375. Evidence of Uncharged Offense to Prove Identity, Intent, Common Plan, etc.
<Introductory Sentence Alternative A—evidence of other offense admitted>
[The People presented evidence that the defendant committed ((another/other) offense[s]/the offense[s] of <insert description of alleged offense[s]>) that (was/were) not charged in this case.]
<Introductory Sentence Alternative B—evidence of other act admitted>
[The People presented evidence (of other behavior by the defendant that was not charged in this case/that the defendant <insert description of alleged conduct admitted under Evid. Code, § 1101(b)>).]
You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the (uncharged offense[s]/act[s]). Proof by a preponderance of the evidence is a different burden of proof than proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true.
If the People have not met this burden, you must disregard this evidence entirely.
If you decide that the defendant committed the (uncharged offense[s]/act[s]), you may, but are not required to, consider that evidence for the limited purpose of deciding whether or not:
<SELECT SPECIFIC GROUNDS OF RELEVANCE AND DELETE ALL OTHER OPTIONS.>
[The defendant was the person who committed the offense[s] alleged in this case](./; or)
[The defendant acted with the intent to <insert specific intent required to prove the offense[s] alleged> in this case](./; or)
[The defendant had a motive to commit the offense[s] alleged in this case](./; or)
[The defendant knew <insert knowledge required to prove the offense[s] alleged> when (he/she) allegedly acted in this case](./; or)
[The defendant's alleged actions were the result of mistake or accident](./; or)
<F. Common Plan>
[The defendant had a plan [or scheme] to commit the offense[s] alleged in this case](./; or)
[The defendant reasonably and in good faith believed that <insert name or description of complaining witness> consented](./; or)
<H. Other Purpose>
[The defendant <insert description of other permissible purpose; see Evid. Code, § 1101(b)>.]
[In evaluating this evidence, consider the similarity or lack of similarity between the uncharged (offense[s]/ [and] act[s]) and the charged offense[s].]
Do not consider this evidence for any other purpose [except for the limited purpose of <insert other permitted purpose, e.g., determining the defendant's credibility>].
[Do not conclude from this evidence that the defendant has a bad character or is disposed to commit crime.]
If you conclude that the defendant committed the (uncharged offense[s]/ act[s]), that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of <insert charged offense[s]>. The People must still prove each element of (the/ every) charge beyond a reasonable doubt.
The court must give this instruction on request when evidence of other offenses has been introduced. (Evid. Code, § 1101(b); People v. Carpenter (1997) 15 Cal.4th 312, 382 [63 Cal.Rptr.2d 1, 935 P.2d 708]; People v. Collie (1981) 30 Cal.3d 43, 63-64 [177 Cal.Rptr. 458, 634 P.2d 534].) The court is only required to give this instruction sua sponte in the "occasional extraordinary case in which unprotested evidence of past offenses is a dominant part of the evidence against the accused, and is both highly prejudicial and minimally relevant to any legitimate purpose." (People v. Collie, supra, 30 Cal.3d at pp. 63-64.)
Do not give this instruction in the penalty phase of a capital case. (See CALCRIM No. 764, Death Penalty: Evidence of Other Violent Crimes.)
If evidence of uncharged conduct is admitted only under Evidence Code section 1108 or 1109, do not give this instruction. (See CALCRIM No. 1191, Evidence of Uncharged Sex Offense; CALCRIM No. 852, Evidence of Uncharged Domestic Violence; and CALCRIM No. 853, Evidence of Uncharged Abuse of Elder or Dependent Person.)
If the court admits evidence of uncharged conduct amounting to a criminal offense, give introductory sentence alternative A and select the words "uncharged offense[s]" where indicated. If the court admits evidence under Evidence Code section 1101(b) that does not constitute a criminal offense, give introductory sentence alternative B and select the word "act[s]" where indicated. (People v. Enos (1973) 34 Cal.App.3d 25, 42 [109 Cal.Rptr. 876] [evidence tending to show defendant was "casing" a home admitted to prove intent where burglary of another home charged and defendant asserted he was in the second home by accident].) The court is not required to identify the specific acts to which this instruction applies. (People v. Nicolas (2004) 34 Cal.4th 614, 668 [21 Cal.Rptr.3d 612, 101 P.3d 509].)
