Opinion Bank # O-251 (Re: PG X(E)(8.1) / F 2.50.01a [Conflict Between Instructions Does Not Clarify Which Applies / Evidence Of Other Sexual Offenses (EC 1108): Jury Must Find Defendant Guilty Of Charged Offense Beyond A Reasonable Doubt].)
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THE PEOPLE, Plaintiff and Respondent, v.
HECTOR FERNANDO GUZMAN, Defendant and Appellant.
COURT OF APPEAL OF CALIFORNIA, FIRST APPELLATE DISTRICT,
73 Cal. App. 4th 103; 86 Cal.Rptr. 2d 164
June 28, 1999, Filed
NOTICE: NOT CITABLE – ORDERED NOT PUBLISHED
SUBSEQUENT HISTORY: Review Denied October 20, 1999 and the Reporter of Decisions directed not to publish this opn. in the Official Reports (Cal. Const., art. VI, § 14; rule 976, Cal. Rules of Ct.)
PRIOR HISTORY: The Superior Court of Contra Costa County. Contra Costa County Super. Ct. No. 96190-99. William M. Kolin.
COUNSEL: Counsel for Defendant and Appellant: John Ward, under appointment by the Court of Appeal.
Counsel for Plaintiff and Respondent: Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Assistant Attorney General, Richard Rochman and Lisa H. Ashley, Deputy Attorneys General.
JUDGES: Walker, J. We concur: McGuiness, P. J., Parrilli, J.
OPINION: [Page 106] Hector Fernando Guzman appeals his convictions following a jury trial of continuous sexual abuse of a child (Pen. Code, § 288.5 (all statutory references are to the Penal Code unless otherwise indicated)), committing lewd and lascivious acts by force on a child (§ 288, subd. (b)), and attempted lewd acts with a child (§§ 288, subd. (a) & 644). Guzman contends the trial court’s instructions on the jury’s consideration of evidence of other uncharged sex offenses failed to convey adequately the concept of reasonable doubt to the jury. We agree that the jury instructions as a whole do not adequately convey the standard of proof in this case. We base our conclusion on the conflict between the uncharged crimes instructions and the instructions on the prosecution’s burden of proof for conviction.
We therefore reverse Guzman’s conviction. Guzman also contends that the trial court erroneously admitted evidence that he killed someone in El Salvador. Because this evidence was relevant and not unduly prejudicial, we hold that the court did not err.
A. The Charges
Guzman was charged by an amended information with the continuous sexual abuse of Jane Doe One [Footnote 1] between January 14, 1994, and September 12, 1996, in violation of section 288.5 (count 1); lewd conduct with use of force on Jane Doe Two between January 1, 1995, and December 31, 1995, in violation of section 288, subdivision (b) (count 2); and attempted lewd conduct with Jane Doe Two on September 12, 1996, in violation of sections 288, subdivision (a) and 664 (count 3). The information also alleged that Guzman personally used a dangerous weapon, a machete, during the commission of count 1. The information finally alleged that Guzman was ineligible for probation because, during the commission of count 1, he used a weapon (§ 1203.066, subd. (a)(4)) and engaged in substantial sexual conduct with a child under the age of 14 (§ 1203.066, subd. (a)(8)), and because he committed all of the crimes through force or fear (§ 1203.066, subd. (a)(1)), with multiple victims (§ 1203.066, subd. (a)(7)), and while occupying a position of special trust (§ 1203.066, subd. (a)(9) (1993)). [Footnote 2]
B. The Testimony
The prosecution began the presentation of its case with the testimony of Jane Doe Two. She testified that Guzman lived in the same household as she and her sister, Jane Doe One, and their families. Jane Doe Two was born on November 2, 1983, and was 13 at the time of trial. Jane Doe Two testified that in 1993 Guzman offered her $ 10 if he could kiss her on the lips. Jane Doe Two refused. In 1994 or 1995, Guzman beckoned to Jane Doe Two, indicating that she should join him in bed. She refused because he had a “bad intention.” Jane Doe Two testified that she was scared of Guzman because he had told her and her family that he had killed people in El Salvador.
In 1995, Guzman grabbed Jane Doe Two’s hand as the two of them sat on the couch. Guzman told her to touch his “private part.” Guzman then pulled her hand and forced her to touch his penis. [Page 108] On another occasion, when Jane Doe Two was 10 or 11 years old, Guzman took her and her stepsister to a deserted place by the ocean. He showed the girls magazines containing pictures of naked people performing sex acts. Guzman told the girls not to tell anyone about the magazines or there would be a “serious problem in the family.” In May or June of 1996, Guzman walked into the kitchen with Jane Doe Two and her stepsister. He took a pickle from the refrigerator and placed a condom on it. He told the girls, “that’s how [they] had to do when [they had] sex.”
On September 12, 1996, Guzman took Jane Doe Two to school and stopped the car. He offered Jane Doe Two $ 25 to have anal sex with him. She refused and got out of the car.
Jane Doe One testified to a number of incidents that occurred between the time when she was about seven until she was nine, from January 14, 1994, to September 12, 1996. The first incident occurred when Guzman and Jane Doe One were in her bedroom. Guzman took her clothes off and touched her buttocks with his hand. Jane Doe One was afraid because Guzman had a machete with him and he threatened to kill her family if she told anyone. Guzman had previously told her that he had killed people in El Salvador.
In the second incident, Guzman picked Jane Doe One up from school and drove to a park. He then took her clothes off and touched her buttocks with his hand. Guzman threatened to kill Jane Doe One’s family if she told anyone. When she tried to escape, Guzman pulled her back in the car and touched her again.
The third instance of abuse happened when Jane Doe One came home from school and Guzman pulled her into the living room by her hand. He touched her buttocks under her clothes. Guzman then took Jane Doe One’s clothes off and took her to his bedroom. There, he pulled down his pants and placed Jane Doe One’s hands on his genitals. [Footnote 3] Guzman again threatened to kill Jane Doe One’s family if shetold anyone of the molestation.
