F 2.50.01

F 2.50.01 n1 “Engaged In” vs. “Committed.”

F 2.50.01 n2 Evidence Of Other Sexual Offenses (EC 1108/EC 1109): Informing Jury That Prior Offenses Resulted In Acquittal Or Hung Jury.

(See People v. Mullens (2004) 119 CA4th 648, 669 [reversible error to exclude acquittal for alleged prior sex offense]; see also People v. Griffin (67) 66 C2d 459.)

(See FORECITE F 2.50.01d.)

F 2.50.01 n3 Other Sexual Offenses: Constitutional Challenge Based On Inequity In Precluding Evidence Of Victim’s Prior Consensual Sexual Encounters.

The due process and equal protection clauses of the 14th Amendment require a sense of balance and reciprocal parity between the prosecution and the defense in criminal cases. The state may not deprive a criminal defendant of a fair trial by giving the prosecution discovery, evidentiary, jury instructional, or other important rights which it denies to the defense. (Wardius v. Oregon (73) 412 US 470 [37 LEd2d 82; 93 SCt 2208]; Izazaga v. Superior Court (91) 54 C3d 356, 377, fn 14 [285 CR 231]; Hubbard v. Superior Court (97) 53 CA4th 587 [61 CR2d 799] [review granted, but subsequently dismissed with order to republish opinion at 66 CA4th 1163, 1170 [78 CR2d 819]].)

The California legislature has now mandated in EC 1108 that evidence of a criminal defendant’s sexual misconduct with another woman can be used to establish a predisposition to commit sexual offenses and, by inference, that he forced the female victim in the instant case to engage in non-consensual sex. However, EC 1103 prohibits a defendant from offering “character evidence” of the victim’s consensual sexual encounters with other men to prove that she had a propensity to acquiesce to sexual relations and, by inference, consented to sexual relations with the defendant before falsely crying rape. To load the scales against the defendant in this way violates the reciprocal parity and balance requirements of the 14th Amendment and is fundamentally unfair.

F 2.50.01 n4 Other Sexual Offenses: Constitutional Challenge To Proof Of Propensity By Other Acts.

ALERT: People v. Falsetta (99) 21 C4th 903 [89 CR2d 847] rejected a due process challenge to CJ 2.50.01. However, until the issue is resolved by the United States Supreme Court it is appropriate to continuing raising it.

Due process is transgressed by a state rule that “offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” (Medina v. California (92) 505 US 437, 445-46 [120 LEd2d 353; 112 SCt 2572]; see also Montana v. Egelhoff (96) 518 US 37 [135 LEd2d 361; 116 SCt 2013]; Schad v. Arizona (91) 501 US 624 [115 LEd2d 555, 571; 111 SCt 2491].) The use of EC 1108 or EC 1109 of “other acts” evidence as character evidence to show that the defendant has criminal propensities, and therefore is by inference likely to have committed the currently charged crimes, has been universally condemned as contrary to firmly established principles of Anglo-American jurisprudence for more than three-hundred years. (See McKinney v. Rees (9th Cir. 1993) 993 F2d 1378.)

The United States Supreme Court has recognized at least twice the unanimous tendency of courts that follow the common law tradition to disallow resort by the prosecution to evidence of a defendant’s evil character to establish the probability of his guilt and strongly suggests that introduction of prior crimes evidence solely for the purpose of showing a criminal disposition would violate the due process clause. (Michelson v. U.S. (48) 335 US 469 [93 LEd 168; 69 SCt 213]; Bell v. Texas (67) 385 US 554, 572-74 [17 LEd2d 606; 87 SCt 648], conc. and diss.op. of Warren, C.J.; see also Panzavecchia v. Wainwright (5th Cir. 1981) 658 F2d 337; People v. Kelley (67) 66 C2d 232, 238-39 [57 CR 363].)

