Opinion
D080471 D080740
08-22-2024
The PEOPLE, Plaintiff and Respondent, v. Jeff Shei HOLLIDAY, Defendant and Appellant. The People, Plaintiff and Respondent, v. Jose Oscar Esqueda, Jr., Defendant and Appellant.
Denise M. Rudasill, under appointment by the Court of Appeal, for Defendant and Appellant Jeff Shai Holliday. Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant Jose Oscar Esqueda, Jr. Bob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Melissa Mandel and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
CONSOLIDATED APPEALS from judgments of the Superior Court of San Diego County, Jeffrey F. Fraser, Judge. Affirmed in part, reversed in part, and remanded. (Super. Ct. No. SCD275109), (Super. Ct. No. SCD275109)
Denise M. Rudasill, under appointment by the Court of Appeal, for Defendant and Appellant Jeff Shai Holliday.
Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant Jose Oscar Esqueda, Jr.
Bob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Melissa Mandel and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
BUCHANAN, Acting P. J.
I.
INTRODUCTION
Defendants Jeff Shai Holliday and Jose Oscar Esqueda, Jr. were jointly tried before separate juries on charges related to three separate assaultive incidents that occurred in 2017. For the first two incidents, the men were charged with accosting strangers in Pacific Beach and Chula Vista, respectively, and taking or attempting to take the victims’ property. In the third incident, which occurred approximately seven months after the second, the defendants approached an inebriated man in the Gaslamp Quarter of San Diego. According to the prosecution evidence, a fight ensued when Holliday punched the man, and the man’s friends came to his aid. During the resulting brawl, Esqueda used a knife in his possession to stab two men, one of whom died at the scene.
The defendants’ juries found them guilty of two counts of conspiracy to commit robbery and one count of robbery in connection with the Pacific Beach and Chula Vista incidents. Esqueda’s jury found him guilty of premeditated murder, attempted murder, and assault by force likely to produce great bodily injury in connection with the Gaslamp Quarter melee. As to that incident, Holliday’s jury convicted him of the lesser offense of involuntary manslaughter in connection with the death, as well as with assault by force likely to produce great bodily injury in connection with his punching of another victim.
Defendants raise multiple issues on appeal. In the published portion of this opinion, we conclude that the trial court erred by giving a modified version of CALCRIM No. 375, which used a preponderance of the evidence standard for the jury’s consideration of evidence of the charged Pacific Beach and Chula Vista crimes. This instruction effectively lowered the prosecution’s burden of proving those crimes beyond a reasonable doubt, resulting in a violation of the due process clause of the Fourteenth Amendment. Such a structural error is reversible per se. We therefore reverse both defendants’ convictions for the Pacific Beach and Chula Vista crimes (counts 5-7) and remand for further proceedings. In all other respects, we find no prejudicial error and affirm the remaining convictions.
On our own motion, we consolidate the defendants’ appeals, case Nos. D080471 and D080740, for purposes of decision. Our consolidation renders moot Holliday’s request that this court take judicial notice of the appellate record in Esqueda’s appeal, case No. D080471.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background
1. The Pacific Beach Offenses (Counts 5 & 6)
On April 15, 2017, at about 6:30 p.m., Adam E. and his fiancée were riding bikes on the sidewalk in the Pacific Beach area of San Diego, heading toward the beach. Esqueda and Holliday were walking in the opposite direction. As the two parties encountered each other, Esqueda jumped in front of Adam and punched him in the head using a partially closed fist. The hit knocked Adam off of his bike.
As Adam tried to get back to his feet, Esqueda came toward him, looking like he wanted to fight. Adam was afraid because Esqueda appeared to want to hurt or kill him. Adam initially retreated, but Esqueda kept approaching. Adam then stood his ground and began moving toward Esqueda. At that point, Esqueda fled from the scene, and Adam pursued him.
Meanwhile, just after Adam fell from his bike, Holliday grabbed it and rode off. Holliday paused nearby, next to a parked Chrysler sedan, to wait for Esqueda. However, according to Adam’s trial testimony, when Holliday saw that Adam was chasing Esqueda, he exclaimed, "Oh shit," and threw the bike down. Holliday yelled to Esqueda, "[C]ome on, come on, come on." Holliday and Esqueda jumped into the Chrysler and sped away. Adam managed to photograph the car and its license plate. Police were able to determine that the car was registered to Holliday.
2. The Chula Vista Offense (Count 7)
On April 29, 2017, two weeks after the incident in Pacific Beach, Esqueda and Holliday went to the Chula Vista Mall in the same Chrysler. At around 9:00 p.m., when the mall was closing, a man carrying a shopping bag from a Vans store was walking through the parking lot. Esqueda and Holliday approached the man. One of them advanced from the front, while the other approached from the back. After a brief interaction, Esqueda and Holliday tried to physically take the bag from the man. According to witness testimony, the man resisted and yelled, "[S]top[!]" He pulled himself free from Esqueda and Holliday and ran to some women who were heading to their car. At that point, Esqueda and Holliday walked off empty-handed, heading toward Sears. Video from a mall surveillance camera captured the incident.
A witness who worked at a store in the mall was watching what occurred and called 911. The employee testified that a little bit after she watched the man run away from Esqueda and Holliday, she heard a woman yell, "Help." She turned in the direction of the Sears and saw a woman running.
At around this same time, a janitor at the mall received a report from a woman that someone was being "mugged or robbed" near the Sears. The woman described the assailants as wearing the same clothing that Esqueda and Holliday had been seen wearing on the surveillance video.
