B-878

Brief Bank # B-878 (Re: F 2.50.01 n15 / F 2.50.02 n12 [Challenge To 1999 CJ Revision].)

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COURT OF APPEAL OF CALIFORNIA

SECOND APPELLATE DISTRICT, DIVISION *

PEOPLE OF THE STATE OF CALIFORNIA,

Plaintiff and Respondent, Court of Appeal

2nd Crim No. B

vs.

Defendant and Appellant.

_______________________________________/

APPEAL FROM THE SUPERIOR COURT OF * COUNTY

Honorable *, Judge Presiding

______________________________

APPELLANT’S OPENING BRIEF

SUSAN POCHTER STONE

Attorney for Appellant

APPELLANT’S OPENING BRIEF

STATEMENT OF THE CASE

Appellant S__ was charged in an information with one count of murder of O__ (Pen. Code, § 187, subd. (a); count one). The information further alleged that in the commission of the offense appellant personally used a deadly and dangerous weapon, a knife, within the meaning of Penal Code section 12022, subdivision (b). (CT 1-2.)

The prosecution moved to introduce evidence of prior acts of domestic violence committed by appellant under Evidence Code section 1101, subdivision (b) and 1109. (CT 5.) Over appellant’s objection, the motion was granted. (RT 7.)

Appellant was tried by a jury. (CT 54.) The jury returned a verdict of guilty of murder as charged in count one. (CT 128.) The jury found that appellant personally used a deadly and dangerous weapon, a knife, during the commission of the murder. (CT 128.)

Appellant was sentenced to an indeterminate prison term of 15 years to life on count one. He also received a determinate, consecutive prison term of one year for the personal use of a deadly and dangerous weapon within the meaning of Penal Code section 12022, subdivision (b). (RT 392.)

Appellant filed a timely notice of appeal from the judgment of conviction. (CT 148.) His appeal from the final judgment is authorized by Penal Code section 1237.

II.

UNDER THE CIRCUMSTANCES OF THIS CASE, THE TRIAL COURT VIOLATED

THE DUE PROCESS CLAUSE WHEN IT GAVE CALJIC NO. 2.50.02 (EVIDENCE OF

OTHER DOMESTIC VIOLENCE) WHICH AUTHORIZED THE JURY TO APPLY AN

ARBITRARY INFERENCE THAT APPELLANT WAS GUILTY OF MURDER BASED

SOLELY ON APPELLANT’S PRIOR ACTS OF DOMESTIC VIOLENCE.

As set forth in Argument I, appellant acknowledged that he was the one who had stabbed O__ and the only disputed issue before the jury in its deliberations was whether appellant committed the killing under the heat of passion. The jury was instructed with CALJIC No. 2.50.02 and the damaging effect of that instruction was to tell the jury it could infer from the evidence of appellant’s prior acts of domestic violence that appellant committed murder (not just an act of domestic violence or a homicide) and that he acted with malice and not under the heat of passion. This instruction violated the due process clause because the ultimate fact of appellant’s malice and lack of heat of passion in the killing did not flow more likely than not from his disposition to commit domestic violence. (Leary v. United States (1969) 395 U.S. 6, 36 [89 S. Ct. 1532, 23 L. Ed. 2d 57].) The error violated the federal and state due process clause and the right to trial by jury under the federal constitution and was prejudicial.

THE ERROR

Due process requires the prosecution to prove a defendant’s guilt beyond a reasonable doubt. (In re Winship (1970) 397 U. S. 358, 364 [90 S. Ct. 1068, 1078, 25 L. Ed. 2d 386, 375].) “[T]he due process clauses of the Fifth and Fourteenth Amendments set limits upon the power of Congress or that of a state legislature to make the proof of one fact or group of facts evidence of the existence of the ultimate fact on which guilt is predicated.” (Tot v. United States (1943) 319 U.S. 463, 467 [63 S. Ct. 1241, 87 L. Ed. 1519].) The Sixth Amendment requires that the jury and not the trial court find the appellant guilty beyond a reasonable doubt. (Sullivan v. Louisiana (1993) 508 U.S. 275, 277, 278 [113 S. Ct. 2078, 124 L. Ed. 2d 182]; People v. Avila (1995) 35 Cal. App.4th 642, 655.) In a criminal case, the ultimate test of the constitutional validity of an inference or presumption is that it “must not undermine the factfinder’s responsibility at trial, based on evidence adduced by the State, to find the ultimate facts beyond a reasonable doubt. [Citations.]” (Ulster County Court v. Allen (1979) 442 U.S. 140, 156 [99 S. Ct. 2213, 60 L.Ed. 2d 777]; People v. Van Winkle (1999) 75 Cal. App. 4th 133, 142.)

“The most common evidentiary device is the entirely permissive inference or presumption, which allows — but does not require — the trier of fact to infer the elemental fact from proof by the prosecutor of the basic one . . . . [Citation.] When reviewing this type of device, the Court has required the party challenging it to demonstrate its invalidity as applied to him. [Citations.] Because this permissive presumption leaves the trier of fact free to credit or reject the inference and does not shift the burden of proof, it affects the application of the ‘beyond a reasonable doubt’ standard only if, under the facts of the case, there is no rational way the trier could make the connection permitted by the inference. For only in that situation is there any risk that an explanation of the permissible inference to a jury, or its use by a jury, has caused the presumptively rational factfinder to make an erroneous factual determination.” (Ulster County Court v. Allen, supra, 442 U.S. at p. 157.)

“[A] criminal statutory presumption must be regarded as ‘irrational’ or arbitrary,’ and hence unconstitutional, unless it can be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend.” (Leary v. United States, supra, 395 U.S. at p. 36, italics added.) The validity of a permissive presumption is determined by an evaluation of the presumption as applied to the facts of the case. (Ulster County Court v. Allen, supra, 442 U.S. at pp. 162-163.)

With CALJIC No. 2.50.02, the jury was told in pertinent part as follows:

“If you find that the defendant committed a prior offense involving domestic violence, you may, but are not required to, infer that the defendant had a disposition to commit the same or similar type offenses. If you find that the defendant had this disposition, you may, but are not required to, infer that he was likely to commit and did commit the crime of which he is accused.” (CT 74, italics added; CALJIC No. 2.50.02.)

Under the Ulster analysis, this CALJIC No. 2.50.02 language authorized the jury to draw a permissive inference. (Ulster County Court v. Allen, supra, 442 U.S. at p. 157.) In People v. Van Winkle, supra, 75 Cal. App. 4th at p. 143, the court held the similar instruction regarding a jury’s use of a defendant’s prior sexual offenses, CALJIC No. 2.50.01, authorized the jury to draw a permissive inference. The Van Winkle court described this inference as follows:

“If the jury found by a preponderance of evidence the first evidentiary fact (that defendant did commit the other sexual offenses), then the jury was allowed–but not required–to infer another evidentiary fact (that defendant had a disposition to commit the same or similar type of offense.) If the jury made this first inference, then the jury was allowed–but not required–to make two additional inferences (that defendant was likely to commit and did commit the current sexual offense).” (Id., at p. 143.)