In the fourth episode, Guzman entered Jane Doe One’s bedroom early onemorning while the rest of her family was away. Guzman had his machete with him. He took off Jane Doe One’s clothes and touched her buttocks. Guzman told her he would kill her family if she told anyone. The fifth incident happened when Guzman took off Jane Doe One’s clothes and touched her buttocks. Jane Doe Onetold Guzman not to touch her and he picked her up and threw her onto the floor, twisting her leg. Guzman had his [Page 109] machete with him. He again threatened to kill Jane Doe One’s family if she told anyone about the molestation.
Jane Doe One also testified that Guzman “put his privacy in [her] bottom” at his workplace, [Footnote 4] kissed or licked her genitals, and put his mouth on her chest on different occasions. Another time, Guzman showed Jane Doe One photographs of women licking men’s “privacy.” All of these incidents occurred after the very first time Guzman touched her and before he was arrested, between January 14, 1994, and September 12, 1996.
Guzman did not object to the testimony of Jane Doe One and Jane Doe Two regarding uncharged conduct. The court gave the jury limiting instructions on its consideration of the evidence of Guzman’s murder of people in El Salvador. The court gave no other limiting instructions.
Police officers found a machete in Guzman’s car after his arrest. In rebuttal, Guzman’s wife testified that she spoke to him by phone while he was in jail. She told Guzman that he deserved to be in jail. Guzman responded that “the devil . . . had touched him.”
Guzman testified and denied ever molesting or inappropriately touching Jane Doe One or Jane Doe Two. He denied the pickle incident. He denied showing pornographic magazines to the sisters and claimed that someone must have put the magazines in his car. He claimed that he used machetes for construction, gardening, or cooking, and kept one machete under his bed for protection. Guzman claimed what he really said to his wife while he was in jail was that “the devil had gotten into her” for her to accuse him of the molestations.
C. Instructions and Closing Arguments
The court instructed the jury before and after closing arguments, breaking the instructions into three parts. Before the prosecutor’s closing argument, the court gave a number of standard instructions to the jury, including CALJIC No. 1.01, which instructs the jury to consider the instructions as awhole, and not to single out any individual instruction. The court also gave CALJIC No. 2.01, concerning the jury’s consideration of circumstantial evidence. As relevant here, the court instructed the jury: “[A] finding of guilt as to any crime may not be based on circumstantial evidence unless the proved circumstances are not only, first, consistent with the theory [that] thedefendant is guilty of the crime, but, two, cannot be reconciled with any other rational conclusion. [P] Further, each fact which is essential to complete a set of circumstances necessary to establish the defendant’s guilt must [Page 110] 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 on which the inference necessarily rests must be proved beyond a reasonable doubt.” (See CALJIC No. 2.01.)
The last instruction given before the prosecution’s closing argument was the following on the prosecution’s burden of proof: “A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown he is entitled to a verdict of not guilty. This presumption places upon the People the burden of proving him guilty beyond a reasonable doubt.” (See CALJIC No. 2.90.) The court also defined “reasonable doubt.”
In her closing arguments, the prosecutor stated that count 1, the continuous sexual abuse of a child, involved Jane Doe One, and counts 2 and 3, forcibly committing a lewd act on a child and the attempted commission of a lewd act on a child, involved Jane Doe Two. The prosecutor correctly explained the elements of count 1, and stated that all of the incidents described by Jane Doe One occurred during the time period charged in the information.
The prosecutor then discussed the charges involving Jane Doe Two. The prosecutor stated that count 2, forcibly committing a lewd act on a child, consisted of the incident when Guzman grabbed her hand and forced her to touch his groin. The prosecutor then explained that there was proof that Guzman committed the act “with the specific intent to arouse, appeal to, or gratify the lust, passions, or sexual desires” of Guzman. The prosecutor introduced the discussion as follows: “The Court will be giving to you several laws as to how you can determine that the intent and the disposition to commit these offenses by the defendant was in fact there. The way you can use that is to look at the prior acts the defendant did against Jane [Doe] Two. This is just against Jane [Doe] Two only, to use those acts to show that he not only had the–the intent to satisfy his desires on Count Two and Count Three, but he had the disposition to do so by virtue of his sexual inclination toward Jane [Doe] Two. . . . I want to remind everybody that those acts are not charged at all as crimes here. They are here for the limited purpose for you to determine that the defendant had the intent and/or disposition against the victim, Jane [Doe] Two, to commit these two crimes, Count Two and Three.” The prosecutor then set out the four “prior acts”: the [Page 111] offer of $ 10 for a kiss, the beckoning while Guzman was in bed, the exhibition of pornography to her, and the pickle incident. [Footnote 5]
The prosecutor, anticipating the instructions that the court would soon give, then stated, “The Court will further . . . tell you [that] if you find that the defendant committed a prior sexual offense, and this is only against Jane [Doe] Two at this time, you may, but are not required, to inferthat the defendant had a disposition to commit this same or similar type sexual offense. Now, if you find that the defendant had this disposition, you may but are not required to infer that he was likely to commit and did commit the crime or crimes of which he is accused. Simply put, . . . this law gives you another important tool if you believe Jane [Doe] Two and [her stepsister] regarding these prior incidents. . . . You may infer that the defendant was likely to commit Count Two, the [ § ] 288 (b) against Jane [Doe] Two and Count Three[,] the attempted [ § ] 288(a) against Jane Two at the school yard.”
The prosecutor informed the jury that the court would give them a number of “instructions on misdemeanor laws as they pertain to these prior similar acts,” such as exhibiting obscene matter and annoying a child. “This is not for you to determine at least as far as I’m talking about, whether or not he’s guilty of those charges, because of those four acts. That is only to guide you in ascertaining that those acts are in fact sexual offenses and can be used to determine [if] he had the intent and disposition . . . .” [Footnote 6]
The prosecutor discussed count 3 involving Jane Doe Two, noting that it was an attempt and that the elements were similar to those in count 2 except for the use of force.
