Trial court committed structural error by instructing jury that if it found by a preponderance that defendant committed one charged sex offense it could infer he had the propensity to commit the others. During Cruz’s trial for committing a number of sex offenses against three different minors, the court instructed the jury that it could find charged offenses true by a preponderance of the evidence and then use those findings to infer that Cruz had a disposition to commit the other charged offenses. The jury convicted him and he appealed. Held: Reversed. Evidence Code section 1108 allows admission of evidence of uncharged sexual offenses to show a propensity to commit sexual offenses. In People v. Villatoro (2012) 54 Cal.4th 1152, 1160, the court held that section 1108 also allows the jury to use evidence of sexual offenses charged in the current case to show a propensity to commit other charged offenses in the same case. There, the jury had been instructed with a modified version of CALCRIM No. 1191 that it had to find the sex offenses true beyond a reasonable doubt to infer propensity from them. Here, however, the court gave CALJIC No. 2.50.01. While the instruction “reflects the Villatoro rule that charged offenses can be used to show propensity . . . unlike the instruction upheld in that case, it does not state that these offenses must be found beyond a reasonable doubt before they can be used for that purpose.” It was incorrect to instruct the jury in this way and, “for practical purposes, the instruction lowered the standard of proof for the determination of guilt.” 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. (People v. Aranda (2012) 55 Cal.4th 342, 365.)

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/F069940.PDF