CALJIC 2.50 - Interpretation

In People v. James (2000) 81 Cal.App.4th 1343, 1352-1360, the Court found that an earlier version of CALJIC No. 2.50.02 did mislead jurors in this respect by implying that the jury could find guilt based on a mere preponderance of evidence: "Such an instruction improperly permits a conviction based on the defendant's propensity. the jury must be reminded that propensity evidence alone cannot meet the prosecution's burden of proving the elements of the charged offense. Otherwise, the jury is prompted to use evidence of prior offenses in precisely the wrong way, as a substitute for proof of the current offense." (Id. at p. 1353.) In James, the Court held that the pre-1999 instruction failed to caution jurors that proof of a prior offense by a preponderance is insufficient, standing alone, to establish guilt for the pending charges beyond a reasonable doubt. (Supra, 81 Cal.App.4th at pp. 1353, 1357 & fn. 8.) The 1999 revision resolved this problem. In People v. Falsetta (1999) 21 Cal.4th 903, the Supreme Court expressed its approval of this revised, cautionary language in the parallel instruction on prior sexual offense evidence, CALJIC No. 2.50.01. The Court noted that the language in question was appropriate generally for "cases involving the admission of disposition evidence." ( Id. at p. 922.) In reliance on Falsetta, Divisions One and Two of this court have both upheld the use of CALJIC Nos. 2.50.01 and 2.50.02 ( People v. Brown, supra, 77 Cal.App.4th 1324; People v. Hill (2001) 86 Cal.App.4th 273.)