Returning to count 1, the prosecutor argued that there were more than three qualifying acts to support the section 288.5 charge. The prosecutor [Page 112] went through each of the acts to which Jane Doe One testified, except the exhibition of pornography, and argued that all of the acts applied to count 1.
Guzman’s attorney presented a short closing argument in which she first reminded the jurors that the prosecution had to prove guilt beyond a reasonable doubt and that the burden “never shifts” from the prosecution. Counsel also mentioned that the prosecution presented evidence of four incidents, the offer of money for a kiss, the beckoning from Guzman’s bed, the exhibition of pornography to her, and the pickle incident. Counsel stated that these incidents were “to prove his intent.”
In her rebuttal, the prosecutor told the jury that they would be instructed on lesser included offenses, and that they could convict Guzman of any of these charges if they did not find the charged offenses proven.
The court then gave the second series of instructions, including modified versions of CALJIC Nos. 2.02 and 3.31, involving specific intent and the joint operation of specific intent and the act. Both instructions referred to “Counts One, Two, and Three” and set out the code sections for these charges. The instructions also referred to a number of “lesser crimes,” including “Penal Code Section 243.4(d), Sexual Battery, Penal Code Section 647.6, Annoy or Molest a Child Under the Age of Eighteen, Penal Code Section 647(a), Lewd Conduct, Penal Code Section 288(a), Lewd and Lascivious Act Upon a Child Underthe Age of Fourteen.”
The court next instructed the jury on the elements of the charged crimes. In order for the juryto convict Guzman of continuing sexual abuse (§ 288.5), the court stated that the prosecution had “to prove beyond a reasonable doubt the commission of all of the acts described by the alleged victims . . . or victim within the period alleged. [P] In order to find the defendant guilty, you must unanimously agree upon the commission of all of the acts described by the alleged victim within the period alleged.” (See CALJIC No. 4.71.5.) The court then instructed the jury on the elements of a violation of section 288.5 pursuant to CALJIC No. 10.42.6. This instruction also informed the jury: “Evidence has been introduced for the purpose of showing that there are more than three acts of substantial sexual conduct or lewd and lascivious conduct upon which a conviction in Count One may be based. Defendant may be found guilty if the proof shows beyond a reasonable doubt and you unanimously agree that the defendant committed three of these acts. It is not necessary that you unanimously agree on which acts constitute the required number.”
The court defined the elements of section 288, subdivision (b)(1) (count 2), and an attempted violation of section 288, subdivision (a) (count 3), with CALJIC Nos. 10.42, 10.41, 6.00, and 6.01.
[Page 113] Following a break, the court instructed the jury on its use of evidence of other uncharged sex offenses with CALJIC No. 2.50.01, as follows: [Footnote 7]
“Evidence has been introduced for the purpose of showing the defendant engaged in a sexual offense on one or more occasions other than that charged in
“Sexual offense is defined as . . . any of the following:
“. . . Any conduct made criminal, namely by a violation of Section 311.2(a) Exhibition of Obscene Matter to Others, Penal Code Section 647(a) Lewd Conduct, and Penal Code Section 647.6 Annoying or Molesting a Child. The elements of these crimes are set forth elsewhere in these instructions.
“. . . Contact, without consent, between any part of the defendant’s body or an object in [sic] the genitals or anus of another person.
“. . . Contact, without consent between the genitals or anus of the defendant and any part of another person’s body.
“If you find that the defendant committed a prior sexual offense, you may, but are not required to[,] infer that the defendant had a disposition to commit the same or similar type sexual offenses. If you find that the defendant had this disposition, you may, but are not required to, infer that he was likely to commit and did commit the crime or crimes of which he’s accused.” The court also instructed the jury on the prosecution’s burden of proof under CALJIC No. 2.50.1, as follows in part:
“Within the meaning of the preceding instructions, the prosecution has theburden of proving by a preponderance of the evidence that a defendant committed crimes or sexual offenses [Page 114] other than those for which he is on trial.” The court defined “preponderance of the evidence,” using CALJIC No. 2.50.2. [Footnote 8]
The court then stated, “Now, I just read you three charges that are not charged in this particular case, but that I just read to you. You can consider. What I’m going to do is just read those three charges and the elements of those three charges. [P] First charge, lewd conduct, a violation of Penal Code Section 647(a).” The court then defined the three elements of a violation of section 647, subdivision (a), soliciting another to engage in lewd conduct. (See CALJIC Nos. 16.400 and 16.403.) The court next referred to “the second charge which is not actually charged in this case, but you may consider,” and defined the two elements of annoying or molesting a child, section 647.6. [Footnote 9] (See CALJIC No. 16.440.) The court also defined “the third offense that you may consider,” exhibition of obscene material, section 311.2, subdivision (a). (See CALJIC Nos. 16.180, 16.181.)
The trial court further instructed the jury that “evidence has been introduced for the purpose of showing lewd or lascivious acts between the defendant and the victim or victims on one or more occasions other than charged in the case.” The court stated that such evidence could be used “only for the limited purpose of tending to show the defendant’s lewd dispositions or intenttoward the child or children.” [Footnote 10] (See CALJIC No. 10.43.)
[Page 115] The court then stated, “Let’s talk about what’s entitled lesser included offenses.” The court explained to the jury that, if they were not satisfied of Guzman’s guilt of the charged crimes, “you may nevertheless convict him of any lesser crime, if you are convinced beyond a reasonable doubt that the defendant is guilty of such lesser crime or crimes.” The court informed the jury that violations of the following were lesser crimes to count 1: section 288, subdivision (b)(1) (forcible lewd act with a child); section 288, subdivision (a) (lewd act with a child); section 243.4, subdivision (d) (sexual battery); and section 647.6 (annoying or molesting a child). The court informed the jury of the following lesser crimes of count 2: section 288, subdivision (a), and section 647.6. Finally, the court stated, “Lewd Conduct, a violation of Penal Code 647(a), a misdemeanor, is lesser to that charged in Count Three.” The court next stated, “Now, I’ve given all of those crimes, lesser crimes or lesser charges to you in other portions of the instructions. The only one that has not yet been defined is a charge of sexual battery and let me define that to you.” The court gave the definition of sexual battery, section 243.4, subdivision (d).
