People v. Frazier CA3 ( 2021 )

Filed 11/5/21 P. v. Frazier CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C091730
Plaintiff and Respondent, (Super. Ct. No. 19FE016928)
v.
JAMAUCUS TEREATHEOD FRAZIER,
Defendant and Appellant.
A jury found defendant Jamaucus Tereatheod Frazier guilty of possession of
heroin with intent to sell (Health & Saf. Code, § 11351) and possession of
methamphetamine with intent to sell (id., § 11378). The trial court sentenced defendant
to two years eight months in county jail, followed by two years on mandatory
supervision.
1
Defendant appeals. He contends the trial court erred under Batson v. Kentucky
(1986) 476 U.S. 79 and People v. Wheeler (1978) 22 Cal.3d 258 by finding that he failed
to establish a prima facie case of group bias based on the prosecutor’s use of peremptory
challenges during jury selection to excuse A.H., an African-American prospective juror.
He also contends the court improperly lowered the prosecution’s burden of proof by
instructing the jury with legally correct but incomplete jury instructions regarding
evidence of his uncharged conduct. We find no error and affirm.
FACTS AND PROCEEDINGS
Defendant’s Arrest
The underlying facts are not relevant to the issues on appeal. It suffices to say that
in 2019, defendant, who is African-American, was lawfully searched and was found to
have a bag of heroin, methamphetamine, a digital scale, and items used to smoke drugs.
Prior Acts Evidence
In 2017, defendant admitted to his probation officer that he consumed drugs two
days before, and a search of his pants lying on the floor revealed a small but usable
amount of cocaine and heroin, a plastic straw, and cash. Defendant admitted to owning
the cocaine and heroin, to ingesting those drugs on a daily basis, and to buying and
selling those drugs to pay for what he personally used.
DISCUSSION
I
Batson/Wheeler
Defendant contends that the prosecution intentionally used its peremptory
challenges to strike an African-American prospective juror based on her race in violation
of Batson v. Kentucky, supra, 476 U.S. 79, and People v. Wheeler, supra, 22 Cal.3d 258.
The trial court concluded defendant failed to make a prima facie case of discrimination
and thus did not require the prosecutor to explain his reasons for the challenged strike.
We see no error under the applicable law.
2
A. Legal Background
Prospective jurors (hereafter jurors, for convenience) may be peremptorily
challenged for subjective or trivial reasons, including a juror’s in-court demeanor, bare
looks and gestures, or hunches, provided the reasons are genuine and not discriminatory.
(See People v. Jones (2011) 51 Cal.4th 346, 361; People v. Allen (2004) 115 Cal.App.4th
542, 547.) However, “[b]oth the state and federal Constitutions prohibit the use of
peremptory strikes to remove [jurors] on the basis of group bias. [Citations.] The now
familiar Batson/Wheeler inquiry consists of three distinct steps. First, the opponent of the
strike must make out a prima facie case by showing that the totality of the relevant facts
gives rise to an inference of discriminatory purpose in the exercise of peremptory
challenges. Second, if the prima facie case has been made, the burden shifts to the
proponent of the strike to adequately explain the basis for excusing the juror by offering
permissible, nondiscriminatory justifications. Third, if the party has offered a
nondiscriminatory reason, the trial court must decide whether the opponent of the strike
has proved the ultimate question of purposeful discrimination.” (People v. Scott (2015)
61 Cal.4th 363, 383 (Scott).)
When a trial court denies a Batson/Wheeler motion because it concludes the
defendant failed to establish a prima facie case of group bias, we consider the entire
record of voir dire and affirm if the record suggests grounds for a reasonable challenge of
the jurors in question. (People v. Panah (2005) 35 Cal.4th 395, 439.) We “accord
particular deference to the trial court as fact finder, because of its opportunity to observe
the participants at first hand.” (People v. Jenkins (2000) 22 Cal.4th 900, 993-994; People
v. Bonilla (2007) 41 Cal.4th 313, 341 [we consider only whether substantial evidence
supports the trial court’s conclusions].)1
1 The appellate court in People v. Collins (2021) 60 Cal.App.5th 540, at page 550,
footnote 6, recently described the effect of newly enacted legislation on Batson/Wheeler
3
Defendant asserts that our review is de novo. But that is true only where the trial
court applied the improper standard, or where it is unclear whether the trial court applied
the correct standard. (See People v. Rhoades (2019) 8 Cal.5th 393, 428-429 (Rhoades).)