Within minutes a police officer responded to the scene. He noticed that Esqueda and Holliday matched the description shared by the dispatcher and detained them. The men denied having tried to rob anyone. The mall employee who had witnessed Esqueda and Holliday engage with the man with the Vans bag declined to return to the mall to participate in a field identification. Officers found no weapons on Esqueda or Holliday, but they did not search the Chrysler. Because the men had no weapons on them when searched and because the employee who saw them declined to do a field identification, officers let the pair go. 3. The Gaslamp Quarter Offenses (Counts 1-3)
At trial the witness conceded that she declined to return to the mall because she was "afraid of getting involved."
Several months later in the early morning hours of December 29, 2017, Holliday and Esqueda were out together in the Gaslamp Quarter of San Diego. Surveillance videos from the area show the two at various locations that early morning. Esqueda was wearing gloves and had brought along a folding Karambit-style knife. Esqueda’s knife had a three-inch curved blade and a five-inch handle.
At 1:24 a.m., a man holding an unlit cigarette walked up to Esqueda and appeared to ask him for a light. Esqueda responded by holding the knife up to the man’s face.
Just after this, Esqueda and Holliday crossed the street and then doubled back to where the man with the cigarette had gone. Video shows the pair first noticing the man with the cigarette getting a light from another individual, and then heading toward those men. Esqueda and Holliday paused nearby but did not appear to interact with anyone. Eventually they moved along.
Less than a block away, a group of five men (Ryan H., Christopher D. (also referred to as Chris), Andrew H., Brandon O., and Curtis S.) were looking for their car after a night out in the Gaslamp Quarter. The men had left a bar after Chris had an altercation with another patron that resulted in Chris being punched and having a bloody nose.
Chris was inebriated, on his phone, and lagging behind his friends. He ended up alone on one side of the street while his friends stood waiting for him across the street. Esqueda and Holliday were on the same side of the street as Chris, and they walked toward him. Holliday hung back a bit, but Esqueda brushed past Chris and glared at him. Chris responded by trading words with Esqueda. What Chris said to Esqueda is unclear. Chris provided multiple versions of what he might have said, including that he may have said "[f]uck you" and "called [Esqueda] a pussy." Chris also "guess[ed]" that he said "[w]here you from" to Esqueda, acknowledging the possibility because he, Chris, "was [being] a drunk asshole." The phrase "where you from" can be considered to be a gang challenge, but there was no evidence that Chris or Esqueda were members of a gang.
At trial, Chris could not recall saying "[w]here you from" to Esqueda or telling police that he may have said it.
As Chris and Esqueda were exchanging words, Holliday stepped up from behind Chris and punched him on the right side of his head. Chris stumbled from the hit, and Esqueda and Holliday closed in on him.
Chris’s friends ran across the street to defend him. Brandon took on Holliday and swung at him. This caused Holliday to run off, with Brandon briefly giving chase.
While that was happening, Andrew approached Esqueda and took two swings at him. Esqueda said to Andrew, "What’s up motherfucker? You want some?" as he stabbed Andrew in the back and in the chest. Andrew never saw Esqueda’s knife. At first, he thought Esqueda was only punching him. It was not until he reached up under his shirt, felt something wet, and saw blood that he realized Esqueda had stabbed him. At that point Ryan entered the fray, possibly attempting to break the two up. Esqueda stabbed Ryan in the throat, plunging it three inches deep—the full length of the blade.
Esqueda then fled, holding the knife up toward Brandon and saying "what’s up, what’s up" as he left the scene.
The wound to Ryan’s neck was severe and he quickly lost large amounts of blood. He momentarily staggered and then fell on his face. Chris and Brandon tried to help save Ryan by applying pressure to his neck wound. Eventually a police officer and paramedic tried as well. Ryan died at the scene as a result of blood loss caused by the stab wound to his neck.
As Ryan was dying at the scene, Andrew ran to get assistance for his own severe wounds. He was losing a lot of blood. Once police arrived, an officer applied pressure to his wounds and tried to get information out of him. Andrew was feeling very weak and lightheaded. He could not identify the attackers or tell officers what had happened. Paramedics arrived and transported him to a hospital emergency room where he underwent surgery. Andrew was hospitalized for five days and ultimately "underwent 17 or 18 surgeries" as a result of the attack.
4. The Defenses
a. Holliday’s Defense
Holliday did not testify at trial. His defense in connection with the Gaslamp Quarter incident was that he had punched Chris in self-defense because Chris was prone to violence and had started the fight by purportedly saying, "Where you from" to Esqueda. Holliday’s attorneys also argued that his punch was not one likely to produce great bodily injury.
With respect to the incidents in Pacific Beach and Chula Vista, Holliday’s defense was that the evidence presented by the prosecution was insufficient to show he had an intent to rob anyone, let alone a plan to do so, or that he committed any act of robbing someone.
b. Esqueda’s Defense
Like Holliday, Esqueda did not testify at trial. And, also like Holliday, Esqueda’s defense in connection with the Gaslamp Quarter incident was that Chris started the fight through his confrontational words, "Fuck you, pussy. Where you from." Esqueda’s defense team also portrayed Ryan and Andrew as violent aggressors, arguing that the stabbings were done in self-defense.
As to the Pacific Beach and Chula Vista charges, Esqueda’s defense asserted, like Holliday’s, that the evidence failed to show that he had an intent or plan to rob, or that he committed the act of robbing anyone. The defense also argued that the incidents were so insignificant that law enforcement did not pursue the cases at the time they occurred.
B. Procedural History
After the Gaslamp Quarter fight, the defendants were charged in a single information with one count of murder in connection with Ryan’s death (Pen. Code, § 187, subd. (a); count 1); one count of assault by force likely to produce great bodily injury related to the attack on Chris (§ 245, subd. (a)(4); count 3); two counts of conspiracy to commit robbery in connection with the Pacific Beach and Chula Vista incidents (§§ 182, subd. (a)(1), 211; counts 5 & 7); and one count of robbery in connection with the Pacific Beach incident (§ 211; count 6).
