Trial court’s unnecessary and confusing instruction, which allowed the jury to use evidence of charged burglaries for the nonpropensity purpose of determining guilt as to other charged burglaries, was harmless error. Jones was found guilty of multiple counts of second degree burglary based on numerous car break-ins throughout San Francisco. On appeal he challenged an instruction that allowed the jury to use evidence of the charged burglaries in deciding identity and intent to commit the other charged thefts. Held: Affirmed. Character evidence is generally inadmissible to prove a person’s conduct on a specific occasion. (Evid. Code, § 1101, subd. (a)). However, conduct evidence is admissible when relevant to demonstrate something other than propensity, like identity and intent. (Evid. Code, § 1101, subd. (b)). This applies not only to evidence of uncharged misconduct, but also to evidence of charged offenses, if proven by a preponderance of the evidence. Here, the jury was told it could consider the evidence that Jones committed the charged burglaries, if proven by a preponderance of the evidence, for the limited purpose of determining intent and identity. The instruction stated that all charges must be proven beyond a reasonable doubt and the jury was instructed not to conclude from this “limited purpose” evidence that Jones is disposed to commit crimes. However, the instruction was unnecessary to explain the relevance of evidence admitted for a limited purpose because the evidence was not so limited; it was the same evidence used to find Jones guilty of the underlying offense. The instruction was confusing because it required the jury to apply two standards of proof to evidence of the same crime. However, the instruction was harmless because other instructions given correctly stated the standard of proof required and the evidence of Jones’ guilt was overwhelming.
The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/A149431.PDF