Finally, the court gave the jury definitions of the various sentence enhancements and probation ineligibility allegations. The court instructed the jury that all of the enhancements and allegations must be proved beyond a reasonable doubt.
A. Jury Instructions Deprived Guzman of Due Process by Misstating the Burden of Proof Necessary For Conviction
1. The Instructions, Taken as a Whole, Did Not Adequately Convey the Prosecution’s Burden of Proof Beyond a Reasonable Doubt
We must decide whether the jury instructions, taken as a whole, permitted or enabled the jury to convict Guzman by a preponderance of the evidence, rather than the constitutionally required proof beyond a reasonable doubt. We conclude that the instructions enabled the jury to convict with the unconstitutional lower burden of proof.
Due process requires that the prosecution prove a defendant’s guilt beyond a reasonable doubt. ( In re Winship (1970) 397 U.S. 358, 364, 25 L. Ed. 2d 368, 90 [Page 116] S. Ct. 1068; see People v. Roder (1983) 33 Cal. 3d 491, 497, 189 Cal. Rptr. 501, 658 P.2d 1302.) The Sixth Amendment requires that the jury, not the trial court, find the defendant guilty beyond a reasonable doubt. (Sullivan v. Louisiana (1993) 508 U.S. 275, 278, 124 L. Ed. 2d 182, 113 S. Ct. 2078; People v. Avila (1995) 35 Cal. App. 4th 642, 655.) Jury instructions violate these constitutional requirements if “there is a reasonable likelihood that the jury understood the instructions to allow conviction based on proof insufficient to meet the Winship standard” of proof beyond a reasonable doubt. (Victor v. Nebraska (1994) 511 U.S. 1, 6, 127 L. Ed. 2d 583, 114 S. Ct. 1239.) “The Due Process Clause requires the government to prove a criminal defendant’s guilt beyond a reasonable doubt, and trial courts must avoid defining reasonable doubt so as to lead the jury to convict on a lesser showing than due process requires.” ( Id. at p. 22.) We initially focus on the specific challenged instructions to determine if it is reasonably likely that the jury understood the instructions to permit a conviction based on a standard of proof less than beyond a reasonable doubt. We then look to the jury instructions as a whole to see if “other instructions might explain the particular infirm language” to convey correctly the concept of reasonable doubt to the jury. ( Francis v. Franklin (1985) 471 U.S. 307, 315, 85 L. Ed. 2d 344, 105 S.Ct. 1965; see Victor, supra, 511 U.S. at pp. 22-23; Avila, supra, 35 Cal. App.
4th at p. 658, fn. 9.)
Initially, we note the scope of the CALJIC No. 2.50.01 uncharged crimes instruction. Considering the prosecution’s closing argument, one might think that the instruction had limited application. The prosecutor argued that only four incidents could be used to determine Guzman’s intent and sexual disposition: the offer of money to Jane Doe Two for a kiss; Guzman’s beckoning to her from the bedroom; the exhibition of pornography to her and her stepsister; and the pickle incident. The prosecutor also stressed that these four incidents could be considered only in relation to the charges involving Jane Doe Two.
The prosecutor’s argument was at odds with the court’s instructions. The CALJIC No. 2.50.01 instruction did not restrict the jury’s consideration to any specific incidents or acts, much less to acts involving Jane Doe Two. The uncharged crimes instructions also generally referred to uncharged acts involving “another person,” “persons,” the “victims,” or “Jane DOE Two and/or Jane DOE One.” Similarly, various instructions relating to other uncharged crimes evidence stated that the uncharged crimes could be used to show Guzman’s intent or disposition toward another “person or persons,” “the child or children,” or with respect to “the crime or crimes of which he’s accused.” Thus, the instruction did not limit the jury’s [Page 117] consideration only to uncharged sex offenses committed against Jane Doe Two, or to prove his intent and disposition regarding counts 2 and 3.
Turning to the instruction, the version of CALJIC No. 2.50.01 given to the jury permitted it to make a two-step inference. The instruction first enabled the jurors to infer that Guzman had a disposition or propensity to commit sex crimes based upon the commission of uncharged crimes similar to or the same as those for which he was on trial. The instruction goes one step further and permits the jury, based on the inference that Guzman had such a criminal propensity, to infer that he was likely to and “did commit the crime or crimes of which he’s accused.” (See CALJIC No. 2.50.01, italics added.) Furthermore, CALJIC No. 2.50.1 allowed the jury to find the predicate fact, that he committed the other uncharged offenses, by a preponderance of the evidence. We conclude that the two instructions, when read together, authorize a determination of guilt based purely on a finding by a preponderance of the evidence that Guzman committed other uncharged sex offenses.
We next must look to the other instructions and the entire record to determine if they clarified the misleading uncharged crimes instructions. [Footnote 11] (Victor, supra, 511 U.S. at pp. 22-23; Estelle v. McGuire (1991) 502 U.S. 62, 72, 116 L. Ed. 2d 385, 112 S. Ct. 475; Avila, supra, 35 Cal. App. 4th at p. 658, fn. 9.)
We look for clarification to those instructions explaining the prosecution’s burden of proof and the jury’s consideration of circumstantial evidence. CALJIC No. 2.90, as given by the court, instructed the jury in general terms to presume that a defendant is innocent and that the prosecution has the burden of proving guilt beyond a reasonable doubt. The jury could conclude that CALJIC No. 2.90 generally requires a conviction by proof beyond a reasonable doubt. However, the reasonable doubt instruction did not indicate that it usurps
or modifies the uncharged crimes instructions, nor do the uncharged crimes instructions refer to CALJIC No. 2.90. There is a reasonable likelihood, therefore, that the jury concluded that the uncharged crimes [Page 118] instructions were more specific than the reasonable doubt instruction, and that they provided an alternate method of proving Guzman guilty. The general instruction on the prosecution’s burden of proof thus did not clarify the uncharged crimes instructions. (See Francis, supra, 471 U.S. at pp. 319-320, 105 S. Ct. at pp. 1973-1974.)
