F 2.50

F 2.50 n1 Bifurcation When Other Crimes Evidence Prejudicial.

When the other crimes evidence is “highly prejudicial” the court should bifurcate the guilt trial and special circumstances trial so that the prejudicial material will not be considered by the jury in making the guilt determination. (People v. Bigelow (84) 37 C3d 731, 748 [209 CR 328]; see also People v. Velasquez (80) 26 C3d 425, 432 [162 CR 306], vacated on other grounds California v. Velasquez (80) 448 US 903 [65 LEd2d 1132].)

[Research Note: See FORECITE BIBLIO 2.50]

F 2.50 n2 Ineffectiveness Of Limiting Instruction As To Other Crimes Evidence.

In People v. Felix (93) 14 CA4th 997 [18 CR2d 113], a robbery trial, evidence that both co-defendants had committed a robbery together on a prior occasion was erroneously admitted to prove identity. In evaluating the prejudicial effect of this error, the court concluded that the limiting instruction (CJ 2.50) was “likely to be of little value” because the instruction did not explain how the evidence might tend to show identity and because a proper use of the evidence to show identity “tends to elude reason.” (Felix 14 CA4th at 1009.) (See also FORECITE BIBLIO, “Empirical Research” (BIBLIO E).)

[Research Note: See FORECITE BIBLIO 2.50]

F 2.50 n3 Other Crimes Instruction Dilutes Prosecution’s Burden And CJ 2.01 / CJ 2.02.

Because other crimes evidence need not be proved beyond a reasonable doubt there is a danger — especially when the crimes relate directly to an element of the offense such as identity or intent — that the prosecution’s burden may be diluted. Moreover, when other crimes are used to prove an inference essential to the finding of guilt then the principles governing circumstantial evidence (CJ 2.01 / CJ 2.02) are undermined. [See Brief Banks # B-515 andB-516 for briefing on these issues.]

People v. Carpenter (97) 15 C4th 312, 380-83 [63 CR2d 1] approved CJ 2.50, but did not directly resolve the issue of the conflict between CJ 2.50 and CJ 2.01/2.02–especially for situations where identity is at issue. (In Carpenterthe issue was intent, not identity.)

[See FORECITE F 2.50b and FORECITE F 2.50c for instructions which seek to clarify the burdens.]

[Research Note: See FORECITE BIBLIO 2.50]

F 2.50 n4 Admissible Only To Prove Contested Issues.

CJ 2.50 purports to instruct the jury as to how evidence of other crimes may be considered by the jury. However, as a predicate to the admissibility of other crimes evidence and instruction thereon, the issue which the other crimes evidence is offered to prove must be contested. (People v. Rogers (85) 173 CA3d 205, 212 [218 CR 494]; People v. Wisely UNPUBLISHED PORTION (90) 224 CA3d 939 [274 CR 291].) For example, in Wisely the court erred when it told the jury that other crimes evidence was admissible on the issue of intent. Although intent was an element of the crime, it was never contested by the defendant in Wisely. Hence, the evidence was inadmissible and it was error to instruct the jury upon the evidence. [A copy of the unpublished portion of the Wisely opinion is available to FORECITE subscribers. Ask for Opinion Bank # O-139.]

Not only should other crimes evidence be excluded when it does not tend to prove any contested issue, but when such evidence is admitted CJ 2.50 should be carefully modified to assure that the jury is directed to consider the evidence only upon the contested issue to which it is relevant. (See People v. Felix (93) 14 CA4th 997, 1009 [18 CR2d 113].) While there is no sua sponte obligation to give CJ 2.50 (People v. Collie (81) 30 C3d 43, 63-4 [177 CR 458], “when a trial court does undertake to give a limiting instruction specifically calling attention to the significance of the substantially prejudicial evidence of prior bad acts, it should do so accurately.” (People v. Nottingham (85) 172 CA3d 484, 497 [221 CR 1]; see also People v. Hayes (90) 52 C3d 577, 624-25 [276 CR 874]; People v. Edelbacher (89) 47 C3d 983, 1010 [254 CR 586].)

[Research Note: See FORECITE BIBLIO 2.50]

F 2.50 n5 Admission Of Irrelevant Character Evidence Violates Federal Due Process.