Similarly, CALJIC No. 2.50.02 as given to the jury here advised the jury it could infer from appellant’s prior acts of domestic abuse that appellant had the disposition to commit the same or similar type offenses. Significantly in this case, however, from this first inference the jury was allowed further to infer that appellant was likely to commit and did commit “the crime of which he is accused” and that crime was murder. (CT 1-2.)

Thus, the instruction here did not limit the jury to an inference that appellant merely committed an act of domestic violence or a killing during an act of domestic violence. It allowed a much broader inference, an inference that he committed murder, in other words that he had killed with malice aforethought. Under the particular circumstances of this case, since appellant admitted to killing O__ under the heat of passion, the effect of CALJIC No. 2.50.02 was to tell the jury specifically that the disposition evidence could be used to infer appellant did not act under the heat of passion.

Notably, this case is not one where the defendant denied he committed a charged act of domestic violence and where the effect of CALJIC No. 2.50.02 merely was to authorize the jury to infer defendant’s identity as the perpetrator of the domestic violence charge from his prior acts. It is arguable that in such a simple case there could be a natural flow of more likely than not from one inference to the next.

In contrast, this case involved a defendant who admitted the crime so that the CALJIC 2.50.02 language was necessarily going to be interpreted by the jury as going beyond inferring identity. Also, the crime charged was murder and the prior acts of domestic violence did not share the same mental state or specific intent requirement for murder. The prior acts were not murders and did not provide evidence of prior acts committed with a specific intent to kill. (People v. Martinez, supra, 105 Cal.App. 3d at p. 942 [attempted murder requires specific intent to kill even though murder does not].) Nevertheless, the court instructed with CALJIC 2.50.02 that the jury could use the prior domestic violence to infer appellant “did commit” murder.

In this case, CALJIC No. 2.50.02’s implied authorization to the jury to infer the absence of heat of passion from appellant’s disposition to commit domestic violence was arbitrary and, therefore, unconstitutional. (Leary v. United States, supra, 395 U.S. at p. 36.) It cannot be said with “substantial assurance” that the inference of the absence of heat of passion at the time of the homicide was more likely than not to flow from appellant’s disposition to commit domestic violence. (Ibid.)

As a result of this arbitrary inference in CALJIC No. 2.50.02 in this case, the jury was authorized to use the prior acts of domestic violence beyond their evidentiary significance. In essence, the unreasonable inference allowed the jury to convict appellant because he was a bad person with a criminal disposition. Despite legislation allowing introduction of propensity evidence, such an inference is still not available to the prosecution under due process principles. (People v. Falsetta (1999) 21 Cal.4th 903, 920.)

The situation here is not one which is contemplated by Evidence Code section 1109. Evidence Code section 1109, on which CALJIC 2.50.02 is based, in no way suggests the Legislature intended that prior acts of domestic violence could be used — regardless of the circumstances in a particular case — to support a finding of malice or lack of heat of passion. Evidence Code section 1109 does not eliminate the requirement for relevancy for admissible evidence set forth in Evidence Code section 350.

For the reasons more fully set forth in Argument III, the problem with the presumptive inference in the first paragraph of CALJIC No. 2.50.02 was not remedied by the second paragraph of CALJIC No. 2.50.02 or any of the other instructions given to the jury. “”Considering the instructions as a whole, the jury would be led to believe that the court deemed prior offense evidence sufficient to support an inference that the elements of the charged offense have been established beyond a reasonable doubt. . . . The jury would not expect the court to permit an unwarranted or irrational inference. . . . In a close case the instruction poses a significant danger that the jury will decide it would be irrational to find a defendant who committed prior offenses not guilty, regardless of the weakness of the direct evidence or of the other circumstantial evidence presented by the prosecution.” (People v. Younger, supra, 84 Cal. App. 4th at p. 1382.)

In sum, the instruction was given in error in this case and it violated appellant’s state and federal due process and trial by jury rights. There is a reasonable likelihood that the jurors were misled by this constitutionally infirm instruction which lowered the prosecution’s burden of proof. (People v. Orellano (2000) 79 Cal. App. 4th 179, 186; People v. Vichroy (1999) 76 Cal. App. 4th 92, 99-101.)

THE PREJUDICE

The constitutional error in giving CALJIC No. 2.50.02 in this case is reversible error because it is a “structural error” which affected the framework within which the trial proceeded. (Arizona v. Fulminante (1991) 499 U. S. 279, 309-310 [111 S. Ct. 1246, 113 L. Ed. 2d 302].) In Sullivan v. Louisiana (1993) 508 U.S. 275, 277, 278 [113 S. Ct. 2078, 124 L. Ed. 2d 182] the United States Supreme Court reversed a state criminal conviction when the trial court gave a constitutionally deficient reasonable doubt instruction. It held that the instruction violated the defendant’s Sixth Amendment right to a jury trial and Fifth Amendment right to due process and denied the defendant the right to a jury verdict of guilt beyond a reasonable doubt. The error was found by that court to be reversible per se. (Id., at p. 281.)

The presumptive inference error here had the effect of replacing the jury’s deliberation with the trial court’s erroneous determination of what was a logical inference, depriving appellant of his rights to trial by jury and due process. The presumption lowered the prosecution’s burden by in effect informing the jury it could infer malice and murder solely from appellant’s commission of the prior acts. Consequently, the error is reversible per se. (Id., at p. 281; see also, People v. Orellano, supra, 79 Cal. App. 4th at p. 186 [“The danger that the jury leaped to a verdict of guilty [based on former CALJIC No. 2.50.01] is too great for us to confidently assume the jurors arrived at a verdict beyond a reasonable doubt by a careful reasoning process involving all the other instructions . . . . Since we have no way of knowing whether the jury applied the correct burden of proof, the convictions must be reversed.”]; People v. Vichroy, supra, 76 Cal. App. 4th at p. 99-101 [“Because we cannot assume the jury followed the constitutionally correct conflicting instruction [as opposed to former CALJIC No. 2.50.01], the judge must be reversed.”]; but see People v. Regalado (2000) 78 Cal. App. 4th 1056, 1063-1064, fn. 5 [suggesting that any error could be held harmless if there was no reasonable probability the error affected the result, a standard governing errors of state law].)

Alternatively, the error is reversible under Chapman v. California (1967) 386 U.S. 18, 24 [87 S. Ct. 824, 17 L. Ed. 2d 705]. The question under Chapman is whether there is a reasonable doubt that the error contributed to the verdict. (People v. James (2000) 81 Cal. App. 4th 1343, 1352-1353.)

The question is “whether the force of the evidence considered by the jury in accordance with the instructions is so overwhelming as to leave it beyond a reasonable doubt that the verdict resting on that evidence would have been the same in the absence of the improper presumption.” (People v. James, supra, 81 Cal. App. 4th at p. 1363.) In this analysis, the court should keep in mind “the tendency of propensity evidence to have a disproportionate impact on the jury.” (Ibid.)