The contrary conclusion reached in People v. Fitch (97) 55 CA4th 172 [63 CR2d 753], should not be followed. Fitch misconstrues the common law proscription against propensity evidence and unduly relies upon the federal rules of evidence without evaluating the matter under the appropriate due process constitutional principles. (See also People v. Waples (2000) 79 CA4th 1389, 1396 [95 CR2d 45] [prior acts of molestation may be admissible as propensity evidence and to show common scheme or plan]; People v. Jennings (2000) 81 CA4th 1301, 1313-14 [97 CR2d 727] [prior domestic violence evidence may be admissible if it is more probative than prejudicial].) (See FORECITE F 2.50.01aand F 2.50.02a.) [Additional briefing on these issues is available to FORECITE subscribers. Ask for Brief Bank # B-768.]

State v. Burns (MO 1998) 978 SW2d 759, held that a statute requiring evidence of other charged or uncharged crimes involving victims under 14 years of age to be admitted to show criminal propensity violated the defendant’s constitutional right to be tried only on the charged offense. Evidence of uncharged offenses to show propensity is inadmissible because it fosters conviction based on such propensity without regard to whether the defendant is guilty of the charged crime.

People v. Morehouse (3/30/98, B106834) UNPUBLISHED, disagreed with People v. Fitch (97) 55 CA4th 172 [63 CR2d 753] and concluded that EC 1108 is unconstitutional. Morehouse concluded that case law has always held propensity evidence to be inadmissible as an historical matter. Since the test for constitutionality is whether the evidence was admissible historically, the exclusion of propensity evidence as an historical matter renders EC 1108 unconstitutional in violation of due process principles. [See Opinion Bank # O-244 for a copy of the Morehouse opinion.] [See Brief Bank # B-853 for additional briefing on this issue.]

F 2.50.01 n5 Other Sexual Offenses: Constitutional Challenge To Preponderance Of Evidence Standard.

PRACTICE NOTE: The following argument has been rejected in California. (People v. Carpenter (97) 15 C4th 312, 380-83 [63 CR2d 1].) However, it should still be preserved for federal habeas corpus and/or certiorari.

The due process clause of the U.S. Constitution, and similar California Constitutional provisions require that, in criminal cases, the state prove every factual and legal element of the offense charged beyond a reasonable doubt. (In re Winship (70) 397 US 358, 363-64 [25 LEd2d 368; 90 SCt 1068].) Jury instructions relieving state prosecutors of this burden violate a defendant’s due process rights, subvert the presumption of innocence and invade the truth-finding task assigned solely to juries in criminal cases. (Francis v. Franklin (85) 471 US 307 [85 LEd2d 344; 105 SCt 1965]; Sandstrom v. Montana (79) 442 US 510 [61 LEd2d 39; 99 SCt 2450]; Carella v. California (89) 491 US 263, 265 [105 LEd2d 218; 109 SCt 2419]; County Court of Ulster County v. Allen (79) 442 US 140 [60 LEd2d 777; 99 SCt 2213]; People v. Roder (83) 33 C3d 491 [189 CR 501]; People v. Figueroa (86) 41 C3d 714, 726 [224 CR 719]; People v. Hedgecock(90) 51 C3d 395, 407 [272 CR 803]; People v. Kobrin (95) 11 C4th 416 [45 CR2d 895].)

While the prosecution needs to prove prior misconduct by only a preponderance of the evidence rather than proof beyond a reasonable doubt, the jury instructions concerning the prior crimes must not abrogate the requirement of proof beyond a reasonable doubt of all of the elements of the charged offenses. Due process still requires that the jury be convinced beyond a reasonable doubt of the “ultimate fact” of the defendant’s guilt of the crime for which he is currently on trial. (People v. Medina (95) 11 C4th 694, 763-64 [47 CR2d 165]; see also People v. Lisenba (39) 14 C2d 403, 430 [94 P2d 569].)

CJ 2.50.01, 2.50.02, 2.50.1 and 2.50.2 violate the above principles since they permit the jury to find the defendant guilty based merely on proof by a preponderance of the evidence that the defendant committed a prior similar act. (EC 1108, EC 1109.) [Additional briefing on these issues is available to FORECITE subscribers. Ask for Brief Bank # B-769.]

F 2.50.01 n6 Uncharged Crimes To Show Propensity: Analogy To Improper Joinder As Illustrative Of Prejudice.