As we will explain, the trial court applied the correct standard in this case, and therefore
we review the court’s conclusion for substantial evidence.
B. Procedural History
Each juror completed a questionnaire. A.H., an African-American woman, wrote
in her questionnaire that she had obtained an MBA degree, worked as a registered nurse,
and had two children, aged 40 and 34. The other adult with whom she lived was an
engineer and had previously been an airline mechanic for the United States Air Force.
Her son--the questionnaire did not specify which of her two sons--had been arrested
previously for domestic violence. Neither she nor any of her close friends or relatives
had been employed by a law enforcement agency.
claims: “The Legislature recently enacted legislation to address concerns with the
Batson/Wheeler framework. It explicitly found ‘the existing procedure for determining
whether a peremptory challenge was exercised on the basis of a legally impermissible
reason has failed to eliminate . . . discrimination. In particular, the Legislature [found]
that requiring proof of intentional bias renders the procedure ineffective and that many of
the reasons routinely advanced to justify the exclusion of jurors from protected groups
are in fact associated with stereotypes about those groups or otherwise based on unlawful
discrimination.’ (Assem. Bill No. 3070 (2019-2020 Reg. Sess.) § 1, subd. (b).) The
Legislature ‘designate[d] several justifications as presumptively invalid and provide[d] a
remedy for both conscious and unconscious bias in the use of peremptory challenges.’
(Ibid.) [¶] Presumptively invalid justifications include ‘[e]xpressing a distrust of or
having a negative experience with law enforcement or the criminal legal system’ and
‘[h]aving a close relationship with people who have been stopped, arrested, or convicted
of a crime.’ (Assem. Bill No. 3070 (2019-2020 Reg. Sess.) § 2, subds. (e)(1) & (e)(3).)
Neither party notes this legislation and we do not rely on it to decide this appeal. (See
id., § 2, subd. (i) [new legislation ‘applies in all jury trials in which jury selection begins
on or after January 1, 2022.’].)” Like Collins, we do not consider this newly enacted
legislation here.
4
During voir dire, A.H. acknowledged she had previously been in family court
related to a divorce and traffic court 20 or more years before and that she felt she had
been treated fairly during those previous experiences. She stated that her son had been
charged with domestic violence in 2018 or 2019, but she did not know if the case
remained pending. She agreed with the prosecutor that her son had not told her much
about the case and that she was “just kind of staying out of that.” She informed the
prosecutor that her son’s case would “[a]bsolutely not” affect her ability to be a juror in
this case.
C.J., also an African-American woman, wrote in her questionnaire that she had
completed her first year studying at University of California, Berkeley and that she was
unmarried with no children. Neither she nor any of her close friends or relatives had
been employed by law enforcement, had ever been the victim of a crime, had ever been
arrested for a crime, or had ever witnessed a crime. She worked as an Amazon delivery
driver.
During voir dire, C.J. acknowledged that she used social media but affirmed that
she would follow the court’s admonitions to not research the case or post anything about
the case. C.J. also acknowledged that she knew someone else in the venire, but she
assured the court that would not affect her ability to deliberate. When asked by the
prosecutor, she agreed that she would find defendant guilty if the evidence proved to her
beyond a reasonable doubt that the charges were true. C.J. stated that she was majoring
in cognitive science with the possible goal of becoming a speech therapist upon her
graduation from college.
The prosecutor exercised four peremptory challenges during the first round, and
defendant made no objections and exercised no peremptory strikes. The prosecutor used
his second of the four strikes to excuse C.J. The trial court then sat seven additional
jurors to replace those who had been excused for cause or by the prosecutor. During the
5
second round of peremptory challenges, the prosecutor used his second challenge--his
sixth overall--to excuse A.H.
Defendant made a Batson/Wheeler motion immediately after the prosecutor struck
A.H.; he asserted that the prosecutor had excused A.H. on the basis of her race. He
argued that nothing in A.H.’s questionnaire or her answers to questions during voir dire
would form the basis of an opinion that she would be unfair. Defendant noted that the
prosecutor did not exercise a strike against A.H. during the first round of peremptory
challenges despite having the opportunity to do so. He observed that while the
prosecutor had asked A.H. about her son’s domestic violence case, A.H. had responded
that she did not know much about it, and the prosecutor appeared satisfied. He asserted
that “something changed that led [the prosecutor] to believe she could no longer be fair.”