All further statutory references are to the Penal Code unless otherwise indicated.
Both men were charged with an additional count of conspiracy to commit robbery in connection with the Gaslamp Quarter incident (originally listed as count 4), as well as a robbery special circumstance allegation made in connection with Ryan’s murder. However, during trial on March 15, 2022, the court dismissed the robbery special circumstance allegation and the conspiracy to commit robbery count. The amended conforming information then mistakenly included a personal use enhancement allegation under the "Count 4" heading.
In addition, Esqueda was charged with a single count of attempted murder in connection with Andrew’s stabbing (§§ 644, 187, subd. (a); count 2). The operative information also alleged that Esqueda personally used a deadly weapon with respect to counts 1 and 2 (§ 12022, subd. (b)(1)), personally inflicted great bodily injury with respect to count 2 (§§ 1203.075, subd. (a) & 12022.7, subd. (a)), and had suffered two prior prison terms (§§ 667.5, subd. (b), 668).
Originally, Holliday was also charged with the attempted murder of Andrew, but that charge was dismissed before trial.
As to Holliday, the operative information alleged that Holliday committed the offenses while on felony probation and that he had suffered a prior serious felony conviction (§ 667, subd. (a)(1)) and a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12).
Esqueda and Holliday were tried together before separate juries. Esqueda’s jury convicted him as charged. The jury also found true the personal use enhancement allegations connected with counts 1 and 2, as well as the great bodily injury enhancement allegation connected with count 2. The trial court sentenced Esqueda to an indeterminate term of 25 years to life for Ryan’s murder, plus an additional determinate term of 15 years, consisting of seven years for the attempted murder conviction, one year for the assault conviction, one year each for the robbery and conspiracy to commit robbery convictions, plus an additional five years for the personal use of a deadly weapon and great bodily injury enhancements connected with the murder and attempted murder convictions.
Holliday’s jury convicted him as charged on counts 3, 5, 6, and 7, and found him guilty of the lesser offense of involuntary manslaughter on count 1. Holliday admitted he had suffered a prior strike conviction (§ 667, subds. (b)-(i)) and a prior serious felony conviction (id., subd. (a)(1)). The trial court sentenced Holliday to a total term of 19 years in prison, consisting of eight years for the manslaughter conviction (based on an upper term of four years, doubled to eight as a result of his prior strike), two years for the assault, two years for one of the conspiracy convictions, two years for the robbery conviction, and five years for the prior serious felony conviction enhancement. The court stayed imposition of sentence on the remaining conspiracy conviction pursuant to section 654.
III.
DISCUSSION
A. Issues Raised by Both Defendants
See footnote *, ante.
3. The Modified Version of CALCRIM No. 375 Given at Trial Impermissibly Lowered the Prosecution’s Burden of Proof as to the Pacific Beach and Chula Vista Charges [1] In its unmodified form, CALCRIM No. 375 is a limiting instruction entitled, "Evidence of Uncharged Offense to Prove Identity, Intent, Common Plan, etc." (Italics added.) As its title suggests, CALCRIM No. 375 is designed for use when evidence of uncharged offenses is admitted at trial to prove a fact such as identity, intent, or common plan under Evidence Code section 1101, subdivision (b). This standard instruction permits the jury to consider evidence of an uncharged offense for such a limited purpose only if the People have proven by a preponderance of the evidence that the defendant committed the uncharged offense. But the trial court here modified this CALCRIM instruction to cover the jury’s use of evidence of the charged Pacific Beach and Chula Vista offenses. In doing so, the court retained the preponderance of the evidence language used in the form instruction for uncharged offenses. Both defendants contend that this impermissibly lowered the prosecution’s burden of proving their guilt of the charged offenses beyond a reasonable doubt. We agree that the modified instruction impermissibly lowered the prosecution’s burden of proof as to the Pacific Beach and Chula Vista crimes, but not the Gaslamp Quarter crimes.
Evidence Code section 1101, subdivision (a) generally prohibits evidence of other offenses to prove disposition or bad character, but subdivision (b) states that the rule does not prohibit such evidence when relevant to prove some other fact such as identity or intent.
a. Additional Background
The appellate record does not include the packets of jury instructions requested by the parties. During trial, the attorneys and the court extensively discussed jury instructions off the record. In a reported proceeding conducted after the defense rested, the court recited the instructions it had apparently agreed to give off the record and entertained further objections and discussion.
During this on-the-record proceeding, the court and counsel briefly discussed CALCRIM No. 375. The court asked the attorneys, "[CALCRIM No.] 375, we’re going to modify that just to include intent; correct?" The prosecutor responded, "Yup." Esqueda’s counsel clarified, "As to [Pacific Beach] and Chula Vista but not to Gaslamp," and Holliday’s counsel agreed with Esqueda’s attorney, saying, "Right. There’s going to be a line in there that says ‘apply to.’ " The prosecutor then said, "I’ll put as to apply in count—in which counts those are associated with in terms of Counts 5 and 7." The court stated, "All right. That works." There was no other discussion of CALCRIM No. 375 on the record.
At trial, the court instructed both juries with a modified version of CALCRIM No. 375 as follows:
"The People presented evidence that the defendants committed other offenses that were charged in this case.
"You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the acts. Proof by a preponderance of the evidence is a different burden of proof than proof beyond a reasonable doubt. A fact is
proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true.
"If the People have not met this burden, you must disregard this evidence entirety-
"If you decide that the defendant committed the acts, you may, but are not required to, consider that evidence for the limited purpose of deciding whether:
"A. Intent.