If the court has admitted evidence that the defendant was convicted of a felony or committed a misdemeanor for the purpose of impeachment in addition to evidence admitted under Evidence Code section 1101(b), then the court must specify for the jury what evidence it may consider under section 1101(b). (People v. Rollo (1977) 20 Cal.3d 109, 123, fn. 6 [141 Cal.Rptr. 177, 569 P.2d 771], superseded in part on other grounds as recognized in People v. Olmedo (1985) 167 Cal.App.3d 1085, 1096 [213 Cal.Rptr. 742].) In alternative A, insert a description of the uncharged offense allegedly shown by the 1101(b) evidence. If the court has not admitted any felony convictions or misdemeanor conduct for impeachment, then the court may give the alternative "another offense" or "other offenses" without specifying the uncharged offenses.
The court must instruct the jury on what issue the evidence has been admitted to prove and delete reference to all other potential theories of relevance. (People v. Swearington (1977) 71 Cal.App.3d 935, 949 [140 Cal.Rptr. 5]; People v. Simon (1986) 184 Cal.App.3d 125, 131 [228 Cal.Rptr. 855].) Select the appropriate grounds from options A through H and delete all grounds that do not apply.
When giving option F, the court may give the bracketed "or scheme" at its discretion, if relevant.
The court may give the bracketed sentence that begins with "In evaluating this evidence" at its discretion when instructing on evidence of uncharged offenses that has been admitted based on similarity to the current offense. (See People v. Ewoldt (1994) 7 Cal.4th 380, 402-404 [27 Cal.Rptr.2d 646, 867 P.2d 757]; People v. Balcom (1994) 7 Cal.4th 414, 424 [27 Cal.Rptr.2d 666, 867 P.2d 777].) For example, when the evidence of similar offenses is admitted to prove common plan, intent, or identity, this bracketed sentence would be appropriate.
Give the bracketed sentence beginning with "Do not conclude from this evidence that" on request if the evidence is admitted only under Evidence Code section 1101(b). Do not give this sentence if the court is also instructing under Evidence Code section 1108 or 1109.
The paragraph that begins with "If you conclude that the defendant committed" has been included to prevent jury confusion regarding the standard of proof. (See People v. Reliford (2003) 29 Cal.4th 1007, 1012- 1013 [130 Cal.Rptr.2d 254, 62 P.3d 601] [instruction on section 1108 evidence sufficient where it advised jury that prior offense alone not sufficient to convict; prosecution still required to prove all elements beyond a reasonable doubt].)
Evidence Admissible for Limited Purposes. Evid. Code, § 1101(b); People v. Ewoldt (1994) 7 Cal.4th 380, 393-394 [27 Cal.Rptr.2d 646, 867 P.2d 757]; People v. Balcom (1994) 7 Cal.4th 414, 422 [27 Cal.Rptr.2d 666, 867 P.2d 777].
Degree of Similarity Required. People v. Ewoldt (1994) 7 Cal.4th 380, 402-404 [27 Cal.Rptr.2d 646, 867 P.2d 757]; People v. Balcom (1994) 7 Cal.4th 414, 424 [27 Cal.Rptr.2d 666, 867 P.2d 777].
Analysis Under Evidence Code Section 352 Required. People v. Ewoldt (1994) 7 Cal.4th 380, 404 [27 Cal.Rptr.2d 646, 867 P.2d 757]; People v. Balcom (1994) 7 Cal.4th 414, 426-427 [27 Cal.Rptr.2d 666, 867 P.2d 777].
Instructional Requirements. People v. Collie (1981) 30 Cal.3d 43, 63-64 [177 Cal.Rptr. 458, 634 P.2d 534]; People v. Morrisson (1979) 92 Cal.App.3d 787, 790 [155 Cal.Rptr. 152].
Other Crimes Proved by Preponderance of Evidence. People v. Carpenter (1997) 15 Cal.4th 312, 382 [63 Cal.Rptr.2d 1, 935 P.2d 708].
Potential Conflict With Circumstantial Evidence Instruction. People v. James (2000) 81 Cal.App.4th 1343, 1358-1359 [96 Cal.Rptr.2d 823].
1 Witkin, California Evidence (4th ed. 2003) Circumstantial Evidence, §§ 74-95.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 83, Evidence, § 83.12[c] (Matthew Bender).
