People v. Reliford

KENNARD, J., Concurring and Dissenting.

At issue here is the 1999 revision of CALJIC No. 2.50.01, a jury instruction on how to weigh evidence that has been introduced to show that a defendant has committed a sexual offense other than the one charged. According to the majority, this instruction “correctly states the law.” (Maj. opn., ante, at p. 1009.) I, however, am of the view that the instruction is ambiguous and potentially confusing.

The trial court here gave this instruction: “Evidence has been introduced for the purpose of showing that the defendant engaged in a sexual offense other than that charged in this case. [H] • • • [11] 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 and did commit the crime of which he was accused. [^|] However, if you find by a preponderance of the evidence that the defendant committed a prior sexual offense. . . , that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged crime. The weight and significance of the evidence, if any, are for you to decide.” (Italics added.) The instruction is a slightly modified version of the 1999 revision of CALJIC No. 2.50.01; none of the modifications is pertinent here.

The instruction’s italicized sentence is potentially misleading. It suggests that the jury can rely on a defendant’s prior sexual offense as the sole basis for convicting him of the charged offense, so long as the jury finds the prior offense true by a higher standard of proof than preponderance of the evidence. To the contrary, a prior offense, standing alone, is legally insufficient to sustain a conviction for the charged offense, as we explained in People v. Falsetto (1999) 21 Cal.4th 903 [ 89 Cal.Rptr.2d 847 , 986 P.2d 182 ]. There, we said that when the prosecution in a case charging the defendant with a sex offense relies on evidence that the defendant committed other sexual offenses, the evidence of the other offenses “is not sufficient by itself to prove his commission of the charged offense . . . .” (Id. at p. 920.)

According to the majority here, the ambiguity in the instruction cannot cause jury confusion because to convict a defendant of a sexual crime based *1018 solely on evidence of a defendant’s prior sexual offense is a “ ‘logical impossibility.’” (Maj. opn., ante, at p. 1014.) Not true, as this example illustrates: A man sexually assaults a woman. She cannot identify her assailant because, for example, the assault occurs at night in an unlit room, she is blind or blindfolded, or the assailant wears a mask. The prosecution offers proof that the defendant, who is charged with the offense, has committed an uncharged sex crime, but it presents no evidence that the jury finds credible that he committed the charged offense. If given the instruction at issue here, a jury hearing such evidence might well conclude—although improperly so—that it could convict the defendant based solely on the uncharged crime, so long as that offense was proven beyond a reasonable doubt. Thus, contrary to the majority’s view, a conviction of a sexual offense based solely on proof of a defendant’s prior sexual offense is not a “logical impossibility.”

In this case, however, there is no reasonable likelihood that the ambiguous language in CALJIC No. 2.50.01 misled the jury. (See People v. Clair (1992) 2 Cal.4th 629, 662-663 [ 7 Cal.Rptr.2d 564 , 828 P.2d 705 ] [“reasonable likelihood” standard applies when reviewing claims of ambiguous jury instructions].) The prosecution relied primarily on the testimony of the victim, M.S., rather than on evidence that defendant had committed a prior sex offense. Defendant did not deny having sexual relations with M.S., claiming only that she consented. The prosecutor never suggested that the jury could find defendant guilty based solely on his prior offense if it found beyond a reasonable doubt that he committed that offense. On these facts, the ambiguous language in CALJIC No. 2.50.01 could not have prejudiced defendant.