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Court of Appeal, First District, Division 5, California.

The PEOPLE, Plaintiff and Respondent, v. Bernard WATTS, Defendant and Appellant.

The PEOPLE, Plaintiff and Appellant, v. Bernard WATTS, Defendant and Respondent.

Nos. A080590, A080789.

Decided: August 28, 1998

Carlton E. Lacy, under appointment by the Court of Appeal, Walnut Creek, for defendant and appellant and for defendant and respondent. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Peggy S. Ruffra, Supervising Deputy Attorney General, John H. Deist, Deputy Attorney General, for plaintiff and respondent and for plaintiff and appellant.

These appeals arise out of appellant Bernard Watts's criminal convictions for inflicting corporal injury on a cohabitant (Pen.Code, § 273.5),1 a felony, and misdemeanor false imprisonment (§ 236).   In case No. A080789, the People challenge the trial court's order dismissing a charge against Watts of assault with a deadly weapon other than a firearm (§ 245, subd. (a)(1)) after the jury had found Watts guilty of the charge.   We conclude that the People's appeal is not authorized under section 1238 and therefore dismiss the appeal.

In case No. A080590, Watts contends his convictions must be reversed because the trial court erroneously admitted evidence of prior uncharged acts of domestic violence allegedly committed by Watts, in violation of his federal and state constitutional rights to due process of law.   Watts also contends the court's jury instructions regarding this evidence permitted the jury to find him guilty without finding beyond a reasonable doubt that he committed the charged offenses.   We conclude that Watts waived his right to challenge the admissibility of the evidence in question for the reason he asserts because the record contains no indication that he objected to the evidence on that ground during the proceedings below.   We also conclude it was possible to interpret the instructions regarding the uncharged acts of domestic violence as permitting a finding of guilt based on a standard of less than beyond a reasonable doubt.   However, we conclude it is not reasonably likely the jury interpreted the instructions as lowering the prosecution's burden of proof and will therefore affirm Watts's conviction.


Watts had been living with his girlfriend, Grace McCloud, since 1993 or 1994.   On September 18, 1996, in the course of an argument, Watts grabbed McCloud from behind, choked her, and bit her on the back.   McCloud reported the incident to the police five days later and subsequently obtained a restraining order against Watts.

McCloud did not see Watts again until the early hours of October 5, 1996, when she left her apartment to go to a liquor store.   As she walked down the street, Watts knocked her to the ground, held a knife to her throat, and threatened to kill her.   He then forced McCloud to go to a different store.   While Watts was in the back of this store, McCloud asked a store clerk to call the police.   She bought a beer to drink, hoping she could stall long enough for the police to arrive.   The responding officer spoke with McCloud and Watts, and arrested Watts after finding a knife in his pocket.

On February 22, 1997, Watts and McCloud were again living together.   Sometime during that afternoon or evening, Watts demanded money from McCloud to purchase drugs.   When McCloud told Watts she had no money, he knocked her down, straddled her, punched her in the face, and choked her.   McCloud escaped and ran outside.   Watts chased her with a knife.   McCloud made it to a neighbor's apartment and asked the neighbor to call the police.   The responding officer noticed that McCloud had scratches on her neck, and marks and swelling on her face.   The police arrested Watts in a nearby parking lot.

On April 1, 1997, the Contra Costa County District Attorney filed an information charging Watts in count one with making terrorist threats (§ 422), in count two with kidnapping (§ 207, subd. (a)), and in counts three and four with inflicting corporal injury on a spouse or cohabitant (§ 273.5).   Counts one and two stemmed from the incident on October 5, 1996, and counts three and four from the incidents on September 18, 1996, and February 22, 1997, respectively.   The information also included a number of special allegations that need not be described for purposes of this opinion.

On July 24, 1997, the trial court granted the district attorney's motion to amend the information to conform the pleading to evidence that had been presented at the preliminary hearing.   The amended information added counts five and six, both charging Watts with violating section 245, subdivision (a)(1) (assault with a deadly weapon other than a firearm or by force likely to produce great bodily injury).   The new counts both related to the incident on February 22, 1997.

A jury trial began on August 5, 1997.   During the trial, defense counsel asked the court to instruct the jury pursuant to CALJIC No. 17.03 (6th ed.1996) on the ground counts four, five, and six of the amended information were alternative or inconsistent statements of the same offense.2  The trial court denied the request.

On August 13, 1997, the jury found Watts guilty on counts four and five, and of misdemeanor false imprisonment as a lesser included offense of count two.   The jury found Watts not guilty on all other charges.   A bifurcated court trial on the special allegations was held on September 16 and 18, 1997.   The court found all but two of the allegations to be true.

