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.)
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].)
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.)
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.)
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
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 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.)
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.)