Circumstantial Evidence—Burden of Proof
Evidence of other offenses is circumstantial evidence that the defendant committed the offense charged. (See People v. James (2000) 81
Cal.App.4th 1343, 1358, fn. 9 [96 Cal.Rptr.2d 823].) Courts have recognized a potential conflict between the preponderance standard required to prove uncharged offenses and the reasonable doubt standard required to prove each underlying fact when the case is based primarily on circumstantial evidence. (See People v. Medina (1995) 11 Cal.4th 694, 763-764 [47 Cal.Rptr.2d 165, 906 P.2d 2]; People v. James, supra, 81 Cal.App.4th at p. 1358, fn. 9.) The court must give the general circumstantial evidence instruction (CALCRIM No. 223, Direct and Circumstantial Evidence: Defined) "only when the prosecution relies on circumstantial evidence to prove the defendant's guilt from a pattern of incriminating circumstances, not when circumstantial evidence serves solely to corroborate direct evidence." (People v. James, supra, 81 Cal.App.4th at p. 1359.) Thus, if evidence of other offenses is offered to corroborate direct evidence that the defendant committed the crime, no conflict exists. However, when the prosecution's case rests substantially or entirely on circumstantial evidence, there will be a conflict between this instruction and CALCRIM No. 223. (People v. James, supra, 81 Cal.App.4th at p. 1358, fn. 9; People v. Younger (2000) 84 Cal.App.4th 1360, 1382, fn. 4; People v. Jeffries (2000) 83 Cal.App.4th 15, 23-24, fn. 7.) No case has determined how this conflict should be resolved. If this issue arises in a particular case, the court should consider the authorities cited and determine whether it is necessary to modify this instruction. (People v. Younger, supra, 84 Cal.App.4th at p. 1382, fn. 4; People v. Jeffries, supra, 83 Cal.App.4th at p. 24, fn. 7.)
Issue in Dispute
The "defendant's plea of not guilty does put the elements of the crime in issue for the purpose of deciding the admissibility of evidence of uncharged misconduct, unless the defendant has taken some action to narrow the prosecution's burden of proof." (People v. Ewoldt (1994) 7 Cal.4th 380, 400, fn. 4 [27 Cal.Rptr.2d 646, 867 P.2d 757]; People v. Rowland (1992) 4 Cal.4th 238, 260 [14 Cal.Rptr.2d 377, 841 P.2d 897].) The defense may seek to "narrow the prosecution's burden of proof" by stipulating to an issue. (People v. Bruce (1989) 208 Cal.App.3d 1099, 1103-1106 [256 Cal.Rptr. 647].) "[T]he prosecution in a criminal case cannot be compelled to accept a stipulation if the effect would be to deprive the state's case of its persuasiveness and forcefulness." (People v. Scheid (1997) 16 Cal.4th 1, 16-17 [65 Cal.Rptr.2d 348, 939 P.2d 748].) However, an offer to stipulate may make the evidence less probative and more cumulative, weighing in favor of exclusion under Evidence Code section 352. (People v. Thornton (2000) 85 Cal.App.4th 44, 49 [101
Cal.Rptr.2d 825] [observing that offer "not to argue" the issue is insufficient].) The court must also consider whether there could be a "reasonable dispute" about the issue. (See People v. Balcom (1994) 7 Cal.4th 414, 422-423 [27 Cal.Rptr.2d 666, 867 P.2d 777] [evidence of other offense not admissible to show intent to rape because if jury believed witness's account, intent could not reasonably be disputed]; People v. Bruce, supra, 208 Cal.App.3d at pp. 1103-1106 [same].)
Subsequent Offenses Admissible
Evidence of a subsequent as well as a prior offense is admissible. (People v. Balcom (1994) 7 Cal.4th 414, 422-423, 425 [27 Cal.Rptr.2d 666, 867 P.2d 777].)
Offenses Not Connected to Defendant
Evidence of other offenses committed in the same manner as the alleged offense is not admissible unless there is sufficient evidence that the defendant committed the uncharged offenses. (People v. Martinez (1992) 10 Cal.App.4th 1001, 1006-1007 [12 Cal.Rptr.2d 838] [evidence of how auto-theft rings operate inadmissible]; People v. Hernandez (1997) 55 Cal.App.4th 225, 242 [63 Cal.Rptr.2d 769] [evidence from police database of similar sexual offenses committed by unknown assailant inadmissible].)
(New January 2006)