Defendant recognized that the prosecutor did not ask her any other questions, and he saw
no other reason why she would be eliminated other than her race.
The trial court invited the prosecutor to comment before making a finding as to
whether the defense had made a prima facie showing of discrimination, but the
prosecutor declined the invitation.
After a recess, the trial court acknowledged that A.H. and defendant appeared to
be African-American, and thus were members of the same cognizable class.
Nevertheless, the court indicated that the evidence was insufficient for it to draw an
inference of discrimination. The court noted that the prosecutor “did not ask a
proportionately different number of questions to this juror. And to the extent there were
questions that were different or additional questions asked, it was appropriately in
response to answers that were given by the prospective juror, and similar to followup
[sic] that was done with regard to other prospective jurors as well.” The court further
observed that the removal of C.J., whom the court recognized was also African-
American, “is not enough for the Court to find that discriminatory intent exists, not
individually and not collectively, nor does the timing of the People’s peremptory cause it
6
to become enough at this point. [¶] Even if it were, the evidence as a whole does not
support a prima facie showing. The fact that two of the People’s peremptory challenges
appear to be of the same cognizable group and of the same cognizable group of the
defendant is insufficient evidence of a discriminatory challenge on the current record. [¶]
Under the totality of the circumstances, the Court cannot reasonably infer a
discriminatory purpose.”
After explaining how it was “leaning,” the trial court invited additional argument
from the parties. Defendant disagreed with the trial court’s assessment that the timing of
A.H.’s removal did not establish a discriminatory intent, where the court had added seven
more jurors to the jury box, but the new jurors shed no new information that would have
prompted A.H.’s removal at a later time in the proceedings.
The trial court invited the prosecution to state its reasons “[e]ven though the Court
is finding no prima facie showing.” This time, the prosecutor elected to state his reasons
on the record. The prosecutor explained that he sought the removal of C.J. because she
was studying at the University of California, Berkeley, “a campus that is notoriously and
fiercely liberal, criminal justice reform and criticisms of the law enforcement are very
significant topics in California politics right now.” The prosecutor further explained that
C.J. did not “have any particularly strong ties to law enforcement, such as friends or
family members who work in law enforcement.”
Turning to A.H., the prosecutor noted that she did not have strong ties to law
enforcement, but his primary reason for his decision to remove her was her son’s
domestic violence case, her reluctance to answer questions about her son’s case, and her
apparent discomfort when the topic emerged. He asserted that he did not want to “pry
further into her reasons for that.” He explained: “With the possibility of her son having a
pending case in Sacramento County, it was a concern that she may not be fair and
impartial in this case.” Additionally, the prosecutor expressed concern that A.H.’s sons
were 34 and 40 years old--the prosecutor did not know which son had been charged with
7
domestic violence--and thus were close in age to defendant. Finally, the prosecutor
recognized that he did not seek to remove another juror who also appeared to be African-
American, but who had strong ties to law enforcement.
The trial court denied defendant’s motion immediately and without further
deliberation or elaboration. Neither the prosecution nor the defense exercised any
peremptory challenges thereafter.
C. Analysis
Defendant argues that we should consider the prosecutor’s reasons for striking
A.H. But where, as here, the trial court determines that the defendant failed to establish a
prima facie case of group bias, and then allows or invites the prosecutor to state reasons
for excusing the juror but refrains from ruling on the validity of those reasons, our review
is limited to the first-stage ruling. (Scott, supra, 61 Cal.4th at p. 386.)2 In Scott, our
Supreme Court stated: “[A] reviewing court may not rely on a prosecutor’s statement of
reasons to support a trial court’s finding that the defendant failed to make out a prima
facie case of discrimination. . . . [T]he fact that the prosecutor volunteered one or more
nondiscriminatory reasons for excusing the juror is of no relevance at the first stage.”
(Id.at p. 390.) The court further recognized that it has “repeatedly encouraged trial courts
to offer prosecutors the opportunity to state their reasons so as to enable creation of an
adequate record for an appellate court, should it disagree with the first-stage ruling, to
determine whether any constitutional violation has been established.” (Id. at p. 388,
italics added.)
2 We recognize that reviewing courts “should not blind themselves to the record in the
‘rare’ circumstance that a prosecutor volunteers a justification that is discriminatory on its
face.” (Scott, supra, 61 Cal.4th at p. 391.) We see no such facially discriminatory
justifications here.