McKinney v. Rees (9th Cir. 1993) 993 F2d 1378, 1380-82, held that admission of emotionally charged character evidence to show propensity which is irrelevant to any issues in the trial violates the due process clause of the Federal Constitution (14th Amendment) and provides the basis for a grant of relief on federal habeas. (See also Henry v. Estelle VACATED 52 F3d 809 (9th Cir. 1993) 993 F2d 1423, 1427-28 [evidence of remote uncharged conduct of child molest by defendant violates due process].)

[Research Note: See FORECITE BIBLIO 2.50]

F 2.50 n6 Error To Instruct That Other Crimes May Be Used To Show Criminal Propensity.

In People v. Garceau (93) 6 C4th 140, 186 [24 CR2d 664], the court held that it was error to submit a prosecution requested instruction that allowed the jury to consider other crime evidence “for any purpose, including but not limited to [the defendant’s] character ….” The Supreme Court recognized the “potentially devastating impact of other-crimes evidence” but held that the impact of the instruction was diluted because of other overwhelming evidence establishing the defendant’s guilt. (Garceau 6 C4th at 187.)

In reaching this result the court assumed, without deciding, that improper consideration of other-crimes evidence is federal constitutional error. (Garceau 6 C4th at 186.) (See PG VII(B)(20) for additional discussion of this issue.)

[Research Note: See FORECITE BIBLIO 2.50]

F 2.50 n7 No Modification Of Prior Acts Instruction Necessary In Light of Ewoldt.

In People v. Linkenauger (95) 32 CA4th 1603, 1614-15 [38 CR2d 868], the court held that no modification of CJ 2.50 is necessary in response to People v. Ewoldt (94) 7 C4th 380, 402, 405 [27 CR2d 646]. In Linkenauger, the defendant had argued that the trial court was required to match the prior act evidence with each issue to be proven under Ewoldt. The Linkenauger court disagreed, holding that such an instruction would have been argumentative and repetitious.

F 2.50 n8 Other Crimes Limiting Instruction: No Sua Sponte Duty.

People v. Hawkins (95) 10 C4th 920, 942 [42 CR2d 636] held that the trial court did not err in failing to furnish a limiting instruction sua sponte on cross-admissible evidence in a trial of multiple crimes.

F 2.50 n9 Uncharged Offenses: Specification Of Instructions Applicable To Determination Of Uncharged Offense.

Regardless of whether the preponderance or beyond a reasonable doubt standard is used, it is settled that the jury must find that the defendant committed the uncharged offense before that offense may be considered by the jury against the defendant. (See FORECITE F 2.50c.) Thus, the jury, in effect, is presented with a trial within a trial in making the determination of whether the defendant committed the prior uncharged offense. Therefore a distinct set of instructions may be applicable to the uncharged offense. For example, if the uncharged offense involves an issue of identity — and the charged offense does not — then instructions such as CJ 2.91 [Burden Of Proving Identity Based Solely On Eye Witnesses] and CJ 2.92 [Factors To Consider In Proving Identity By Eyewitness Testimony] should be given for the jury to consider in determining the defendant’s guilt as to the uncharged offense.

Moreover, when instructions may be applicable to both the charged and uncharged offenses, there may be a potential for juror confusion unless the jury is clearly informed which instructions apply to which determinations.

F 2.50 n10 Uncharged Offenses: Prior Sexual Offenses As Character Evidence (EC 1108).

EC 1108, effective January 1, 1996, purports to make character evidence directly admissible against a criminal defendant to prove the character or disposition of the defendant to commit the current offense. The statute states: “In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by EC 1101, if the evidence is not inadmissible pursuant to EC 352.” (EC 1108 (a).)

One important issue is the standard of proof required for the prior offense. In death penalty cases prior crimes evidence offered in aggravation must be proved beyond a reasonable doubt. (People v. Ashmus (91) 54 C3d 932, 1000 [2 CR2d 112].) On the other hand, evidence offered under EC 1101 need only be proven under the preponderance standard. (See CJ 2.50.1; but see FORECITE F 2.50d arguing that a prior offense offered to prove an element of the offense must be proven beyond a reasonable doubt.)

People v. Fitch (97) 55 CA4th 172 [63 CR2d 753] and People v. Falsetta (99) 21 C4th 903 [89 CR2d 847] held that EC 1108 is not unconstitutional and does not violate ex post facto laws when applied to offenses that arose before its enactment. Fitch held that the statute does not violate due process because it does not offend a principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.