"The defendant acted with the intent to steal from the victims in this case; or [sic]
"This instruction applies to the evidence presented for Counts 5-7 [April 2017 Pacific Beach and Chula Vista Incidents].
"In evaluating this evidence, consider the similarity or lack of similarity between the charged offenses.
"If you conclude that the defendant committed any of the acts, 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 any other crime. The People must still prove each charge and allegation beyond a reasonable doubt."
The court also instructed the jury with CALCRIM No. 220 on the requirement of proof beyond a reasonable doubt. Other instructions also referred to the requirement of proof beyond a reasonable doubt.
b. A Reasonable Juror Would Have Understood the Modified Version of CALCRIM No. 375 to Apply Only to the Pacific Beach and Chula Vista Charges
[2] We begin by considering which charges a reasonable juror could have understood the modified version of CALCRIM No. 375 to apply to. As the defendants note, the first two sentences of the instruction created a potential for confusion because they did not identify what specific offenses or acts they pertained to. Although the standard CALCRIM instruction includes blank lines for the trial court to specify what "other offense" or "other act" the instruction is addressing, the trial court here did not fill in these blank lines. As a result, the first two sentences of the instruction as given merely stated: "The People presented evidence that the defendants committed other offenses that were charged in this case. [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the acts." Without any further clarification, the jurors would have been left to wonder what "other offenses" or "acts" the instruction was referring to.
[3] Later in the instruction, however, the trial court added the following qualification: "This instruction applies to the evidence presented for Counts 5-7 [April 2017 Pacific Beach and Chula Vista Incidents]." The jury would have understood from this that the instruction applied only to evidence of those specified charges, not the December 2017 Gaslamp Quarter charges. Moreover, the instruction allowed the jury to consider this evidence for the limited purpose of determining whether the defendants acted with the intent to steal, which was not an element of the Gaslamp Quarter charges as finally submitted to the jury. By first stating that the jury could consider "this evidence" if the acts were proven by a preponderance of the evidence, then later clarifying that this applied only to "the evidence presented" for the Pacific Beach and Chula Vista charges, and finally stating that this evidence could be considered for the limited purpose of proving intent to steal, the instruction taken as a whole adequately conveyed to the jury that it did not apply to the Gaslamp Quarter charges. Although the instruction was confusing in other respects, as we discuss below, we nevertheless conclude there is no reasonable possibility any juror would have understood it to apply to the Gaslamp Quarter charges.
c. Summary of Relevant Case Law on Use of Preponderance Standard for Limiting Instruction on Other Crimes Evidence
[4–7] The issue before us is whether the modified version of CALCRIM No. 375 impermissibly reduced the prosecution’s burden of proof beyond a reasonable doubt. The due process clause of the Fourteenth Amendment "requires that each element of a crime be proved to a jury beyond a reasonable doubt." (Hurst v. Florida (2016) 577 U.S. 92, 97, 136 S.Ct. 616, 193 L.Ed.2d 504; see also In re Winship (1970) 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 ["we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged"].) Moreover, a trial court must instruct the jury sua sponte on the presumption of innocence and the state’s burden of proof beyond a reasonable doubt. (People v. Vann (1974) 12 Cal.3d 220, 225-227, 115 Cal.Rptr. 352, 524 P.2d 824.)
We review such a claim of jury instruction error under the de novo standard. (People v. Cruz (2016) 2 Cal.App.5th 1178, 1183, 206 Cal.Rptr.3d 835 (Cruz).) Although the record does not reflect that either defendant made any objection to this instruction below, the People do not argue waiver, forfeiture, or invited error. Even without an objection, we must consider this claim because an instructional error lowering the prosecution's burden of proof would affect the defendants’ substantial rights. (§ 1259; People v. Kerley (2018) 23 Cal.App.5th 513, 542, 233 Cal.Rptr.3d 135 [considering defendant's claim that other crimes instruction impermissibly lowered prosecution’s burden of proof notwithstanding absence of objection in trial court]; Cruz, supra, at p. 1183, 206 Cal.Rptr.3d 835 [same].)
Our Supreme Court has ruled that when evidence of an uncharged offense is used to prove disposition under Evidence Code section 1108 or 1109, and the jury is properly instructed that the charged offense must be proven beyond a reasonable doubt, it does not unconstitutionally lower the burden of proof to allow the jury to use a preponderance of the evidence standard in deciding whether the defendant committed the uncharged offense. (People v. Lay (2011) 52 Cal.4th 46, 71-77, 127 Cal.Rptr.3d 679, 254 P.3d 980; People v. Reliford (2003) 29 Cal.4th 1007, 1012-1016, 130 Cal.Rptr.2d 254, 62 P.3d 601.) The court reasoned that such a limiting instruction only authorizes the jury to use the preponderance standard in making the preliminary determination whether the defendant committed a prior uncharged offense, and it is not reasonably likely the jury would interpret such an instruction to authorize conviction of the charged offense based on a lowered standard of proof. (Loy, at p. 77, 127 Cal.Rptr.3d 679, 254 P.3d 980.) In this context, jurors can reasonably be expected to "grasp their duty … to apply the preponderance-of-the-evidence standard to the preliminary fact identified in the instruction [the defendant’s commission of the uncharged offense] and to apply the reasonable-doubt standard for all other determinations." (Reliford, at p. 1016, 130 Cal.Rptr.2d 254, 62 P.3d 601; see also People v. Carpenter (1997) 15 Cal.4th 312, 380-383, 63 Cal. Rptr.2d 1, 935 P.2d 708 [preponderance standard also applies to evidence of uncharged crimes admitted for nonpropensity purposes under Evidence Code section 1101].)
Evidence Code sections 1108 and 1109 permit the use of propensity evidence for sexual offenses and domestic violence.