8
Defendant acknowledges that this case involves only the first of these three stages,
but he points to People v. Hawthorne (2009) 46 Cal.4th 67, a case decided six years
before Scott. In Hawthorne, our Supreme Court determined that the defendant’s cursory
showing failed to raise an inference of discrimination. (Id. at p. 80.) At the very end of
its discussion, without elaboration or explanation as to why it considered the prosecutor’s
comments, the court stated: “Moreover, the prosecutor’s race-neutral reasons for the
excusals confirmed the trial court’s finding that there was insufficient evidence to permit
the court to draw an inference that discrimination had occurred.” (Ibid.) But without
discussion as to the reasons for considering the prosecutor’s comments in Hawthorne and
with extensive discussion and explanation from the court in Scott as to why we should
not consider the prosecutor’s comments, we follow Scott and do not consider the
prosecutor’s justifications. 3
We turn to the issue of whether substantial evidence supports the trial court’s
determination that defendant failed to make out a prima facie case that the prosecutor
excused A.H. because of her race. 4 “Although the question at the first stage concerning
the existence of a prima facie case depends on consideration of the entire record of voir
dire as of the time the motion was made [citation], we have observed that certain types of
evidence may prove particularly relevant. [Citation.] Among these are that a party has
struck most or all of the members of the identified group from the venire, that a party has
used a disproportionate number of strikes against the group, that the party has failed to
engage these jurors in more than desultory voir dire, that the defendant is a member of
3 Defendant contends that our high court has “backpedaled” from Scott and has
acknowledged that juror comparisons are relevant in the first stage analysis. As we will
explain post, we agree that juror comparisons are relevant, but that is a separate issue
from whether we consider the prosecutor’s stated reasons in the first stage analysis.
4 Defendant did not challenge the strike of C.J. at trial, and he does not appear to raise a
claim related to C.J. on appeal.
9
the identified group, and that the victim is a member of the group to which the majority
of the remaining jurors belong. [Citation.] A court may also consider nondiscriminatory
reasons for a peremptory challenge that are apparent from and ‘clearly established’ in the
record [citations] and that necessarily dispel any inference of bias.” (Scott, supra, 61
Cal.4th at p. 384, citing United States v. Stephens (7th Cir.2005) 421 F.3d 503, 516, 518
[“the examination of ‘apparent’ reasons in the record . . . involves only reasons for the
challenges that are objectively evident in the record” such that “there is no longer any
suspicion, or inference, of discrimination in those strikes”].)
We conclude substantial evidence supports the trial court’s conclusion. The
record shows that the prosecutor used two of his six peremptory challenges to eliminate
two of the three African-American jurors seated in the jury box. Defendant was a
member of the same identified group as A.H. and C.J., although there was no victim in
this case to compare to the racial makeup of the rest of the venire. Additionally, because
the jury questionnaire did not record race and ethnicity, the record does not state how
many African-Americans were still in the venire after hardship and cause excusals.
Defendant did not argue that the prosecutor had used his peremptory challenges to strike
most or all African-Americans from the jury venire, or that there were no other African-
American jurors remaining on the jury panel when the motion was made. (People v.
Hawthorne, supra, 46 Cal.4th at pp. 79-80.) Accordingly, we cannot say whether the
prosecutor’s use of two strikes against African-Americans was substantially
disproportionate to the representation of African-Americans in the venire. 5
5 Our Supreme Court recently observed that, based on census data, African-Americans
constitute approximately 10 percent of the population in Sacramento County. (Rhoades,
supra, 8 Cal.5th at p. 430, fn. 15.) The court in Rhoades took notice of the census data
“in recognition of the possibility that the lack of on-the-record comment simply reflects
that the pool’s composition was apparent to court and counsel at the time,” but it also
recognized that “it was defendant’s burden to make the record necessary to support his
motion.” (Ibid.)
10
“[T]he small absolute size of this sample makes drawing an inference of
discrimination from this fact alone impossible. ‘[E]ven the exclusion of a single
prospective juror may be the product of an improper group bias. As a practical matter,
however, the challenge of one or two jurors can rarely suggest a pattern of impermissible
exclusion.’ ” (People v. Bell (2007) 40 Cal.4th 582, 598.) Accordingly, defendant’s
Batson/Wheeler claim “was particularly weak as it consisted of little more than an
assertion that a number of [jurors] from a cognizable group had been excused. Such a
bare claim falls far short of ‘rais[ing] a reasonable inference that the opposing party has
challenged the jurors because of their race or other group association.’ ” (People v.