Prior to the trial on the special allegations, Watts had filed a motion to dismiss count five on the ground he could not lawfully be convicted on both counts four and five under section 654.3  At the conclusion of the trial on the special allegations, the trial court heard argument on Watts's motion and granted it.   Later that same day, however, the trial court, after additional legal research, vacated its order and set the motion for further argument at the sentencing hearing on October 23, 1997.

On October 23, 1997, the trial court stated that it had erred by dismissing count five, but that it had lost jurisdiction to vacate its order of dismissal once the dismissal order had been noted in the court's minutes.   The court accordingly ruled that count five remained dismissed and denied the prosecution's oral motion to reconsider.


I. Case No. A080789**

II. Case No. A080590

In case No. A080590, Watts contends his convictions must be overturned because the trial court erred by admitting evidence of prior uncharged acts of domestic violence allegedly committed by Watts and by failing properly to instruct the jury regarding its consideration of that evidence.


B. It is possible to interpret CALJIC No. 2.50.02 together with CALJIC No. 2.50.1 to mean that a defendant may be found guilty under a standard that is less than beyond a reasonable doubt.

 Due process prohibits a criminal conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the charged crime.  (In re Winship (1970) 397 U.S. 358, 361-364, 90 S.Ct. 1068, 25 L.Ed.2d 368;  People v. Cuevas (1995) 12 Cal.4th 252, 260, 48 Cal.Rptr.2d 135, 906 P.2d 1290;  People v. Early (1997) 56 Cal.App.4th 753, 757, 65 Cal.Rptr.2d 527.)   In contrast, evidence of uncharged crimes may be proved merely by a preponderance of the evidence.  (People v. Medina (1995) 11 Cal.4th 694, 763, 47 Cal.Rptr.2d 165, 906 P.2d 2.)

With respect to the evidence of Watts's alleged prior acts of domestic violence, the trial court instructed the jury with CALJIC No. 2.50.02, Sixth edition 1998, as follows:  “If you find that the defendant committed ․ prior offenses involving domestic violence, you may but are not required to infer that defendant had a disposition to commit the same or similar type offenses.   If you find that 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.  [¶] Unless you are otherwise instructed you must not consider this evidence for any other purpose.”   The trial court next instructed with CALJIC No. 2.50.1 that “[w]ithin the meaning of the preceding instruction, the prosecution has the burden of proving by a preponderance of the evidence that a defendant committed other offenses of domestic violence other than those for which he is on trial.  [¶] You must not consider that evidence for any other purpose ․ unless you find by a preponderance of the evidence that a defendant committed the other offenses of domestic violence.”

Watts contends these instructions violated his right to due process because they allowed the jury to find his alleged prior acts of domestic violence to be true by a preponderance of the evidence, to infer from that finding that he had a disposition to commit acts of domestic violence, and, if the jury drew that inference, to further infer that he committed the charged offenses.   Thus, according to Watts, the jury could have found him guilty under a standard that was less than beyond a reasonable doubt.

We agree that CALJIC Nos. 2.50.02 and 2.50.1, when read together, permit a jury to infer that a defendant has committed the crimes of which he or she is accused based on an inference of his or her disposition to commit the same or similar offenses, an inference that itself may be drawn from proof of alleged prior uncharged acts which need be established only by a preponderance of the evidence.   Thus, standing alone, these two instructions could have misled the jurors into believing they could find Watts guilty under a standard less than beyond a reasonable doubt.

 However we may not view CALJIC Nos. 2.50.02 and 2.50.1 in isolation.   Rather we must view them in light of the entire record to determine whether there is a “reasonable likelihood” (Estelle v. McGuire (1991) 502 U.S. 62, 72, 112 S.Ct. 475, 116 L.Ed.2d 385) that the jury understood those instructions as permitting a conviction on a standard less than beyond a reasonable doubt.   In making that determination, we must consider the entire record of the trial (ibid.) including the other instructions provided to the jury (People v. Cain (1995) 10 Cal.4th 1, 36, 40 Cal.Rptr.2d 481, 892 P.2d 1224,) and the arguments of counsel (People v. Kelly (1992) 1 Cal.4th 495, 526, 3 Cal.Rptr.2d 677, 822 P.2d 385).

 Here, reading the record as a whole, we are convinced the jurors would have understood that they could only convict Watts if they found him guilty beyond a reasonable doubt.

Before voir dire even began, the court instructed the prospective jurors with CALJIC No. 2.90 7 and told them that Watts could only be convicted if the evidence proved him guilty beyond a reasonable doubt.   The court then reinforced that principle more than a dozen times during voir dire by telling the jurors they must apply the reasonable doubt standard.

