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People v. Garner5/31/2002
r does in this case. (See People v. Hill (2001) 86 Cal.App.4th 273, 277.) As such, we may consider the specific issue Garner raises of whether the jury may have been confused by these instructions and might have applied a standard of proof less than guilt beyond a reasonable doubt to the charged offenses.
On appeal, Garner argues that the jury instruction allows the jury to find the present charges to be true based on a preponderance of evidence rather than proof beyond a reasonable doubt. He contends that CALJIC No. 2.50.01 creates the possibility that the jury, having found by a preponderance of evidence that he had a propensity to commit sexual offenses, will accept all the other evidence in the case as true without actually determining whether all the evidence actually establishes the charged offense by proof beyond a reasonable doubt. He also reasons that because propensity evidence is inherently so persuasive, it allows the jury to infer guilt on the current charge-which must be established by proof beyond a reasonable doubt-based on evidence of the uncharged offense, which need only be established by a preponderance of evidence.
We disagree with this analysis. The revised instruction now expressly provides that an inference of propensity raised by evidence of the prior uncharged offense is not sufficient by itself to prove the charged offense. It also reminds the jury that the charged offense must be proven by the higher standard of proof beyond a reasonable doubt. (See People v. Hill, supra, 86 Cal.App.4th at pp. 277-279; People v. Brown (2000) 77 Cal.App.4th 1324, 1335-1336.) We find that the 1999 revision to CALJIC No. 2.50.01 adequately responds to the burden of proof concerns raised in pre-1999 jury instruction cases. (See, e.g., People v. James (2000) 81 Cal.App.4th 1343, 1352-1360.) We conclude CALJIC No. 2.50.01 did not permit the jury to find Garner guilty of the charged crimes by proof of a preponderance of the evidence. Instead, they expressly provided that only the incident involving the prior victim must be proved by a preponderance of the evidence. If the jury found by a preponderance of the evidence that Garner committed sexual offenses in 1986, then the jury was allowed-but not required-to infer another evidentiary fact: that he had a disposition to commit the same or similar type offense. The jury was then specifically instructed that it must find other evidence, in addition to the inference of propensity, which-taken together-rose to the level of proof beyond a reasonable doubt in order to find him guilty of the charged crimes. Thus, there was no reasonable likelihood that the jury would conclude that it could find Garner guilty of the charged offenses unless if found this to be true beyond a reasonable doubt. (See, e.g., People v. Hill, supra, 86 Cal.App.4th at p. 279.)
B. Lesser Included Offenses
Garner contends that the trial court committed prejudicial error when it failed to instruct the jury that unlawful intercourse was a lesser included offense of the two charges of rape by use of drugs or intoxicants. (See §§ 261, subd. (a)(3), 261.5, subds. (a)-(d).) At trial, the jury was instructed only that both assault and battery were lesser included offenses of the charged rapes. (See §§ 240, 242; see also CALJIC Nos. 3.30, 9.00, 9.01, 16.140, 16.141, 17.10.)
Garner did not seek a lesser included offense jury instruction on unlawful intercourse with a minor. However, even in the absence of a request to do so, a trial court must instruct a jury on general principles of law related to the case. (People v. Sedeno (1974) 10 Cal.3d 703, 715, overruled on other points in People v. Breverman (1998) 19 Cal.4th 142, 165.) This obligation incl
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