Panah, supra, 35 Cal.4th at p. 442.) Further, defendant does not contend that the
prosecutor engaged A.H. in “only desultory voir dire,” and the record reflects that A.H.
was subject to voir dire similar to that of other prospective jurors.
The record also clearly establishes nondiscriminatory reasons to excuse A.H. that
dispel any inference of discrimination. When determining whether the record discloses
readily apparent, race-neutral grounds for the use of peremptory challenges, we do not
speculate about the reasons the prosecutor might have had for striking A.H. (Rhoades,
supra, 8 Cal.5th at p. 431.) But where the record reveals “ ‘obvious race-neutral grounds
for the prosecutor’s challenges to the [jurors] in question,’ those reasons can definitively
undermine any inference of discrimination that an appellate court might otherwise draw
from viewing the statistical pattern of strikes in isolation.” (Ibid.)
A.H. indicated on her questionnaire that she had two sons, aged 40 and 34, one of
whom had been charged with domestic violence and may still have a case pending in
Sacramento County. The fact that one of A.H.’s sons, who was close in age to defendant
(defendant was 30), may have a criminal case pending in the same county in which the
instant case was being tried was a race-neutral ground for the prosecutor to use a
peremptory challenge against A.H. (People v. Bryant (2019) 40 Cal.App.5th 525, 543
[combination of juror’s son’s age and history of arrest distinguished juror from other
11
jurors]; People v. Allen (1989) 212 Cal.App.3d 306, 315-316 [peremptory challenge
properly used where juror’s close friend had been arrested for selling drugs].)
Defendant argues that comparisons between A.H. and another seated juror
demonstrate that the nondiscriminatory basis in the record that we have identified does
not help to dispel the inference that the prosecutor exercised his strikes in a biased
manner. Our Supreme Court recently recognized that while some cases have declined to
consider such juror comparisons in a first-stage Batson/Wheeler analysis, more recent
decisions have considered such comparisons. (Rhoades, supra, 8 Cal.5th at p. 432, fn.
17.) The court in Rhoades considered such comparisons (ibid.), and we do so here.
Comparisons to the seated jurors the prosecution accepted do not negate the force
of the readily apparent reason for the peremptory challenge against A.H. Defendant
points to juror No. 728557--who was not subject to a peremptory strike by the
prosecutor--who had stated that her daughter was convicted of driving under the
influence of alcohol in Sacramento County in 2018. However, there are material
differences between that juror and A.H. Juror No. 728557’s daughter’s case was not
pending, she agreed that her daughter had been treated fairly, there was no evidence that
the juror’s daughter was close in age to defendant--her questionnaire stated that her
daughters were aged 18 and 19--and the juror had previously served on a jury in a
criminal trial that had reached a verdict. Thus, the combination of A.H.’s son’s age,
history of arrest, and the nature of the case as possibly still pending distinguish A.H. from
juror No. 728557. (People v. Bryant, supra, 40 Cal.App.5th at p. 543.)
Finally, the seated jury included an African-American. The prosecutor’s
acceptance of another African-American juror “lessen[s] the strength of any inference of
discrimination that the pattern of the prosecutor’s strikes might otherwise imply.”
(People v. Reed (2018) 4 Cal.5th 989, 1000.) We recognize that accepting one juror of a
particular group does not necessarily mean another juror of the same group was not
dismissed due to membership in that group; there could be reasons why one juror appears
12
favorable to the party, while the other juror is nonetheless stricken precisely because of
his or her group. (People v. Collins, supra, 60 Cal.App.5th at p. 554.) But the presence
of a member of the group allegedly discriminated against, while not conclusive, indicates
good faith in exercising peremptory challenges. (People v. Stanley (2006) 39 Cal.4th
913, 938, fn. 7.)
“We presume that a prosecutor uses peremptory challenges in a constitutional
manner and give great deference to the trial court’s ability to distinguish bona fide
reasons from sham excuses.” (People v. Burgener (2003) 29 Cal.4th 833, 864.)
According proper deference to the trial court, we affirm the court’s conclusion that
defendant failed to make a prima facie showing of group bias.
II
Jury Instructions
Defendant contends the trial court erred by instructing the jury as to the
prosecution’s burden of proof regarding uncharged acts, which he argues was reasonably
likely to mislead the jury into thinking that the prosecution only needed to prove
defendant’s mental state on the charged counts by a preponderance of the evidence. We
disagree.