It has been recognized that there is a high risk of prejudice whenever joinder of counts allows evidence of other crimes to be introduced in a trial of charges with respect to which the evidence would otherwise be inadmissible. (See U.S. v. Lewis (9th Cir. 1986) 787 F2d 1318; Bean v. Calderon (9th Cir. 1998) 163 F3d 1073.) This prejudice is illustrative of the prejudice resulting from allowing the jury to use a prior uncharged offense.

F 2.50.01 n7 Prior Acts To Show Criminal Disposition: Admissibility Of Prior Acts Of Good Conduct Offered By Defendant.

Rules of evidence such as EC 1108 permit the prosecution to present prior bad acts to prove criminal propensity. However, when such propensity evidence is admitted, the defendant should have a right to defend against the prior acts indirectly by presenting evidence which would disprove the propensity such as prior acts where the defendant exhibited good conduct in similar situations. (See People v. Callahan (99) 74 CA4th 356 [87 CR2d 838].)

F 2.50.01 n8 Improper To Permit Expert Opinion As To Defendant’s Criminal Propensity Or Predisposition.

See FORECITE F 2.50 n15.

F 2.50.01 n9 Instruction On Other Sexual Offense: Need For Clarification From California Supreme Court.

[See Brief Bank # B-854 for briefing discussing the various differing authorities concerning this issue.]

F 2.50.01 n10 Constitutional Challenge To Propensity Evidence Based On Inability Of Jurors To Follow Limiting Instructions.

The rules permitting the jury to consider uncharged bad acts as propensity evidence (EC 1108 and EC 1109) are grounded upon the assumption that the jury instruction will protect against improper use of the evidence by the jury. However, in practice, this assumption is unfounded for two reasons.

First, the ability to formulate accurate and effective limiting instructions is problematic. The difficulty of crafting such a formulation is evident from the conflicting appellate decisions on the issue. Rarely have the courts and CALJIC wrestled so much with the language of an instruction. Not only has the original CJ instruction been severely criticized but the 1999 revision in response to that criticism has also been repudiated. (See People v. James (2000) 81 CA4th 1343, 1353 [96 CR2d 823]; see also FORECITE F 2.50.01 n9 [discussing conflicting decisions].)

Second, regardless of what instructional formulation is used, it is doubtful that the jury could abide by it. “[I]t is the essence of sophistry and lack of realism to think that an instruction or admonition to a jury to limit its consideration of highly prejudicial evidence to its limited relevant purpose can have any realistic effect.” (People v. Gibson (76) 56 CA3d 119, 130 [128 CR 302]; see also Krulewitch v. U.S. (49) 336 US 440, 453 [93 LEd 790; 69 SCt 716] Jackson, J. concurring [“The naive assumption that prejudicial effects can be overcome by instructions to the jury, [citation], all practicing lawyers know to be unmitigated fiction. [Citation]”]; see also FORECITE PG X(E)(19)(1).)

In sum, because jury consideration of prejudicial and inflammatory evidence violates the defendant’s state (Art. I, § 7 and § 15) and federal (5th and 14th Amendments) constitutional rights to due process (see McKinney v. Rees (9th Cir. 1993) 993 F2d 1378; see also FORECITE PG VII(C)(20)), EC 1108 and EC 1109 should be held to violate the federal constitution.

NOTE: Even if the statutes are not generally invalidated, each individual case should be balanced to consider whether the statute should be subordinated to the defendant’s constitutional rights under the circumstances. (See FORECITE PG VII(C)(8).)

F 2.50.01 n11 Other Sexual Offenses: Limiting Instruction Must Be Requested.

See People v. Jennings (2000) 81 CA4th 1301, 1316 [97 CR2d 727].

F 2.50.01 n12 Improper Instruction Regarding Substantive Use Of Prior Offense: Standard Of Prejudice.

People v. Regalado (2000) 78 CA4th 1056 [93 CR2d 83] suggested that the proper standard of prejudice is whether there was a reasonable probability the error in the giving of CJ 2.50.01 affected the result. (People v. Regalado(2000) 78 CA4th 1056, 1063-64 fn 5; People v. Watson (56) 46 C2d 818, 833-35 [299 P2d 243].)

