California v. Jason Glenn Halverson
California Court of Appeal
July 25, 2002


Defendant Jason Glenn Halverson shoved a female acquaintance down on a bed, tried to take her clothes off, fondled her breasts, then exposed his erect penis and urged her to touch it. After she managed to get up, he pushed his hands inside her clothes and fondled her again. As a result, a jury found him guilty of assault with intent to commit rape (Pen. Code 220) and sexual battery (Pen. Code 243.4, subd. (a)). He was sentenced to two years in prison.

In this appeal, defendant contends:

1. The trial court erred by admitting evidence that defendant had committed prior sex offenses.

2. There was insufficient evidence that defendant intended to commit rape, rather than some other sex offense.

3. The trial court failed to respond adequately to a jury question during deliberations.

4. CALJIC No. 2.50.01, regarding evidence of other sex offenses, was erroneous.

5. CALJIC No. 17.41.1, regarding the jurors' obligation to advise the court of misconduct, was erroneous.

We find no error. Thus, we will affirm.


Defendant and victim Shannon H. both worked at the same Lowe's home improvement store. Shannon was 18 years old. She shared an apartment with another Lowe's employee named Summer. Their apartment was less than a five-minute drive from the store.

On April 4, 2000, at 2:07 p.m., Shannon clocked out for lunch. She drove to a McDonald's, then to her apartment. While she was there, defendant phoned. He asked for Summer. She said Summer was not home.

Shannon finished her lunch, then phoned her mother. While she was on the phone, defendant knocked at the door. She opened it. As she turned around, to hang up the phone and to get ready to leave, defendant walked in. He shut the door. She asked what he was doing there. He replied that he had just stopped by to see if Summer was home yet. Shannon said she needed to get back to work. She told him to wait in the living room, then went into the bathroom to get her lipstick. When she came back out, she found that defendant had followed her. She said again that she had to get back to work. Defendant asked her "[t]o call in and hang out with him for the rest of the day." She repeated that she had to get back to work.

As Shannon walked past defendant and through the bedroom, he pushed her down onto the bed. She landed on her back, with her feet on the floor. Defendant sat on top of her, straddling her. She told him to get off and kept trying to push him off. He kept trying to unbutton her overalls; she buttoned them back up. She testified: "He kept telling me he has been wanting me and my roommate wouldn't give it up so he would go for me." Finally, he got the bib of her overalls down. He pinned her arms down with his knees. He put his hands up under her shirt and touched her breasts. He then unzipped his pants and exposed his erect penis. He asked her to touch it; when she did not, he took her right hand and put it on his penis, but Shannon pulled her hand away. He said "he wanted [her] to touch him because he liked it. He said he was soft because he was shaved and that women like that."

Shannon could not remember how she got off the bed, but she did. As she walked toward the bedroom door, defendant pulled her toward him and put his hands down her overalls. He touched her "vagina" from outside her underwear; he also touched her breasts.

Heather B., a 14-year-old girl, lived downstairs from Shannon. When she heard noises coming from Shannon's apartment, she went upstairs to see what was wrong. She knocked at the door. Defendant zipped up his pants, then opened the door. Shannon told Heather to come in. Defendant said he would see her later, then "ran" out the door.

When Shannon went down to her car, defendant was there waiting for her. He asked if he could see her that night; she said no. She then drove back to Lowe's. She clocked in at 3:04 p.m. She reported the attack to the manager and thereafter to the police.

Shannon had pierced nipples. Defense witnesses testified that she had repeatedly lifted her shirt to display her breasts to defendant and to others. One witness also testified that she had repeatedly grabbed defendant's buttocks and crotch. Shannon denied doing either.

At the request of the police, Shannon made a "pretext" call to defendant. When she asked, "Have you done this before?," he said that "he was in a jacuzzi with a 16-year-old girl and ... she touched him and he touched her ... ." Similarly, defendant later told the police he had been in a spa with a young girl named Lindsay, and she had accused him of touching her.

Lindsay H. and Andrea B. then testified that defendant had committed prior uncharged sex offenses against them. We will discuss their testimony in more detail in part II, post.


Defendant contends the trial court erred by admitting evidence that he had committed previous sex offenses.

