Opinion Bank # O-269 (Re: F 2.50.01 n14 / F 2.50.02 n11 [Uncharged Acts As Propensity Evidence].)
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FILED: August 2, 2000
(People v. Nwandu, B127276 [Los Angeles County Super. Ct. No. YA030227])
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
JUDE PAULINUS NWANDU,
Defendant and Appellant.
__________________________________________/
APPEAL from a judgment of the Superior Court of Los Angeles County. Francis J. Hourigan and James R. Brandlin, Judges. Reversed.
Marilyn S. White-Redmond, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, William T. Harter, Supervising Deputy Attorney General, Carl N. Henry, Deputy Attorney General, for Plaintiff and Respondent.
EXCERPT FROM OPINION
II. Jury Instruction on Prior Domestic Violence Evidence
Appellant contends that his conviction must be reversed because the trial court instructed the jury with CALJIC No. 2.50.02 (6th ed., 1997 New) thereby undermining the reasonable doubt standard of proof and his presumption of innocence. This instruction, appellant asserts, violated his due process rights “because it allowed the jury to conclude that he ‘did commit the crime of which he was accused’ if it found, by a preponderance of the evidence, rather than by a reasonable doubt, that he had committed the prior uncharged domestic violence offenses.” Having previously found the language at issue to be fatally defective, we agree.
CALJIC No. 2.50.02 as given by trial court reads as follows: “Evidence has been introduced for the purpose of showing that the defendant engaged in an offense involving domestic violence [on one or more occasions] other than that charged in the case. [¶] ‘Domestic violence’ means abuse committed against an adult or a fully emancipated minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the defendant has had a child or is having or has had a dating or engagement relationship. [¶] ‘Abuse’ means intentionally or recklessly causing or attempting to cause great bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another. [¶] 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] offense. 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. [¶] [[Y]ou must not consider this evidence for any other purpose.]” (Boldface italics added.) The bold italics highlights the offending language.
In People v. Vichroy (1999) 76 Cal.App.4th 92, the trial court gave a parallel instruction (CALJIC No. 2.50.01) concerning prior sexual offenses and instructed with the identical offending language given in the case at bench. In Vichroy, we stated: “We do not believe proof beyond a reasonable doubt of a basic fact, that appellant committed prior … offenses, may act as ‘proxy’ or substitute for proof of the ultimate fact, i.e., appellant’s guilt of the currently charged offenses. The constitutional infirmity arises in this case because the jurors were instructed that they could convict appellant of the current charges based solely upon their determination that he had committed prior sexual offenses. CALJIC No. 2.50.01, as given, required no proof at all of the current charges.” (Id. at p. 99.) The same is true of the version of CALJIC No. 2.50.02 given in this case. (We note that the 1999 revision of CALJIC No. 2.50.02 contains remedial language that eliminates the infirmity of the 1997 version.)
Respondent contends that Vichroy, supra, is distinguishable from the instant case because other related instructions were here less complex and thus less confusing than in Vichroy. We see that as an inconsequential distinction. The jury was instructed here exactly as in Vichroy that proof of the prior conduct was sufficient to convict the defendant.
Respondent primarily relies on the decision in People v. Van Winkle (1999) 75 Cal.App.4th 133, upholding a conviction where the trial court instructed with the version of CALJIC No. 2.50.01 that was the source of the reversal in People v. Vichroy, supra, 76 Cal.App.4th 92. Van Winkle, a decision rendered before the Vichroy decision was filed, is inapposite. The court in Van Winkle addressed only the burden of proof issues and did not address the issue which was key in Vichroy — whether the jury instruction permitted the jury to find the defendant guilty merely by finding that the defendant had committed one or more prior offenses.
The court in People v. Orellano (2000) 79 Cal.App.4th 179 directly followed our decision in Vichroy. (Id. at p.181.) Other decisions, also directly on point, however, do not agree with our decision in Vichroy. The leading such case is People v. Regalado (2000) 78 Cal.App.4th 1056. [Footnote 1] The court in People v. Orellano, supra at page 181, declined to follow Regalado or People v. Van Winkle, supra, 75 Cal.App.4th 133. Regalado does not persuade us that Vichroy was wrongly decided. The issue is simply whether, in light of the challenged instructional language and all the instructions as a whole, there is a “reasonable likelihood” that the jury interpreted the instructions in an impermissible manner. (Estelle v. McGuire (1991) 502 U.S. 62, 72 & fn. 4; People v. Cain (1995) 10 Cal.4th 1, 36.) We think that a “reasonable likelihood” exists.
Sections 1108 and 1109 (enacted respectively in 1995 and 1996) represent radical departures from prior law which viewed “propensity” evidence as inherently unduly prejudicial to a criminal defendant. They permit a trial judge to admit disposition evidence in an unprecedented manner. All the more important it is then that a jury be fully and fairly instructed on the permissible use of such evidence. Thus, the 1999 revisions to CALJIC No. 2.50.01 and CALJIC No. 2.50.02 are more than just desirable improvements or “useful nugget[s]” of additional information. (People v. Falsetta, supra, 21 Cal.4th at p. 923.) The paragraph added by the 1999 revision, instructing the juror that such disposition evidence “is not sufficient to prove [beyond a reasonable doubt] that [he] [she] committed the charged crime[s],” is essential to the jury’s proper understanding of 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.
The appellate courts in People v. Van Winkle, supra, 75 Cal.App.4th 133, 147-149, and People v. Regalado, supra, 78 Cal.App.4th 1056, hypothesized a process by which rational and reasonably intelligent jurors might harmonize the instructions as a whole. That hypothesized process is complex enough for appellate justices. It is a formidable task to impose on jurors.
Where the trial court has admitted propensity evidence under section II09, we see danger that juries will be unduly influenced without proper guidance from the trial court. CALJIC No. 2.50.02 did not provide such guidance here. The jurors were specifically told they could infer appellant’s disposition, and his guilt of the current charges, from his commission of the prior crimes, shown by a mere preponderance of evidence. In this context, we conclude there is a “reasonable likelihood” the jurors were misled by the incomplete instruction. There is no way that we can know whether the jurors managed to discern the correct burden of proof and the proper application of the disposition evidence. The defective instruction given to the jury, coupled with the improper admission of Ndubuisi’s testimony about the prior threat, was prejudicial error. We therefore reluctantly reverse appellant’s convictions. (Sullivan v. Louisiana (1993) 508 U.S. 275, 281.)
DISPOSITION
The judgment is reversed
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
BOREN, P.J.
We concur:
NOTT, J.
COOPER J.
FOOTNOTES:
Footnote 1: People v. Brown (2000) 77 Cal.App.4th 1324 also disapproves Vichroy. However, in Brown, the trial court gave the added instruction that “‘evidence that the defendant committed prior offenses involving domestic violence is not sufficient by itself to prove that he committed the charged offenses.”‘ (Id. at p. 1334.) Thus, the infirmity present in the instant case and in Vichroy was not presented in Brown. Several other cases have declined to follow Vichroy. (See, e.g., People v. O’Neal (2000) 78 Cal.App.4th 1065, People v. Waples (2000) 79 Cal.App.4th 1389, and People v. James (2000) 81 Cal.App.4th 481.)
