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People v. Banks1/24/2003
ge contained in the instruction, the instruction is ambiguous because of the sentence "The weight and significance, if any, are for you to decide," which "suggests that the jury has the option of placing greater weight and significance on the evidence of the prior domestic violence offense in order to satisfy the higher standard needed to convict the defendant of the current offense."
CALJIC No. 2.50.02 permitted the jury to conclude that if it found appellant committed the prior domestic violence offense, it could infer that he had a disposition to commit such acts and, if it so concluded, it could further infer that appellant was likely to, or did, commit the charged offenses. In discussing the similar instruction contained in CALJIC No. 2.50.01, regarding the use of evidence of a prior sexual offense which is admitted under Evidence Code section 1108, the court in People v. Regalado (2000) 78 Cal.App.4th 1056, 1061, stated, "While it is axiomatic that every element of a criminal offense must ultimately be proven beyond a reasonable doubt (In re Winship (1970) 397 U.S. 358, 364), it is also settled that the admissibility of evidence which may be relevant to a jury's factual determinations is dependent upon a different standard: proof by a preponderance of the evidence. [Citations.]" The court there found no infirmity in an earlier revision of CALJIC No. 2.50.01 even in the absence of the cautionary language which is contained in the version of CALJIC No. 2.50.02 given here, "if you find by a preponderance of the evidence that the defendant committed a prior crime or crimes . . . , that is not sufficient, by itself, to prove beyond a reasonable doubt that he committed the charged offenses." (People v. Regalado, supra, at p. 1061.)
CALJIC No. 2.50.02 clearly and expressly informed the jury that if it found by a preponderance of the evidence that appellant committed a prior offense, it could infer that he had a disposition to commit such act and could infer that he therefore committed the charged offenses, but that the evidence of the prior offense was "not sufficient, by itself, to prove beyond a reasonable doubt that he committed the charged offenses." Similar language in the 1999 revision of CALJIC No. 2.50.01 was cited with approval by our Supreme Court in People v. Falsetta (1999) 21 Cal.4th 903, 923, where the court explained that " his admonition helps assure that the defendant will be tried and convicted for his present, not his past, offenses. [Citations.]" In addition, appellant's jury was instructed to " onsider the instructions as a whole and each in light of the others." (CALJIC No. 1.01.) CALJIC No. 2.50.02 gave no instruction on the elements of the charged offenses or the standard by which the prosecution had to prove those elements. Rather, the instructions on each of the charged offenses listed the elements which had to be proved, and the standard of proof was set forth in CALJIC No. 2.90, which informed the jury that it could not convict appellant unless it found him guilty beyond a reasonable doubt. The jury was also instructed that appellant could choose to rely on the state of the evidence "and on the failure, if any, of the People to prove, beyond a reasonable doubt, every essential element of the charge against him." In light of these instructions, there was no reasonable likelihood the jury read CALJIC No. 2.50.02 to permit conviction of the charged offense under a lesser standard than beyond a reasonable doubt, as appellant claims. (People v. Frye (1998) 18 Cal.4th 894, 957.)
Moreover, even if we were to find error in CALJIC No. 2.50.02, any such error would be utterly non-prejudicial. The evidence supporting the false imprisonment count was overwhelming and unco
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