A. Procedural History
The trial court instructed the jury on the prosecution’s burden of proof by reading
CALCRIM No. 220, which stated in relevant part: “A defendant in a criminal case is
presumed to be innocent. This presumption requires that the People prove a defendant
guilty beyond a reasonable doubt. Whenever I tell you the People must prove something,
I mean they must prove it beyond a reasonable doubt unless I specifically tell you
otherwise.” The court also instructed: “Unless the evidence proves the defendant guilty
beyond a reasonable doubt, he is entitled to an acquittal and you must find him not
guilty.”
13
Regarding the evidence of defendant’s 2017 drug sales offenses, the trial court
instructed the jury on how to treat evidence of uncharged conduct with CALCRIM No.
375. The court instructed: “The People presented evidence that the defendant possessed
heroin for sale, in violation of Health and Safety Code section 11351, in 2017, that was
not charged in this case. [¶] You may consider this evidence only if the People have
proved by a preponderance of the evidence that the defendant, in fact, committed the
offense. [¶] 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 2017 offense, you may but are not required to consider that
evidence for the limited purpose of deciding in the current case whether: [¶] The
defendant acted with the intent to sell heroin in Count One and the intent to sell
methamphetamine in Count Two; and [t]he defendant knew the nature or character of the
substances as a controlled substance when allegedly acted in this case. [¶] Do not
consider this evidence for any other purpose. [¶] If you conclude that the defendant
committed the uncharged offense, 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 possession of heroin for sale, in violation of Health and Safety Code Section
11351 as charged in Count One, or possession of methamphetamine for sale, in violation
of Health and Safety Code Section 11378 as charged in Count Two.”
The trial court did not instruct the jury with the final sentence of the pattern
instruction: “The People must still prove (the/each) (charge [and] allegation) beyond a
reasonable doubt.” (CALCRIM No. 375.)
14
The record does not include a conference between the trial court and counsel
regarding jury instructions, but neither party objected to the instructions given by the
court, and the court characterized the instructions as “a stipulated set of instructions.” 6
The prosecutor stated in closing: “Now you can consider evidence of the 2017
case because those facts proved by a preponderance of the evidence that the defendant
possessed heroin in 2017 for the purpose of sale, and I just need to emphasize this. [¶]
This standard of proof, preponderance of the evidence, is different than proof beyond a
reasonable doubt. [¶] In order for you to convict the defendant of any of the current
charges, Counts One, Two or Three, those charges must be proof beyond a reasonable
doubt. [¶] And that burden of proof is one defined in instruction [CALCRIM No.] 220.
But preponderance of the evidence is a lower burden. [¶] It means that you have to find
that the facts supporting the 2017 case are true more likely than not. Of course, they are.
There is a conviction. The defendant admitted it, and you have [the probation officer’s]
testimony. So how do you use the 2017 case? [¶] . . . [¶] You can use it as evidence
that the defendant acted with the intent to sell heroin in Count One, and
methamphetamine in Count Two. [¶] The law allows you to use the evidence from the
2017 case to help prove the most difficult issue in the 2019 case. What the defendant’s
intent was at the time that he possessed those drugs? [¶] It also allows you to know that
defendant knew the nature and character of the methamphetamine and heroin he
6 “[F]ailure to object to instructional error forfeits the objection on appeal unless the
defendant’s substantial rights are affected. [Citations.] ‘Substantial rights’ are equated
with errors resulting in a miscarriage of justice under People v. Watson (1956) 46 Cal.2d
818.” (People v. Mitchell (2008) 164 Cal.App.4th 442, 465.) “The forfeiture rule applies
to . . . claimed violations of fundamental constitutional rights.” (Ibid.) However, while
the court characterized the instructions as “a stipulated set,” we cannot say whether
defendant objected to the instruction during the conference on jury instructions. Nor does
the Attorney General argue that defendant forfeited his claim of error. Accordingly, we
consider defendant’s claim. (See In re Sheena K. (2007) 40 Cal.4th 875, 887 [court may
consider claim despite holding or assuming that claim was forfeited].)
15
possessed in the current case. [¶] Now the evidence of the 2017 case is a factor along
with the other evidence that proves that the defendant is guilty of Counts One and Two in
the 2019 case.”
