People v. Diaz CA2/3

DISCUSSION

I. CALCRIM No. 1191B

The trial court instructed the jury with CALCRIM No. 1191B, which, after identifying the charged crimes, stated: “If the People have proved beyond a reasonable doubt that the

3 defendant committed one or more of these crimes, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses, and based on that decision, also conclude that the defendant was likely to commit and did commit the other sex offenses charged in this case. [¶] If you find that the defendant committed one or more of these crimes, 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 another crime. The People must still prove each charge and allegation beyond a reasonable doubt.” Diaz contends this instruction violated his due process rights under the Fourteenth Amendment to a fundamentally fair trial. He asserts the instruction allowed the jury to improperly infer from the evidence supporting one charged offense that he had the propensity to commit the other charged offenses. However, Diaz acknowledges the…