The evidence here was not overwhelming concerning whether appellant acted with or without heat of passion in the killing. Evidence of appellant’s intent consisted largely of his slamming shut a door and being overheard to say, “You’ll pay for that bitch.” (RT 72.) Appellant also testified he grabbed the knife to kill O__. (RT 286.) On the other hand, appellant testified that O__ had been taunting him about her infidelity (RT 277-278) and that he was out of control and in a rage when he stabbed her. (RT 281.) It cannot be said that the prosecution introduced evidence so strong as to overwhelm the authorized presumptive inference that the crime was murder and that there was malice or lack of heat of passion. (People v. James, supra, 81 Cal. App. 4th at p. 1364.) Moreover, it is likely the jury applied the instruction literally to infer appellant’s guilt of murder simply from the propensity evidence, without resolving the conflict between appellant’s testimony and the prosecution’s evidence. (People v. James, supra, 81 Cal. App. 4th at p. 1364.) CALJIC No. 2.50.02 “allowed the jurors to avoid resolving the conflicts in the evidence, and decide that [appellant] was a murderer simply because he had battered . . . domestic partners, . . . in the past.” (People v. Younger, supra, 84 Cal. App. 4th at p. 1383.)

In sum, “the evidence was not so overwhelming, or otherwise so inconsistent with the possibility that the jury based its decision merely on [appellant’s] propensity, as to leave it beyond a reasonable doubt that the same verdict would have been reached in the absence of the faulty instruction.” (People v. Younger, supra, 84 Cal. App. 4th at pp. 1383-1384.) For the foregoing reasons, appellant’s conviction must be reversed.

III.

THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN INSTRUCTING THE JURY

WITH THIS VERSION OF CALJIC NO. 2.50.02 BECAUSE IT LEFT

REASONABLE DOUBT THAT JURY AVOIDED RESTING ITS VERDICT SOLELY ON

PRIOR ACTS OF DOMESTIC VIOLENCE IN VIOLATION OF THE DUE PROCESS CLAUSE.

The jury was instructed with CALJIC No. 2.50.02 (Evidence of Other Domestic Violence). The language of the jury instruction did not preclude the jury from resting its murder verdict solely on appellant’s prior acts of domestic violence and without finding the prosecution had proven every element of murder beyond a reasonable doubt. In fact, there was a reasonable likelihood the jury interpreted the instructions in an impermissible, unconstitutional manner. (Estelle v. McGuire (1991) 502 U.S. 62, 72 & fn. 4 [112 S. Ct. 475, 116 L. Ed 2d. 385]; People v. Cain (1995) 10 Cal. 4th 1, 36.) The instruction was prejudicial error. [Footnote 1] (People v. Orellano (2000) 79 Cal. App. 4th 179, 181; People v. Vichroy (1999) 76 Cal. App. 4th 92, 99-101.)

THE ERROR

Due process demands that each element of a charged offense be proven beyond a reasonable doubt. (Sullivan v. Louisiana (1993) 508 U.S. 275, 277, 278 [113 S. Ct. 2078, 124 L. Ed. 2d 182]; People v. Sakarias (2000) 22 Cal. 4th 596, 623.) “[T]hat right is substantially eroded by instructions suggesting that defendant’s prior offenses may be sufficient to convict him of the charged crime. The tendency of propensity evidence to ‘overpersuade’ the jury is beyond dispute. [Citations.]” ((People v. James, supra, 81 Cal. App. 4th at pp. 1352-1353.) “[I]t is not proper to instruct the jury that if it finds the defendant committed other similar offenses it may infer he was disposed to commit and did commit the current offense.” (Id., at p. 1353.) A “constitutional infirmity” arises when the instructions authorize a conviction of the current charges “based ‘solely’ upon a finding that appellant committed the prior crimes.” (People v. Orellano (2000) 79 Cal. App. 4th 179, 181; People v. Vichroy (1999) 76 Cal. App. 4th 92, 99-101.)

Even if the jury finds there is proof beyond a reasonable doubt that a defendant committed a prior offense, the finding cannot act as a substitute for proof of the defendant’s guilt of the current charge. (People v. Vichroy, supra, 76 Cal. App. 4th at p. 99.) “The jury must be reminded that propensity evidence alone cannot meet the prosecution’s burden of proving the elements of the charged offense. Otherwise, the jury is prompted to use evidence of prior offenses in precisely the wrong way, as a substitute for proof of the current offense. (People v. Orellano, supra, 79 Cal. App. 4th at pp. 185-186.)” (People v. James, supra, 81 Cal. App. 4th at p. 1353.)

In order to prevail on a claim that jury instructions are misleading, the claimant must prove there is a “reasonable likelihood” the jury interpreted the instructions in an impermissible manner. (Estelle v. McGuire (1991) 502 U.S. 62, 72 & fn. 4 [112 S. Ct. 475, 116 L. Ed 2d. 385]; People v. Cain (1995) 10 Cal. 4th 1, 36.)

Prior to 1999, CALJIC No. 2.50.02 simply provided:

“If you find that the defendant committed a prior offense involving domestic violence, you may, but are not required to, infer that the defendant had a disposition to commit the same or similar type offenses. If you find that the defendant had this disposition, you may, but are not required to, infer that he was likely to commit and did commit the crime of which he is accused.” (People v. Younger (2000) 84 Cal. App. 4th 1360, 1379.)

There is a split of authority over the adequacy of the pre-1999 versions of CALJIC No. 2.50.02, or its parallel instruction for sexual offenses, CALJIC No. 2.50.01. (People v. Orellano, supra, 79 Cal. App. 4th at p. 181.) Some courts have held in general that there was a “reasonable likelihood the jurors interpreted [CALJIC No. 2.50.02 and its parallel instruction for sexual offenses, CALJIC No. 2.50.01] to authorize convicting the defendant of the current crimes based merely upon proof . . . that the defendant committed the prior crimes, a constitutionally impermissible result.” (Ibid.; see e.g., People v. Younger, supra, 84 Cal. App. 4th 1360; People v. James, supra, 81 Cal. App. 4th 1343; People v. Orellano, supra, 79 Cal. App. 4th at p. 186 [Division Four of the Second District concluded there was a reasonable likelihood that pre-1999 versions of CALJIC Nos. 2.50.01 and 2.50.1 misled jurors to believe they could infer the defendant’s guilt merely from his commission of a prior offense, established by a preponderance of the evidence]; People v. Vichroy, supra, 76 Cal. App. 4th at pp. 99-101 [Division Two of the Second District held that even when the jury was instructed to determine beyond a reasonable doubt whether the defendant committed the prior offenses, it was reversible error to permit the jury to convict the defendant based solely on a finding that he had committed prior sexual offenses].) On the other hand, other courts have found there is no error and no such likelihood even with the pre-1999 versions of CALJIC No. 2.50.02 or its parallel instruction, CALJIC No. 2.50.01, when all the instructions taken as a whole were considered. [Footnote 2] (People v. Van Winkle, supra, 75 Cal. App. 4th at pp. 147-149; People v. O’Neal (2000) 78 Cal. App. 4th 1065, 1078-1079; People v. Waples (2000) 79 Cal. App. 4th 1389; People v. Regalado (2000) 78 Cal. App. 4th 1056.)

