Filed 1/5/00

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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In People v. Falsetta (1999) 21 Cal.4th 903, our Supreme Court recently held that Evidence Code section 1108, which allows evidence of a defendant’s prior sexual offenses in prosecutions for sex crimes, does not violate a defendant’s right to due process of law.

In this case, following Falsetta, we hold that Evidence Code section 1109, which allows evidence of a defendant’s prior domestic violence in a prosecution for an offense involving domestic violence, does not violate defendant’s right to due process.

Defendant George Edward Johnson, Sr., appeals from a judgment following his conviction for first-degree murder (Pen. Code, § 187), spousal battery (§ 273.5), assault with a knife (§ 245, subd. (a)), terrorist threat (§ 422), attempted spousal rape (§ 262), and stalking (§ 646.9). Defendant contends the judgment must be reversed because his due process rights were violated by admission of prior acts evidence under Evidence Code section 1109, and instructional error. He also claims ineffective assistance of counsel.

In the published portion of the opinion we reject his constitutional challenge to Evidence Code section 1109. In the unpublished portion of the opinion, we reject defendant’s remaining claims of prejudicial error. We shall therefore affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In May 1997, defendant was charged with the following offenses: (1) murder of his wife Linza (§ 187, subd. (a)) occurring on December 12, 1996, a serious felony under section 1192.7, subdivision (c)(1), with personal use of a firearm (§ 12022.5, subd. (a)); (2) spousal battery (§ 273.5, subd. (a)) on September 29, 1996; (3) assault with a knife (§ 245, subd. (a)(1)) on September 29, 1996, with personal use of a knife (§ 12022, subd. (b)); (4) terrorist threat (§ 422) on September 29, 1996; (5) attempted spousal rape (§§ 262, subd. (a), 664) on September 29, 1996; (6) terrorist threat (§ 422) on October 11, 1996; (7) assault with a deadly weapon, an automobile (§ 245, subd. (a)(1)) on November 9, 1996; and (8) stalking (§ 646.9, subd. (a)) from October 1996, through December 12, 1996. It was also alleged defendant had a prior conviction for assault with a firearm (§ 245, subd. (a)(1)), with personal use of a firearm (§ 12022.5) occurring on September 7, 1979, within the meaning of section 667, subdivisions (a) and (b) through (i). It was also alleged defendant had two prior convictions for spousal abuse (§ 273.5, subd. (a)) on October 31, 1990, and February 4, 1987. It was also alleged defendant was released on bail at the time he committed counts 1, 6, 7 and 8. (§ 12022.1, subd. (b).)

The following evidence was adduced at trial:

In September 1996, defendant and his wife Linza were in the process of separating (as prelude to divorce proceedings commenced in November 1996). On September 29, 1996 (counts 2-5), defendant and Linza had a fight. Their son George (age 22 at the time of trial) found Linza crying and limping when he came home that morning. The son took her to a doctor, who treated her for a contusion. The next day, the police arrived (having been called by the son) and took a statement from Linza that defendant was drunk and angry at her for not attending a cousin’s party. They argued, he called her a tramp, pushed her to the floor, grabbed her by the hair, and held a knife to her neck. Still holding the knife, he ordered her to strip naked. She complied. Defendant undressed, displaying an erection, and got on top of Linza. She spit on his face and pushed him off of her. While the police were taking Linza’s statement, defendant arrived and began arguing with Linza. He was arrested. A friend of Linza testified she spoke on the phone to Linza the night of the fight, during which Linza sounded frightened and defendant could be heard screaming in the background. A deputy district attorney testified that in early October 1996, Linza stated she had been having an extramarital affair for about three months, and defendant knew about the affair.

A friend of Linza testified that on October 11, 1996 (count 6--terrorist threat), Linza called the friend and related that when she arrived at work that morning, defendant was there and approached her car, cussed at her and yelled, "I’m going to kill you." Linza drove away. Defendant was gone when she returned several minutes later.

On November 9, 1996 (count 7), son George saw Linza arrive home (having the spent the night at her lover’s home), very distraught. Linza told her son that defendant had just tried to run her down with his car while she was in her car. She said defendant’s car hit Linza’s car and hit several mailboxes. A California Highway Patrol (CHP) officer found mailboxes lying in the roadway next to tire skid marks, and defendant’s license plate in some bushes. Defendant’s sister testified he told her about the accident and said his car hit some mailboxes when a tire blew.

In November and December, 1996 (count 8--stalking), defendant and his wife were separated, but he repeatedly came to the house and called on the phone, threatening to kill her. He also called her at work repeatedly. Linza obtained a restraining order.