A further problem with the reasonable doubt instruction is that the jury could interpret it as directly contradictory to the uncharged crimes instructions. A conflict between instructions does not clarify either instruction. As the United States Supreme Court observed in a similar analysis, “Nothing in these specific sentences or in the charge as a whole makes clear to the jury that one of these contradictory instructions carries more weight than the other. Language that merely contradicts and does not explain a constitutionally infirm instruction will not suffice to absolve the infirmity. A reviewing court has no way of knowing which of the two irreconcilable instructions the jury applied in reaching their verdict.” (Francis, supra, 471 U.S. at p. 322.)
The court’s instruction to the jury on circumstantial evidence under CALJICNo. 2.01 exacerbates the problem. CALJIC No. 2.01 requires that preliminary facts be proved beyond a reasonable doubt when those facts lead to an inference essential to establish guilt. CALJIC Nos. 2.50.01 and 2.50.1 are more specific instructions on the jury’s consideration of circumstantial evidence regarding other uncharged sex crimes. In direct conflict with CALJIC No. 2.01, the uncharged crimes instructions permit the jury to infer guilt based on proof by a preponderance of the evidence that Guzman committedother uncharged crimes. Neither set of instructions on the jury’s consideration of circumstantial evidence gives any clue as to which set is controlling, and we have “no way of knowing which of the two irreconcilable instructions the jurors applied in reaching their verdict.” (Francis, supra, 471 U.S. at p. 322.)
The People argue that the court clarified the uncharged crimes instructions by instructing the jury on the elements necessary to convict Guzman on count 1 of the information, the section 288.5 offense.
The first notable aspect of the instructions on the elements of the continuing sexual abuse offense (§ 288.5) is that they are inconsistent. The committed all the acts described by the victim. Further instructions inform the [Page 119] jury that it need only agree that he committed three of the acts. The jury surely had no way of reconciling these instructions. [Footnote 12]
The section 288.5 instruction also does not specify which acts that Jane Doe One described can be considered “substantial sexual conduct.” The prosecutor listed for the jury in her closing argument all of the incidents described by Jane Doe One, except for the exhibition of pornography, and argued that these incidents all qualified under count 1. The wording of the CALJIC No. 2.50.01 instruction, however, also invited the jury to use any sexual offense, defined as any sexual touching, to make an inference of disposition and guilt. The jury thus had the choice of finding that some or all of the incidents described by Jane Doe One were acts of substantial sexual conduct under the section 288.5 instruction, or uncharged sexual offenses under the CALJIC No. 2.50.01instruction.
The section 288.5 instruction also suffers from similar problems as the reasonable doubt instruction given pursuant to CALJIC No. 2.90. The jury may have harmonized the uncharged crimes instructions with the section 288.5 instruction. Instead of following the section 288.5 instruction to convict Guzman, the jury could have concluded that the uncharged crimes instructions provided an alternative route to a conviction under section 288.5. As the United States Supreme Court held in Francis, a correct instruction does not clarify a constitutionally infirm instruction if the jury could apply either instruction to arrive at a verdict. (Francis, supra, 471 U.S. at pp. 319-320.) A reasonable likelihood also exists that the jury found that the instruction on the section 288.5 offense conflicts directly with the uncharged crimes instructions. Again, “language that merely contradicts and does not explain a constitutionally infirm instruction will not suffice to absolve the infirmity.” ( Id. at p. 322.) We have no basis for resolving “which of the two irreconcilable instructions the jury applied in reaching their verdict.” (Ibid.) We lack any confidence that the instructions on the section 288.5 offense clarified the jury’s interpretation of the uncharged crimes instructions. [Footnote 13]
The People argue that the court’s limiting instruction on the use of other uncharged crimes evidence guarded against the jury’s misuse of the evidence [Page 120] to convict Guzman on a lower standard of proof. We cannot agree. The limiting instruction did not restrict the jury’s ability to infer that Guzman committed the charged crimes. In fact, the instruction authorized the jury to infer that he had a disposition to commit sex crimes. The jury could then use this inference to infer that Guzman committed the charged crimes. Moreover, a jury can reasonably interpret the limiting instruction as conflicting with the uncharged crimes instructions. While the uncharged crimes instructions enabled the jury to make the broad inference that Guzman committed the charged crimes, the jury could read the limiting instruction to restrict the jury’s use of other sex crimes to show his intent or disposition only. Conflicting language in two instructions cannot cure the deficiencies in one of them. (Francis, supra, 471 U.S. at pp. 319-320.)
Other instructions, and the manner in which they were presented, created more potential sources of confusion relating to the uncharged crimes instructions. The court referred to crimes other than those specifically charged when it gave the CALJIC Nos. 2.02 and 3.31 instructions. These instructions referred not only to the charged crimes but to a host of other crimes, which the instructions designated “lesser crimes.” These lesser crimes included sexual battery (§ 243.4, subd. (d)), annoying or molesting a child (§ 647.6), soliciting another to engage in lewd conduct (§ 647, subd. (a)), and lewd conduct with a child (§ 288, subd. (a)). The court followed these instructions with definitions of the charged crimes, and then with the other uncharged crimes instructions.
Immediately after the CALJIC Nos. 2.50.01, 2.50.1, and 2.50.2 instructions, the court enigmatically referred to the “three charges that are not charged in this particular case,” and told the jury they could consider these charges or “offenses.” The court then defined the offenses of soliciting another to engage in lewd conduct (§ 647, subd. (a)), and annoying or molesting a child (§ 647.6), along with exhibiting obscene material (§ 311.2, subd. (a)). The court shortly thereafter returned to the concept of lesser crimes, explaining that the jury may convict Guzman of lesser crimes of the charged crimes. The court set out the code sections and descriptions of crimes that were considered lesser crimes of each of the charged offenses. The court defined only one of these lesser crimes, sexual battery, explaining that the court previously gave “all of those crimes . . . or lesser charges . . . in other portions of the instructions.” This statement refers partly to the [Page 121] definitions of soliciting another to engage in lewd conduct and annoying or molesting a child given in the context of the uncharged crimes instructions.