In 1999 CALJIC No. 2.50.02 was amended, adding a second paragraph. (People v. Younger, supra, 84 Cal. App. 4th at p. 1380, fn. 2; CALJIC No. 2.50.02 (6th ed. 1996) January 2000 supp., pp. 17-18.) Nevertheless, appellant contends that the version of CALJIC No. 2.50.02 given here (which used the 1999 modification of CALJIC No. 2.50.02 that added the second paragraph) did not resolve the instruction’s constitutional infirmity found by the courts in People v. Younger, supra, 84 Cal. App. 4th 1360, People v. James, supra, 81 Cal. App. 4th 1343, People v. Orellano, supra, 79 Cal. App. 4th at p. 186, and People v. Vichroy, supra, 76 Cal. App. 4th at pp. 99-101.

The first paragraph of CALJIC 2.50.02 given to the jury here was virtually the same paragraph given in People v. James, supra, 81 Cal. App. 4th 1343, People v. Orellano, supra, 79 Cal. App. 4th 179, and People v. Vichroy, supra, 76 Cal. App. 4th 92.

“If you find that the defendant committed a prior offense involving domestic violence, you may, but are not required to, infer that the defendant had a disposition to commit the same or similar type offenses. If you find that the defendant had this disposition, you may, but are not required to, infer that he was likely to commit and did commit the crime of which he is accused.” (CALJIC No. 2.50.02; CT 74.)

As in James, Orellano, Vichroy, and Younger, this first paragraph had the effect of informing the jury that it could infer that appellant did commit the charged crime solely based on his prior domestic violence.

The second paragraph of CALJIC 2.50.02 as given to the jury here merely provided an exception to the general rule of the first paragraph and the second paragraph limited the application of that exception to only certain circumstances. That second paragraph provided:

“However, if you find by a [preponderance of the evidence] that the defendant committed a prior crime or crimes involving domestic violence, that is not sufficient by itself to prove [beyond a reasonable doubt] that [he] committed the charged offense. The weight and significance, if any, are for you to decide.” (CALJIC No. 2.50.02, italics added; CT 74.)

From the phrasing of this second paragraph, it is reasonable to conclude that more likely than not the jury understood it as describing a limited exception to the first paragraph, that is an exception which applied only in a certain circumstance. Firstly, the first word “however” warned the jurors that what followed in the paragraph was to be considered “in spite of that” first paragraph. [Footnote 3] Secondly, the sequence of the first two words in the paragraph (“However, if”) limited the application of the “however” to the circumstance only where the “if” happened. In other words, the phrasing described or suggested an exception to the general rule that applied only if the jury determined the prior crimes were committed and if their determination was under a preponderance of the evidence standard. Thirdly, this paragraph appeared as a limited exception because it necessarily described a situation where — in direct and complete contradiction to the broad permissive language in the first paragraph — the jury could not infer appellant “did commit the crime” from the priors alone.

Fourthly, this limited exception interpretation was only cemented by the last sentence of the second paragraph. In that sentence the jury was advised that the weight and significance of the prior crimes was for it to determine. Since the first paragraph had already advised the jury it had the choice to infer that appellant had committed the crime charged upon finding he committed the prior acts, the “weight and significance” sentence was unnecessary — unless the second paragraph dealt with a different situation than the first paragraph. Thus, the “weight and significance” sentence bolstered the appearance that the second paragraph constituted a limited exception to the general rule in the first paragraph. In essence, this sentence told the jury that the weight and significance of the prior acts could be different where those acts were found under a preponderance standard.

Fifthly and finally, the second paragraph informed the jury specifically that a finding by a preponderance of the evidence standard was not sufficient to prove guilt under a beyond a reasonable doubt standard, thereby juxtaposing the preponderance test to the reasonable doubt test. In light of the rest of CALJIC No. 2.50.02, this juxtaposition (along with the definitions for these two standards given elsewhere in the instructions) had the reasonable likelihood of misleading the jury to conclude that if it was able to find the priors were committed beyond a reasonable doubt, then (a) the second paragraph concerning a preponderance finding was inapplicable; (b) the general rule of the first paragraph applied; and (c) they could find appellant did commit the crime based simply on the prior acts. [Footnote 4]

For the reasons noted above, the second paragraph here was only a narrow exception to the general rule that the jury could use appellant’s prior acts as the sole basis to convict appellant and the exception applied only if the jury did not find the prior acts were committed beyond a reasonable doubt, in other words, if the jury found the acts were committed under only a preponderance standard.

Notably, too, the evidence here of appellant’s prior domestic violence was plentiful. Therefore, it is without a doubt that the jury could have found that appellant committed those priors under beyond a reasonable doubt standard and not just a preponderance standard.

Alternatively, appellant contends the second paragraph to CALJIC No. 2.50.02 — even if not interpreted by the jury as a narrow exception — could not remedy the constitutional infirmity of the first paragraph’s straightforward invitation to convict appellant solely on the basis of his prior crimes. The problem remained even with the second paragraph because of the susceptibility of the jury to taking an easy way out (People v. Younger, supra, 84 Cal. App. 4th at p. 1383) and because “it is unrealistic to believe the jury will correct the wrong turns in that path by reasoning from other, more general instructions” (People v. James, supra, 81 Cal. App. 4th at p. 1354).

Appellant’s contentions that this additional second paragraph was inadequate to remedy the constitutional infirmity in the first paragraph of CALJIC No. 2.50.02 are supported by the decision of Division Two of the Second District in People v. Vichroy, supra, 76 Cal. App. 4th at p. 99. In Vichroy, in addition to being given a pre-1999 version of CALJIC No. 2.50.01, [Footnote 5] the jury was explicitly told in pertinent part: “You may not convict [the defendant] merely because you believe he committed . . . another offense or because you believe he has a character trait that tends to predispose him to committing the charged offense. (People v. Vichroy, supra, 76 Cal. App. 4th at pp. 99-100.) The court found this language inadequate to cure the constitutional infirmity of the first paragraph of CALJIC No. 2.50.01 which told the jury it could find the defendant guilty of the current charges solely because he had committed prior sexual offenses. (Id., at p. 101.) The court found “there was nothing to explain to the jury how the instructions might be reconciled.” (Id., at p. 100.)

Similarly, appellant’s arguments are supported by People v. James, supra, 81 Cal. App. 4th at pp. 1357. The court in James criticized the second paragraph addition in the 1999 revision of CALJIC No. 2.50.01, the same revision made to the parallel instruction in CALJIC No. 2.50.02 and given to the jury in this case. That criticism was that the addition of the second paragraph was inadequate to rectify the error in the first paragraph. The court said the deletion of the words “and did commit” from the first paragraph of the instruction was what was necessary to remedy the erroneous suggestion that the jury could infer guilt directly from the propensity evidence. (People v. James, supra, 81 Cal. App. 4th at pp. 1357, fn. 8.) “If the court seems to approve a faster and shorter path to conviction, which coincides with the natural inclination to assume guilt from propensity, it is unrealistic to believe the jury will correct the wrong turns in that path by reasoning from other, more general instructions.” (People v. James, supra, 81 Cal. App. 4th at p. 1354.)

