Brief Bank # B-516
THE OTHER CRIMES EVIDENCE INSTRUCTIONS
CONFLICTED WITH CALJIC 2.01
CALJIC 2.01 instructs the jury on a fundamental rule of law by relating the prosecution’s burden to prove guilt beyond a reasonable doubt to circumstantial evidence. Specifically, the instruction provides that “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.” (CALJIC 2.01; CT 2987.) However, by allowing the jury to determine the identity of the person who committed the crime by a preponderance of the evidence, the other crimes jury instructions (CALJIC 2.50, 2.50.1, 2.50.2) conflicted with CALJIC 2.01 and undermined defendant’s federal constitutional right to due process. (14th Amendment.)
Pursuant to the second paragraph of CALJIC 2.01 (1988 bound volume) the jury was instructed as follows:
“Further, each fact which is essential to complete a set of circumstances necessary to establish 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 upon which such inference necessarily rests must be proved beyond a reasonable doubt.” (CT 2387.)
The jury was also instructed pursuant to CALJIC 2.91 as follows:
“The burden is on the people to prove beyond a reasonable doubt that the defendant is the person who committed the crime with which he is charged. [¶] If, after considering the circumstances of the identification and any other evidence in this case, you have a reasonable doubt whether defendant was the person who committed the crime, you must give the defendant the benefit of that doubt and find him not guilty.” (CT 2417.)
Pursuant to CALJIC 2.50 and 2.51, the jury was instructed, in pertinent part, as follows:
“Evidence has been introduced for the purpose of showing that the defendant committed crimes other than that for which he is on trial. [¶] Such evidence, if believed, was not received and may not be considered by you to prove that defendant is a person of bad character or that he 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:… [¶] The identity of the person who committed the crime, if any, of which the defendant is accused… [¶] Or the limited purpose for which you may consider such evidence, you must weigh it in the same manner as you do all other evidence in the case. [¶] You are not permitted to consider such evidence for any other purpose. [¶] Within the meaning of the preceding instruction, such other crime or crimes purportedly committed by the defendant must be proved by a preponderance of the evidence. You must not consider such evidence for any purpose unless you are satisfied that the defendant committed such other crime or crimes. [¶] The prosecution has the burden of proving these facts by a preponderance of the evidence.” (CT 2404-2405.) [Footnote 19] At the instruction conference defense counsel objected to utilizing the preponderance of evidence standard of proof for the prior other offenses because “it will blur the distinction between…beyond a reasonable doubt and preponderance.” (RT 1540.) Defense counsel argued that the combination of the other crimes evidence instructions which permit the preponderance standard and the testimony of Detective B who concluded that one person committed all of the offenses, undetermined the prosecution’s burden of proof beyond a reasonable doubt and the principles embodied in CALJIC 2.01. (CT 1539-1545; see also, RT 1292: counsel moves to strike Detective B’s testimony and to exclude uncharged offenses.) The trial court invited counsel to propose a modification of the other crimes instructions to address his concerns but counsel concluded that unless the court was willing to instruct the jury that the other crimes needed to be proved beyond a reasonable doubt–which the court was not willing to do–then no other instruction would be sufficient to eliminate the danger that the jury would be confused or misled. (RT 1543-1544.)
Assuming that it was proper to admit the evidence of the prior offenses, such evidence, if believed, was likely to be damaging to defendant on the question of identity, the only material issue before the jury. [Footnote 20] For some, if not all jurors, the prior offenses were likely to have been essential to establish identity and, hence, essential to establish appellant’s guilt.[Footnote 21] The court in People v. Watson (1956) 46 Cal.2d 818, 831, stated as follows: “[p]roperly interpreted, CALJIC no. 28 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.'” [Footnote 22] Accordingly, the Watson court held that in any case, like the present one, 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 to be proved beyond a reasonable doubt. (People v. Carter (1957) 48 Cal.2d 737, 758-759, 760-761.)
In the present case, the other crimes evidence instruction, by allowing the jury to utilize a preponderance of evidence standard to find an essential fact in the chain of circumstantial evidence, was error. The instruction specifically told the jury that it could consider the prior offenses as circumstantial evidence on the question of identity even if not proved beyond a reasonable doubt. This instruction was not qualified or limited in any way. The jury was not told that if the fact of the prior offense was essential to establish the requisite identity, then the prior offense would itself have to be proved beyond a reasonable doubt. The result was a direct conflict with CALJIC 2.01 and 2.91. Moreover, given that the complained of instruction dealt specifically with the prior offense evidence, it is likely that this instruction would have been followed rather than CALJIC 2.01 and 2.91 which addressed the use of circumstantial evidence and proof of identity more generally. (See, LeMons v. Regents of University of California (1978) 21 Cal.3d 869, 878; see also, People v. Stewart, supra, 145 Cal.App.3d at 975.)