However, neither Falsetta nor Fitch directly addressed the constitutionality of the standard of proof, although Falsetta did state that CJ 2.50.01, which utilizes the preponderance standard, conveys “the controlling principles of [EC 1108].” (Falsetta, 21 C4th at 924.)

In any event this issue has not been resolved by the United States Supreme Court and, therefore, counsel must continue to raise it in state court if it is to be preserved for federal review. (See O’Sullivan v. Boerckle (99) 526 US 838 [144 LEd2d 1; 119 SCt 1728.)

See also FORECITE F 2.50.01a. [See Brief Bank # B-717 for additional briefing on this issue.

F 2.50 n11 Uncharged Offenses: Corpus Delicti Rule Not Applicable.

There is no requirement that the corpus delicti of a defendant’s uncharged bad acts be proven independently of the defendant’s admission. (People v. Martinez (96) 51 CA4th 537 [59 CR2d 54].)

F 2.50 n12 Uncharged Offenses: EC 352 Analysis.

Doubt Favors Defendant. The exercise of discretion to admit or exclude evidence pursuant to EC 352 should favor the defendant in cases of doubt because in comparing prejudicial impact with probative value the balance “is particularly delicate and critical where what is at state is a criminal defendant’s liberty.” (People v. Lavergne (71) 4 C3d 735, 744 [94 CR 405]; People v. Murphy (63) 59 C2d 818, 829 [31 CR 306].)

Factors To Be Considered. People v. Harris (98) 60 CA4th 727, 737-39 [70 CR2d 689] held that admission of a 23-year old violent prior was error. The court set out five factors based on EC 352 which it considered in determining that the evidence was inadmissible.

F 2.50 n13 Flight During Prior Unrelated Offense Not Admissible To Show Intent Or Motive.

People v. Scheer (98) 68 CA4th 1009 [80 CR2d 676] held that the fact that the defendant committed a prior uncharged offense which involved flight from a police officer had no relationship to the charged offense and, hence, was inadmissible to prove either intent or motive. (The evidence was not admissible on the issue of intent because the charged crime was a general intent crime.)

F 2.50 n14 Prior Uncharged Offenses: Distinction Between Motive And Common Plan Or Design.

People v. Scheer (98) 68 CA4th 1009 [80 CR2d 676] concluded that the trial court improperly instructed the jury on the distinct concepts of motive and common plan or design by failing to distinguish between them. “Evidence of a common design or plan is admissible to establish that the defendant committed the act alleged.” (People v. Ewoldt (94) 7 C4th 380, 394, fn 2 [27 CR2d 646] [emphasis in original].) Accordingly, a common design or plan, like motive, is simply an intermediate fact. (Scheer, 68 CA4th at 1017.) “Unlike motive, however, a common plan or scheme depends on the existence of striking similarities between the prior misconduct and the charged crime, and a nexus between the commission of the two is necessary. In other words, a common scheme or plan focuses on the manner in which the prior misconduct and the current crimes were committed….” (Ibid.)

“The presence of the same motive in both instances may be a contributing factor in finding a common plan or design. [Citation.] In contrast, the converse is not true. The manner in which the prior misconduct was committed, which is the focus of the common plan or design inquiry, does not give rise to a motive, i.e., incentive or impetus, for commission of the charged crime.” (Ibid.)

F 2.50 n15 Improper To Permit Expert Opinion As To Defendant’s Criminal Propensity Or Predisposition.

People v. McFarland (2000) 78 CA4th 489 [92 CR2d 884] held that neither EC 1101(b) nor EC 1108 authorize the prosecution to present in its case-in-chief opinion testimony bearing on a defendant’s character or propensity to commit the crime charged. An expert’s opinion about a defendant’s disposition to engage in sexual conduct with children, based on the expert’s review of court records and psychiatric reports from defendant’s prior convictions for lewd conduct with a child, is a form of character evidence and is not permitted unless it 1) tends to prove a fact, such as motive or opportunity, or 2) is offered in rebuttal after the defendant has put his character at issue, or 3) it is evidence of specific prior acts.

F 2.50 n16 Uncharged Act: Relevance Must Be Specified When Case Also Involves Impeachment With Prior.

(See FORECITE F 2.23. n4.)

F 2.50 n17 Uncharged Acts: Relevance To Cause Of Death.

(See People v. Catlin (2001) 26 C4th 81, 104 [109 CR2d 31].)