Finally, appellant has found only two cases that involved the giving of the revised CALJIC No. 2.50.02 or the revised CALJIC No. 2.50.01 with an additional second paragraph similar to the one given here. (People v. Brown (2000) 77 Cal. App. 4th 1324 [CALJIC No. 2.50.02]; People v. Hill (January 9, 2001, A088560) __ Cal. App. 4th __ [CALJIC No. 2.50.01].) Significantly, the courts and counsel in both of those cases wisely avoided the exact language which is troublesome in this case.

In Brown, the second paragraph of CALJIC No. 2.50.02 provided: “However, evidence that the defendant committed prior offenses involving domestic violence is not sufficient by itself to prove that he committed the charged offenses. The weight and significance of the evidence, if any, are for you to decide.” (People v. Brown, supra, 77 Cal. App. 4th at p. 1334, italics added.) Thus, in Brown the jury was not instructed as the jury was instructed here: “However, if you find by a [preponderance of the evidence] that the defendant committed a prior crime or crimes involving domestic violence, that is not sufficient by itself to prove [beyond a reasonable doubt] that [he] committed the charged offense.” (CT 74, italics added.) Consequently, the jury in Brown was not similarly misled to believe the second cautionary paragraph only applied if their finding of the prior crimes was under a preponderance of the evidence standard. Therefore, the decision in Brown is inapplicable here.

Additionally, appellant contends that the decision by the Division Two of the First District in Brown is wrong in its conclusion that this second paragraph was adequate to cure the defect in the preceding first paragraph. Indeed, Brown acknowledges it is in direct conflict with the decision in Division Two of the Second District in Vichroy but relies on dicta in the case of People v. Falsetta (1999) 21 Cal.4th 903, 924. (People v. Brown, supra, 77 Cal. App. 4th at pp. 1335-1336.) In Vichroy, which was decided after Falsetta, the court held it had to reverse the conviction because “we cannot assume the jury followed the constitutionally correct conflicting instruction” that it could not convict the defendant merely because he committed another offense. (People v. Vichroy, supra, 76 Cal. App. 4th at pp. 99-101.) Similarly, appellant contends Brown is wrongly decided under the analysis of People v. James, supra, 81 Cal. App. 4th at pp. 1357. The court in James criticized the 1999 revision to CALJIC No. 2.50.01, saying the addition of the second paragraph was inadequate to rectify the error in the first paragraph and that the words “and did commit” had to be deleted from the first paragraph of the instruction to eliminate the suggestion that the jury could infer guilt directly from the propensity evidence. (People v. James, supra, 81 Cal. App. 4th at pp. 1357, fn. 8.)

In People v. Hill (January 9, 2001, A088560) __ Cal. App. 4th __, while the jury was given a version of CALJIC No. 2.50.01 with a second paragraph, the court also had a different second paragraph than the one given here. The Hill jury was told: “However, if you find that the defendant committed prior sexual offenses, that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged crimes. The weight and significance of the evidence, if any, are for you to decide.” (Ibid.) Thus, there was no language that made this caution applicable only “if [the jury] found by a preponderance of the evidence that the defendant committed a prior crime or crimes” unlike there was in this case. (CT 74.) For this reason, the second paragraph in Hill was unlikely to lead the jury to believe it described only a limited exception to the first paragraph. In other words, in Hill the jury was more likely to understand that every finding of prior crimes was subject to the second paragraph caution.

In addition, in Hill a modified version of CALJIC No. 2.50.1 (presumably following CALJIC No. 2.50.01 in instruction sequence) was given which provided that “although the prosecution has the burden of proving by the preponderance of the evidence that a defendant committed the prior sexual offenses, the jury must, ‘[k]eep in mind that you will later be instructed, in instruction 2.90, that each and every element of offenses charged in Counts I, II, and III must still be proven beyond a reasonable doubt before you may return a verdict of guilty on any specific count. [Par.] The lesser burden of proving by a preponderance, only applies to the proof required for prior uncharged offenses, before you may even consider this evidence in your deliberations. [Par.] After considering all evidence in this case, the People always have the burden of proving each and every element of each charged offense beyond a reasonable doubt. . . .” (Ibid.) Clearly, this instruction alone in Hill — even without the second paragraph of CALJIC No. 2.50.01 — gave that court reason to conclude that there “was no reasonable likelihood under the instructions given that the jury would conclude it could convict appellant of the current offense solely because it found he had committed a similar prior . . . offense.” (Ibid.) In our case, however, CALJIC No. 2.50.1 did not similarly caution the jury, [Footnote 6] and there is no reason to conclude the jury properly understood its duty in this case.

While the courts in cases such as People v. Van Winkle, supra, 75 Cal. App. 4th at pp. 147-148 [citing CALJIC Nos. 1.01, 2.90] and People v. Regalado, supra, 78 Cal. App. 4th 1056 [Footnote 7] [citing CALJIC Nos. 1.01, 2.90, and 10.41 and 16.440 (defining elements of the offense)] concluded the jury would avoid convicting the defendant solely on proof of his prior offenses under CALJIC No. 2.50.02 or CALJIC No. 2.50.01 when taken in context with the other instructions given to the jury (People v. James, supra, 81 Cal. App. 4th at pp. 1353-1354), these courts were wrong for the reasons noted below. (See also, People v. Escobar (2000) 82 Cal. App. 4th 1085, 1101 [citing CALJIC Nos. 2.27, 2.90, and 8.20 (defining elements of the offense) as basis for finding no error].)

In this case, CALJIC No. 2.50.02 was followed immediately by CALJIC 2.50.1, which told the jury in pertinent part that it must not consider the prior acts “for any purpose unless you find by a preponderance of the evidence that a defendant committed the other crimes.” (CT 75.) CALJIC No. 2.50.1 was followed immediately by a definition of “preponderance of the evidence” in CALJIC No. 2.50.2. (CT 76.) On the other hand, the jury was given CALJIC No. 2.01 among the general instructions on the principles of evidence. [Footnote 8] (CT 62.) CALJIC No. 2.01 told the jury that each fact supporting an inference essential to establish guilt must be proven beyond a reasonable doubt and that a verdict could not be based on circumstantial evidence unless the theory of guilt could not be reconciled with any other rational conclusion. The jury was instructed with CALJIC No. 8.10, defining murder, and stating that each of the specific elements had to be proved.” (CT 83.) Of course, the jury was also instructed with CALJIC No. 2.90, advising the jury that the defendant had to be proved guilty beyond a reasonable doubt and defining “reasonable doubt.” (CT 82.)