In People v. Villatoro (2012) 54 Cal.4th 1152, 144 Cal.Rptr.3d 401, 281 P.3d 390 (Villatoro), however, the Supreme Court suggested that a different rule applies when a charged offense is used as evidence of the defendant’s propensity to commit other charged sexual offenses under Evidence Code section 1108. There, the defendant argued that a modified version of CALCRIM No. 1191 given to the jury "failed to designate clearly what standard of proof applied to the charged offenses before the jury could draw a propensity inference from them." (Villatoro, at p. 1167, 144 Cal.Rptr.3d 401, 281 P.3d 390.) After first concluding that charged sexual offenses may be used as propensity evidence under Evidence Code section 1108 (Villatoro, at pp. 1159-1167, 144 Cal. Rptr.3d 401, 281 P.3d 390), the Supreme Court rejected the defendant’s jury instruction argument. It reasoned that the trial court had modified CALCRIM No. 1191 to delete its preponderance language, so that the modified version "did not provide that the charged offenses used to prove propensity must be proven by a preponderance of the evidence." (Villatoro, at pp. 1167-1168, 144 Cal.Rptr.3d 401, 281 P.3d 390.) "Instead, the instruction clearly told the jury that all offenses must be proven beyond a reasonable doubt, even those used to draw an inference of propensity." (Id. at p. 1168, 144 Cal.Rptr.3d 401, 281 P.3d 390.) "Thus, there was no risk the jury would apply an impermissibly low standard of proof." (Ibid.)
In a concurring and dissenting opinion, Justice Corrigan concluded that the limiting instruction should not have been given at all because it was unnecessary and potentially confusing. (Villatoro, supra, 54 Cal.4th at pp. 1179-1182, 144 Cal.Rptr.3d 401, 281 P.3d 390 (conc. & dis. opn. of Corrigan, J.).) She reasoned that "[e]vidence pertaining to the charged crimes is not admitted for a limited purpose, and no instruction is needed to tell the jury of its possible relevance." (Id. at p. 1180, 144 Cal.Rptr.3d 401, 281 P.3d 390 (conc. & dis. opn. of Corrigan, J.).) Justice Corrigan also noted the potential for juror confusion and erosion of the presumption of innocence. (Id. at p. 1181, 144 Cal.Rptr.3d 401, 281 P.3d 390 (conc. & dis. opn. of Corrigan, J.).) She explained: "CALCRIM Nos. 375 and 1191 explain that the jury need only find that the defendant committed the uncharged acts by a preponderance of the evidence before it can rely on the uncharged acts to support a specific inference. If the same preponderance standard is applied to charged offenses …, there is a serious risk of confusion. Requiring the jury to apply two standards of proof to evidence of the same crime would inevitably lead to confusion and could potentially erode the presumption of innocence." (Ibid.)
The Villatoro majority "did not expressly hold that currently charged offenses must be proved beyond a reasonable doubt before they can be used to show a propensity under Evidence Code section 1108, but it strongly implied that rule. It relied on an instruction requiring such proof to refute the defendant’s argument that there was a risk the jury applied an impermissibly low standard." (Cruz, supra, 2 Cal. App.5th at p. 1186, 206 Cal.Rptr.3d 835; see also People v. Gonzales (2017) 16 Cal. App.5th 494, 505, 224 Cal.Rptr.3d 421 (conc. opn. of Perren, J.) ["our Supreme Court implicitly recognized that charged offenses offered as propensity evidence must be proven beyond a reasonable doubt"].)
In Cruz, supra, 2 Cal.App.5th 1178, 206 Cal.Rptr.3d 835, the court found that a jury instruction given on the use of charged sexual offenses to prove the defendant’s propensity to commit other charged sexual offenses impermissibly lowered the prosecution’s burden of proof because it referred to a preponderance of the evidence standard. As given, the instruction stated in relevant part: " ‘If you find, by a preponderance of the evidence, that the defendant committed any such other 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 or crimes of which he is accused. [¶] However, even though you find by [a] preponderance of the evidence that the defendant committed another sexual offense, that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged crimes you are determining. [¶] If you determine an inference properly can be drawn from this evidence, this inference is simply one item for you to consider along with all other evidence in determining whether the defendant has been proved guilty beyond a reasonable doubt of the charged crimes that you are determining. [¶] You must not consider this evidence for any other purpose.’ " (Id. at p. 1184, 206 Cal.Rptr.3d 835.)
The Cruz court concluded that this instruction "presented the jury with a nearly impossible task of juggling competing standards of proof during different phases of its consideration of the same evidence." (Cruz, supra, 2 Cal.App.5th at p. 1187, 206 Cal.Rptr.3d 835.) "A robot or a computer program could be imagined capable of finding charged offenses true by a preponderance of the evidence, and then finding that this meant the defendant had a propensity to commit such offenses, while still saving for later a decision about whether, considering all the evidence, the same offenses have been proven beyond a reasonable doubt. A very fastidious lawyer or judge might even be able to do it. But it is not reasonable to expect it of lay jurors. We believe that, for practical purposes, the instruction lowered the standard of proof for the determination of guilt." (Id. at p. 1186, 206 Cal.Rptr.3d 835.)
[8] Although the Cruz court acknowledged that the trial court had also given a proper jury instruction on the reasonable doubt standard, and that "[o]ther instructions reiterated that the reasonable-doubt standard applied to the ultimate question of guilt" (Cruz, supra, 2 Cal.App.5th at p. 1184, 206 Cal.Rptr.3d 835), it nevertheless found that "the combination of that instruction with the preponderance instruction for charged offenses produced a hopeless muddle." (Id. at p. 1186, 206 Cal. Rptr.3d 835.) It further concluded that under the holding of People v. Aranda (2012) 55 Cal.4th 342, 145 Cal.Rptr.3d 855, 283 P.3d 632 (Aranda), "an instructional error that has the effect of lowering the reasonable doubt standard for guilt is one of the few errors deemed ‘structural’ and therefore reversible per se." (Cruz, at p. 1187, 206 Cal.Rptr.3d 835.) Accordingly, the court reversed the judgment without conducting a harmless error analysis. (Ibid.)