A. Additional Factual and Procedural Background.

1. Lindsay H.

Lindsay H. knew defendant as "a friend of a friend." They also attended the same church (Jehovah's Witnesses). In 1995 or 1996, when she was 15, a group of five or six people got together at a friend's house; among them were Lindsay, defendant, and defendant's wife. Someone pushed Lindsay into a shallow pool. A "300-plus pound[]" man was pushed in, too. He landed on her leg, leaving a large bruise. People helped Lindsay out of the pool and placed her in the Jacuzzi.

Defendant's wife left. When everyone else went inside to eat, defendant got in the Jacuzzi with Lindsay. He put his hand down the front of her bikini bottoms and put his fingers inside her vagina; it hurt (and later, she found blood). He also put her hand down the front of his bathing suit and placed it on his erect penis. She pulled her hand away, but he put it back. He moved her hand back and forth for about two minutes, then stopped and said he was finished.

Three months later, Lindsay told her psychologist about this incident. He encouraged her report it to the police, and she did.

2. Andrea B.

Andrea B. likewise knew defendant and his wife through her church; defendant also sometimes worked for her father. In August 1995, when she was 14, defendant came to her house unexpectedly. She was there alone. He asked where her parents were. He then suggested that she come and see some birds he had bought. At first she said no, but he talked her into it.

Defendant drove Andrea to his apartment. After showing her one of the birds, defendant took off his pants and exposed his erect penis. Andrea was "in shock." He moved her head to his penis and placed his penis in her mouth. He moved back and forth until he ejaculated in her mouth. She felt sick. Defendant got her something to drink. When she said, "Well, I think I should be getting home," he drove her back.

Andrea was both angry and regretful. She knew she should not have been at defendant's apartment, especially when his wife was not there. She also knew her church "frowned" on oral sex. She testified, "I thought I would be disfellowshipped. I thought ... I would break up the marriage. ... I thought ... everybody would be mad at me."

After that, when defendant came to her house, Andrea stayed in her room. During summer vacation, when she was home alone, there were "a lot of times" when defendant "would pull up in the driveway and he'd get out ... . And he'd try the doors and the back door, and he'd knock on the window."

On August 26, 1996, Andrea was home alone. She had been smoking marijuana and drinking wine, so the day was "foggy in [her] mind." The back door was unlocked; defendant let himself in. He kissed her. Somehow, "[she] ended up in [her] room with him." He took off her shorts and underwear. He told her to sit on his face, but she just stood there. He then told her to lie down, and she did. He orally copulated her, then started to put his penis in her mouth. At that point, she thought, "I got to stop this sometime." She pushed him off, started crying, and said, "This ... can't happen anymore ... ." Eventually, defendant confessed to church elders. As a result, Andrea told her side of the story, first to the elders and then to the police.

3. Defendant's Motion in Limine.

The prosecution notified the defense that it intended to introduce evidence of the sex offenses against Lindsay and Andrea. Defendant filed a written motion in limine to exclude this evidence. After hearing argument, the trial court denied the motion.

B. Analysis.

1. Statutory Background.

Evidence Code section 1108, as relevant here, provides:

"(a) In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.

"(b) In an action in which evidence is to be offered under this section, the people shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least 30 days before the scheduled date of trial or at such later time as the court may allow for good cause."

2. Notice.

Defendant argues that the prosecution failed to give notice as required by Evidence Code section 1108. This contention, however, appears to be based on a misreading of the record. At the hearing on the motion, defense counsel conceded that "[t]he People did give proper notice under [section] 1108 of the Evidence Code ... ." (Italics added.)

3. Probative Value Versus Undue Prejudice.

Defendant argues that the trial court abused its discretion under Evidence Code sections 352 and 1108.

"By reason of section 1108, trial courts may no longer deem `propensity' evidence unduly prejudicial per se, but must engage in a careful weighing process under section 352. Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant's other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense. [Citations.]

"[T]he probative value of `other crimes' evidence is increased by the relative similarity between the charged and uncharged offenses, the close proximity in time of the offenses, and the independent sources of evidence (the victims) in each offense. [Citation.] [T]he prejudicial impact of the evidence is reduced if the uncharged offenses resulted in actual convictions and a prison term ... [Citation.]" (People v. Falsetta (1999) 21 Cal.4th 903, 916-917.)