The series of instructions we describe is confusing because the court did not attempt to differentiate clearly between the qualifying uncharged offenses for purposes of the CALJIC No. 2.50.01 instructions, the charged offenses, and the lesser related offenses. The court referred to other uncharged crimes as “charges that are not charged.” The instructions stated that violations of some Penal Code sections qualified as both uncharged crimes for purposes of CALJIC No. 2.50.01 and as lesser offenses to the charged crimes. The court defined the elements of some of the lesser crimes in the context of the instructions on other uncharged offenses. The intermingled, confusing nature of the instructions raises exactly the possibility of jury confusion the trial court foresaw.
Because no other instructions qualified the uncharged crimes instructions to set forth the correct burden of proof for a conviction, we cannot discount the possibility that the jury applied the instructions unconstitutionally. (Francis, supra, 471 U.S. at pp. 322-323; see Sandstrom v. Montana (1979) 442 U.S. 510, 517, 61 L. Ed. 2d 39, 99 S. Ct. 2450.)
We do not find anything else in the record that clarifies the ailing instructions. The People emphasize that Guzman’s attorney in closing argument reminded the jury that it must prove Guzman guilty beyond a reasonable doubt. Never, however, did counsel mention the uncharged crimes instructions or guide the jury’s proper consideration of the uncharged crimes evidence. Neither the court nor counsel tied the uncharged crimes instructions to the reasonable doubt requirement. Moreover, the prosecutor muddied the waters by telling the jury that the uncharged crimes evidence applied only to Jane Doe Two, and only involved four incidents involving her. The jury was left to puzzle out the prosecutor’s comments and the conflicting and irreconcilable instructions on its own.
Although we must reverse the conviction because CALJIC No. 2.50.01 generally permitted the jury to find Guzman “did commit the crime” based on a finding, by a preponderance of the evidence, that he committed uncharged sex offenses, we note the instructions were also defective because they specifically permitted the jury to find an essential element of the offense–Guzman’s specific intent–by a mere preponderance of the evidence.
CALJIC No. 2.01 informed the jury that “before an inference essential to establish guilt may be found to have been proved beyond a reasonable doubt, [Page 122] each fact or circumstance on which the inference necessarily rests must be proved beyond a reasonable doubt.” The argument, and instructions as a whole,however, permitted the jury to use the “other sexual offense” evidence to infer that the defendant had the required specific intent. (CALJIC Nos. 2.02,2.50.01.) Although the court instructed the jury it must be satisfied beyond areasonable doubt that the defendant had the required specific intent (CALJIC Nos. 2.02, 2.90), the instructions also permitted the jury to find the “facts or circumstances on which the inference necessarily rests” (i.e., the uncharged crimes evidence) by a mere preponderance of the evidence. Thus, the instructions permitted the jury to find that Guzman had the necessary specific intent by finding, based on the preponderance of the evidence, that he had committed the uncharged sexual offenses.
This was essentially a direct evidence case. The prosecution relied on the victims’ testimony and that of a stepsister to corroborate. However, in this case, the uncharged crimes evidence is best analyzed as circumstantial evidence of intent. Such evidence establishes facts from which the jury draws inferences as to the existence of the defendant’s specific intent in the present case. ( People v. Ewoldt (1994) 7 Cal. 4th 380, 402, 867 P.2d 757 [The recurrence of a similar result tends increasingly with each instance to disprove accident or inadvertence or other innocent mental state, and tends to establish the “normal” criminal intent accompanying the act.].) The trial court placed no effective limitation on the use of the uncharged crimes evidence and further confused the use of the instruction by not clearly distinguishing between what were the charged and uncharged crimes. In a case such as the one before us, with multiple victims and charges that include allegations spanning many months or years and encompassing charged and uncharged sexual offenses, instructing with CALJIC Nos. 2.50.01 and 2.50.02 without modification will always be confusing and fraught with potential error.
The jury may well have been convinced beyond a reasonable doubt that Guzman had the necessary specific intent without the “other sexual offenses” evidence, and may have in fact considered the uncharged sexual offense evidencesuperfluous. The problem remains, however, that we cannot say how the jury wentabout its determinations. Because the instructions as a whole erroneously permitted the jury to find that Guzman had the necessary specific intent based on facts established by a mere preponderance of the evidence, the instructions were erroneous.
In sum, neither the court’s instructions as a whole nor the manner in whichthe case was tried limited or clarified the uncharged crimes instructions. The instructions as a whole enabled the jury to convict Guzman of the [Page 123] charged crimes based on a finding, by a preponderance of the evidence, that he committed other uncharged sex offenses. Because the jury’s verdict gives no indication how it arrived at a finding of guilty, there is a reasonablelikelihood that the jury applied the uncharged crimes instructions to find Guzman guilty on a standard of proof less than is constitutionally required. (See Victor, supra, 511 U.S. at pp. 22-23.) The instructions violated due process. (See ibid.) [Footnote 14]
2. The Misinstruction Was Structural Error Requiring Reversal
We must lastly determine whether the instructional error was susceptible to a harmless error analysis or whether the court committed structural error requiring reversal. Neither party addresses the issue. We conclude that the error is per se reversible.