Following Villatoro and Cruz, all of the standard CALCRIM instructions on use of charged offenses to prove a defendant’s propensity to commit other charged offenses now require proof beyond a reasonable doubt before the evidence may be considered for this purpose. (CALCRIM No. 852B [Evidence of Charged Domestic Violence]; CALCRIM No. 853B [Evidence of Charged Abuse of Elder or Dependent Person]; CALCRIM No, 1191B [Evidence of Charged Sex Offense].) By contrast, the standard CALCRIM instructions on use of uncharged offenses to prove propensity still only require proof of the uncharged offenses by a preponderance of the evidence. (CALCRIM No. 852A [Evidence of Uncharged Domestic Violence]; CALCRIM No. 853A [Evidence of Uncharged Abuse of Elder of Dependent Person]; CALCRIM No. 1191A [Evidence of Uncharged Sex Offense].) There is no CALCRIM instruction on use of charged offenses for nonpropensity purposes in deciding guilt of other charged offenses under Evidence Code section 1101, subdivision (b).
In People v. Nicolas (2017) 8 Cal . App.5th 1165, 214 Cal.Rptr.3d 467 (Nicolas), the court found a similar error to be reversible per se. The trial court there gave a modified version of CALCRIM No. 375 on uncharged acts in a prosecution for vehicular manslaughter with gross negligence. As modified, the instruction identified the defendant’s uncharged acts as using a cell phone to call and text (while driving); it told the jury it could consider this evidence only if the People had proved the uncharged acts by a preponderance of the evidence; it allowed the jury to consider the uncharged acts to show intent, knowledge, and lack of mistake or accident; and it stated that this evidence was not sufficient by itself to prove guilt and the People still had to prove the charged offense beyond a reasonable doubt. (Id. at pp. 1177-1178, 214 Cal.Rptr.3d 467.)
The Nicolas court concluded that this instruction was erroneous because there were in fact no uncharged acts—the defendant’s phone use while driving was an indivisible part of the charged offense of vehicular manslaughter with gross negligence. (Nicolas, supra, 8 Cal.App.5th at p. 1178, 214 Cal.Rptr.3d 467.) Relying on Aranda. and Cruz, the court also found that this was "the rare type of error that requires reversal per se" because the instruction’s preponderance of evidence language effectively lowered the prosecution’s burden of proof. (Id. at pp. 1179-1180, 214 Cal.Rptr.3d 467.) "The instruction told the jury that the evidence concerning defendant’s phone use immediately prior to the collision could be proven under a preponderance of the evidence standard. This had the effect of lowering the prosecution’s burden of proof because this was the same evidence that the prosecution was using to prove gross negligence." (Id. at p. 1181, 214 Cal.Rptr.3d 467.) Even though the trial court had also instructed on the reasonable doubt standard, "the two competing standards of proof were addressing the same evidence. The court’s instructional error not only presented the jury ‘with a nearly impossible task,’ but as a reviewing court, we have absolutely no way of knowing which of the two competing standards of proof the jury may have applied to the same evidence." (Id. at p. 1182, 214 Cal. Rptr.3d 467.)
The majority in People v. Jones (2018) 28 Cal.App.5th 316, 239 Cal.Rptr.3d 109 (Jones) reached a different conclusion. In Jones, the trial court gave a modified version of CALCRIM No. 375, which allowed the jury to consider evidence of an uncharged burglary and five charged burglaries to show intent and identity as to the charged burglaries under Evidence Code section 1101, subdivision (b). Even though the modified instruction referred to a preponderance of the evidence standard for evidence of the charged and uncharged burglaries, the court found Cruz to be distinguishable and concluded that the instruction did not lower the prosecution’s burden of proof. The court reasoned that Cruz involved propensity evidence under Evidence Code section 1108, rather than nonpropensity evidence under Evidence Code section 1101, subdivision (b). (Jones, at pp. 328-330, 239 Cal.Rptr.3d 109.) According to the Jones majority, the propensity instruction in Cruz allowed the jury to use a charged sex offense to "directly infer that the defendant was guilty of other charged sex offenses" (id. at p. 328, 239 Cal.Rptr.3d 109), whereas the instruction on intent and identity given in Jones "did not allow the jury to use the evidence of charged auto burglaries proven by a preponderance of the evidence to directly infer that Jones committed other charged offenses." (Id. at p. 329, 239 Cal.Rptr.3d 109.) The majority nevertheless went on to criticize the instruction at issue as unnecessary and confusing based on Justice Corrigan’s concurring and dissenting opinion in Villatoro. (Jones, supra, 28 Cal. App.5th at pp. 330-331, 239 Cal.Rptr.3d 109.)
We note that the Jones majority based its decision in part on a misreading of the jury instruction given in Cruz. The Jones majority stated: "[U]nlike the challenged instruction [in Jones] (which stated evidence Jones committed a charged auto burglary was not sufficient to prove guilt as to other charged offenses), the Cruz instruction did not state that the propensity evidence by itself was insufficient to prove guilt of a charged crime." (Jones, supra, 28 Cal.App.5th at p. 330, fn. 12, 239 Cal.Rptr.3d 109.) In reality, however, the instruction given in Cruz explicitly stated: " ‘However, even though you find by [a] preponderance of the evidence that the defendant committed another sexual offense, that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged crimes you are determining.’ " (Cruz, supra, 2 Cal.App.5th at p. 1184, 206 Cal.Rptr.3d 835.)