The net result was to infringe upon appellant’s right not to be convicted except upon proof beyond a reasonable doubt. It would not have been unreasonable for a juror in this case to feel that the prior offenses had been proved by a preponderance of the evidence but not beyond a reasonable doubt. The proof of defendant’s connection with the prior offenses, except the Mr. G assault, was subject to dispute. (See, Argument I(E), herein.) Further, it is not unlikely that for some, if not all of jurors the prior offenses were a crucial or essential fact upon which they premised their finding of identity as to the charged offense. Misled by the trial court’s instruction on the use of the prior offense evidence, the jury could have reasoned as follows:
“The evidence as to appellant’s identity as the killer of Mr. F is insufficient given that the trace evidence was not definitive and given the lack of any eye-witness testimony that defendant and Mr. F had contact on the night of Mr. F’s abduction. But, one thing I am certain of is this, if the defendant committed the prior uncharged murders of Mr. H, Mr. B and Mr. S, then he also committed the murder of Mr. F. While the evidence as to the three prior murders does not establish defendant’s guilt as to those crimes beyond a reasonable doubt (given the uncertainty of the trace evidence and the problems with the eye witness identification), I am persuaded that defendant more probably than not committed those murders. The judge said we could use the prior murders on the question of identity as long as it was proved by a preponderance of the evidence. (And the prosecutor’s argument reaffirmed that a lower standard applies to the other crimes. (RT 1605).) The judge also told us that we should weigh the evidence of the other murders in the same fashion as any other evidence. Accordingly, because I conclude that defendant did commit the prior murders by a preponderance of the evidence, I have no reasonable doubt that he committed the Mr. F murder.”
If any juror so reasoned, and it was just such reasoning which the complained of instructions invited, then defendant was convicted upon the basis of a standard short of proof beyond a reasonable doubt. And, the jury’s quick verdict—approximately 3 1/2 hours (RT 1684-1690)—may well have used such an evidentiary shortcut to reach its verdict.
The prosecutor attempted to explain the relationship between the preponderance and reasonable doubt standards to the jury. (E.g., RT 1604-1605.) However, his explanation reinforced the view that once the other crimes were proven by a preponderance they could then be utilized in the chain of essential circumstances upon which to predicate a verdict of guilt as to the charged offense. The prosecutor argued:
…the law says you can consider uncharged murders and crimes to tie Mr. Doe to the Mr. F murder. But these uncharged matters can only be used for a limited purpose. [To show intent, identity, motive, knowledge, larger continuing scheme.]…I am talking about the Mr. H, the Mr. B, the Mr. S and the Mr. G matters. “[¶]…[H]ere the burden is lesser, and you have got to keep this in mind…You try to analyze like this. All those factors, motive, intent, knowledge, identity, a preponderance of evidence and this side of this lectern, those are by a preponderance of evidence. If you believe that they relate to Mr. F’s murder, let’s move them over to this side of the lectern. This side of the lectern now becomes beyond a reasonable doubt. So this is a tool for you. A tool, limited purpose tool. [¶] My burden on this is by a preponderance of the evidence. Is there more convincing force and greater probability of the truth than opposed to it. Sometimes attorneys like to put it in percentages. If you are convinced by 50.01 or 51 percent, whatever have you, if it tips the scale however slightly, I met my burden on that limited issue. (RT 1604-1605.)
Hence, the prosecutor’s argument reinforced the impropriety of the instructions by reassuring the jury that the other crimes could form an essential link in the circumstantial chain of evidence even though they were proved by a lesser standard.
In sum, appellant was entitled to have his guilt determined by twelve jurors, each applying the standard of proof beyond a reasonable doubt, and the erroneous instructions undermined that right. (U.S. Const., 5th and 14th Amendments; In re Winship (1970) 397 U.S. 358; Sandstrom v. Montana (1979) 442 U.S. 510.) As a result of this due process violation, there is no guarantee that the jury did any more than determine that (1) it was more probable than not that defendant committed the uncharged offenses, and (2) the expert was correct that whoever committed the uncharged offenses also committed the charged offense. Accordingly, the jury was permitted to return a verdict of guilt without finding appellant guilty beyond a reasonable doubt. And, because it cannot be said that the evidence which the jury actually considered and the facts which the jury necessarily found overwhelmingly establish proof of appellant’s guilt beyond a reasonable doubt, the judgment should be reversed. (Carella v. California (1989) 491 U.S. 263; People v. Roder (1983) 33 Cal.3d 491, 498-499; People v. Reyes (1992) 2 Cal.App.4th FOOTNOTES: The jury was instructed upon the definition of preponderance of evidence by CALJIC 2.50.2 as follows:
“‘Preponderance of the evidence’ means evidence that has more convincing force and the greater probability of truth 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. [¶] You should consider all of the evidence bearing upon every issue regardless of who produced it.” (CT 2406.) The trial court noted that the prior offenses were particularly relevant to intent (RT 1542), but the defense conceded that the killing was premeditated and deliberated. (See RT 1639.) The fact that other evidence was presented from which one could infer identity does not alter the fact that for one or more jurors the prior offenses may have been essential to a finding of guilt. Such jurors may have rejected the other evidence or found it, standing alone, to be unconvincing. For any such juror, it would have been improper to rely upon the fact of the prior offense as evidence of appellant’s identity unless convinced beyond a reasonable doubt that appellant had committed the prior offenses. Former CALJIC no. 28 incorporated the same basic language which now appears in CALJIC 2.01.