At the beginning of trial, the court pre-instructed with CALJIC No. 2.90 and told the jurors, once again, that they could only convict Watts if they found him guilty beyond a reasonable doubt.   At the conclusion of trial, the court again instructed with CALJIC.   No. 2.90, as well as with CALJIC No. 1.01;  that told the jurors they must “[c]onsider the instructions as a whole” and that they must not “single out any particular sentence or instruction and ignore the others” and with instructions on individual charges, many of which repeated and reinforced the beyond a reasonable doubt standard.

The prosecutor, in the initial portion of her closing argument, acknowledged her obligation to prove Watts guilty beyond a reasonable doubt.   She did not mention the uncharged sexual offenses.

Defense counsel, in his final argument, reminded the jurors no less than nine times, that they could only convict Watts if they found him guilty beyond a reasonable doubt.

The prosecutor, during the closing portion of her final argument, again acknowledged, at least three times, her obligation to prove Watts's guilt beyond a reasonable doubt.   The prosecutor also made clear that the uncharged crimes were not sufficient, by themselves, to support a conviction, “The evidence of other crimes ․ that aren't charged ․ that evidence is presented to you ․ to give you a better idea of the context in which this particular domestic violence relationship is taking place.  [¶] ․ [¶] And what the law says with respect to other evidence ․ is that you can use it to determine whether or not there is a predisposition by the defendant with respect to his ability to commit these kinds of crimes.”

In sum the jurors in this case were told dozens of times, by the court, the prosecutor and defense counsel, that they could only convict Watts if they found him guilty beyond a reasonable doubt.   On this record, we are confident that there was no “reasonable likelihood” (Estelle v. McGuire, supra, 502 U.S. at p. 72, 112 S.Ct. 475,) that the jury believed they could convict Watts on a lesser standard.   There was no prejudicial error.

The result we reach here is consistent with the rulings of other courts that have faced similar issues.   For example, in People v. Foster (1995) 34 Cal.App.4th 766, 40 Cal.Rptr.2d 633, the appellant argued that the trial court committed prejudicial error when it gave an instruction that allegedly diminished the prosecution's burden of proof.  (Id. at p. 772, 40 Cal.Rptr.2d 633.)   The Foster court acknowledged that the instruction, considered alone, might be cause for concern, but concluded that in light of the other correct instructions “no reasonable juror would have interpreted [the instruction] to permit a criminal conviction” on a standard less than beyond a reasonable doubt.  (Id. at pp. 775-776, 40 Cal.Rptr.2d 633.   See also People v. Salas (1975) 51 Cal.App.3d 151, 156-157, 123 Cal.Rptr. 903. [same] ).

We reach the same conclusion here.   In light of the other instructions that were given and the way in which the case was presented, we conclude “no reasonable juror” would have believed he or she could convict Watts on a standard less than beyond a reasonable doubt.


Case No. A080789 is dismissed.   In case No. A080590, the trial court's judgment is affirmed.


1.   All further statutory references are to the Penal Code except where otherwise indicated.

2.   CALJIC No. 17.03 (6th ed.1996) provides:  “The defendant is accused in Count _ of having committed the crime of _ and in Count _ of having committed the crime of _. These charges are made in the alternative and in effect allege that the defendant committed an act or acts which constitute[s] either the crime of _ or the crime of _. If you find that the defendant committed an act or acts constituting one of the charged crimes, you must then determine which of the crimes so charged was thereby committed.  [¶] In order to find the defendant guilty you must all agree as to the particular crime committed, and, if you find the defendant guilty of one, you must find [him][her] not guilty of the other[.][, as well as any lesser crime included therein.]   [¶] [The court cannot accept any verdict of guilty as to any lesser crime, unless you unanimously find [and return a signed verdict form] that defendant is not guilty as to the greater crime.]”

3.   Section 654 provides:  “(a) An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.   An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other. [¶] (b) Notwithstanding subdivision (a), a defendant sentenced pursuant to subdivision (a) shall not be granted probation if any of the provisions that would otherwise apply to the defendant prohibits the granting of probation.”

FOOTNOTE.   See footnote *, ante.

FOOTNOTE.   See footnote *, ante.

7.   The court instructed with CALJIC No. 2.90 as follows:  “As each of you know, a defendant in a criminal action ․ is presumed innocent until the contrary is proved.   In case of a reasonable doubt whether a defendant's guilt is satisfactorily show, he is entitled to an acquittal or a verdict of not guilty.  [¶] This presumption of innocence [places] upon the People of the State of California through [the prosecutor], the burden of proving the defendant guilty beyond a reasonable doubt of each of the charges.   That's the standard of proof beyond a reasonable doubt.   I'm going to define ‘reasonable doubt’ for you once now;  I'll define it again at the beginning of the case;  I'll define it again at the end of the case.   You'll see that it takes on meaning in the context of all of the evidence and the other legal instructions that I will give you at the end of the trial.”

JONES, Acting Presiding Justice.

HANING and CHAMPLIN†, JJ., concur.