"[T]his court will not disturb a trial court's exercise of discretion under Evidence Code section 352 unless it is shown the trial court exercised its discretion `"in an arbitrary, capricious or patently absurd manner."' [Citations.]" (People v. Frye (1998) 18 Cal.4th 894, 948, quoting People v. Sanders (1995) 11 Cal.4th 475, 512, quoting People v. Jordan (1986) 42 Cal.3d 308, 316.)

Here, the prior offenses had crucial probative value. This was a typical "he said, she said" case. Proof that defendant had a propensity to commit sex offenses strongly supported Shannon's account. Moreover, the prior offenses were significantly similar to the charged offenses; in each instance, defendant took advantage of a teen-aged girl with whom he had a prior acquaintance; schemed to get the victim alone with him; did not bother with any romantic or affectionate overtures (aside from a single kiss); began by forcing the victim to manipulate his penis and/or by manipulating her vaginal area; and, in two out of the three cases, thrust his hands down into the victim's clothes. The prior offenses were not remote; they were committed just four or five years before the charged offenses. And the victims were independent sources.

At the same time, the prior offenses were not particularly prejudicial. As already discussed, the prosecution gave defense counsel due notice of the prior offenses; thus, we do not believe defendant faced any unusual difficulty in defending against them. There was virtually no uncertainty about their commission. The defense did not even try to controvert either Lindsay or Andrea's testimony. Defendant had admitted to both Shannon and the police that he had done "this" before in a spa with a girl named Lindsay. The evidence of the prior offenses did not require the undue consumption of time. Altogether, witnesses testified over the course of about a day and a half. Of this, Andrea testified for 38 minutes; Lindsay testified for 19 minutes. Finally, there was no substantial danger of confusing the issues or of misleading the jury. The jury was instructed to use this evidence only for the limited purpose of determining whether defendant had a predisposition to commit sex offenses. (CALJIC No. 2.50.01.) We recognize that the prior offenses had not resulted in convictions. Nevertheless, this factor, by itself, did not require the trial court to exclude the evidence.

Defendant argues that the prior offenses were not truly probative because they were crimes against minors which could be committed even with the victim's consent; thus, they did not prove an intent to act against the victim's will. Legally, lack of consent was not an element of the prior offenses. Factually, however, while Lindsay and Andrea failed to express unambiguously their lack of consent, they were hardly willing participants. They both testified that they did nothing to invite defendant's sexual advances. Thus, the evidence tended to show that defendant was none too punctilious about obtaining consent.

Defendant also argues that the prior offenses were inflammatory because the victims were minors and because they were more "sympathetic" than Shannon. At the same time, it could be argued that the prior offenses were less inflammatory because the victims did not object or resist. The trial court had discretion to decide how inflammatory they were.

Defendant relies heavily on People v. Harris (1998) 60 Cal.App.4th 727. There, however, the defendant, a mental health nurse, was charged with sexually touching one patient and one former patient against their will. (Id., at pp. 730-733.) The evidence of the prior offense indicated that he had beaten and forcibly raped the victim (who had never been his patient); he ended up with her blood all over his penis, underwear, and pants. (Id., at pp. 734-735.) The appellate court held that the trial court abused its discretion by admitting this evidence because it was "inflammatory in the extreme" (id., at p. 738) and "totally dissimilar to the current allegations ... ." (Id., at p. 740.) Also, the prior offense was remote, having been committed 23 years earlier. (Id., at p. 739.) Here, the prior offenses were much more similar to the current offenses, much less inflammatory, and much less remote. Harris is therefore not controlling.

In the alternative, defendant argues the trial court erred by admitting both of the prior offenses instead of just one. Either offense alone, however, would have had practically no value as proof of a predisposition to commit sex offenses.

We conclude that the trial court did not abuse its discretion by admitting the evidence of the prior offenses.


Defendant contends there was insufficient evidence of his intent to commit rape. In particular, he argues that there is no evidence that he intended to engage in sexual intercourse, as opposed to oral copulation or manual masturbation -- especially in light of the prior offenses.

Penal Code section 220 can be violated by assault with the intent to commit not only rape, but also oral copulation (as well as other specified offenses). Here, however, the information alleged solely assault with intent to commit rape, and the jury was instructed solely on the theory of assault with intent to commit rape. Therefore, we cannot uphold the verdict based on evidence of an intent to commit oral copulation.

