F 375 NOTES

TABLE OF CONTENTS
F 375 Note 1 Bifurcation When Other Crimes Evidence Prejudicial
F 375 Note 2 Ineffectiveness Of Limiting Instruction As To Other Crimes Evidence
F 375 Note 3 Other Crimes Instruction Dilutes Prosecution‘s Burden And CC 224/CC 225
F 375 Note 4 Admissible Only To Prove Contested Issues
F 375 Note 5 Admission Of Irrelevant Character Evidence Violates Federal Due Process
F 375 Note 6 Error To Instruct That Other Crimes May Be Used To Show Criminal Propensity
F 375 Note 7 No Modification Of Prior Acts Instruction Necessary In Light of Ewoldt
F 375 Note 8 Other Crimes Limiting Instruction: No Sua Sponte Duty
F 375 Note 9 Uncharged Offenses: Specification Of Instructions Applicable To Determination Of Uncharged Offense
F 375 Note 10 Uncharged Offenses: Prior Sexual Offenses As Character Evidence (EC 1108)
F 375 Note 11 Uncharged Offenses: Corpus Delicti Rule Not Applicable
F 375 Note 12 Uncharged Offenses: EC 352 Analysis
F 375 Note 13 Flight During Prior Unrelated Offense Not Admissible To Show Intent Or Motive
F 375 Note 14 Prior Uncharged Offenses: Distinction Between Motive And Common Plan Or Design
F 375 Note 15 Improper To Permit Expert Opinion As To Defendant‘s Criminal Propensity Or Predisposition
F 375 Note 16 Uncharged Act: Relevance Must Be Specified When Case Also Involves Impeachment With Prior
F 375 Note 17 Uncharged Acts: Relevance To Cause Of Death
F 375 Note 18 Uncharged Acts: Admissibility Of Third Party Guilt Evidence
F 375 Note 19 Reverse 1101(b): Using Uncharged Acts Or Misconduct To Bolster The Defense
F 375 Note 20 Due Process Right To Full And Fair Hearing Regarding Use Of Other Crimes/Other Charges
F 375 Note 21 CAVEAT: When CC 375 Given At The Guilt Phase Of Capital Trial
F 375 Note 22 Improper Propensity Argument By Prosecutor: Duty Of Judge To Correct
F 375 Note 23 Other Crimes Evidence: No Juror Unanimity As To Preliminary Fact
F 375 Note 24 CC 375 Is A Cautionary/Limiting Instruction Which Should Not Be Given Over Defense Objection

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F 375 Note 1 Bifurcation When Other Crimes Evidence Prejudicial

When the other crimes evidence is “highly prejudicial,” the court should bifurcate the guilt trial and special circumstances trial so that the prejudicial material will not be considered by the jury in making the guilt determination. (People v. Bigelow (1984) 37 C3d 731, 748; see also People v. Velasquez (1980) 26 C3d 425, 432, vacated on other grounds California v. Velasquez (1980) 448 US 903.)

[RESEARCH NOTE: See FORECITE BIBLIO 2.50]

CALJIC NOTE: See FORECITE F 2.50 n1.

F 375 Note 2 Ineffectiveness Of Limiting Instruction As To Other Crimes Evidence

In People v. Felix (1993) 14 CA4th 997, a robbery trial, evidence that both co-defendants had committed a robbery together on a prior occasion was erroneously admitted to prove identity. In evaluating the prejudicial effect of this error, the court concluded that the limiting instruction (CJ 2.50) was “likely to be of little value” because the instruction did not explain how the evidence might tend to show identity and because a proper use of the evidence to show identity “tends to elude reason.” (Felix, 14 CA4th at 1009.) (See also FORECITE BIBLIO, “Empirical Research” (BIBLIO E).)

[RESEARCH NOTE: See FORECITE BIBLIO 2.50]

CALJIC NOTE: See FORECITE F 2.50 n2.

F 375 Note 3 Other Crimes Instruction Dilutes Prosecution’s Burden And CC 224/CC 225

In People v. Medina (1995) 11 C4th 694, 762-64, the court held that other crimes which are offered to prove knowledge, intent or identity are deemed mere “evidentiary facts” that need not be proved beyond a reasonable doubt as long as the jury is convinced, beyond such doubt, of the truth of the “ultimate fact” of the defendant’s knowledge, intent or identity. (See also People v. Carpenter (1997) 15 C4th 312, 380-83 [approving CJ 2.50 but failing to address the conflict between CJ 2.50 (now CC 375) and CJ 2.01 (now CC 224) in cases where identity is at issue].)

However, neither Medina nor Carpenter adequately addressed the conflict between the circumstantial evidence instruction (CC 224), which requires each essential fact to be in the chain of circumstances to be proven beyond a reasonable doubt, and CC 375, which permits consideration of other crimes evidence which are proven by a preponderance of the evidence. Hence, the due process problems with CC 375 remain and should be preserved for federal court.

