Brief Bank # B-884 (Re: F 2.23 n3 [CJ 2.23 Must Be Given Sua Sponte].)
CAVEAT: The file below was not prepared by FORECITE. FORECITE has not made any attempt to review or edit this material and is not responsible for its content or format. FORECITE cannot guarantee the information is complete, accurate or up-to-date. You are advised to conduct your own independent, comprehensive research on all issues addressed in the material below.
II. THE COURT ERRED WHEN IT FAILED TO INSTRUCT THE JURY THAT APPELLANT’S PRIOR CONVICTION COULD NOT BE USED TO INFER CRIMINAL PROPENSITY
B. The Court Has A Sua Sponte Duty To Instruct The Jury That It Could Not Consider His Prior Conviction As Evidence Of Criminal Propensity
Evidence of other crimes, whether by proof of a prior conviction or otherwise, is not admissible when offered solely to prove criminal disposition or a propensity on the part of the accused to commit the crime charged, because the probative value of such evidence is outweighed by its prejudicial effect. (People v. Peete (1946) 28 Cal.2d 306, 314-315.) Evidence that appellant had suffered a prior felony conviction was introduced below to prove a bail enhancement. As the evidence was not admissible to show that appellant had a criminal disposition and was more likely to have committed the charged theft, the court should have given the jury a limiting instruction.
In People v. Mayfield (1972) 23 Cal.App.3d 236, 244, the court held that a trial judge has a sua sponte duty to instruct the jury that a prior felony conviction may be used only to assess a witness’ credibility, and not as evidence of guilt. During the trial, the defendant had admitted that she had a prior manslaughter conviction. Counsel did not request a limiting instruction. The appellate court found it “implicit from the wording of [Evidence Code section 788] that the jury shall be admonished as to the limited application they may give such evidence (Id. at p. 244, italics added) and reversed the judgment.
Mayfield was followed in People v. Lomeli (1993)19 Cal.App.4th 649, when the appellate court extended the court’s sua sponte duty to instruct on the limited use of prior convictions to misdemeanors. (See also People v. Cavazos (1985) 172 Cal.App.3d 589 [court’s sua sponte duty to give limiting instruction on prior conviction acknowledged without discussion].)
The refusal of the Fourth District to follow Mayfield in People v. Kendrick (1989) 211 Cal.App.3d 1273 was based on a faulty analysis, which this court should not follow. The Kendrick court cited six cases for the principle that a trial judge did not have a sua sponte duty to give an instruction limiting the purpose for which a prior conviction may be considered. (Id. at 1277-1278). The cited cases fail, however, to support the court’s holding, as none of them involved evidence of a prior conviction, as opposed to other types of damaging evidence.
As the United States Supreme Court has noted, evidence of prior criminal conviction has extraordinary – and inappropriate – persuasive power over a jury. It must be treated with extreme care “not…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.” (Michelson v. United States (1948) 335 U.S. 469, 475-476, fn. omitted.) As the Kendrick court failed to acknowledge the uniquely damaging nature of evidence of prior criminal convictions, this court should not follow its holding that a trial court has no sua sponte duty to give a limiting instruction when evidence of a prior criminal conviction has been admitted.
A trial court is required to instruct sua sponte on those general principles of law that are closely and openly connected with the facts before the court and necessary for the jury’s understanding of the case. (People v. St. Martin (1970) 1 Cal.3d 524, 531.) The circumstances here meet all three prongs of the rule. The rule that a criminal conviction may only be considered for a limited purpose and not to infer criminal propensity and a likelihood that the defendant committed the charged offense is: 1) a general principle of law; 2) closely and openly connected with the facts here; and 3) necessary to the jury’s understanding, in that the principle not only is not obvious to a layperson, but actually is counter-intuitive. Natural, untutored instinct would suggest that a defendant’s criminal past provides a logical and appropriate basis for judging the likelihood that he has committed a subsequent crime. As this assumption is directly opposed to the true state of the law, instruction by the court was necessary to allow the jury to apply correct legal principles to the facts of the case. The court’s failure to give a limiting instruction was error.
C. The Court’s Error Violated Appellant’s Rights To Due Process and A Fair Trial Under The Sixth and Fourteenth Amendments of the United States Constitution
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, People v. Garceau (1993) 6 Cal.4th 140, 186.) The court’s failure to give a limiting instruction allowed conviction for status or character, rather than because the jury found beyond a reasonable doubt that appellant had committed the charged act. Accordingly, the court’s failure violated appellant’s rights to due process and a fair trial under the Sixth and Fourteenth Amendments of the United States Constitution to be tried only for the charged offenses, and requires reversal.
D. The Error Was Prejudicial
1. The Error Implicated Federal Constitutional Rights, and Must Be Judged Under The Chapman Standard
As the court’s error violated appellant’s federal constitutional rights, the appropriate standard for review is set forth in Chapman v. California (1967) 386 U.S. 18, 24, wherein the court held that “before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” As discussed above at pps. 12-13 above, the case against appellant stood on very shaky circumstantial legs. It was propped up – improperly – by the lack of an instruction limiting the use to which the jury could put appellant’s past conviction.
The prior conviction presented to the jury was not some long ago, youthful indiscretion – it was a crime so recent that appellant had been on bail at the very time of the charged offenses. Given this timing, it would have been natural for the uninstructed jury to assume that a defendant who had just been convicted of felony drug dealing and would shortly be going to prison was more likely to have stolen from his employer. It is impossible to conclude beyond a reasonable doubt that the jury would have voted to convict appellant had the court given a proper limiting instruction The judgment must be reversed.
2. The Error Requires Reversal Even Under The Watson Standard
Appellant maintains that the court’s error compromised his constitutional rights, and must be judged, at a minimum, by the Chapman standard. Even if the court disagrees, however, the error is reversible under the standard of People v. Watson (1956) 46 Cal.2d 818, 836. Under the Watson standard, the appellant must demonstrate a reasonable probability that the verdict would have been different absent the error. The circumstances here meet that test.
Every element of the prosecution’s case was subject to reasonable doubt. Appellant had the opportunity to take the money: so did a myriad of others, over a course of days. Appellant had large sums of cash on his person after the theft: he had had large sums of cash on a number of occasions long before the theft. Miraculously, the envelope Ms. L delivered to The Company had the very same markings as those Mr. M had placed on the original envelope holding the money: less miraculously, The Company failed to corroborate Mr. M’s testimony regarding the markings on the first envelope, and Ms. L failed to corroborate Mr. M’s testimony regarding the second envelope. The stepping stone that allowed the jury to leap across the gaps in the prosecution’s case – the one piece of evidence that allowed it to find guilt beyond a reasonable doubt – was appellant’s recent felony conviction. In the absence of a limiting instruction, common sense and human experience compel a different view of the actions of a convicted felon and a law-abiding citizen. This jury was never told that applying such an approach was prohibited. As there is a reasonable probability that the verdict would have been different had the court given the required limiting instruction, the judgment must be reversed.