The concurring opinion of Justice Perren in People v. Gonzales (2017) 16 Cal. App. 5th 494, 505-07 identified a serious problem with CC 1191 when the “the proffered evidence of the uncharged offenses consists solely of the victim’s testimony.” (Id. at 507.) The problem results from anomalous language in the instruction which allows the jurors to find that an ultimate factual element of the charge was proved by a preponderance of evidence instead of proof by a reasonable doubt:
There are three categories of “other” sex offenses that may be admitted as evidence of a defendant’s propensity to commit charged sex offenses: (1) uncharged offenses committed against persons other than the victim; (2) uncharged offenses committed against the victim; and (3) other offenses that are charged in the same case. (Evid. Code, §§ 1101, 1108.) For the first two categories, the jury is generally instructed that the uncharged offense or offenses may be considered only if they are proven by a preponderance of the evidence. (CALCRIM No. 1191A; People v. Reliford (2003) 29 Cal.4th 1007, 1015–1016 [130 Cal. Rptr. 2d 254, 62 P.3d 601] [construing CALJIC No. 2.50.01, which is substantially identical to former CALCRIM No. 1191].) The same was true for the third category until 2012, when our Supreme Court implicitly recognized that charged offenses offered as propensity evidence must be proven beyond a reasonable doubt. (People v. Villatoro (2012) 54 Cal.4th 1152, 1167–1168 [144 Cal. Rptr. 3d 401, 281 P.3d 390] (Villatoro); People v. Cruz (2016) 2 Cal.App.5th 1178, 1186 [206 Cal. Rptr. 3d 835] (Cruz); CALCRIM No. 1191B.) Why? Because it would be anomalous to tell a jury that in proving one charged offense, it may consider evidence of another charged offense shown by a preponderance of the evidence, despite acquitting of that offense because it was not persuaded of its commission beyond a reasonable doubt. (Cruz, at p. 1186.) (16 Cal. App 5th at 505, Perren, J., concurring.)
In Gonzalez, Justice Perren explained how a problem similar to the one identified by Villatoro and Cruz with respect other charged offenses occurs when alleged uncharged offenses are based solely on the victim’s testimony:
In my view, a jury instruction explaining the admissibility of uncharged offenses against the victim as proof of propensity under Evidence Code section 1108 must resemble the instruction used in Villatoro, supra, 54 Cal.4th 1152 (i.e., CALCRIM No. 1191B) where, as here, the proffered evidence of the uncharged offenses consists solely of the victim’s testimony. L.W. is either credible, or she is not. Inviting the jury to apply a lesser standard of proof as to her credibility regarding uncharged offenses, and then consider that evidence as proof of her credibility beyond a reasonable doubt as to the charged offenses, confuses the issue and threatens to undermine confidence in the result.
As explained in in People v. Nicolas (2017) 8 Cal. App. 5th 1165, 1176), to warrant an instruction on an “uncharged act” there must be an uncharged act. If the purported “uncharged act” is actually an integral part of the charged act then the jury must not be told that the uncharged act need only be proved by a preponderance of the evidence: “The trial court plainly committed error by instructing the jury regarding uncharged acts using CALCRIM No. 375; there were, in fact, no uncharged acts admitted into evidence.” (Id. at 1178.)
As the Nicolas court observed this is “the same type of instructional error that the appellate court dealt with in Cruz. By telling the jury that the defendant’s alleged phone use “immediately prior to the collision could be proven under a preponderance of the evidence standard [the instruction] had the effect of lowering the prosecution’s burden of proof because this was the same evidence that the prosecution was using to prove gross negligence. Even though the jury was also told (through other jury instructions and argument) that it needed to find gross negligence (and ultimately defendant’s guilt) under a reasonable doubt standard, the two competing standards of proof were addressing the same evidence. The court’s instructional error not only presented the jury with a nearly impossible task, but as a reviewing court, we have absolutely no way of knowing which of the two competing standards of proof the jury may have applied to the same evidence.” (Nicolas at 1181-82.)
In sum, when uncharged offenses are based solely on the victim’s testimony the jury should be given a modified version of CC 1191B making it clear that the uncharged act mut be proved beyond a reasonable doubt.
Unless such a modification is made, the instructions will abridge the defendant’s state (Art I, §§7, 15 and 16) and federal (6th and 14th amendments) constitutional rights to due process and trial by jury by reducing the prosecution’s burden of proof in violation of the following constitutional principles:
(1) Any person accused of a crime is presumed innocent unless and until the jury finds that every essential fact necessary to prove the charged crime and every element of the crime has been proved by the prosecution beyond a reasonable doubt. (Apprendi v. New Jersey (2000) 530 US 466; People v. Hill (1998) 17 C4th 800; People v. Figueroa (1986) 41 C3d 714.)
(2) The jury instructions must not reduce the prosecution’s burden of proof as to any essential fact or element of the charge. (See Carella v. California (1989) 491 US 263, 265-66.)
(3) Instructions on the presumption of innocence and the prosecution’s burden of proof must not be conflicting or contradictory.