On the morning of December 12, 1996 (count 1--murder), Linza was in the process of moving, with help from friends and her son. Defendant appeared, snatched the house keys from his son’s hand, used the keys to enter the house, and yanked the kitchen phone from its socket. Defendant pulled a gun from his pocket and pressed it against his son’s stomach. The son knocked the gun away. Defendant retrieved it. The son ran across the street to call the police. While on the phone, he saw defendant screaming outside the house and heard several gunshots. Defendant, still holding the gun and with bloody arms, got into Linza’s car and drove away. The son found Linza lying near the front door of the house. A friend of Linza who was in the house at the time testified she saw and heard defendant yelling at Linza and heard glass breaking in the front door. While the friend was on a bedroom phone calling the police, she heard gunshots. The friend hid in a closet for a few minutes and then emerged and found Linza lifeless on the floor against the front door. A neighbor testified he heard the yelling and gunshots and saw defendant hurriedly drive away.

Linza died of a gunshot wound which was not self-inflicted.

Defendant’s cousin testified he received a visit that morning from defendant, who stated he shot once, did not know if he hit Linza, so he shot two more times.

Over defendant’s objection, the trial court granted the prosecution’s request to introduce evidence of the following prior acts pursuant to Evidence Code section 1109:

In 1986, son George saw defendant slap Linza, pull a gun on her, grab her by the hair, and punch her in the face. In December 1998, the son saw defendant punch Linza in the stomach, upon which she collapsed and had a seizure. Defendant admitted the blow to a responding deputy sheriff. The son also saw defendant punch Linza as she was driving a car in August 1992. The son called the police on his father about seven or eight times between 1986 and 1996.

The defense presented the following evidence: A doctor testified he treated defendant for impotence beginning in December 1995. He prescribed a pump which apparently helped defendant achieve erection.

Defendant testified in his own behalf. He is diabetic and has impotence problems. He and Linza had marital problems. She had a boyfriend, but that did not upset defendant. In May 1996, she and son George forged a $5,000 check against his bank account. He threatened to have her prosecuted. He was engaged in ongoing discussions with Linza about when she would move out of the house so he could move back in. He denied the charges against him. The incident in which his car hit the mailboxes was an accident due to a tire blowout. On the day of the killing, defendant was angry because he just wanted his keys. He had no particular reason for carrying with him that day the gun which he had purchased months earlier for his sister’s protection. The shooting was an accident. He threw the gun away because he was afraid the police would shoot him if they stopped him with a gun in his possession.

In the prosecution’s rebuttal case, a deputy sheriff testified regarding the September 1996 incident that defendant admitted being angry at Linza for not attending his cousin’s party but denied ever hitting her, did not mention any forged check, and said Linza might make up stories about him because he wanted a divorce.

The jury found defendant guilty of first degree murder (count 1) and found true that defendant personally used a handgun in committing the murder. (§§ 187, subd. (a), 12022.5, subd. (a).) The jury also found defendant guilty of spousal battery (count 2), assault with a deadly weapon, with personal use of a knife (count 3), the September terrorist threat (count 4), attempted spousal rape (count 5), and stalking (count 8). The jury found defendant not guilty of the October terrorist threat (count 6) and the November assault with an automobile (count 7).

The trial court found defendant had a prior conviction for spousal abuse in 1990, and a prior conviction for assault with a deadly weapon, with personal use of a firearm, in 1979. The court also found defendant was released on bail when he committed counts 1 and 8. The court denied defendant’s motion to strike the prior and to strike the sentence-doubling provision of the Three Strikes Law. The court then sentenced defendant to a total term of 28 years, 4 months, plus 50 years to life, as follows: eight years (double the midterm) as the principal term on count 2; two years (double one-third the midterm) on count 3; one year, four months (double one-third the midterm) on count 4; two years stayed (§ 654) on count 5; one year, four months stayed (§ 654) on count 8; 50 years (double term of 25 years to life) on the count 1 murder; enhancements of 10 years (§ 12022.5, subd. (a)) and two years (§ 12022.1); and 5 years for the prior conviction (§ 667.5, subd. (a)).

DISCUSSION

I. Evidence Code Section 1109

Defendant contends the admission under Evidence Code section 1109, of evidence of prior acts for which he had been acquitted, violated due process by permitting the prosecutor to use evidence of prior acts of domestic violence to show a propensity to commit the charged offenses. We disagree.

Evidence Code section 1109 provides in part: "(a) Except as provided in subdivision (e), in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant’s commission of other domestic violence is not made inadmissible by [Evidence Code] Section 1101,[] if the evidence is not inadmissible pursuant to [Evidence Code] Section 352.[] . . . [¶] (e) Evidence of acts occurring more than 10 years before the charged offense is inadmissible under this section, unless the court determines that the admission of this evidence is in the interest of justice."

While this appeal was pending, the California Supreme Court issued an opinion holding that the parallel provision (Evid. Code § 1108), which allows admission of prior sex offenses, does not violate due process. (People v. Falsetta, supra, 21 Cal.4th 903.) We shall conclude, by parity of reasoning, the same applies to Evidence Code section 1109, since the two statutes are virtually identical, except that one addresses prior sexual offenses while the other addresses prior domestic violence.