While most constitutional errors during trial are subject to a harmless error analysis, misinstruction on the burden of proof necessary to find the defendant guilty is reversible per se. (Sullivan, supra, 508 U.S. at p. 279.) The reason is that a harmless error analysis looks to the basis on which “the jury actually rested its verdict.” ( Yates v. Evatt (1991) 500 U.S. 391, 404-405, 114 L. Ed. 2d 432, 111 S. Ct. 1884.) Where the jury receives wrong instructions on the burden of proof constitutionally required for a conviction, “there has been no jury verdict within the meaning of the Sixth Amendment, [and] the entire premise of [a Chapman v. California (1967) 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 harmless error] review is simply absent. There being no jury verdict of guilty beyond a reasonable doubt, the question whether the same verdict of guilty beyond a reasonable doubt would have been rendered is utterly meaningless. There is no object, so to speak, upon which harmless error scrutiny can operate.” (Sullivan, supra, 508 U.S. at p. 280; People v. Kobrin (1995) 11 Cal. 4th 416, 429, 903 P.2d 1027.) It is not enough that a reviewing court concludes that a jury would surely have found the defendant guilty beyond a reasonable doubt had it been instructed correctly. “The Sixth Amendment requires more than appellate speculation about a hypothetical [Page 124] jury’s action, or else directed verdicts for the State would be sustainable on appeal; it requires an actual jury finding of guilty. . . .” (Sullivan, supra, 508 U.S. at p. 280.) A trial court’s misdirection on the reasonable doubt standard is accordingly structural error. (Ibid.)
We cannot say in the present case that the trial court’s defective instructions resulted in a jury verdict of guilt beyond a reasonable doubt. We have no basis for determining how the jury resolved the contradictory instructions. As likely as not, the jury used a lower standard of proof to convict Guzman. Like those cases involving defective reasonable doubt instructions, a finding in this case that the erroneous instruction was harmless would rest on pure conjecture, “effectively substituting this court for the jury as trier of fact.” (Kobrin, supra, 11 Cal. 4th at p. 429; see Sullivan, supra, 508 U.S. at pp. 279-280.) Because a harmless error analysis is impossible, the error was of a magnitude that it infected the integrity of the trial process, and reversal is required. (See Sullivan, supra, 508 U.S. at pp. 281-282; Kobrin, supra, 11 Cal. 4th at p. 428.)
B. The Trial Court Did Not Err By Permitting Evidence That Guzman Killed People in El Salvador
We address one other issue raised in Guzman’s appeal, because the issue mayrecur on retrial. Guzman contends that the trial court abused its discretion under Evidence Code section 352 by admitting evidence that he killed people in El Salvador because the prejudicial effect of the evidence outweighed its probative value. We disagree.
Other crimes evidence “has certain inherent dangers and the court must carefully weigh its probative value against its prejudicial effect” under Evidence Code section 352. (People v. Haslouer (1978) 79 Cal. App. 3d 818, 825, 145 Cal. Rptr. 234.) “The court’s exercise of discretion under Evidence Code section 352 will not be disturbed on appeal unless the court clearly abused its discretion, e.g., when the prejudicial effect of the evidence clearly outweighed its probative value. . . .” ( People v. Brown (1993) 17 Cal. App. 4th 1389, 1396.)
The evidence that Jane Doe One and Jane Doe Two believed that Guzman had previously killed people was probative of whether he committed the crimes charged in the information by means of fear of immediate and unlawful bodily injury. Their belief, coupled with Guzman’s threats to kill and his possession of a machete, were powerful proof that he accomplished his crimes by means of instilling fear in his victims. Guzman is correct that [Page 125] other evidence tended to establish the element of fear. No other evidence, however, tended directly to show Jane Doe One and Jane Doe Two’s beliefs, and hence fear of Guzman.
The trial court’s instructions to the jury eliminated, in large part, the prejudice inherent in the other crimes evidence. When the children testified, the court instructed the jury that the issue of whether Guzman had killed people was not before the jury. The court instructed the jury to consider the facts only for their effect on the children, and not to consider whether the killings were true. Little prejudice resulted from the other crimes evidence for the further reason that the testimony was completely unadorned. Both children simply said that they had heard that Guzman had killed people in El Salvador.
Guzman complains that the jury should have heard more about the killings. He argues that he was denied the opportunity to prove that he was in the military when the killings occurred. We fail to see the relevance of such evidence. The purpose of the other crimes evidence was to prove the element of fear. The crucial fact was that the children believed that Guzman had killed people. How those killings occurred had no relevance to their beliefs. Furthermore, evidence of Guzman’s military service would have been time-consuming and potentially confusing to the jury. The court correctly concluded that presentation of such evidence was not required before admitting the evidence that the children believed Guzman had killed people. The trial court did not abuse its discretion. (Brown, supra, 17 Cal. App. 4th at p. 1396.)
McGuiness, P. J.
Footnote 1: The minor victims were designated “Jane Doe One” and “Jane Doe Two” in the trial court.
Footnote 2: The information alleged that Guzman was ineligible for probation under a statutory provision that no longer existed at the time of the charged crimes. Former section 1203.066, subdivision (a)(9), referring to a position of special trust, was deleted in 1994, and replaced with an entirely new subdivision. (See Stats. 1994, ch. 447, § 3, pp. 1, 5-6; Stats. First Ex. Sess. 1994, ch. 14, § 3, pp.1, 5-6; Stats. First Ex. Sess. 1994, ch. 60, § 3.5, pp. 1, 5-7.) Fortunately, Guzman was acquitted of this nonexistent allegation.
Footnote 3: Jane Doe One referred to Guzman’s genitals as his “privacy.”
Footnote 4: Guzman worked in Alameda.
Footnote 5: The prosecutor emphasized several times how the jury could use the evidence: “To . . . put it in context of why those acts are in front of you as acts and not as charges, you must ask yourself are these the actions of a normal loving grandfather? . . . Are they actions of a man who had building sexual proclivities or sexual disposition or sexual intent . . . .
“. . .
“. . . I’d like to remind you one last time that those four incidences I’ve gone over, they’re not charged. They’re not formally charged, but you may consider them under the law for the limited purpose to show the defendant’s intent and disposition as it’s related to Jane [Doe] Two in Counts Two and Three.
“The Court is going to be reading to you an instruction as to how you should approach using those four incidences, and part of that instruction says that if you believe this evidence, you should consider it only for the limited purpose of tending to show the disposition or intent of the defendant toward the other person, the victim, in this case.”