In People v. Craig (1994) 25 Cal.App.4th 1593, there was a weaker showing of intent to rape than there is here; nevertheless, the court found the evidence sufficient. There, the defendant followed a woman as she drove home. (Id., at p. 1595.) When she arrived there and got out of her car, he forced her back into the driver's seat. He told her not to look at him. He then put one hand under her top. "He placed his hand flat against her chest, touching both of her breasts outside her bra." (Id., at p. 1596.) At that point, the woman's boyfriend came out of the house and heroically apprehended the defendant. (Ibid.)

The prosecution also introduced evidence that the defendant had committed two prior sex offenses. In each of those, he had held a strange woman at knifepoint, tried to get her to go with him, and placed his hand on her blouse and bra; he fondled one woman's breast and touched the other woman's panties. (People v. Craig, supra, 25 Cal.App.4th at pp. 1596-1597.)

On appeal, the defendant "concede[d] there was substantial evidence from which the jury could find he intended 'something sexual', committed forcibly or without consent. He claim[ed], though, that the evidence fell short of showing he intended to accomplish an act of sexual intercourse." (People v. Craig, supra, 25 Cal.App.4th at p. 1597.)

The appellate court disagreed. (People v. Craig, supra, 25 Cal.App.4th at pp. 1597-1604.) First, it noted that, in one of the prior offenses, the defendant had said, "come with me now, or I'll do it here, now" and "I want you now." (Id., at p. 1600.) It observed: "While those statements may be susceptible of more than one meaning, the phrase `do it' is frequently employed as a euphemism for other terms connoting an act of sexual intercourse, and `I want you' can be interpreted as stating a desire for intercourse." (Ibid.) It also noted "[t]he evidence of physical acts leading towards intercourse" (ibid.); that is, the defendant "forcibly grabbed [the victim] and placed one of his hands under her clothing. That conduct is consistent with an intent to commit rape." (Id., at p. 1601.) Finally, it noted that the defendant had had to be stopped by force. (Id., at p. 1600.)

There is some logic in presuming that a man who begins by fondling a woman against her will ultimately intends to rape her. Rape requires less cooperation from the victim than does either forced oral copulation or forced manual masturbation. Moreover, any man electing one of the latter two approaches would be well advised to keep enough control over the woman to prevent her from retaliating against his vulnerable sexual organs. Certainly control can be had, by brandishing a weapon or, as in the attack on Andrea, by choosing a relatively helpless victim. Shannon, however, was an adult; she persisted in trying to fight defendant off. His efforts both to persuade her and to force her to touch his penis failed miserably. Just from these circumstances, a jury could reasonably infer that defendant decided on rape.

In addition, defendant assumed a position straddling Shannon -- a position more suited to intercourse than to either oral copulation or manual masturbation. He told Shannon he "wanted" her. He also said her roommate "wouldn't give it up so he would go for [her]." As in Craig, the jury could take these terms to refer to intercourse. Finally, he kept trying to take off Shannon's overalls. If all he wanted was for her to orally copulate or masturbate him, this was time-consuming and unnecessary. By contrast, in his attack on Lindsay and in his first attack on Andrea, he did not even try to take off their clothes. (In his second attack on Andrea, he did take off her clothes; however, he also had her lie down, and he may well have intended to progress from oral copulation to intercourse.)

Admittedly, there was some contrary evidence. In the prior offenses, defendant usually stopped after oral copulation and/or masturbation. Also, he told Shannon "he wanted [her] to touch him ... ." However, "'[i]t is not the function of this court to determine whether a different finding would be just as reasonable as the one made [by the trier of fact]; rather, this court simply determines whether there is substantial evidence, including inferences reasonably deduced from the facts in evidence, to support the finding actually made.' [Citation.]" (People v. Trotter (1984) 160 Cal.App.3d 1217, 1223, second brackets in original, quoting People v. Bard (1968) 70 Cal.2d 3, 6.)

We conclude that there was sufficient evidence that defendant intended to rape Shannon.


Defendant contends the trial court failed to respond adequately to a question from the jury.

A. Additional Factual and Procedural Background.

The record contains the following written question from the jury, dated as of the first day of deliberations:

"Definition of `intent to rape' was it:

"1. Touching intimate part of victim

"2. Touching against will of victim

"3. Touching done with specific intent for sexual arousal

"4. Touching occurred while unlawfully restrained

[In the margin, there was a bracket around these four numbered lines, with the question, "Can we use these?"]