Notwithstanding, these additional instructions did not assure the jury’s proper interpretation of its duty. CALJIC No. 2.50.02 is not ambiguous. (People v. Younger, supra, 84 Cal. App. 4th at p. 1381.) “A jury cannot fail to understand that if it determines the defendant has committed other similar offenses, it may infer that he was disposed to commit and did commit the charged offense. The inference of guilt is as faulty as it is unambiguous; neither prior offenses nor propensity prove guilt of a charged offense.” (Id., at pp. 1381-1382, italics added.) The combination of other instructions such CALJIC No. 2.50.1 and CALJIC No. 2.01 were likely to confuse a jury. (Id., at p. 1382, fn. 4.) The fundamental problem with CALJIC No. 2.50.02 is allowing the improper inference of guilt from propensity. (People v. Younger, supra, 84 Cal. App. 4th at p. 1382, fn. 4.) “[N]one of [the other instructions] restrains the jury from accepting the court’s invitation to conclude that because the defendant did it before, he did it again.” (People v. Younger, supra, 84 Cal. App. 4th at p. 1382 [where the court dismissed Attorney General’s argument that CALJIC Nos. 1.01, 2.01, 2.90, and 8.10 (defining the elements of murder) resulted in there being no reasonable likelihood the jury would draw the conclusion it could convict solely on the evidence of prior domestic violence]; People v. Vichroy, supra, 76 Cal. App. 4th at p. 99.) In People v. Vichroy, supra, 76 Cal. App. 4th at p. 99, the court said that CALJIC Nos. 1.01, 2.01, and 2.90 “did nothing to clarify that the jurors were not to convict appellant of the current charges simply because they concluded beyond a reasonable doubt that he had committed prior . . . offenses.”

“We think it reasonably likely the jury harmonized the instructions . . . by concluding [the defendant’s] propensity was sufficient to establish the elements of the charged offense beyond a reasonable doubt, regardless of the strength or weakness of the other evidence. Three hundred years of jurisprudence recognizes juries are particularly susceptible to that suggestion. [Citation.] If the court seems to approve a faster and shorter path to conviction, which coincides with the natural inclination to assume guilt from propensity, it is unrealistic to believe the jury will correct the wrong turns in that path by reasoning from other, more general instructions.” (People v. James, supra, 81 Cal. App. 4th at p. 1354.)

“Considering the instructions as a whole, the jury would be led to believe that the court deemed prior offense evidence sufficient to support an inference that the elements of the charged offense have been established beyond a reasonable doubt. . . . The jury would not expect the court to permit an unwarranted or irrational inference. . . . Former CALJIC No. 2.50.02 unduly enhanced the inherently persuasive power of propensity evidence. In a close case the instruction poses a significant danger that the jury will decide it would be irrational to find a defendant who committed prior offenses not guilty, regardless of the weakness of the direct evidence or of the other circumstantial evidence presented by the prosecution.” (People v. Younger, supra, 84 Cal. App. 4th at p. 1382.) “If the prosecution’s case is weak, or if the strength of the evidence advanced by the defense closely balances the prosecution’s evidence, the instruction permits the jury to take an impermissibly easy way out of its deliberations by deciding that, after considering all the evidence, it may resolve its doubts simply by relying on the propensity evidence.” (Id., at p. 1383.) “Such an improper deliberative process is more than a remote possibility, particularly if there is disagreement among jurors on the strength of the other evidence. If a reviewing court cannot be confident that the deliberations took the proper course, the error cannot be deemed harmless. (James, supra, 81 Cal. App.4th at p. 1362.)” (People v. Younger, supra, 84 Cal. App. 4th at p. 1383.)

For the foregoing reasons, there was reasonable likelihood that CALJIC 2.50.02 misled jurors to believe they could infer appellant’s guilt merely from his commission of a prior offense if they found that offense occurred beyond a reasonable doubt. (Estelle v. McGuire, supra, 502 U.S. at p. 72 & fn. 4; People v. Cain, supra, 10 Cal. 4th at p. 36.)

THE PREJUDICE

Such a defect in the instruction infringed on appellant’s federal due process right to proof beyond a reasonable doubt of each element of the charged offense. (Sullivan v. Louisiana, supra, 508 U.S. at pp. 277-278; People v. Sakarias, supra, 22 Cal. 4th at p. 623; People v. James, supra, 81 Cal. App. 4th at pp. 1352-1353.) For this reason, the court in People v. James, supra, 81 Cal. App. 4th at pp. 1360-1361 disagreed with the conclusion by the court in People v. Regalado, supra, 78 Cal. App. 4th 1056, 1063-1064, fn. 5, that this was not a federal error and that the proper test for prejudice was found under People v. Watson, supra, 46 Cal.2d at p. 836.

The error is reversible error because it is a “structural error” which affected the framework within which the trial proceeded. (Arizona v. Fulminante, supra, 499 U. S. at pp. 309-310.) As discussed above, taking all of the jury instructions into account, CALJIC No. 2.50.02 nevertheless had the effect of informing the jury it could infer appellant committed the charged offense solely from appellant’s commission of the prior acts. As a result, it had the effect of lowering the prosecution’s burden of proving each and every element of the crime beyond a reasonable doubt. (In re Winship, supra, 397 U. S. at pp. 363-364.) Consequently, the error is reversible per se. (Id., at p. 281; see also, People v. Orellano, supra, 79 Cal. App. 4th at p. 186; People v. Vichroy, supra, 76 Cal. App. 4th at p. 99-101; but see People v. Regalado (2000) 78 Cal. App. 4th 1056, 1063-1064, fn. 5 [suggesting the “no reasonable probability” standard governing errors of state law].)

Alternatively, if this court does not apply a reversible per se rule, the test for error is set forth in Chapman v. California, supra, 386 U.S. at p. 24 since appellant suffered an instruction infringing upon his federal due process right. (People v. Flood (1998) 18 Cal. 4th 470, 491; People v. James, supra, 81 Cal. App. 4th at pp. 1360-1361; People v. Regalado (2000) 78 Cal. App. 4th 1056, 1063-1064, fn. 5.) “Under Chapman, the question is whether there is a reasonable doubt that the error contributed to the verdict.” (People v. James, supra, 81 Cal. App. 4th at p. 1362.) “[T]he error did not ‘contribute’ to the verdict if it is unimportant in relation to everything else the jury considered on the question of the defendant’s guilt, as revealed in the record. (Citation.)” (People v. James, supra, 81 Cal. App. 4th at p. 1362.) If the court cannot tell whether the jury’s verdict depended on the improper inference of guilt permitted by CALJIC No. 2.50.02, then the error is reversible error. (People v. Swain (1996) 12 Cal. 4th 593, 607; People v. James, supra, 81 Cal. App. 4th at p. 1362.)

In applying the reversible error test, “it must be approached by asking whether the force of the evidence considered by the jury in accordance with the instructions is so overwhelming as to leave it beyond a reasonable doubt that the verdict resting on that evidence would have been the same in the absence of the improper presumption.” (People v. James, supra, 81 Cal. App. 4th at p. 1363.) The court must presume that the jury followed CALJIC 2.50.02 and understood that if it found the prior offenses were established beyond a reasonable doubt, it could infer appellant’s guilt of the current charge. (People v. James, supra, 81 Cal. App. 4th at p. 1363.) The next step is to consider the strength of all of the evidence introduced, keeping in mind “the tendency of propensity evidence to have a disproportionate impact on the jury.” (Ibid.)

