Orellano

*181 Opinion

Introduction

We address a recurring issue not yet resolved by our Supreme Court. In a prosecution for sex offenses, evidence of prior sex offenses was admitted pursuant to Evidence Code section 1108. The jurors were instructed under CALJIC Nos. 2.50.01 (before its revision in 1999), 2.50.1, and 2.50.2 that if they found, by a preponderance of evidence, that the defendant committed the prior crimes, they may infer he had a disposition to commit the same or similar crimes, and if they found he had such a disposition, they may infer he was likely to commit “and did” in fact commit the current crimes. Under these or similar circumstances, a split of authority has developed in the Courts of Appeal. Some hold there is a reasonable likelihood the jurors interpreted such instructions to authorize convicting the defendant of the current crimes based merely upon proof (by a preponderance of evidence) that the defendant committed the prior crimes, a constitutionally impermissible result. (See People v. Vichroy (1999) 76 Cal.App.4th 92, 98-101 [ 90 Cal.Rptr.2d 105 ].) Others hold there is no reasonable likelihood the jurors interpreted these instructions that way, when all the…