Footnote 6: The prosecutor then again reminded the jury, “Now, I want to make it clear one last time. Those four acts . . . are not charges here. They are tools for you to use to determine if the defendant possessed that intent and disposition toward Jane [Doe] Two, okay, in Count Two and Count Three.”
Footnote 7: The prosecutor gave contradictory explanations of which acts constituted the uncharged sex crimes upon which the jury could infer Guzman’s intent and disposition. During a discussion of the propriety of giving CALJIC. No. 2.50.01, the prosecutor alluded only to testimony given by Jane Doe Two: “This would pertain to the crimes on Jane [Doe] Two or the other incidents related to Jane [Doe] Two. For example, the money for kissing, the condom on the pickle, the beckoning from the bedroom . . . .” During a break in closing arguments, however, counsel and the court discussed which sex offenses should be defined for the jury as part of their consideration of CALJIC No. 2.50.01. The prosecutor asked for definitions of sections 288, subdivisions (a) and (b), explaining, “This does not pertain to Jane [Doe] Two[,] it pertains to Jane [Doe] One[;] if the jury finds that the incident where he puts his penis in her butt as she says did not occur in Contra Costa County because she said it occurred at work . . ., if they find that did not occur in Contra Costa County, then in effect there’s a possible [Evid. Code, § ] 1108 example of prior sexual conduct.”
Footnote 8: The court many times questioned the wisdom of giving CALJIC Nos. 2.50.1 and 2.50.2 during discussions of proposed jury instructions: “The Court does, however, make the observation that this is going to in its own opinion confuse the issues as far as the jury is concerned, but if the prosecution wants 2.50.1 and 2.50.2, the Court will give it.” Later, the court observed, “So what we’re doing is essentially telling them by my estimation here are three counts and enhancements and here are the instructions and oh, by the way, here’s this other set of instructions that relate to misdemeanors and here are the instructions on those. That’s preponderance of the evidence as opposed to reasonable doubt, and oh, by the way they’re not charged in this case, but you can consider them for another purpose. I mean if that isn’t confusing to them, then I don’t know what is.” The court further explained its misgivings regarding CALJIC No. 2.50.01, “I have to say for the record I feel very uncomfortable with this instruction without further reference to specific conduct and specific misdemeanor crimes in question. I do note for the record also the use note doesn’t give any direction to the Court in this regard. I think it’s confusing to the jury. It’s misleading . . . .”
Footnote 9: The court stated, “First, that a person engaged in acts or conduct, directed at a child under the age of eighteen, which would unhesitatingly disturb or irritate a normal person, if directed at such person, and [P] (2)Such acts or conduct were motivated by an unnatural or abnormal sexual interest in Jane DOE Two and/or Jane DOE One, the alleged child victims in this case.”
Footnote 10: The court a short time later gave CALJIC No. 10.61, which is nearly identical to the CALJIC No. 10.43 instruction except that it refers to uncharged “lewd and lascivious acts, substantial sexual conduct, annoying or molesting a child, and/or exhibition of obscene matter.” The court, during a discussion among counsel on proposed jury instructions, expressed its misgivings about instructing with CALJIC No. 10.61: “All I’m saying is that if we’re having this much trouble, or at least the Court is having this much trouble with the instruction concerning [Evid. Code, §§ ] 1108 and 1101(b), I find it difficult to believe the jury is similarly not going to have the same problem.”
Footnote 11: The People characterize the instructional error here as a failure to give a limiting instruction. The People argue that the court had no sua sponte duty to further instruct the jury. The People misconstrue the gravity of the error here. The trial court has a sua sponte duty to correctly instruct the jury on the prosecution’s burden of proof. ( People v. Vann (1974) 12 Cal. 3d 220, 226, 115 Cal. Rptr. 352, 524 P.2d 824.) Moreover, the People, as the moving party in a criminal proceeding, have the duty to tender adequate instructions such that a lawful conviction results. ( People v. Phillips (1997) 59 Cal. App. 4th 952, 955.) We therefore examine all instructions as given to determine if they meet the requirement under the due process clause of properly informing the jury of its duty to find guilt beyond a reasonable doubt.
Footnote 12: We observe also that the jury could not have agreed that Guzman committed all of the acts described by Jane Doe One to convict him of violating section 288.5. One of the acts, the exhibition of pornography (§ 311.2, subd. (a)), does not qualify as an act of “substantial sexual conduct” under section 288.5, or under the instructions given. (See § 288.5, subd. (a); 1203.66, subd. (b).) Furthermore, the prosecutor acknowledged that the incident involving Guzman placing his penis in Jane Doe One’s buttocks might not qualify as an underlying act for purposes of the section 288.5 charge. The act occurred in Alameda County and the information charged acts occurring only within Contra Costa County.
Footnote 13: The People also point to the trial court’s instructions on the sentence enhancement for using a deadly weapon during the offense in count 1 and the probation ineligibility allegations. The court instructed the jury that the prosecution had the burden of proving the sentence enhancement andallegations beyond a reasonable doubt. These instructions, relating to the sentence, are even less helpful in clarifying the misleading and conflicting uncharged crimes instructions than the reasonable doubt instructions for the underlying offenses.
Footnote 14: In January 1999, the Committee on Standard Jury Instructions, Criminal, of the Superior Court of Los Angeles County (Committee), perhaps realizing the conflict underlying CALJIC Nos. 2.50.01 and 2.50.1 and other standard instructions on the reasonable doubt standard, added the following penultimate paragraph to CALJIC No. 2.50.01: “However, if you find [by a preponderance of the evidence] that the defendant committed [a] prior sexual offenses, that is not sufficient by itself to prove [beyond a reasonable doubt] that [he] [she] committed the charged crimes. The weight and significance of the evidence, if any, are for you to decide.” (CALJIC No. 2.50.01 (6th ed. 1999 pocket pt.) p. 15.) We express no opinion on the adequacy of this paragraph to ensure that the jury is properly informed of the reasonable doubt standard.