However, because the error impacts the burden of proof it violates the federal constitution. (See FORECITE PG VII(C)(8).) For example, in People v. James (2000) 81 CA4th 1343, 1360-63 [96 CR2d 823], the court analyzed the issue thoroughly and concluded that any error should be evaluated for prejudice under the test announced in Chapman v. California (67) 386 US 18 [17 LEd2d 705; 87 SCt 824], i.e., whether the error was harmless beyond a reasonable doubt. (81 CA4th 1343, 1360-63; see also Yates v. Evatt (91) 500 US 391, 403-404 [114 LEd2d 432; 111 SCt 1884] [an instructional error may be found to be harmless where it is shown beyond a reasonable doubt that the error was “unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record”].)

Moreover, it may also be argued that such an error is structural and requires reversal per se. (See People v. Orellano (2000) 79 CA4th 179, 186 [93 CR2d 866]; but see People v. Escobar (2000) 82 CA4th 1085, 1102 fn 10 [98 CR2d 696].) [See Brief Bank # B-861 for additional briefing on this issue.]

F 2.50.01 n13 Improper Propensity Instruction May Be Prejudicial Even If Jury Considered Evidence.

“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. While a jury could properly weigh the propensity evidence together with the other evidence to reach an ultimate determination whether the elements of the charged offense have been proven, it could also reasonably interpret the instruction to allow a direct leap from the defendant’s disposition, over the troubling aspects of the rest of the evidence, to a guilty verdict. Such an improper deliberative process is more than a remote possibility, particularly if there is a 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. [Citation].” (People v. Younger (2000) 84 CA4th 1360, 1383 [101 CR2d 624].)

F 2.50.01 n14 Uncharged Acts As Propensity Evidence.

People v. Nwandu UNPUBLISHED (2000) concluded that the paragraph added to CJ 2.50.01 and CJ 2.50.02, in the 1999 revisions are more than just desirable improvements or useful nuggets of additional information. The court concluded that the 1999 revisions are “essential to the jury’s proper understanding of the disposition evidence. Without the 1999 revision, jurors are told they may infer the defendant’s guilt of the charged crimes from the preponderance of evidence that he committed prior crimes, and they are forced to surmise from all the other instructions that this inference is subject to the reasonable doubt standard.” (Id. at pp. 13-14.) [See Opinion Bank # O-269 for the Nwandu opinion.]

F 2.50.01 n15 Challenge To 1999 CJ Revision.

See Brief Bank # B-878 for briefing on this issue.

F 2.50.01 n16 Other Sexual Offenses: Definition Of Sex Offense.

As amended effective January 1, 2002, EC 1108 expands the definition of “sex offense” under the exception to the inadmissibility of character evidence, which allows for the introduction of evidence of past sex offenses. “Sexual offense” means a crime under the law of a state or of the United States that involved any of the following: Any conduct proscribed by PC 243.4, PC 261, PC 261.5, PC 262, PC 264.1, PC 266c, PC 269, PC 286, PC 288, PC 288a, PC 288.2, PC 288.5, or PC 289, or subdivision (b), (c), or (d) of PC 311.2 or PC 311.3, PC 311.4, PC 311.10, PC 311.11, PC 314, or PC 647.6. (AB 380, Stats. 2001, Ch. 517.)

ALERT: This amendment allows evidence of a prior non-serious felony conviction, or even a misdemeanor conviction, as propensity evidence in violation of 300 years of Anglo-American legal tradition. In light of Garceau v. Woodford (9th Cir. 2001) 275 F3d 769, 773-77, a federal constitutional challenge to EC 1108 as amended may be viable particularly if the prior conviction wasn’t a serious felony or was even a misdemeanor.

F 2.50.01 n17 When The Prosecution Presents Evidence Under EC 1108 The Defense Is Entitled To Introduce Character Evidence On Rebuttal.

If the prosecution is allowed to produce propensity evidence under EC 1108 the defense may rebut the evidence by introducing character evidence that the defendant has not committed sexual assaults under similar circumstances. (See People v. Callahan (99) 74 CA4th 356, 374-79 [87 CR2d 838].) See Article Bank # A-95for the article on this issue, “Evidentiary Issues Frequently Arising In Sex Cases” by Dallas Sacher.

F 2.50.01 n18 Prior Acts To Show Identity (EC 1108).