Presiding Justice Kline dissented in Jones. He concluded: "Application of the challenged instruction—which requires jurors to employ different standards of proof to the same evidence for different purposes—may be clearly discernible to trained legal minds but it strains credulity to think its application is apparent to many lay jurors…. [T]he instruction is unfortunately amenable to erroneous interpretations which effectively lower the prosecution’s burden to prove guilt and thereby deprive defendants of the due process guaranteed by the Fourteenth Amendment." (Jones, supra, 28 Cal.App.5th at p. 334, 239 Cal.Rptr.3d 109 (dis. opn. of Kline, P. J.).) He found "no meaningful distinction between the instruction in this case and that in Cruz." (Id. at pp. 338-339, 239 Cal.Rptr.3d 109 (dis. opn. of Kline, P. J.).) "The findings that the defendant is the person who committed the offense (identity) and that he or she intended that act [are] no less probative of guilt than a finding of propensity." (Id. at p. 339, 239 Cal.Rptr.3d 109 (dis. opn. of Kline, P. J.).) "[T]he majority’s effort to distinguish Cruz based on the differences between section 1108 and 1101, subdivision (b) are unconvincing." (Ibid.) Presiding Justice Kline also explained that the "confusing instruction" made it likely jurors "would improperly engage in the bootstrapping of verdicts by using verdicts on some counts to conclude appellant committed the offenses charged in other counts" and "would use multiple counts, decided by a preponderance of the evidence, to find that appellant committed all of his crimes beyond a reasonable doubt." (Id. at p. 341, 239 Cal. Rptr.3d 109.) In his view, the error was reversible per se because it effectively lowered the prosecution’s burden of proving guilt beyond a reasonable doubt. (Id. at pp. 340-341, 239 Cal.Rptr.3d 109.)
d. The Instruction’s Use of a Preponderance of Evidence Standard with Respect to the Charged Pacific Beach and Chula Vista Offenses Requires Reversal of Those Convict ions
[9] As to the Pacific Beach and Chula Vista offenses, we conclude that the modified version of CALCRIM No. 375 given in this case suffers from the same constitutional infirmity as the instructions given in Cruz and Nicolas. As those cases recognized, a preponderance of the evidence standard has no place in a jury instruction on evidence of charged offenses. Using preponderance language in a jury instruction addressing evidence of the charged offenses poses an inherent risk of confusing the jury and lowering the prosecution’s burden of proof beyond a reasonable doubt. The majority in Villatow implicitly recognized that giving such an instruction would "impermissibly lower the standard of proof or otherwise interfere with defendant’s presumption of innocence." (Villatoro, supra, 54 Cal.4th at p. 1168, 144 Cal. Rptr.3d 401, 281 P.3d 390.) Justice Corrigan’s separate opinion (joined by Justice Werdegar) similarly noted: "If the same preponderance standard is applied to charged offenses …, there is a serious risk of confusion. Requiring the jury to apply two standards of proof to evidence of the same crime would inevitably lead to confusion and could potentially erode the presumption of innocence." (Id. at p. 1181, 144 Cal.Rptr.3d 401, 281 P.3d 390 (conc. & dis. opn. of Corrigan, J.).)
The instruction given here was particularly troubling because it invited the jury to apply a preponderance of the evidence standard in deciding an essential element of the Pacific Beach and Chula Vista offenses. As phrased, the instruction never actually explained to the jury that it was intended to guide the jury’s use of evidence of one charged crime in determining the defendants’ guilt of another charged crime. Rather, it merely stated that the People had presented evidence of "other offenses that were charged in this case" (later identified as the Pacific Beach and Chula Vista offenses), and that if those offenses were proven by a preponderance of the evidence, the jury could consider them to decide whether "[t]he defendant acted with the intent to steal from victims in this case." (Italics added.) Thus, the jury could reasonably have understood that the instruction allowed it to use a preponderance standard in deciding whether evidence of the charged Pacific Beach crimes proved the defendants acted with an intent to steal from the victims in the Pacific Beach crimes—and likewise for the Chula Vista crimes. This effectively lowered the prosecution’s burden of proving intent to steal beyond a reasonable doubt as an essential element of the charged robbery and conspiracies to commit robbery.
Even if the instruction had been more carefully worded to express its intended purpose, the preponderance language would still be problematic. As in Cruz, we cannot reasonably expect lay jurors to understand an instruction essentially requiring that they first apply a preponderance of evidence standard to determine whether a charged offense is true, then decide whether this means that the defendants had an intent to steal for another charged offense, "while still saving for later a decision about whether, in light of all the evidence, the same offenses have been proven beyond a reasonable doubt." (Cruz, supra, 2 Cal.App.5th at p. 1186, 206 Cal. Rptr.3d 835.) The risk of juror confusion and dilution of the burden of proof is just as great as it was in Cruz. We expect much from jurors, but this level of mental gymnastics is beyond the capacity of most mortals. Even the most conscientious and attentive juror could have been misled by such a convoluted instruction with two different standards of proof for the same evidence.
We acknowledge that the last sentence of this instruction emphasized the reasonable doubt standard, and the trial court also gave other jury instructions on proof beyond a reasonable doubt. But the same was true in both Cruz and Nicolas. As in those cases, the conflicting standards only "produced a hopeless muddle." (Cruz, supra, 2 Cal.App.5th at p. 1186, 206 Cal. Rptr.3d 835.) As a result, we cannot be certain what standard of proof the jury applied to these charges or the intent to steal element. (Nicolas, supra, 8 Cal. App.5th at p. 1182, 214 Cal.Rptr.3d 467; see also People v. Johnson (2004) 115 Cal. App.4th 1169, 1170-1172, 9 Cal.Rptr.3d 781 [trial court’s error in "amplifying on the reasonable doubt instruction" effectively lowered the prosecution’s burden of proof and required reversal].) We conclude there is at least a reasonable possibility a juror would have understood the preponderance language of this instruction to reduce the prosecution’s burden of proving the Pacific Beach and Chula Vista charges beyond a reasonable doubt.