[See FORECITE F 103.3 Inst 1 and F 319 Inst 1 for instructions which seek to clarify the burdens.]

[RESEARCH NOTE: See FORECITE BIBLIO 2.50.]

CALJIC NOTE: See FORECITE F 2.50 n3.

F 375 Note 4 Admissible Only To Prove Contested Issues

CALCRIM 375 purports to instruct the jury as to how evidence of other crimes may be considered by the jury. However, as a predicate to the admissibility of other crimes evidence and instruction thereon, the issue which the other crimes evidence is offered to prove must be contested. (People v. Rogers (1985) 173 CA3d 205, 212; People v. Wisely UNPUBLISHED PORTION (1990) 224 CA3d 939.) For example, in Wisely the court erred when it told the jury that other crimes evidence was admissible on the issue of intent. Although intent was an element of the crime, it was never contested by the defendant in Wisely. Hence, the evidence was inadmissible and it was error to instruct the jury upon the evidence.

Not only should other crimes evidence be excluded when they do not tend to prove any contested issue, but when such evidence is admitted, the instructions should assure that the jury is directed to consider the evidence only upon the contested issue to which it is relevant. (See People v. Felix (1993) 14 CA4th 997, 1009.) While there is no sua sponte obligation to give CJ 2.50 (People v. Collie (1981) 30 C3d 43, 63-4, “when a trial court does undertake to give a limiting instruction specifically calling attention to the significance of the substantially prejudicial evidence of prior bad acts, it should do so accurately.” (People v. Nottingham (1985) 172 CA3d 484, 497; see also People v. Hayes (1990) 52 C3d 577, 624-25; People v. Edelbacher (1989) 47 C3d 983, 1010.)

[RESEARCH NOTE: See FORECITE BIBLIO 2.50]

CALJIC NOTE: See FORECITE F 2.50 n4.

F 375 Note 5 Admission Of Irrelevant Character Evidence Violates Federal Due Process

McKinney v. Rees (9th Cir. 1993) 993 F2d 1378, 1380-82, held that admission of emotionally charged character evidence to show propensity which is irrelevant to any issues in the trial violates the due process clause of the federal constitution (14th Amendment) and provides the basis for a grant of relief on federal habeas. (See also Henry v. Estelle VACATED 52 F3d 809 (9th Cir. 1993) 993 F2d 1423, 1427-28 [evidence of remote uncharged conduct of child molest by defendant violates due process].)

[RESEARCH NOTE: See FORECITE BIBLIO 2.50]

CALJIC NOTE: See FORECITE F 2.50 n5.

F 375 Note 6 Error To Instruct That Other Crimes May Be Used To Show Criminal Propensity

In People v. Garceau (1993) 6 C4th 140, 186, the court held that it was error to submit a prosecution-requested instruction that allowed the jury to consider other crime evidence “for any purpose, including but not limited to [the defendant’s] character ….” The Supreme Court recognized the “potentially devastating impact of other-crimes evidence” but held that the impact of the instruction was diluted because of other overwhelming evidence establishing the defendant’s guilt. (Garceau, 6 C4th at 187.)

In reaching this result the court assumed, without deciding, that improper consideration of other-crimes evidence is federal constitutional error. (Garceau, 6 C4th at 186.) (See PG VII(B)(20) for additional discussion of this issue.)

[RESEARCH NOTE: See FORECITE BIBLIO 2.50]

CALJIC NOTE: See FORECITE F 2.50 n6.

F 375 Note 7 No Modification Of Prior Acts Instruction Necessary In Light of Ewoldt

In People v. Linkenauger (1995) 32 CA4th 1603, 1614-15, the court held that no modification of CJ 2.50 is necessary in response to People v. Ewoldt (1994) 7 C4th 380, 402, 405. In Linkenauger, the defendant had argued that the trial court was required to match the prior act evidence with each issue to be proven under Ewoldt. The Linkenauger court disagreed, holding that such an instruction would have been argumentative and repetitious.

CALJIC NOTE: See FORECITE F 2.50 n7.

F 375 Note 8 Other Crimes Limiting Instruction: No Sua Sponte Duty

People v. Hawkins (1995) 10 C4th 920, 942 held that the trial court did not err in failing to furnish a limiting instruction sua sponte on cross-admissible evidence in a trial of multiple crimes.

CALJIC NOTE: See FORECITE F 2.50 n8.

F 375 Note 9 Uncharged Offenses: Specification Of Instructions Applicable To Determination Of Uncharged Offense

See FORECITE F 375 Inst 11.

