Jury Considers Commission of Another Sexual Offense In California
When a defendant in a criminal case is accused of a sexual offense, the jury will sometimes consider evidence of the defendant's commission of another sexual offense or offenses. (Evid. Code, 1108).
The evidence of the defendant's commission of another sexual offense or offenses is offered to show the defendant's disposition or propensity to commit a sexual offense. (People v. Falsetta (1999) 21 Cal. 4th 903 89 Cal. Rptr. 2d 847, 986 P.2d 182.) CALJIC No. 2.50.01 instructs the jury on the jury's use of this other sexual offense evidence.
In 1999 this instruction was revised to include new language expressly stating "if you find (by a preponderance of the evidence) that the defendant committed (a) prior sexual offense(s), that is not sufficient by itself to prove (beyond a reasonable doubt) that (he)(she) committed the charged crime(s)." (CALJIC No. 2.50.01 (1999 rev)).
In People v. Vichroy (1999) 76 Cal. App. 4th 92 90 Cal. Rptr. 2d 105, the Second District held that the pre-1999 version of CALJIC No. 2.50.01 deprived a defendant of due process of law because it permitted the jury to find him "guilty of the current charges solely because he had committed prior sexual offenses." (76 Cal. App. 4th at p. 101).
In the published portion of the present case we respectfully disagree with Vichroy. We hold that the pre-1999 version of CALJIC No. 2.50.01 did not deprive appellant of due process of law.