The only issue here was whether appellant committed murder or manslaughter. In this case, the evidence was not overwhelming to support a murder conviction. The prosecution pointed to appellant slamming shut a door and being overheard to say, “You’ll pay for that bitch.” (RT 72.) Appellant testified he grabbed the knife to kill O__ after she had been taunting him about her infidelity (RT 277-278, 286) and that he was out of control and in a rage when he stabbed her. (RT 281.) Therefore, it cannot be said that the prosecution introduced evidence so strong concerning malice and absence of heat of passion as to overwhelm the inference of guilt authorized by CALJIC No. 2.50.02. (People v. James, supra, 81 Cal. App. 4th at p. 1364.) Moreover, it is likely the jury applied the instruction literally to infer appellant’s guilt simply from the propensity evidence, without resolving the conflict between appellant’s testimony and the prosecution’s evidence. (People v. James, supra, 81 Cal. App. 4th at p. 1364.) CALJIC No. 2.50.02 “allowed the jurors to avoid resolving the conflicts in the evidence, and decide that [appellant] was a murderer simply because he had battered . . . domestic partners, . . . in the past.” (People v. Younger, supra, 84 Cal. App. 4th at p. 1383.)

For the foregoing reasons, appellant’s conviction must be reversed.

IV.

EVIDENCE CODE SECTION 1109 VIOLATES THE CONSTITUTIONAL RIGHTS TO

DUE PROCESS OF LAW AND EQUAL PROTECTION.

Under Evidence Code section 1109 and over defense counsel’s objection, the trial court allowed the prosecution to introduce evidence of multiple prior acts of domestic violence committed by appellant, and instructed the jury that such propensity evidence could be used to infer appellant committed the charged offense. (RT 7; CT 74.) Evidence Code section 1109, in authorizing the introduction of propensity evidence, violates federal and state constitutional rights to due process of law and equal protection. The introduction of the propensity evidence was prejudicial error in this case.

THE ERROR

Evidence of appellant’s prior domestic violence was introduced and the jury was told it could use it to infer appellant did commit the crime in this case. (RT 140-180, 224, 231-232, 236-237, 238-240; CALJIC No. 2.50.02; CT 74.)

The due process clause requires proof beyond a reasonable doubt of every fact necessary to constitute the charged crime. (In re Winship, supra, 397 U. S. at p. 364.) Appellant contends that Evidence Code section 1109, in permitting the admission of evidence of uncharged offenses to show appellant’s propensity to commit the charged offense, dilutes this standard of proof. He further contends that California’s rule against the admission of propensity evidence is one of long-standing application. The California Supreme Court in People v. Alcala (1984) 36 Cal.3d 604, 630-631, said, “The rule excluding evidence of criminal propensity is nearly three centuries old in the common law. [Citation.]” In People v. Ewoldt, supra, 7 Cal. 4th at p. 392, the California Supreme Court noted that “the rule excluding evidence of criminal disposition derives from early English law and is currently in force in all American jurisdictions by statute or case law.” (People v. Falsetta, supra, 21 Cal. 4th at p. 913; see also, United States v. Castillo (10th Cir. 1998) 140 F.3d 874, 881 [noting ban on propensity evidence dates back to 17th-century England and early United States history; McKinney v. Rees (9th Cir. 1993) 993 F. 2d 1378 [noting exclusion of propensity evidence dates back to at least 1684]. [Footnote 9]

For the reasons set forth below, appellant respectfully disagrees with the California Supreme Court’s rulings in People v. Falsetta, supra, 21 Cal. 4th at p. 915, and People v. Fitch (1997) 55 Cal.App.4th 172, 180-184, that the exclusion of propensity evidence is not a violation of fundamental due process principles embodied in the California and United States Constitutions.

A rule of evidence is subject to proscription under the due process clause if “‘it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.’ [Citations.]” (Patterson v. New York (1977) 432 U. S. 197, 201-202 [97 S. Ct. 2319, 2322-2323, 53 L. Ed. 2d 281, 286-287].) The court in McKinney v. Rees (9th Cir. 1993) 993 F. 2d 1378 found the prohibition of the use of other acts for character evidence “is based on . . . a ‘fundamental conception of justice’ and the ‘community’s sense of fair play and decency’ as concerned the Supreme Court in Dowling [v. United States (1990) 493 U.S. 342, 353 [110 S. Ct. 668, 674, 107 L. Ed. 2d 708].” (Id., at p. 1384.) The McKinney court held that the introduction of evidence — that the defendant had a knife collection, was fascinated with knives and had scratched “Death is His” on his closet door — during the defendant’s trial for murder where the victim had his throat slit by a knife and the knife was never found deprived the defendant of a fair trial. (McKinney v. Rees, supra, 993 F. 2d at pp. 1385.) “It is part of our community’s sense of fair play that people are convicted because of what they have done, not who they are.” (Id., at p. 1386.) “A concomitant of the presumption of innocence is that a defendant must be tried for what he did, not for who he is.” (United States v. Myers (5th Cir. 1977) 550 F. 2d 1036, 1044.)

The California Supreme Court has recognized the possibility that propensity evidence may reduce the burden of proof. (People v. Garceau (1993) 6 Cal. 4th 140, 186.) The Garceau court noted in a capital murder case that if the jury used evidence of a prior killing to show the defendant’s propensity to kill, “. . . the prosecution’s burden of proof as to the . . . identity of [the victim’s] slayer, arguably was lightened, thus raising the possibility that defendant’s constitutional right to due process of law was impaired.” (Ibid.)

The United States Supreme Court has not decided whether a state law allowing propensity evidence would violate the due process clause. (Estelle v. McGuire (1991) 502 U.S. 62, 75, fn. 5 [112 S. Ct. 475, 483-484, 116 L. Ed. 2d 385, 401]; People v. Fitch, supra, 55 Cal. App. 4th at p. 179.) The court in Estelle “expressly left open the question whether a state law permitting admission of propensity evidence would violate due process principles.” (People v. Falsetta, supra, 21 Cal. 4th at p. 913.) Nevertheless, United States Supreme Court Chief Justice Warren in his dissenting and concurring opinion in Spencer v. Texas (1967) 385 U.S. 554, 572-575 [87 S. Ct. 648, 658-660, 17 L. Ed. 2d 606, 619-620] stated: “While this Court has never held that the use of prior convictions to show nothing more than a disposition to commit crime would violate the Due Process Clause of the Fourteenth Amendment, our decisions exercising supervisory power over criminal trials in federal courts, as well as decisions by courts of appeals and of state courts, suggest that evidence or prior crimes introduced for no purpose other than to show criminal disposition would violate the Due Process Clause.” [Footnote 10] (Fns. omitted.)

Indeed, the United States Supreme Court has recognized the long-standing aversion to allowing the use of evidence to show propensity. In Michelson v. United States (1948) 335 U.S. 469, the court stated: “Courts that follow the common-law tradition almost unanimously have come to disallow resort by the prosecution to any kind of evidence of a defendant’s evil character to establish a probability of his guilt. . . . [I]t simply closes the whole matter of character, disposition and reputation in the prosecution’s case-in-chief. The state may not show defendant’s prior trouble with the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime. The inquiry is not rejected because character is irrelevant; on the contrary, it is said to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge. The overriding policy of excluding such evidence, despite its admitted probative value, is the practical experience that its disallowance tends to prevent confusion of issues, unfair surprise and undue prejudice.” (Id., at pp. 475-476, fns. omitted.) Unquestionably, Michelson considered the disallowance of propensity evidence is a fundamental principle of American law.