F 2.50 n18 Uncharged Acts: Admissibility Of Third Party Guilt Evidence.

See FORECITE F 4.020 n2.

F 2.50 n19 Reverse 1101(b): Using Uncharged Acts Or Misconduct To Bolster The Defense.

An article on this issue is available to FORECITE subscribers. Ask for Article Bank # A-94. CD-ROM subscribers can access this article by searching for A-94.

See also FORECITE PG VII(C)(14).

F 2.50 n20 Due Process Right To Full And Fair Hearing Regarding Use Of Other Crimes/Other Charges.

Due process principles are violated if the jury is permitted to consider other crimes evidence without affording the defense a full and fair hearing on the admissibility of the other crimes evidence. (See People v. Armstead (2002) 102 CA4th 784, 794 [125 CR2d 651]; People v. Martin (54) 128 CA2d 724 [276 P2d 43] [court first admitted evidence and then, after the case was argued, instructed the jury not to consider it]; see also FORECITE PG VII(C)(39).)

F 2.50 n21 CAVEAT: When CALJIC 2.50 Given At The Guilt Phase Of Capital Trial.

(See FORECITE F 8.85(b) Inst 3.)

F 2.50 n22 Improper Propensity Argument By Prosecutor: Duty Of Judge To Correct.

(See United States v. Brown (9th Cir. 2003) 327 F3d 867 [reversible error to not admonish the jurors to disregard the prosecutor’s misleading propensity arguments].)

F 2.50a

Uncharged Acts: Limited To Special Circumstances

*Modify third paragraph of CJ 2.50 to provide as follows:

Such evidence was received only for the limited purpose of proving the special circumstance and may be considered by you for that purpose only.

Points and Authorities

“If evidence relevant only to a special circumstance is introduced at the guilt trial … it should be accompanied by a jury instruction limiting its use.” (People v. Bigelow (84) 37 C3d 731, 748 [209 CR 328]; see also, EC 355.)

Jury consideration of improper matters lessens the prosecution’s burden of proof in violation of the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII.]

F 2.50b

Uncharged Criminal Acts: Proof Of Preliminary Facts

*To be inserted at end of CJ 2.50:

Before you may consider the evidence of the alleged prior criminal act, you must first determine __________ [insert the preliminary fact to be determined]. Unless you find this preliminary fact to exist you must disregard the evidence and not consider it for any purpose.

Points and Authorities

In order to present evidence of a prior uncharged criminal act committed by the defendant, the prosecution must establish that the act is relevant to prove something other than defendant’s general propensity to commit crimes. (People v. Simon (86) 184 CA3d 125, 129 [228 CR 855]; EC 1101(b).)

If the defendant does not dispute the commission of the prior act, but merely argues its legal inadmissibility, the admissibility of the evidence is solely a question of law for the court. (Simon at 129.)

On the other hand, there are two situations in which the admissibility of the evidence is a question of fact which must be resolved by the jury pursuant to EC 403(c)(1) and upon which specific instruction is mandatory if requested.

First, if the defendant denies that he committed the uncharged act, the question of whether the act was committed must first be resolved by the jury before it can draw any inference regarding the defendant’s commission of the uncharged offense. (Simon at 130.)

Second, if the defendant admits committing the act, but disputes the existence of a state of mind or motive advanced by the prosecution, the jury must preliminarily resolve the question of the defendant’s state of mind before drawing any adverse inferences from the prior criminal act. (Simon at 130-31.)

Accordingly, in both of the above described situations the jury should be instructed upon the preliminary fact which it must determine and should further be instructed to disregard the evidence unless they find the preliminary fact to be true. (See Rucker & Overland, California Criminal Forms & Instructions (1983), Bancroft-Whitney Co., § 39:30.)

If the jury is permitted to find the existence of a prior uncharged act without making the requisite preliminary factual findings, the prosecution’s burden is lessened in violation of the defendant’s state (Art. I § 15 and 16) and federal (6th & 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII.]

RESEARCH NOTES

See FORECITE BIBLIO 2.50.

F 2.50c

Uncharged Offenses:

Jury Must Find That Defendant Committed the Prior Offense

* To be inserted after 1st sentence of CJ 2.50:

Before you may consider this evidence you must first determine that the prior offense occurred and that the defendant committed that offense.