(See People v. Britt (2002) 104 CA4th 500 [128 CR2d 290] [EC 1108 (prior sex crimes to prove propensity to commit a charged sex crime) makes admission of prior sex crimes usable not just on issues such as intent, but also on identity itself].)

F 2.50.01 n19 Other Sexual Offenses: Duty To Request.

People v. Reliford (2003) 29 C4th 1007, 1015 fn. 2 [130 CR2d 254] suggests that CJ 2.50.01 is not required sua sponte.

F 2.50.01 n20 Other Sexual Offenses: Subsequent Sexual Offenses.

(See People v. Medina (2003) 114 CA4th 897 [uncharged sexual offense admissible pursuant to PC 1108 even though it occurred after the charged offense].)

F 2.50.01a

Evidence Of Other Sexual Offenses (EC 1108):

Jury Must Find Defendant Guilty Of Charged Offense Beyond A Reasonable Doubt

ALERT: People v. Vickroy (99) 76 CA4th 92 [90 CR2d 105] held that a jury instruction permitting jury to consider defendant’s prior sex offenses as evidence of propensity to commit the charged offense violates due process. (See also People v. Frazier (2001) 89 CA4th 30, 39-40 [107 CR2d 100] [defendant charged with sex crime was prejudiced by instruction that permitted jury to infer guilt if it found by a preponderance of the evidence that the defendant had committed prior uncharged sex offenses]; People v. Younger (2000) 84 CA4th 1360; People v. Orellano (2000) 79 CA4th 179 [93 CR2d 866]; People v. James (2000) 81 CA4th 1343 [96 CR2d 823] [improper instructions allowing the jury to find guilt based solely on propensity evidence violate due process unless effect on verdict is negligible beyond reasonable doubt (EC 1108 and EC 1109)]; Gibson v. Ortiz (9th Cir. 2004) 387 F3d 812, 822 [the 1996 version of CJ 2.50.01 runs directly contrary to Winship‘s [In re Winship (70) 397 US 358 [25 LEd2d 368; 90 SCt 1068] maxim that a defendant may not be convicted except “upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged”]; but see People v. Hill (2001) 86 CA4th 273 [103 CR2d 127] [distinguishing Vickroy and holding the 1999 revision is proper].) [See Brief Bank # B-822 for briefing on this issue

NOTE: Confusion Regarding Case Name. There has been some confusion over People v. Vickroy (99) 76 CA4th 92 [90 CR2d 105]. Both the Daily Appellate Report (DAR) and CDOS, as well as LEXIS and Westlaw, report the case name as “Vichroy.” FORECITE has confirmed, by way of a call to the Second District Court of Appeal, that the case name is “Vickroy.” Briefs included on the CD-ROM reflect the correct name.

SUBSEQUENT HISTORY: In 1999 CJ 2.50.01 was revised to add the following:

“However, if you find [by a preponderance of the evidence] that the defendant committed [a] prior sexual offense[s] that is not sufficient by itself to prove [beyond a reasonable doubt] that [he] [she] committed the charged crime[s]. The weight and significance of the evidence, if any, are for you to decide.”

In People v. Falsetta (99) 21 C4th 903, 924 [89 CR2d 847] the California Supreme Court, “[w]ithout passing on … issues not before us,” opined that this language conveyed the “controlling principles under section 1108.” (But see FORECITE F 2.50.01b [Other Sexual Offenses/Other Domestic Violence Offenses: 1999 Revision Improperly Permits Finding Of Guilt Based On Less Than Proof Beyond A Reasonable Doubt].)

The analysis below applies to cases where the pre-1999 version of CJ 2.50.01 was given.

In contrast to CJ 2.50, CJ 2.50.01 [pre-1999 version] creates two permissive inferences which explicitly permit the jurors to infer that the defendant committed the charged crimes because he is a person disposed to commit such crimes. The first inference permits the jurors to find from the “commi[ssion] [of] a prior sexual offense” “that the defendant had a disposition to commit [the same or similar type] sexual offense.” (CJ 2.50.01.) The second inference tells the jurors that they may conclude from this “disposition” (i.e., the disposition to commit such acts) “that he was likely to commit and did commit the crimes of which he is accused. (Ibid.) The phrase “did commit the crimes of which he is accused” manifestly creates an alternative through which the jurors can find a defendant guilty of a charged crime based solely on the facts of the uncharged offense. Because this second inference permits the jurors to infer guilt for the charged offenses solely from the finding that the accused committed a prior offense, the instruction creates an alternative to finding the facts of the charged offense proved. A jury could infer that the defendant “did” commit the charged offenses without considering any evidence other than the facts of the uncharged incidents.