Appellant also respectfully disagrees with the Falsetta and Fitch courts to the extent they conclude that Evidence Code section 352 provides a safeguard to ensure due process or fundamental fairness. (People v. Fitch, supra, 55 Cal.App.4th at p. 183; People v. Falsetta, supra, 21 Cal. 4th at p. 918.) While the trial court has the discretion under Evidence Code section 352 to exclude prior acts evidence which merely shows propensity because there is a danger of undue prejudice, Evidence Code section 1109 serves to advise the trial court that the greatest danger to a fair trial or due process — that the jury will use the inflammatory evidence as evidence of propensity — is not a factor for excluding it in a domestic violence case. In other words, any significant protection under Evidence Code section 352 is removed in domestic violence cases by the explicit authorization in Evidence Code section 1109.

Evidence Code section 1109 also violated appellant’s right to equal protection under the state and federal constitutions. Under that section appellant received different treatment than do other similarly situated persons charged with a crime. Under Evidence Code section 1109, persons who are charged with violent crimes in the context of domestic abuse receive harsher and different treatment than those who are accused of the same crimes but not in a domestic relationship. Only in the former situation does a defendant face having prior acts admitted to prove his propensity to commit a charged act of violence. As noted above, the introduction of prior act evidence solely to show propensity lowers the prosecution’s burden and violates the fundamental constitutional right to due process. Therefore, the state must have a compelling state interest to treat domestic violence offenders differently from other violent offenders. (People v. Olivas (1976) 17 Cal.3d 236, 245-251; see also People v. Sage (1980) 26 Cal.3d 498, 506-508.) There is no compelling reason, or even a rational basis, for treating a person who commits violence in a domestic relationship differently from other persons charged with violent offenses. (But see, People v. Fitch, supra, 55 Cal. App. 4th at pp. 184-185 [denying any equal protection violation by rejecting the argument that propensity evidence under Evidence Code section 1108 violated any constitutional right and finding a rational basis to uphold the distinction].)

THE PREJUDICE

Since the errors here constituted violations of appellant’s federal rights to due process and equal protection, appellant’s conviction is reversible unless the government proves the error to be harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. at p. 24.)

In this case, the guilty verdict was not “surely unattributable” to the errors. (Sullivan v. Louisiana, supra, 508 U.S. at pp. 277-279.) The evidence was not overwhelming to support a murder conviction, as noted in Arguments II and III. Moreover, the prosecution in closing argument strongly and specifically relied on the prior crime evidence to argue appellant was entitled to a heat of passion defense. (RT 315, 320.) This reference to the priors makes it impossible to conclude the jury did not rely on the priors. (United States v. Brown (9th Cir. 1989) 880 F. 2d 1012, 1016.) “The force of a prosecutor’s argument can enhance immeasurably the impact of . . . inadmissible evidence.” Brown v. Borg (9th Cir. 1991) 951 F. 2d 1011, 1017.) In addition, CALJIC No. 2.50.02 told the jury it could use the evidence for a propensity purpose. (CT 74.) In light of the nature of the evidence, the prosecution’s reliance at trial on the priors, and the jury instruction, it cannot be concluded that guilty verdict was unattributable to the inflammatory propensity evidence. (Sullivan v. Louisiana, supra, 508 U.S. at pp. 277-279.)

For the foregoing reasons, appellant’s conviction must be reversed.

FOOTNOTES:

Footnote 1: While the instruction here, unlike in Orellano and Vichroy contained the 1999 version of CALJIC No. 2.50.02, the effect of that revision, as discussed fully below, did not resolve the problem discussed in those cases.

Footnote 2: “The Fifth District has decided that when the challenged instructions were considered together with those on reasonable doubt and the elements of the charged offense, juries were not reasonably likely to return a conviction based on an unconstitutionally lenient standard of proof or on evidence of uncharged offenses alone . . . (People v. Van Winkle (1999) 75 Cal. App. 4th 133, 147-149; People v. O’Neal (2000) 78 Cal. App. 4th 1065, 1078-1079.) The same reasoning has been adopted by the Fourth District, Divisions Two (People v. Waples (2000) 79 Cal. App. 4th 1389) and Three (People v. Regalado (2000) 78 Cal. App. 4th 1056.)” (People v. James, supra, 81 Cal. App. 4th at p. 1352.)

Footnote 3: “However” is defined in relevant part as “nevertheless or yet.” (The Random House Dictionary (1978) p. 436.) “Nevertheless” is defined as “in spite of that.” (Id, at p. 602.)

“Yet” is defined as “in addition,” “even or still,” or “though or nevertheless.” (Id., at p. 1031.)

Footnote 4: Neither CALJIC Nos. 2.50.1 or 2.50.2 which were given to the jury had any effect of countering the jury’s likely interpretation of CALJIC No. 2.50.02. (CT 75-76.)

Footnote 5: That CALJIC No. 2.50.02 version provided in pertinent part: “If you find beyond a reasonable doubt that the defendant committed a prior sexual offense, you may, but are not required to, infer that the defendant had a disposition to commit the same or similar type of sexual offenses. If you find that the defendant had this disposition, you may, but are not required to, infer that he was likely to commit and did commit the crime or crimes of which he is accused.” (People v. Vichroy, supra, 76 Cal. App. 4th at p. 99, italics added.)

Footnote 6: CALJIC No. 2.50.1 as given to the jury in this case provided: “Within the meaning of the preceding instruction, the prosecution has the burden of proving by a preponderance of the evidence that a defendant committed crimes other than that for which he is on trial.

“You must not consider this evidence for any purpose unless you find by a preponderance of the evidence that a defendant committed the other crimes.” (CT 75.)

Footnote 7: See also, People v. Waples (2000) 79 Cal. App. 4th 1389.

Footnote 8: CALJIC No. 2.01 provided: “However, a finding of guilt as to any crime may not be based on circumstantial evidence unless the proved circumstances are not only (1) consistent with the theory that the defendant is guilty of the crime, but (2) cannot be reconciled with any other rational conclusion.

“Further, each fact which is essential to complete a set of circumstances necessary to establish the defendant’s guilt must be proved beyond a reasonable doubt. In other words, before an inference essential to establish guilt may be found to have been proved beyond a reasonable doubt, each fact or circumstance on which the inference necessarily rests must be proved beyond a reasonable doubt.

“Also, if the circumstantial evidence permits two reasonable interpretations, one of which points to the defendant’s guilt and the other to his innocence, you must adopt that interpretation that points to the defendant’s innocence, and reject that interpretation that points to his guilt.

“If, on the other hand, one interpretation of this evidence appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable.” (CT 62.)

Footnote 9: The aversion to propensity evidence began to change in the 1990’s. In 1994, Congress enacted rules 413, 414 and 415 of the Federal Rules of Evidence, permitting other crimes evidence to be introduced for propensity purposes in sexual assault and child molestation prosecutions. California enacted Evidence Code section 1109 in 1996 and enacted a parallel statute involving sexual offenses, Evidence Code section 1108, in 1995.

Footnote 10: The majority in Spencer held that a statute which permitted a jury to learn of a defendant’s prior offenses (while instructed it could not use them in determining guilt of the charged offense) was acceptable where a valid state purpose was served. (Spencer v. Texas, supra, 385 U.S. at p. 564.)