"Does the victim[']s fear of being raped constitute intent to rape?

"Can we have Shannon's transcript? Read[-]back of Shannon's testimony."

The record also contains the following written response:

"Under Count 1, assault with intent to commit rape, the perpetrator must harbor the specific intent to rape the victim at any time during the assault. The perpetrator must therefore intend to accomplish an act of sexual intercourse against the will of the victim by use of force, duress, menace or fear of immediate unlawful bodily injury to the victim.

"Sexual battery, as charged under Count II [sic], is a separate and distinct crime from Count 1. The perpetrator need not have the intent to rape the victim. For purposes of sexual battery, the perpetrator must have the specific intent to cause sexual arousal to himself or sexual abuse to the intended victim."

The record does not otherwise reflect receipt of, discussion of, or the response to, the jury's question.

B. Analysis.

We begin with what is not at issue. Defendant does not contend the trial court erred by failing to discuss the question and/or the response with counsel, in defendant's presence, and/or on the record. He does not contend the trial court erred by failing to respond to the question in open court. Finally, he does not contend the trial court erred by failing to provide a readback of Shannon's testimony; quite the contrary, he generously concedes that: "Although the record does not contain any indication a readback occurred, counsel has been advised by the court reporter that this was done. Since there is no issue raised concerning the readback, there is no need to settle the record to establish this occurred."

We cannot help wondering: What else may have occurred without making its way into the record? Did the trial court discuss the question with defense counsel? If so, did defense counsel approve of (or perhaps even draft) the response? (See People v. Bohana (2000) 84 Cal.App.4th 360, 373 ["[w]here . . . appellant consents to the trial court's response to jury questions during deliberations, any claim of error with respect thereto is waived"].) Appellate counsel's preemptive assurance that "there is no need to settle the record" also makes our suspicion tingle.

We have discretion, on our own motion, to order the record augmented with a settled statement. (People v. Hawthorne (1992) 4 Cal.4th 43, 61-62.) Ordinarily, however, we look to the parties to supply us with an adequate record. Certainly if there were anything in a missing portion of the record that would support one party's position, one would expect that party to request augmentation. Hence, it is the rule that, when no one has requested augmentation, we must assume the record is adequate. (Cal. Rules of Court, rule 52.) We see no reason to depart from this rule in this case. Accordingly, we forgo speculation; we presume that a settled statement would not change the result.

The People argue that defendant waived his present contention by failing to object (at least, so far as the present record shows) to the trial court's response. We disagree. "Even without an objection, a defendant may challenge on appeal an instruction that affects `the substantial rights of the defendant ... .' [Citation.]" (People v. Hillhouse (2002) 27 Cal.4th 469, 505-506, quoting Pen. Code, § 1259.) "Instructions regarding the elements of the crime affect the substantial rights of the defendant, thus requiring no objection for appellate review. [Citations.]" (Hillhouse, supra, at p. 503.) Here, the trial court's response went to the intent elements of both charged crimes. Thus, defendant did not have to object.

"[Penal Code s]section 1138 imposes upon the court a duty to provide the jury with information the jury desires on points of law. [Citation.] If, however, '"the original instructions are themselves full and complete, the court has discretion under ... section 1138 to determine what additional explanations are sufficient to satisfy the jury's request for information."' [Citations.]" (People v. Smithey (1999) 20 Cal.4th 936, 985, fn. omitted, quoting People v. Davis (1995) 10 Cal.4th 463, 522, quoting People v. Beardslee (1991) 53 Cal.3d 68, 97.) "Indeed, comments diverging from the standard are often risky. [Citation.]" (People v. Beardslee, supra, at p. 97.)

"[A] reviewing court may not overturn an exercise of discretion simply because it would have decided differently." (People v. McGlothin (1998) 67 Cal.App.4th 468, 477.) "The exercise of discretion is not grounds for reversal unless '"the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice."' [Citation.]" (People v. Ochoa (2001) 26 Cal.4th 398, 437-438, quoting People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125, quoting People v. Jordan, supra, 42 Cal.3d at p. 316.)