Points and Authorities

The plurality opinion in People v. Albertson (44) 23 C2d 550, 578-79 [145 P2d 7], stated that the limiting instruction on uncharged offenses was “erroneous and misleading” because it was unqualified by any statement that the jury must first conclude the offense occurred and the defendant committed it. (But see People v. Harris (77) 71 CA3d 959, 965-66 [139 CR 778] [no sua sponte duty to give Albertson plurality instruction]; any amplification of 2.50 must be requested.) Based on Albertson and EC 403(c)(1) (right to instruction on preliminary facts [see FORECITE F 2.50b]), the above instruction should be given upon request when appropriate upon request.

NOTES

There was a split in authority as to whether the defendant’s connection with the uncharged offense must be shown by a preponderance or by clear and convincing evidence. (See People v. Simon (86) 184 CA3d 125, 134, fn 6 [228 CR 855] [resolving conflict in favor of preponderance standard].) [See Brief Bank # B-517 for a brief arguing for the clear and convincing standard.] However, People v. Carpenter (97) 15 C4th 312, 380-83 [63 CR2d 1] concluded that the preponderance standard should be used in conjunction with CJ 2.50 and disapproved any language in other cases suggesting that the clear and convincing standard is the proper standard.

The jury should be apprised as to any other instructions which are applicable to its determination of the uncharged offense. (See FORECITE F 2.50 n9.)

F 2.50d

Clarification Of Preponderance Burden As To Consideration Of Other Crimes Evidence

And Prosecution’s Burden To Prove Guilt Beyond A Reasonable Doubt

ALERT: In People v. Medina (95) 11 C4th 694, 762-64 [47 CR2d 165], the court held that other crimes which are offered to prove knowledge, intent or identity are deemed mere “evidentiary facts” that need not be proved beyond a reasonable doubt as long as the jury is convinced, beyond such doubt, of the truth of the “ultimate fact” of the defendant’s knowledge, intent or identity. (See also People v. Carpenter (97) 15 C4th 312, 380-83 [63 CR2d 1] [approving CJ 2.50 but failing to address the conflict between CJ 2.50 and CJ 2.01 in cases where identity is at issue].)

However, neither Medina nor Carpenter adequately addressed the conflict between the circumstantial evidence instruction (CJ 2.01), which requires each essential fact to be in the chain of circumstances to be proven beyond a reasonable doubt, and CJ 2.50, which permits consideration of other crimes evidence which are proven by a preponderance of the evidence. Hence, the due process problems with CJ 2.50 remain and should be preserved for federal court.

*Add to CJ 2.50:

Before you may consider the uncharged act evidence, the prosecution must prove the following by a preponderance of the evidence:

1. The defendant committed the uncharged crime, and

2. The uncharged crime tends to show __________ [insert alleged relevance, e.g., intent, motive, knowledge, etc.] __________ .

If the prosecution meets the above burdens, then you may consider whether the evidence tends to show __________ as stated above. However, you may not rely on this evidence in whole or part to convict the defendant unless the defendant’s commission of the uncharged offense have been proven beyond a reasonable doubt by the prosecution.

[This means that unless you have found the defendant guilty beyond a reasonable doubt of the uncharged offense you may not use that offense to convict the defendant of any other charged offense.]

[CJ 2.50.2 defining the preponderance standard should be given with this instruction.]

Points and Authorities

Due process “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” [Emphasis added.] (In re Winship (70) 397 US358, 364 [25 LEd2d 368].) It requires the state to prove “‘every ingredient of the offense beyond a reasonable doubt ….'” (Sandstrom v. Montana (79) 442 US 510, 524 [61 LEd2d 39; 99 SCt 2450, quoting Patterson v. New York (77) 432 US 197, 215 [53 LEd2d 281; 97 SCt 2319].) Not only does this requirement apply to the evidence as a whole, but also to each fact from which the defendant’s guilt is inferred. The California Supreme Court explained this principle inPeople v. Watson (56) 46 C2d 818, 831 [299 P2d 243]: “properly interpreted, CJ 28 [now CJ 2.01 and CJ 2.02] applies the doctrine of reasonable doubt not to proof of miscellaneous collateral or incidental facts, but only to proof of ‘each fact which is essential to complete a chain of circumstances that will establish the defendant’s guilt.'” Accordingly, the Watson court held that in any case which rests essentially on circumstantial evidence, it would be error to refuse to instruct the jury on this basic principle. Further, in any such case, it would be error for the trial court to in any way mislead the jury into thinking that it was not necessary that each fact essential to complete a chain of circumstances establishing guilt be proved beyond a reasonable doubt. (People v. Carter (57) 48 C2d 737, 758-59, 760-61 [312 P2d 665].) A conviction violates due process if it is based upon an amalgamation of facts none of which have been proven beyond a reasonable doubt. (See People v. Deletto (83) 147 CA3d 458, 472 [195 CR 233]; People v. Hefner (81) 127 CA3d 88, 96-7 [179 CR 336].)