B. Standard of Review
“When considering a claim of instructional error, we view the challenged
instruction in the context of the instructions as a whole and the trial record to determine
whether there is a reasonable likelihood the jury applied the instruction in an
impermissible manner.” (People v. Houston (2012) 54 Cal.4th 1186, 1229.) “The failure
to give an instruction on an essential issue, or the giving of erroneous instructions, may
be cured if the essential material is covered by other correct instructions properly given.”
(People v. Dieguez (2001) 89 Cal.App.4th 266, 277.) We “ ‘ “ ‘assume that the jurors are
intelligent persons and capable of understanding and correlating all jury instructions
which are given.” ’ ’ ” (People v. Guerra (2006) 37 Cal.4th 1067, 1148, overruled on
another ground in People v. Rundle (2008) 43 Cal.4th 76, 151.)
C. Analysis
Defendant contends the omission of CALCRIM No. 375’s final sentence could
have rationally caused the jury to believe the reasonable doubt standard did not extend to
the intent and knowledge elements of the charged crime. We disagree.
First, as we have detailed above, the trial court properly instructed the jury that
defendant was entitled to an acquittal unless the prosecution proved his guilt beyond a
reasonable doubt, and the prosecution’s burden of proof was beyond a reasonable doubt
except where the court specifically instructed otherwise.
Second, the trial court adequately instructed the jury on how to treat the uncharged
acts evidence. The court instructed the jury that it may consider the uncharged acts
evidence only if the prosecution proved that defendant committed the uncharged acts by a
preponderance of the evidence--which it properly defined--and that the jury must
disregard the evidence if the prosecution did not satisfy its burden. The court instructed
16
that if the prosecution met its burden, the jury may, but was not required to, consider the
uncharged acts evidence for the limited purposes of whether defendant acted with intent
to sell, and whether he knew of the nature and character of the substances. To clarify the
purposes for which the jury may consider the evidence, the court expressly cautioned:
“Do not consider this evidence for any other purpose.” The court further specified that if
the jury found that defendant committed the uncharged acts, “that conclusion is only one
factor to consider along with all the other evidence. It is not sufficient by itself to prove
that defendant is guilty” of the charged crimes. Accordingly, the court conveyed to the
jury that it could not find defendant guilty of any charged crime based on its finding
regarding the uncharged acts evidence. Rather, the jury was to apply the preponderance
of the evidence standard to the issue of whether defendant committed the uncharged acts,
and it was then entitled to consider that evidence as one piece of evidence in determining
whether defendant had committed the charged crimes beyond a reasonable doubt.
Nothing in CALCRIM No. 375, as given, authorized the jury to use a preponderance of
the evidence standard for anything other than the preliminary question of whether
defendant committed the uncharged offenses, and nothing in the instruction authorized
the jury to find true any element of the offense by a preponderance of the evidence.
Indeed, the court specifically instructed that the jury’s finding that defendant committed
the uncharged acts was not sufficient by itself to prove the charged offenses.
Third, the prosecutor in closing argument explained that he was required to prove
the current charges beyond a reasonable doubt, and evidence of the uncharged conduct--
assuming the jury found it true by a preponderance of the evidence-- could only be used
as one factor along with the other evidence of the charged crimes in the determination of
whether the prosecutor had proved the charged crimes beyond a reasonable doubt. (See
People v. Larsen (2012) 205 Cal.App.4th 810 [considering closing arguments of counsel
in determining effect of instructional error].)
17
Viewing the instructions as a whole, it is unreasonable to think the jury would
have interpreted the instruction as given to authorize a finding of guilt of the charged
offense based on a lower standard of proof than beyond a reasonable doubt. As our
Supreme Court has recognized, “these different standards of proof are reconciled by the
different purposes for which the evidence is used. When evidence of uncharged
misconduct is admitted for the purpose of establishing identity or intent, we have
explained that the crimes are mere ‘evidentiary facts.’ [Citation.] The jury cannot
consider them at all unless they find them proven by a preponderance of the evidence. ‘If
the jury finds by a preponderance of the evidence that defendant committed the other
crimes, the evidence is clearly relevant and may therefore be considered. [Citations.]’
[Citation.] If the jury finds the facts sufficiently proven for consideration, it must still
decide whether the facts are sufficient, taken with all the other evidence, to prove the
defendant’s guilt beyond a reasonable doubt.” (People v. Virgil (2011) 51 Cal.4th 1210,
1259-1260.) That information was conveyed by the court’s instructions. Surely, the final
sentence--that the prosecution must still prove the elements of the charged crimes beyond
a reasonable doubt--would have reiterated the prosecution’s burden of proof. But the
import of that final clarifying sentence was fully instructed elsewhere in the instructions,
and the absence of that reiterating sentence did not make the instructions reasonably
likely to cause the jury to apply an improper burden of proof.