F 375 Note 10 Uncharged Offenses: Prior Sexual Offenses As Character Evidence (EC 1108)

See FORECITE F 1191 et seq.

F 375 Note 11 Uncharged Offenses: Corpus Delicti Rule Not Applicable

There is no requirement that the corpus delicti of a defendant’s uncharged bad acts be proven independently of the defendant’s admission. (People v. Martinez (1996) 51 CA4th 537.)

CALJIC NOTE: See FORECITE F 2.50 n11.

F 375 Note 12 Uncharged Offenses: EC 352 Analysis

Doubt Favors Defendant. The exercise of discretion to admit or exclude evidence pursuant to EC 352 should favor the defendant in cases of doubt because in comparing prejudicial impact with probative value, the balance “is particularly delicate and critical where what is at state is a criminal defendant’s liberty.” (People v. Lavergne (1971) 4 C3d 735, 744; People v. Murphy (1963) 59 C2d 818, 829.)

Factors To Be Considered. People v. Harris (1998) 60 CA4th 727, 737-39 held that admission of a 23-year old violent prior was error. The court set out five factors based on EC 352 which it considered in determining that the evidence was inadmissible.

CALJIC NOTE: See FORECITE F 2.50 n12.

F 375 Note 13 Flight During Prior Unrelated Offense Not Admissible To Show Intent Or Motive

People v. Scheer (1998) 68 CA4th 1009 held that the fact that the defendant committed a prior uncharged offense which involved flight from a police officer had no relationship to the charged offense and, hence, was inadmissible to prove either intent or motive. (The evidence was not admissible on the issue of intent because the charged crime was a general intent crime.)

CALJIC NOTE: See FORECITE F 2.50 n13.

F 375 Note 14 Prior Uncharged Offenses: Distinction Between Motive And Common Plan Or Design

People v. Scheer (1998) 68 CA4th 1009 concluded that the trial court improperly instructed the jury on the distinct concepts of motive and common plan or design by failing to distinguish between them. “Evidence of a common design or plan is admissible to establish that the defendant committed the act alleged.” (People v. Ewoldt (1994) 7 C4th 380, 394, fn 2 [emphasis in original].) Accordingly, a common design or plan, like motive, is simply an intermediate fact. (Scheer, 68 CA4th at 1017.) “Unlike motive, however, a common plan or scheme depends on the existence of striking similarities between the prior misconduct and the charged crime, and a nexus between the commission of the two is necessary. In other words, a common scheme or plan focuses on the manner in which the prior misconduct and the current crimes were committed ….” (Ibid.)

“The presence of the same motive in both instances may be a contributing factor in finding a common plan or design. [Citation.] In contrast, the converse is not true. The manner in which the prior misconduct was committed, which is the focus of the common plan or design inquiry, does not give rise to a motive, i.e., incentive or impetus, for commission of the charged crime.” (Ibid.)

CALJIC NOTE: See FORECITE F 2.50 n14.

F 375 Note 15 Improper To Permit Expert Opinion As To Defendant’s Criminal Propensity Or Predisposition

People v. McFarland (2000) 78 CA4th 489 held that neither EC 1101(b) nor EC 1108 authorize the prosecution to present in its case-in-chief opinion testimony bearing on a defendant’s character or propensity to commit the crime charged. An expert’s opinion about a defendant’s disposition to engage in sexual conduct with children, based on the expert’s review of court records and psychiatric reports from defendant’s prior convictions for lewd conduct with a child, is a form of character evidence and is not permitted unless it 1) tends to prove a fact, such as motive or opportunity, or 2) is offered in rebuttal after the defendant has put his character at issue, or 3) it is evidence of specific prior acts.

CALJIC NOTE: See FORECITE F 2.50 n15.

F 375 Note 16 Uncharged Act: Relevance Must Be Specified When Case Also Involves Impeachment With Prior

When evidence of a prior conviction has been admitted for impeachment purposes and other-crimes evidence also has been admitted pursuant to EC 1101(b), the trial court should instruct the jury as to which evidence is referred to in the CJ 2.50 instruction, in order to avoid confusion. (People v. Rollo (1977) 20 C3d 109, 123 fn 6; see also People v. Catlin (2001) 26 C4th 81, 147.)

CALJIC NOTE: See FORECITE F 2.50 n16.

F 375 Note 17 Uncharged Acts: Relevance To Cause Of Death

(See People v. Catlin (2001) 26 C4th 81, 104.)

CALJIC NOTE: See FORECITE F 2.50 n17.

F 375 Note 18 Uncharged Acts: Admissibility Of Third Party Guilt Evidence

See FORECITE F 375 Inst 12.

F 375 Note 19 Reverse 1101(b): Using Uncharged Acts Or Misconduct To Bolster The Defense

See Article Bank # A-94 for an article on this issue.