It is true, of course, that neither the defendant’s guilt of the uncharged offense nor the relevance of prior uncharged offenses need be proven beyond a reasonable doubt as a prerequisite to the admissibility of the uncharged offense. (See People v. Simon (86) 184 CA3d 125, 134, fn 6 [228 CR 855] [admissibility of other crimes evidence governed by preponderance standard]; see also People v. Albertson (44) 23 C2d 550, 557 [145 P2d 7].) However, this rule does not permit the jury to utilize the evidence to convict the defendant without finding that the other crime has been proven beyond a reasonable doubt. Such a result would violate due process by allowing an “ingredient of the offense” to be proven under a lesser standard. “An essential element of any crime is, of course, that the defendant is the person who committed the offense. Identity as the perpetrator must be proved beyond a reasonable doubt.” (People v. Hogue (91) 228 CA3d 1500, 1505 [279 CR 647].)

Hence, the jury is actually faced with a two-step process regarding other crimes evidence. First, before the evidence may even be considered, it must be proven under the preponderance standard. (See EC 403.) Second, before the other crime may be utilized to convict, it must be proven beyond a reasonable doubt. (In a court trial, the judge performs a similar two-step process.)

Accordingly, to avoid unconstitutional use of prior uncharged offenses, the standard CALJIC instruction regarding the standard of proof as to uncharged offenses should be modified to make it clear to the jury that: (1) the evidence may not even be considered unless its relevance and the defendant’s commission of the uncharged offense is established by a preponderance of the evidence (EC 403); and (2) the evidence may not be utilized to convict the defendant unless its relevance, and the defendant’s commission of the offense is proven beyond a reasonable doubt. Without such an instruction, there is a danger that the defendant’s constitutional rights to trial by jury and due process (6th and 14th Amendments) rights will be undermined by allowing the jury to convict with facts which have not been proven beyond a reasonable doubt.

NOTES

Use of Other Charged Offenses: People v. Arias (96) 13 C4th 92, 140-41 [51 CR2d 770] held that the jury need not be cautioned against considering other charged offenses as proof that the defendant is a person of bad character or of criminal disposition so long as CJ 17.02–which tells the jury to consider each charged crime separately–was given. This holding does not affect the situation where the charged offense is specifically permitted to prove an issue such as intent or identity. In such a case, the standard cautionary instructions regarding other crimes evidence under EC 1101 should be equally applicable to other charged crimes. (See People v. Ruiz (88) 44 C3d 589, 607 [244 CR 200].)

RESEARCH NOTES

See FORECITE BIBLIO 2.50.

F 2.50e

Other-Crimes Evidence As To Associate Of The Defendant

*Modify 1st sentence of CJ 2.50 to provide as follows:

Evidence has been received concerning the character and reputation of another witness, __________ [insert name of witness], and of defendant’s association with that witness.

Points and Authorities

This modification was approved in People v. Garceau (93) 6 C4th 140, 194-5 [24 CR2d 664].

F 2.50f

Gang Evidence Modification

*Modify CJ 2.50 to provide as follows:

Evidence has been introduced that the defendant is a member of a particular gang. ¶ Such evidence, if believed, was not received and may not be considered by you to prove that [he] [she] is a person of bad character or that [he] [she] has a disposition to commit crimes.

Such evidence was received and may be considered by you only for the limited purpose of determining if it tends to show: [Insert appropriate matters from CJ 2.50].

Points and Authorities

“[G]ang membership creates a risk the jury will improperly infer the defendant has a criminal disposition and is therefore guilty of the offense charged—and thus should be carefully scrutinized by trial courts….” (People v. Carter (2003) 30 C4th 1166, 1194; see also People v. Avitia (2005) 127 CA4th 185, 194 [gang evidence was inflammatory, and its only possible function was to show the defendant’s criminal disposition].) It follows, a fortiori, that a strong limiting instruction should be given when such evidence is admitted, admonishing the jurors not to consider such evidence as to criminal disposition.