We can see no such abuse of discretion here. The question shows that the jury somehow thought the elements of the sexual battery, as charged in count 2, might be evidence of intent to rape, as required for count 1. The trial court quite properly responded by distinguishing between the two offenses. It advised the jury that assault with intent to commit rape requires the specific intent to commit rape; that sexual battery "is a separate and distinct crime" from assault with intent to commit rape; and that sexual battery requires the intent to cause sexual arousal or sexual abuse, rather than the intent to commit rape.

To the extent that the jury was seeking a definition of "intent to rape," the trial court's response reminding the jury of the elements of rape was adequate. Defendant argues that the trial court should have reinstructed the jury with CALJIC No. 2.02 (1999 rev.) (6th ed. 1996), which states, in part, "The specific intent with which an act is done may be shown by the circumstances surrounding the commission of the act." The jury, however, might have understood this to mean that it could rely on the elements of the sexual battery as evidence of intent to rape; after all, these were part of "the circumstances surrounding the commission of the act." Certainly the trial court did not abuse its discretion by redefining intent to rape as it did.

Defendant also argues that the trial court should have answered the jury's question, "Does the victim[']s fear of being raped constitute intent to rape?," simply by saying, "No." It has been held that the victim's "unexpressed subjective evaluation" of the defendant's intent is irrelevant to show that intent; "`[i]t is the state of mind of the defendant, not of the victim, which is in issue.' [Citation.]" (People v. Greene (1973) 34 Cal.App.3d 622, 651, quoting People v. Roth (1964) 228 Cal.App.2d 522, 532.) The trial court's response, however, adequately conveyed this point. The court stated that "[u]nder Count 1, assault with the intent to commit rape, the perpetrator must harbor the specific intent to rape the victim . . . . The perpetrator must therefore intend to accomplish an act of sexual intercourse against the will of the victim by use of force, duress, menace or fear ... ." By stating that the perpetrator must have the requisite intent, the trial court necessarily also indicated that the victim's subjective belief that perpetrator had the requisite intent was insufficient.

Alternatively, defendant waived any contention that the trial court's response was too general or incomplete. As we have already noted, he did not waive the contention that it was legally erroneous. However, "'"a party may not complain on appeal that an instruction correct in law ... was too general or incomplete unless the party has requested appropriate clarifying or amplifying language."' [Citations.]" (People v. Catlin (2001) 26 Cal.4th 81, 149, quoting People v. Guiuan (1998) 18 Cal.4th 558, 570, quoting People v. Andrews (1989) 49 Cal.3d 200, 218.) This is true even when the instruction is given in response to a jury question. (People v. Medina (1990) 51 Cal.3d 870, 902.) Here, the trial court's instruction was both legally correct and responsive to the jury's question. As far as the record shows, defendant did not request any clarifying language.

In any event, we need not decide whether the trial court's response was ideal. We need only decide whether it was an abuse of discretion. We conclude that it was not.


Defendant contends CALJIC No. 2.50.01 (2001 rev.) (6th ed. 1996), regarding evidence of other sexual offenses, was erroneous because it allowed the prosecution to prove guilt by the preponderance of the evidence.

A. Additional Factual and Procedural Background.

Initially, both sides asked the trial court to give CALJIC No. 2.50.01. At an instructions conference, however, there was the following discussion:

"THE COURT: ... 2.50.01. All right. [Prosecutor], as far as 2.50.01?

"[THE PROSECUTOR]: Yes, your Honor.

"THE COURT: This would have to be any conduct. This would be under (a) ...

"[THE PROSECUTOR]: I'll just have to look.

"[DEFENSE COUNSEL]: Actually, Judge, I'll register an objection to this. It seems like the acts, at least as to Andrea[,] sounded consensual.

"THE COURT: And it's still child molest.

"[DEFENSE COUNSEL]: That's where the (a) would come in.

"THE COURT: I think, [Prosecutor], we're going to have to define that.

"[THE PROSECUTOR]: That's correct, your Honor.

"I did not include a request for the instruction on that. We will need to define what constitutes the underlying offense."

The trial court and the prosecutor then agreed that instructions were needed to define the crimes of oral copulation with a minor (Pen. Code 288a, subd. (b)(1)), as to Andrea, and sexual penetration with a minor (Pen. Code 289, subd. (h)), as to Lindsay. The discussion continued:

"THE COURT: So, again, consent is an -- an element of that offense.[ 1 ]

"[DEFENSE COUNSEL]: Yeah, I agree.

"[THE PROSECUTOR]: That's correct."