Hence, CJ 2.50.01 contravenes due process by permitting the jury to infer guilt solely from the commission of a prior offense. (See FORECITE F 2.50.01 n4; In re Winship (70) 397 US 358 [25 LEd2d 368; 90 SCt 1068]; see alsoPeople v. Fitch (97) 55 CA4th 172, 183 [63 CR2d 753] [jury was instructed that it could not convict defendant simply because it found he had a character trait that tends to predispose him to commit the crime charged]; People v. Falsetta(99) 21 C4th 903, 924 [jury should be instructed, upon request, that it is not to convict the defendant solely on evidence that the defendant committed the prior sex crimes in a case where the prior crimes are a dominant part of the prosecution’s case]; see also People v. Jennings (2000) 81 CA4th 1301, 1316; but see People v. O’Neal (2000) 78 CA4th 1065 [93 CR2d 248] [giving of CJ 2.50.1 and former CJ 2.50.01 not violative of due process in cases in which EC 1108 prior sex act evidence is admitted]; People v. Regalado (2000) 78 CA4th 1056 [93 CR2d 83] [same].)

No other instructions correct this defect. CJ 2.90 does not expressly require jurors to find the facts underlying a charged offense proved beyond a reasonable doubt. While CJ 2.01 does contain language which might otherwise require such factual findings, the uncharged offense instructions create an exception rendering it inapplicable. (See People v. Guzman DEPUBLISHED (99) 73 CA4th 103 [86 CR2d 164] [judgment reversed because CJ 2.50.01 and CJ 2.50.1 conflict with CJ 2.90 and CJ 2.01]; see also People v. Bersamina DEPUBLISHED (99) 73 CA4th 930 [87 CR2d 43] [pre-1999 version of CJ 2.50.01 is constitutionally infirm; no opinion expressed as to constitutionality of 1999 revision].) [See Opinion Bank # O-251 (Guzman) or # O-252 (Bersamina) for copies of the Guzman and Bersamina opinions.]

See also FORECITE F 2.50.02a.

[Additional briefing on this issue is available to FORECITE subscribers. Ask for Brief Bank # B-755 and # B-760. See Brief Bank # B-768, # B-769, # B-827 and # B-844. See also Brief Bank # B-815a and B-815b for supplemental briefing in light of Guzman, Bersamina, and Vickroy,]

NOTE: The following may be offered as an alternative to CJ 2.50.01, 9th ¶:

You may not convict the defendant solely on evidence that the defendant committed the prior sex crime(s). Before you may convict the defendant you must conclude, in light of all the evidence, that the prosecution has proven the defendant guilty of the charged offense beyond a reasonable doubt.

(See also FORECITE F 2.50.01b.)

F 2.50.01b

Uncharged Sexual Offenses: Defects In 1999 Revision

*Replace ¶ 8 and ¶ 9 of CJ 2.50.01 with the following:

You’ve heard testimony about other sexual offenses that are not charged in this case. I will refer to those as “uncharged offenses” because they are not charged in this case. Before you can consider evidence of any uncharged offense, the prosecution must prove by a preponderance of the evidence that the defendant committed that offense. “Preponderance of the evidence” means evidence that has more convincing force than that opposed to it. If the evidence is so evenly balanced that you are unable to find that the evidence on either side of an issue preponderates, your finding on that issue must be against the party who had the burden of proving it. If the prosecution has failed to meet this burden by a preponderance of the evidence, you may not use that evidence for any purpose, and you must disregard it entirely.

If you conclude the defendant committed an uncharged offense, you may consider that evidence and weigh it together with any other evidence received during the trial to help you determine whether the defendant is guilty of the charged crime. The weight and significance of any evidence are for you to decide. However, if you find the defendant committed an uncharged offense, that is not sufficient, by itself, to prove he committed the charged crime. You may not convict the defendant of the charged crime unless the prosecution has proven it beyond a reasonable doubt.

