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People v. Banks1/24/2003
failed to determine that appellant committed an assault upon Jackson, there was ample evidence by which a rational jury could have determined that appellant falsely imprisoned Jackson by means of menace. (People v. Fosselman (1983) 33 Cal.3d 572, 577, 579; see People v. Webber (1991) 228 Cal.App.3d 1146, 1170.)
II. The delivery of CALJIC No. 2.50.02 does not require reversal.
With respect to the evidence of appellant's conduct toward Veronica Nelson in February 1995, which was admitted under Evidence Code section 1109, the trial court instructed the jury pursuant to the 2000 revision of CALJIC No. 2.50.02 (6th ed. 1996) as follows:
"Evidence has been introduced for the purpose of showing that the defendant engaged in an offense involving domestic violence other than that charged in this case.
"Domestic violence means abuse committed against an adult or a fully emancipated minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the defendant has a child or is having or has had a dating or engagement relationship.
"Abuse means intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another.
"If you find that the defendant committed a prior offense involving domestic violence, you may, but are not required to, infer that the defendant had a disposition to commit another offense involving domestic violence.
"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 crimes of which he is accused.
"However, if you find by a preponderance of the evidence that the defendant committed a prior crime or crimes, the prior crime involving domestic violence, that is not sufficient, by itself, to prove beyond a reasonable doubt that he committed the charged offenses.
"The weight and significance, if any, are for you to decide.
"Unless you are otherwise instructed, you must not consider this evidence for any other purpose."
Appellant contends that the giving of this instruction constituted reversible error, denying him his Fifth and Fourteenth Amendment rights to due process and his Sixth and Fourteenth Amendment rights to a fair trial by jury, because it impermissibly lessened the People's burden of proof. Although we reject respondent's assertion that the issue is waived because of appellant's failure to object in the trial court, since the issue affects appellant's substantial rights (People v. Smithey (1999) 20 Cal.4th 936, 976, fn. 7), appellant's contention is unavailing.
Appellant complains that CALJIC No. 2.50.02 permitted the jury to find him guilty of the charged offenses based on the prior act of domestic violence if the prior act was proven beyond a reasonable doubt. He asserts that the language in CALJIC No. 2.50.02 which tells the jury that a prior act of domestic violence proved by a preponderance of the evidence is not sufficient to prove the current charge beyond a reasonable doubt actually permitted the jury, by implication, to find him guilty of the charged offenses based on the prior act if it found that that act was proven beyond a reasonable doubt. He argues that the instruction did not sufficiently delineate for the jury the use of the lesser preponderance of the evidence standard to establish the prior domestic violence offense and the use of the inference drawn therefrom in connection with finding him guilty of the charged offense beyond a reasonable doubt. He claims that, despite the cautionary langua
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