This instruction was given and impliedly approved in People v. Contreras (83) 144 CA3d 749, 755, fn 2, 758 [192 CR 810]; see also, People v. Garceau (93) 6 C4th 140, 185-86 [24 CR2d 664].

NOTES

[Additional briefing on gang evidence, etc. is available to FORECITE subscribers. Ask for Brief Bank # B-583.]

Regarding expert testimony, see FORECITE F 2.80 n6.

See Annotation, Admission of evidence of accused’s membership in gang, 39 ALR4th 775 and Later Case Service.

STRATEGY NOTE:

Gang evidence may be subject to constitutional challenge as prejudicial bad character evidence, see FORECITE PG VII(C)(20).

F 2.50g

Other Uncharged Crimes: Must Be Limited To Applicable Count

*Add to CJ 2.50:

However, you may consider the uncharged crime as to Count ____ only.

Points and Authorities

See People v. Grant (2003) 113 CA4th 579 [joinder of counts required reversal where counts were not cross-admissible, prosecutor urged jury to draw impermissible ingerence, evidence was similar, evidence on count 1 was not strong, and court refused an instruction on non-cross-admissibility].)

NOTE: People v. Tufunga UNPUBLISHED (98) 65 CA4th 287, 300-01 [76 CR2d 521] held that the trial court erroneously failed to limit introduction of evidence regarding a prior uncharged act to the count to which the uncharged act was relevant. [Review was granted in Tufunga on another issue People v. Tufunga (99) 21 C4th 935 [90 CR2d 143].] [A copy of the unpublished Tufunga opinion is available to FORECITE subscribers. Ask for # O-257.] CD-ROM subscribers can access this opinion by searching for O-257.

F 2.50h

Uncharged Crime:

Common Plan Theory Evidence Admissible Only To Show Charged Act(s)

*Modify CJ 2.50, ¶ 3 as follows [Added language is underlined; deleted language is between << >>]:

[A characteristic <<method>> DESIGN, plan or scheme <<in the commission of>> TO COMMIT criminal acts similar to the <<method>> DESIGN, plan or scheme used in the commission of the offense(s) in this case which <<would>> MAY further tend to show <<[the existence of the intent which is a necessary element of the crime charged] [the identity of the person who committed the crime, if any, of which the defendant is accused] [a clear connection between the other offense and the one of which the defendant is accused so that it may be inferred that if defendant committed the other offense[s] defendant also committed the crime[s] charged in this case]>> WHETHER THE CONDUCT ALLEGED TO CONSTITUTE THE CHARGED OFFENSE(S) ACTUALLY OCCURRED. IF YOU FIND SUCH A CHARACTERISTIC DESIGN, PLAN OR SCHEME, YOU MAY NOT CONSIDER IT FOR ANY OTHER PURPOSE;]….

Points and Authorities

“[A] common design or plan, like motive, is simply an intermediate fact.” (People v. Scheer (98) 68 CA4th 1009, 1020 [80 CR2d 676].) The primary issue here concerns what is sought to be shown via that intermediate fact. People v. Ewoldt (94) 7 C4th 380 [27 CR2d 646] is the leading case with respect to the common plan theory for admission of uncharged crime evidence. The Supreme Court explained its premise as follows: “‘The presence of a design or plan to do or not to do a given act has probative value to show that the act was in fact done or not done.’ [Citation.]'” (Id. at 393, emphasis added.) In other words, if there is a factual dispute as to whether the charged crime(s) occurred, common plan evidence is admissible to establish the occurrence.

Ewoldt added: “Evidence of a common design or plan, therefore, is not used to prove the defendant’s intent or identity but rather to prove that the defendant engaged in the conduct alleged to constitute the charged offense.” (Id. at 394, fn. omitted, emphasis added.) The object is not to prove that “the defendant” is the one who “engaged in the” alleged criminal conduct; that would be an erroneous use of common plan evidence to show identity. (Ibid.) Rather, the theory assumes the defendant’s identity and presence in a context which requires additional evidence as to the fact of the offense. Ewoldt explained further in a footnote:

This distinction, between the use of evidence of uncharged acts to establish the existence of a common design or plan as opposed to the use of such evidence to prove intent or identity, is subtle but significant. . . . [¶] Evidence of a common design or plan is admissible to establish that the defendant committed the act alleged. Unlike evidence used to prove intent, where the act is conceded or assumed, “[i]n proving design, the act is still undetermined . . .” [Citation.] (Ibid., fn. 2, emphasis in original.)