Points and Authorities

People v. James (2000) 81 CA4th 1343, 1360 fn 8 [96 CR2d 823] concluded that the 1999 version of CJ 2.50.01 is inadequate. (See also FORECITE F 2.50.01a.) The above instruction is adapted from the one suggested by theJames court. However, People v. Reliford (2003) 29 C4th 1007 [130 CR2d 254] held that the 1999 version of CJ 2.50.01 does not violate the federal constitution although “it could be improved….” The Reliford court suggested, without so holding, that the 2002 revision is “an improvement.” Nevertheless, because the case is not the final word as to the federal constitutional issue, the following language and briefing from the Court of Appeal in Reliford is retained:

“The new language of the instruction obscurely instructs the jury that a finding of truth of prior sexual offenses is not sufficient standing alone to establish defendant’s guilt beyond a reasonable doubt. The instruction becomes more ambiguous with the following sentence: `The weight and significance of the evidence, if any, are for you to decide.’ (Italics added.) We read the italicized portion of this sentence as referring to evidence of the prior sexual offenses. That being so, this sentence seems to suggest that the jury has the option of placing greater weight and significance on evidence of the prior sexual offenses to satisfy the higher standard needed to convict the defendant of the charged offense. At best, the modified instruction informs the jury of a truism: the fact that defendant committed the previous crime is not enough, by itself, to prove that he committed the charged offense. Taken literally, this can be understood to mean only that there must be a corpus delicti of this present crime.” (People v. Reliford OVERRULED (2002) 93 CA4th 973, 977-78 [113 CR2d 571].)

[See Brief Bank # B-885 for briefing on this issue.]

Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates 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.]

CAVEAT I: Even though the James instruction may be better than the 1999 revision of CJ 2.50.01, there is still a concern that the jurors will improperly rely on propensity evidence due to its highly prejudicial nature. (See FORECITE F 2.50.01 n10.)

CAVEAT II: The instruction may be unconstitutional to the extent that it uses a preponderance standard. (See FORECITE F 2.50.01 n5.)

F 2.50.01c

Uncharged Act Proven By Preponderance Of

Evidence Insufficient To Convict

*Modify CJ 2.50.01, ¶ 9 as follows [deleted language is between << >>]:

However, if you find <<by a preponderance of the evidence>> that the defendant committed [a] prior sexual offense[s], that is not sufficient by itself to prove beyond a reasonable doubt that [he] [she] committed the charged crime[s]. The weight and significance of the evidence, if any, are for you to decide.

Points and Authorities

CJ 2.50.01 is also improper because the phrase, by a preponderance of the evidence, does not “belong in the paragraph in which it appears, but more properly in a previous paragraph or in a separate instruction.” (People v. SizemoreREV DISMISSED/REMANDED/DEPUBLISHED (2002) 99 CA4th 546, 559 [121 CR2d 289].) “[A] jury reading this paragraph could reasonably interpret the language to permit it to find the defendant guilty of the charged offense based on prior acts if the prior acts of domestic violence are proved beyond a reasonable doubt.” (Id. at 559.)

F 2.50.01d

Evidence Of Other Sexual Offenses (EC 1108):

Informing Jury That Prior Offenses Resulted In Acquittal Or Hung Jury

*Add to CJ 2.50.01 when appropriate:

To assist you in your assessment of this evidence pertaining to the testimony of ________, you are instructed that at another time and place a duly constituted jury charged with the very issue of determining the defendant’s guilt or innocence of this alleged conduct concluded that he was not guilty of that conduct.

[Source: People v. Mullens (2004) 119 CA4th 648, 664.]

Points and Authorities

When a defendant has been acquitted of a prior charge based upon the same evidence presently offered by the prosecution the defense has the right to inform the jury of the acquittal. (See People v. Mullens (2004) 119 CA4th 648, 669 [reversible error to exclude acquittal for alleged prior sex offense]; see also People v. Griffin (67) 66 C2d 459.) Moreover Mullens suggested the above instruction in cases involving an acquittal. (Mullens, 119 CA4th at 664.)