Subtle But Important Challenges To CALJIC 2.50 (Uncharged Crimes)

(June 1999)

    This article presents several proposed challenges to CALJIC 2.50 which instruct the jury on the crucial issue of uncharged crimes. These challenges were identified and drafted by FORECITE subscriber Stephen Greenberg of Nevada City, California.

Note: All references to "FORECITE" refer to FORECITE California, authored by Thomas Lundy and available from James Publishing.  Go to: http://jamespublishing.com/books/fc.htm 

*Modify CJ 2.50, ¶ 3 as follows [Added language is underlined; deleted language is between << >>]:

    [A characteristic <<method>> DESIGN, plan or scheme <<in the commission of>> TO COMMIT criminal acts similar to the <<method>> DESIGN, plan or scheme used in the commission of the offense(s) in this case which <<would>> MAY further tend to show <<[the existence of the intent which is a necessary element of the crime charged] [the identity of the person who committed the crime, if any, of which the defendant is accused] [a clear connection between the other offense and the one of which the defendant is accused so that it may be inferred that if defendant committed the other offense[s] defendant also committed the crime[s] charged in this case]>> WHETHER THE CONDUCT ALLEGED TO CONSTITUTE THE CHARGED OFFENSE(S) ACTUALLY OCCURRED. IF YOU FIND SUCH A CHARACTERISTIC DESIGN, PLAN OR SCHEME, YOU MAY NOT CONSIDER IT FOR ANY OTHER PURPOSE;]....

Points and Authorities

    "[A] common design or plan, like motive, is simply an intermediate fact." (People v. Scheer (98) 68 CA4th 1009, 1020 [80 CR2d 676].) The primary issue here concerns what is sought to be shown via that intermediate fact. People v. Ewoldt (94) 7 C4th 380 [27 CR2d 646] is the leading case with respect to the common plan theory for admission of uncharged crime evidence. The Supreme Court explained its premise as follows: "‘The presence of a design or plan to do or not to do a given act has probative value to show that the act was in fact done or not done.’ [Citation.]’" (Id. at 393, emphasis added.) In other words, if there is a factual dispute as to whether the charged crime(s) occurred, common plan evidence is admissible to establish the occurrence.

    Ewoldt added: "Evidence of a common design or plan, therefore, is not used to prove the defendant’s intent or identity but rather to prove that the defendant engaged in the conduct alleged to constitute the charged offense." (Id. at 394, fn omitted, emphasis added.) The object is not to prove that "the defendant" is the one who "engaged in the" alleged criminal conduct; that would be an erroneous use of common plan evidence to show identity. (Ibid.) Rather, the theory assumes the defendant’s identity and presence in a context which requires additional evidence as to the fact of the offense. Ewoldt explained further in a footnote:

    This distinction, between the use of evidence of uncharged acts to establish the existence of a common design or plan as opposed to the use of such evidence to prove intent or identity, is subtle but significant. . . . [¶] Evidence of a common design or plan is admissible to establish that the defendant committed the act alleged. Unlike evidence used to prove intent, where the act is conceded or assumed, "[i]n proving design, the act is still undetermined . . ." [Citation.] (Ibid., fn 2, emphasis in original.)

    Thus, the common plan theory of admissibility made sense in Ewoldt, where "[d]efendant testified in his own behalf, denying that any of the incidents described by [the victim] had occurred . . . ." (Id. at 389, emphasis added.) In the context of such a defense, evidence of the defendant’s uncharged similar conduct was "relevant to establish that defendant committed the charged offenses in accordance with [a common design or] plan." (Id. at 403.) But once again, the point was not to show that the defendant was the perpetrator; it was to show that the offenses were perpetrated. (Id. at 394, fn 2.)

    Unfortunately, this "subtle but significant" distinction (Id. at 394, fn 2) was completely lost on the drafters of CALJIC No. 2.50. Purportedly based on Ewoldt, the instruction’s wording in connection with common plan evidence is erroneous as a matter of law. (See CALJIC No. 2.50 (6th ed. 1996), Use Note, ¶ 1.) The instruction provides three alternative ultimate facts which may be shown through common plan evidence:

    (1) "the existence of the intent which is a necessary element of the crime charged[.]" Ewoldt expressly held--three times--that such a use of common plan evidence was inadmissible to show the intent element of the charged offense. (7 C4th at 394, 399, 406.) 

    (2) "the identity of the person who committed the crime, if any, of which the defendant is accused[.]" Identity is an equally improper basis for admission, according to Ewoldt. (7 C4th at 394, 399, 406.)

    (3) "a clear connection between the other offense and the one of which the defendant is accused so that it may be inferred that if defendant committed the other offense[s] defendant also committed the crime[s] charged in this case[.]" This option only vaguely resembles the discussion in Ewoldt. But a reasonable juror would likely understand it to mean "identity." After all, the point of the common plan, if found, is purportedly to show that the defendant committed the charged crimes. Particularly where the defendant concedes the occurrence of the crime but argues s/he did not commit it, the instruction’s logical purpose would be to aid the jury in evaluating that very claim. But once again, that approach is erroneous under Ewoldt. (Ibid.)

    To be accurate, the instruction should state only one ultimate fact to be shown by the intermediate fact of a common plan or design: whether the charged act or acts were committed. (Id. at 394, fn 2.) As to the "not . . . for any other purpose" limitation, see Id. at 394, 399, 406 [conduct, not intent or identity]; People v. Scheer, supra, 68 CA4th at 1020-1021 [act, not motive].)

    As to "a characteristic design" see FORECITE F 2.50i.

    As to "which would further tend to show" see FORECITE F 2.50j.

*Modify CJ 2.50, ¶ 3 as follows [Added language is underlined; deleted language is between << >>]:

    [A characteristic <<method>> DESIGN, plan or scheme <<in the commission of>> TO COMMIT criminal acts similar to the <<method>> DESIGN, plan or scheme used in the commission of the offense(s) in this case...

Points and Authorities

    The above modification replaces "method" with "design." People v. Ewoldt (94) 7 C4th 380 [27 CR2d 646] used only the words "design," "plan" and "scheme" in this context. "Method" does not appear to be truly synonymous with the other three words.

*Modify CJ 2.50, ¶ 3 as follows [Added language is underlined; deleted language is between << >>]:

    [A characteristic <<method>> DESIGN, plan or scheme <<in the commission of>> TO COMMIT criminal acts similar to the <<method>> DESIGN, plan or scheme used in the commission of the offense(s) in this case which <<would>> MAY further tend to show ...

Points and Authorities

    The above modification changes "which would further tend to show . . ." to "which may further tend to show . . . ." The CALJIC version reasonably could be construed to inform the jury that a common plan finding necessarily establishes the ultimate fact to be proved, whereas that is another jury determination. This unfairly risks misleading the jury as to the prosecution’s burden of proof, in violation of the defendant’s federal constitutional rights to due process and jury trial (5th, 6th and 14th Amendments).

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