Defendant relies on Gibson v. Ortiz (9th Cir. 2004) 387 F.3d 812, 821-822,
overruled on other grounds in Byrd v. Lewis (9th Cir. 2009) 566 F.3d 855, 866, but that
case confirms our conclusion. In Gibson, the Ninth Circuit Court of Appeals addressed
an instruction regarding the burden of proof related to proving prior sexual offenses,
which, when proved, authorize the jury to infer that the defendant had a disposition to
commit the same or similar type of sexual offenses, and, based on that inference, to
further infer that the defendant “was likely to commit and did commit the crime or crimes
of which he is accused.” (Id. at p. 822.) The trial court in Gibson also instructed the jury
18
that the prosecution had the burden to prove such prior sexual offenses by a
preponderance of the evidence. (Ibid) The federal appellate court concluded that the
effect of the instructions was to allow the jury to find that the defendant had committed
the uncharged acts by a preponderance of the evidence and then to infer that he had
committed the charged acts by a preponderance of the evidence. (Ibid.) The instructions
here, unlike those in Gibson, did not permit such an inference. Rather, as we have
discussed, the trial court clearly explained that the uncharged acts evidence, if proved by
a preponderance of the evidence, could be considered as evidence of intent and
knowledge, but was only one factor to consider along with the rest of the evidence and
was not itself insufficient to establish intent or knowledge.
People v. Reliford (2003) 29 Cal.4th 1007, at pages 1012 to 1016 (Reliford),
involved an analogous jury instruction (CALJIC No. 2.50.01) relating to uncharged acts
of other sexual offenses. The court found that the instruction did not confuse the jury or
have the effect of reducing the prosecution’s burden. The court concluded the
comparable parts of CALJIC No. 2.50.01 did not inform the jury that it could find
defendant guilty if it found an uncharged sexual offense true by a preponderance of the
evidence. The court observed: “The problem with the defendant’s argument is that the
instruction nowhere tells the jury it may rest a conviction solely on evidence of prior
offenses. Indeed, the instruction’s next sentence says quite the opposite: ‘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.’ ” (Id. at p. 1013.) The court concluded, “the instructions could not have
been interpreted to authorize a guilty verdict based solely on proof of uncharged
conduct.” (Ibid.)
The court in Reliford emphasized: “By telling jurors that evidence of prior
offenses is insufficient to prove defendant’s guilt of the charged offenses beyond a
reasonable doubt, jurors necessarily understand that they must consider all the other
19
evidence before convicting defendant.” (Reliford, supra, 29 Cal.4th at p. 1015.) The
court also recognized: “Nothing in the instructions authorized the jury to use the
preponderance-of-the-evidence standard for anything other than the preliminary
determination whether defendant committed a prior sexual offense . . . . The instructions
instead explained that, in all other respects, the People had the burden of proving
defendant guilty ‘beyond a reasonable doubt.’ ” (Id. at p. 1016.) Thus, the jury would
have understood that “a conviction that relied on inferences to be drawn from defendant’s
prior offense would have to be proved beyond a reasonable doubt.” (Ibid.)
We recognize that the trial court’s instruction did not expressly inform the jury
that the uncharged acts evidence was not sufficient to “ ‘prove beyond a reasonable doubt
that he committed the charged crime.’ ” (Reliford, supra, 29 Cal.4th at p. 1013.)
However, we conclude that the court’s instruction correctly informed the jury of the
burden of proof for considering the uncharged acts evidence, and the limited purposes for
which it was entitled to consider that evidence. Nothing in that instruction authorized the
jury to find true any element of any charged offense by a preponderance of the evidence.
Indeed, the instruction expressly stated that the uncharged acts evidence alone was
insufficient to find defendant guilty of any charged crime. The court also gave the jury
the full panoply of standard instructions informing the jury that, except where expressly
stated, the prosecution was required to prove each element of the crime beyond a
reasonable doubt. We conclude no reasonable jury could have found defendant guilty of
any charged crime based on proof of the uncharged conduct beyond a preponderance of
the evidence.
20
DISPOSITION
The judgment is affirmed.
/s/
Duarte, J.
We concur:
/s/
Blease, Acting P. J.
/s/
Robie, J.
21