidence. The circumstances of the offense and of the prior offense and the relevance of the charged offense are matters which may reasonably be evaluated and weighed by the jury. On the other hand, the question of whether the defendant committed the prior offense is not subject to weighing and evaluation. The determination in this regard is either he did it or he didn’t. Hence, it is perfectly rational and logical to require, as did Wade and Terry, a greater standard as to the question of whether the defendant committed the uncharged offense. Indeed, this goes to the heart of the Supreme Court’s concerns in Albertson.
Circumstantial proof of a crime charged cannot be intermingled with circumstantial proof of suspicious prior occurrences in such manner that it reacts as a psychological factor with the result that the proof of the crime charged is used to bolster up the theory or foster suspicion in the mind that the defendant must have committed the prior act, and the conclusion that he must have committed the prior act is then used in turn to strengthen the theory and induce the conclusion that he must have committed the crime charged. This is but a vicious circle. (People v. Albertson, supra, 23 Cal.2d at 580‑581.)
In sum, to avoid the danger that mere suspicious circumstances will be bootstrapped into a verdict of guilt, the clear and convincing standard should be utilized when determining whether the defendant committed the uncharged offense.
Because the trial court in the present case did not utilize the clear and convincing standard, the matter should be remanded. (Penal Code § 1260; People v. Coyer (1983) 142 Cal.App.3d 839, 845; People v. Minor (1980) 104 Cal.App.3d 194, 199; People v. Vanbuskirk (1976) 61 Cal.App.3d 194, 199.)