Like the dissent in Jones, we are not convinced by the Jones majority’s distinction between (1) a preponderance standard for charged offenses used as propensity evidence under Evidence Code section 1108 or 1109 and (2) a preponderance standard for charged offenses used as nonpropensity evidence under Evidence Code section 1101, subdivision (b). In either scenario, it improperly lowers the prosecution’s burden of proof to instruct the jury with a preponderance of the evidence standard for consideration of charged offenses. (See Nicolas, supra, 8 Cal.App.5th at pp. 1176-1182, 214 Cal.Rptr.3d 467 [reversible error under Cruz even though the modified version of CALCRIM No. 375 given to the jury only allowed nonpropensity inferences under Evidence Code section 1101, subdivision (b), not propensity inferences under Evidence Code section 1108 or 1109].) The danger of using such preponderance language is present no matter which provision of the Evidence Code is being invoked or for what evidentiary purpose.
[10, 11] In fact, the error may be even more serious when the limiting instruction goes to an essential element of the crimes, as in this case, rather than propensity. Propensity is not an essential element of any criminal offense. A defendant’s propensity to commit a crime is merely an evidentiary fact. (People v. Anderson (2012) 208 Cal.App.4th 851, 896-897, 144 Cal.Rptr.3d 606.) The requirement of proof beyond a reasonable doubt applies to the essential elements of the crime, not mere evidentiary facts. (See People v. Medina (1995) 11 Cal.4th 694, 763, 47 Cal.Rptr.2d 165, 906 P.2d 2.) Here, intent to steal was not just an evidentiary fact; it was an essential element of the charged Pacific Beach and Chula Vista robbery and conspiracy to commit robbery charges, which the prosecution was required to prove beyond a reasonable doubt. As we have explained, the preponderance language of the instruction improperly diluted the prosecution’s burden of proving this essential ele- ment.
We also agree with Justice Corrigan's concurring and dissenting opinion in Villatoro that it is inherently confusing to give a limiting instruction on evidence of charged offenses not admitted for a limited purpose. For example, the instruction here allowed the jury to consider evidence of the charged Pacific Beach or Chula Vista crimes only for the "limited purpose" of determining whether the defendants had the intent to steal from the victims. Taken literally, this would mean the jury could not consider evidence of the Pacific Beach crimes in deciding any element of the Pacific Beach crimes other than intent to steal—and the same would be true for the Chula Vista crimes. The result would have been to make conviction of either set of crimes impossible because only the intent element could be proven. We do not believe any reasonable juror would have adopted such an absurd interpretation, but it nicely illustrates Justice Corrigan’s point that no limiting instruction should be given for evidence of charged offenses because such evidence is not admitted for a limited purpose. (Villatoro, supra, 54 Cal.4th at pp. 1179-1181, 144 Cal. Rptr.3d 401, 281 P.3d 390 (conc. & dis. opn. of Corrigan, J.).) We express no view, however, whether a defendant is entitled upon request to a jury instruction stating that evidence of one charged offense may not be considered as evidence of general criminality tending to prove guilt of another charged offense. (See id. at pp. 1184-1185, 144 Cal. Rptr.3d 401, 281 P.3d 390 (conc. & dis. opn. of Liu, J.) [characterizing this as "an open question"].)
[12] This error is reversible per se and requires automatic reversal of the Pacific Beach and Chula Vista convictions in counts 5 through 7, regardless of the strength of the evidence. (Nicolas, supra, 8 Cal.App.5th at pp. 1179-1180, 214 Cal. Rptr.3d 467; Cruz, supra, 2 Cal.App.5th at pp. 1186-1187, 206 Cal.Rptr.3d 835.) "An instruction that effectively lowers the prosecution's burden of proving guilt beyond a reasonable doubt is structural error because it ‘vitiates all the jury’s findings’ and its effect on the verdict is ‘necessarily unquantifiable and indeterminate.’ " (Aranda, supra, 55 Cal.4th at p. 365, 145 Cal. Rptr.3d 855, 283 P.3d 632, quoting Sullivan v. Louisiana (1993) 508 U.S. 275, 281-282, 113 S.Ct. 2078, 124 L.Ed.2d 182.) We conclude, however, that this error does not require reversal of the Gaslamp Quarter convictions because the erroneous instruction did not apply to those charges.
One of Esqueda's contentions on appeal relates to statements the court made at sentencing regarding his eventual suitability for parole. Holliday also raises two challenges to his own sentence. Because we are reversing three of the defendants’ six convictions, the defendants’ sentences are necessarily vacated, rendering these sentencing challenges moot.
See footnote *, ante.
IV.
DISPOSITION
Both judgments of conviction are reversed as to counts 5 through 7 only and the defendants’ sentences are vacated. Both cases are remanded to the trial court for further proceedings and resentencing. In all other respects, the judgments are affirmed. The People shall have 60 days from the date of the remittitur in which to file an election to retry one or both defendants on the reversed counts 5 through 7. Following retrial, or if the People elect not to retry these counts, the trial court shall resentence each defendant accordingly, amend the abstracts of judgment to reflect the resentencing, and send certified copies of the amended abstracts to the Department of Corrections and Rehabilitation.
WE CONCUR: KELETY, J.
RUBIN, J.