Garcia

*982 People v. Cruz (2016) 2 Cal.App.5th 1178 , 206 Cal.Rptr.3d 835 ( Cruz ) held that former CALJIC No. 2.50.01 -which permits a juror to draw an inference of a defendant's disposition to commit a sex offense based on proof of a charged crime by a preponderance of the evidence-unconstitutionally lowers the prosecution's burden of proof and results in structural error requiring reversal. We disagree with the reasoning in Cruz . We hold that the former CALJIC No. 2.50.02, a similarly worded pattern instruction on the use of charged acts of domestic violence to prove a disposition to commit domestic violence, does not lower the prosecution's burden of proof. Moreover, in this case the jurors were told seven times that the burden of proof was on the prosecution to prove guilt beyond a reasonable doubt, and no reasonable juror would have concluded that a conviction could be based on a preponderance of the evidence.

PROCEDURAL HISTORY AND DEFENDANT'S CONTENTIONS

Defendant and appellant Danny Michael Garcia was charged with committing eight offenses against Amanda P., his girlfriend and the mother of his child. The jury found defendant guilty of four of the eight charges: count…

Justice Corrigan warned there would be cases like this. In a case of recent vintage, *1008 People v. Villatoro (2012) 54 Cal.4th 1152 , 144 Cal.Rptr.3d 401 , 281 P.3d 390 ( Villatoro ), a majority of our Supreme Court held a trial court properly instructed jurors they could consider evidence a defendant committed one or more charged sex crimes as evidence the defendant was predisposed to commit additional charged sex crimes that the prosecution was tasked with proving in the very same criminal trial. ( Id. at pp. 1164-1165, 144 Cal.Rptr.3d 401 , 281 P.3d 390 .) Justice Corrigan disagreed, explaining the court's holding "sows the seeds for confusion and unintended consequences." ( Id. at p. 1169, 144 Cal.Rptr.3d 401 , 281 P.3d 390 (conc. & dis. opn. of Corrigan, J.).) Justice Corrigan specifically cautioned that confusion was inevitable if jurors were told they should use the preponderance of the evidence standard to decide whether a defendant committed one or more charged crimes, so as to infer he or she had a propensity to commit other similar charged crimes, but simultaneously told to somehow evaluate whether the defendant was guilty of all the charged crimes by using the…