The court went on:

"THE COURT: The reason I'd like to keep it simple is because the jury, by [a] preponderance of the evidence they have to find that a sexual offense occurred before they can consider it. If we start talking about whether this was forced versus consent, I think it would be confusing. It's clear to the Court that the conduct, if found true, involves inappropriate sexual contact with a child under 18. That's the crime. Once the jury finds that by [a] preponderance, then they can consider the offense for the purpose of disposition.

"[THE PROSECUTOR]: In the interest of making it simple, that's fine.

"THE COURT: Obviously both victims were children and consent is a non-issue. ...

"THE COURT: Did we get a definition of preponderance?

"[THE PROSECUTOR]: 2.50.1, I think.


"THE COURT: Okay."

The trial court therefore instructed the jury with CALJIC No. 2.50.01, as follows:

"Evidence has been introduced for the purpose of showing that the defendant engaged in a sexual offense on one or more occasions other than the charged offenses in the case.

"'Sexual offense' means a crime under the laws of the State of California that involve [sic] any of the following:

"Any conduct made criminal by Penal Code Section 288(a)(b)(1) [sic] and 289(h). The elements of these crimes are set forth elsewhere in these instructions.

"If you find that the defendant committed a prior sexual offense, you may, but are not required to, infer that the defendant had a disposition to commit sexual offenses.

"If you find that the defendant had this disposition, you may, but are not required to, infer that he was likely to commit and did commit the crime of which he's now accused.

"However, if you find by a preponderance of the evidence that the defendant committed a prior sexual offense, that is not sufficient by itself[] to prove beyond a reasonable doubt that he committed the crimes charged. The weight and significance of the evidence, if any, are for you to decide. Unless you are otherwise instructed, you must not consider this evidence for any other purpose."

B. Analysis.

Preliminarily, we note that defendant invited the asserted error by requesting the instruction. (People v. Weaver (2001) 26 Cal.4th 876, 970.) Defendant argues that, during the instructions conference, his counsel objected to it. This is true, but he objected solely on the ground that the prior offenses were arguably consensual. Moreover, the prosecutor and the trial court promptly acceded to his objection by adding instructions identifying the prior offenses as ones which could be committed even with consent. From time to time, defense counsel agreed with what they were doing. Thus, defendant requested, and never objected to, the particular aspects of the instruction which he now challenges on appeal.

In any event, the instruction was not erroneous. Our sister courts are split over the propriety of the current version of CALJIC No. 2.50.01; this issue is now facing the California Supreme Court in People v. Haselman (2002) 95 Cal.App.4th 1055 [116 Cal.Rptr.2d 512], review granted May 1, 2002, S105031, and People v. Reliford (2001) 93 Cal.App.4th 973 [113 Cal.Rptr.2d 571], review granted February 13, 2002, S103084. In People v. Waples (2000) 79 Cal.App.4th 1389, 1396-1398, however, this court upheld the pre-1999 version of CALJIC No. 2.50.01 against a similar challenge. The 1999 revision added the warning --which the trial court gave here -- that "[I]f you find by a preponderance of the evidence that the defendant committed a prior sexual offense, that is not sufficient by itself to prove beyond a reasonable doubt that he committed the crimes charged." A fortiori, we must uphold the revised instruction.

People v. Falsetta includes dictum approving the current version of CALJIC No. 2.50.01. The Supreme Court declared that this instruction "contains language appropriate for cases involving the admission of disposition evidence" and "adequately sets forth the controlling principles ... ." (People v. Falsetta, supra, 21 Cal.4th at pp. 922, 924.) "[E]ven dictum from our Supreme Court is considered `highly persuasive.' [Citation.] We believe it is improbable that the California Supreme Court would suggest an instruction `adequately sets forth the controlling principles' for considering other crimes evidence, and then find that same instruction to be constitutionally defective. [Citations.]" (People v. Brown (2000) 77 Cal.App.4th 1324, 1336.)

Defendant argues that the instruction was erroneous under Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435], which held that any fact (other than a prior conviction) which increases the maximum penalty for a crime must be proven to a jury beyond a reasonable doubt. (Id., at p. 490.) By themselves, however, defendant's prior sex offenses did not subject him to any penalty whatsoever. They subjected him to a penalty only if the jury, after considering the evidence of the prior sex offenses along with the other evidence, concluded beyond a reasonable doubt that he committed a charged offense.