Thus, the common plan theory of admissibility made sense in Ewoldt, where “[d]efendant testified in his own behalf, denying that any of the incidents described by [the victim] had occurred . . . .” (Id. at 389, emphasis added.) In the context of such a defense, evidence of the defendant’s uncharged similar conduct was “relevant to establish that defendant committed the charged offenses in accordance with [a common design or] plan.” (Id. at 403.) But once again, the point was not to show that the defendant was the perpetrator; it was to show that the offenses were perpetrated. (Id. at 394, fn. 2.)

Unfortunately, this “subtle but significant” distinction (id. at 394, fn. 2) was completely lost on the drafters of CALJIC No. 2.50. Purportedly based on Ewoldt, the instruction’s wording in connection with common plan evidence is erroneous as a matter of law. (See CALJIC No. 2.50 (6th ed. 1996), Use Note, ¶ 1.) The instruction provides three alternative ultimate facts which may be shown through common plan evidence:

(1) “the existence of the intent which is a necessary element of the crime charged[.]” Ewoldt expressly held–three times–that such a use of common plan evidence was inadmissible to show the intent element of the charged offense. (7 C4th at 394, 399, 406; see also People v. Tufunga UNPUBLISHED (98) 65 CA4th 287, 301, [76 CR2d 521] finding CALJIC No. 2.50 erroneous when it informs the jury that common plan evidence is admissible to show intent. [Review was granted in Tufunga on another issue People v. Tufunga (99) 21 C4th 935 [90 CR2d 143].] [See Opinion Bank # O-257 for a copy of the unpublished Tufunga opinion.]

(2) “the identity of the person who committed the crime, if any, of which the defendant is accused[.]” Identity is an equally improper basis for admission, according to Ewoldt. (7 C4th at 394, 399, 406.)

(3) “a clear connection between the other offense and the one of which the defendant is accused so that it may be inferred that if defendant committed the other offense[s] defendant also committed the crime[s] charged in this case[.]” This option only vaguely resembles the discussion in Ewoldt. But a reasonable juror would likely understand it to mean “identity.” After all, the point of the common plan, if found, is purportedly to show that thedefendant committed the charged crimes. Particularly where the defendant concedes the occurrence of the crime but argues s/he did not commit it, the instruction’s logical purpose would be to aid the jury in evaluating that very claim. But once again, that approach is erroneous under Ewoldt. (Ibid.)

To be accurate, the instruction should state only one ultimate fact to be shown by the intermediate fact of a common plan or design: whether the charged act or acts were committed. (Id. at 394, fn. 2.) As to the “not . . . for any other purpose” limitation, see id. at 394, 399, 406 [conduct, not intent or identity]; People v. Scheer, supra, 68 CA4th at 1020-1021 [act, not motive].)

As to “a characteristic design” see FORECITE F 2.50i.

As to “which would further tend to show” see FORECITE F 2.50j.

F 2.50i

Uncharged Crime:

Common Plan Theory Evidence — Requirement Of Characteristic Design

*Modify CJ 2.50, ¶ 3 as follows [Added language is underlined; deleted language is between << >>]:

Points and Authorities

The above modification replaces “method” with “design.” People v. Ewoldt (94) 7 C4th 380 [27 CR2d 646] used only the words “design,” “plan” and “scheme” in this context. “Method” does not appear to be truly synonymous with the other three words.

F 2.50j

Uncharged Crime:

Common Plan Theory Evidence:

No Suggestion That Ultimate Fact Is Proven

*Modify CJ 2.50, ¶ 3 as follows [Added language is underlined; deleted language is between << >>]:

Points and Authorities

The above modification changes “which would further tend to show . . . ” to “which may further tend to show . . . .” The CALJIC version reasonably could be construed to inform the jury that a common plan finding necessarily establishes the ultimate fact to be proved, whereas that is another jury determination. This unfairly risks misleading the jury as to the prosecution’s burden of proof, in violation of the defendant’s federal constitutional rights to due process and jury trial (5th, 6th and 14th Amendments).