Defendant also argues that the jury may have understood the instruction to mean that every element of the charged crimes, except propensity, had to be proven beyond a reasonable doubt. Propensity, however, was not an "element" of the crimes. It did not have to be proven at all. If proven, it became merely one evidentiary fact among other evidentiary facts.

Once the prosecution chose to prove the prior sex offenses, they only needed to be shown by a preponderance before the jury could consider them as evidence of guilt. (People v. Carpenter (1997) 15 Cal.4th 312, 382; People v. Medina (1995) 11 Cal.4th 694, 763.) "A permissive inference does not relieve the State of its burden of persuasion because it still requires the State to convince the jury that the suggested conclusion should be inferred based on the predicate facts proved." (Francis v. Franklin (1985) 471 U.S. 307, 314 [105 S.Ct. 1965, 85 L.Ed.2d 344].) Thus, the predicate facts themselves need not be proven beyond a reasonable doubt. (County Court of Ulster County, N.Y. v. Allen (1979) 442 U.S. 140, 166-167 [99 S.Ct. 2213, 60 L.Ed.2d 777].)

We conclude that CALJIC No. 2.50.01, as revised in 1999, does not misstate the prosecution's burden of proof.


Defendant contends that CALJIC No. 17.41.1 (1998 new) (6th ed. 1996) 2 -- nicknamed by some the "snitch instruction" -- coerced jurors, chilled jury deliberations, and enabled majority jurors to impose their will on the minority; thus, it deprived him of his rights to trial by jury (including juror unanimity) and to a fair trial.

In People v. Engelman (2002) Cal.4th [2002 WL 1578778], the California Supreme Court recently rejected substantially similar challenges to CALJIC No. 17.41.1. (Id) We must therefore reject defendant's contentions.

Admittedly, the Supreme Court, exercising its supervisory powers, directed that CALJIC No. 17.41.1 not be given in future trials. (People v. Engelman, supra, Cal.4th.) It reasoned that the instruction "create[s] the risk of intrusion upon the secrecy of deliberations or of an adverse impact upon the course of deliberations ... ." (Id., italics added.) But here, as in Engelman, there is no indication that CALJIC No. 17.41.1 affected the jurors' deliberations in any way. Thus, defendant has not shown that the instruction violated his rights in any of the claimed respects.

Defendant also argues that the instruction violated the jurors' freedom of speech and association. We may assume, without deciding, that defendant has standing to raise this argument. (Cf. Powers v. Ohio (1991) 499 U.S. 400, 410-415 [111 S.Ct. 1364, 113 L.Ed.2d 411].) The jurors' right to freedom of speech, however, must be balanced against the right to a fair trial. (Allegrezza v. Superior Court (1975) 47 Cal.App.3d 948, 951-952; Younger v. Smith (1973) 30 Cal.App.3d 138, 159-164; see San Jose Mercury-News v. Municipal Court (1982) 30 Cal.3d 498, 510, fn. 12.) For example, jurors do not have the right, as a matter of freedom of speech or otherwise, to inject outside influences into their deliberations. (See Sheppard v. Maxwell (1966) 384 U.S. 333, 351 [86 S.Ct. 1507, 16 L.Ed.2d 600].) Jurors likewise do not have the right in their deliberations to disregard the law. (See People v. Cline (1998) 60 Cal.App.4th 1327, 1335.) CALJIC No. 17.41.1 substantially promotes the right to a fair trial, which outweighs any incidental chilling effect on the jurors' already restricted freedom of speech during deliberations.

We conclude that the trial court did not err by giving CALJIC No. 17.41.1.


The judgment is affirmed.

We concur:



1. Either this is a mistranscription, or the trial court misspoke. An adult can commit the crimes of oral copulation with a minor and sexual penetration with a minor even if the minor consents. (See Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1225 [oral copulation].) Thus, the trial court apparently meant that lack of consent is not an element of these crimes.

2. CALJIC No. 17.41.1 (1998 rev.), as given in this case, states: "The integrity of a trial requires that jurors, at all times during their deliberations, conduct themselves as required by these instructions. Accordingly, should it occur that any juror refuses to deliberate or expresses an intention to disregard the law or decide the case based on penalty or punishment or any other improper basis, it's the obligation of the other jurors to immediately advise the Court of that situation."