Thus, Falsetta noted evidence of prior acts is generally inadmissible to prove conduct, but the Legislature relaxed this constraint with respect to sex offense cases, by enacting Evidence Code section 1108. (People v. Falsetta, supra, 21 Cal.4th at p. 911.) Falsetta said the court will presume a statute is constitutional, and a party claiming a due process violation must carry a heavy burden of showing the statute offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental. (Id. at p. 913.)

The defendant in Falsetta argued that California’s rule against admitting propensity evidence (Evid. Code, § 1101, subd. (a), fn. 4, ante) is a long-standing rule that is necessary to assure due process. (People v. Falsetta, supra, 21 Cal.4th at p. 913.) The Supreme Court noted, however, that Evidence Code section 1101 has long been subject to far-ranging exceptions, e.g., evidence admitted to show intent and other matters specified in Evidence Code section 1101, subdivision (b) (fn. 4, ante). Falsetta said legislative enactment of a further exception applicable in sex offense cases may not necessarily offend fundamental historical principles. (21 Cal.4th at p. 913.) Falsetta said it was unclear whether the rule against "propensity" evidence in sex offense cases should be deemed a fundamental historical principle of justice, but even if the rule was deemed fundamental from a historical perspective, the court would nonetheless uphold section 1108 because it did not unduly "offend" those principles, in light of the substantial protections afforded to defendants. (Id. at pp. 914-915.)

Thus, the Legislature determined the need for this evidence was critical in sex offense cases, given the serious and secretive nature of sex crimes and the often resulting credibility contest at trial. (People v. Falsetta, supra, 21 Cal.4th at pp. 911-912, 914.) The Legislature declared the willingness to commit a sexual offense is not common to most individuals; thus, evidence of any prior sexual offenses is particularly probative and necessary for determining witness credibility. (Ibid.) The commission of other sex offenses is at least circumstantially relevant to the issue of disposition or propensity to commit these offenses. (Ibid.) Such evidence is deemed objectionable not because it lacks probative value, but because it has too much. (Ibid.)

Falsetta said three reasons support the general rule against admission of propensity evidence. (People v. Falsetta, supra, 21 Cal.4th at p. 915.) "The rule of exclusion (1) relieves the defendant of the often unfair burden of defending against both the charged offense and the other uncharged offenses, (2) promotes judicial efficiency by avoiding protracted ‘mini-trials’ to determine the truth or falsity of the prior charge, and (3) guards against undue prejudice arising from the admission of the defendant’s other offenses. [Citations.]" (Id. at pp. 915-916.)

Falsetta said Evidence Code section 1108 did not offend these considerations for these reasons: First, the statute is limited to prior sex offenses in prosecutions for sex offenses (thus avoiding far-ranging attacks) and requires pretrial notice to the defendant that the prosecution seeks to use this evidence at trial. (People v. Falsetta, supra, 21 Cal.4th at p. 916.) Second, Evidence Code section 1108, by expressly allowing the trial court to exclude evidence under Evidence Code section 352, allowed the trial court to preclude inefficient mini-trials of prior acts. (Ibid.) Third, Evidence Code section 352 provided a safeguard against undue prejudice. (Ibid.) The trial court’s discretion to exclude the prior acts evidence under Evidence Code section 352 saves Evidence Code section 1108 from the due process challenge. (Ibid.)

Falsetta further concluded Evidence Code section 1108 does not reduce the prosecution’s burden to prove guilt beyond a reasonable doubt because a properly instructed jury will be told the defendant is presumed innocent, and the prosecution must prove him guilty beyond a reasonable doubt in order for the jury to convict. (People v. Falsetta, supra, 21 Cal.4th at p. 920.)

The same reasoning applies to prior acts of domestic violence under Evidence Code section 1109. Thus, the legislative history of the statute recognizes the special nature of domestic violence crime, as follows: "The propensity inference is particularly appropriate in the area of domestic violence because on-going violence and abuse is the norm in domestic violence cases. Not only is there a great likelihood that any one battering episode is part of a larger scheme of dominance and control, that scheme usually escalates in frequency and severity. Without the propensity inference, the escalating nature of domestic violence is likewise masked, if we fail to address the very essence of domestic violence, we will continue to see cases where perpetrators of this violence will beat their intimate partners, even kill them, and go on to beat or kill the next intimate partner. Since criminal prosecution is one of the few factors which may interrupt the escalating pattern of domestic violence, we must be willing to look at that pattern during the criminal prosecution, or we will miss the opportunity to address this problem at all." (Assem. Com. Rep. on Public Safety Report (Jun. 25, 1996) pp. 3-4.) Moreover, the special nature of domestic violence cases is legislatively recognized in enactments such as the Law Enforcement Response to Domestic Violence, sections 13700 through 13731.

Based on the foregoing, the California Legislature has determined the policy considerations favoring the exclusion of evidence of uncharged domestic violence offenses are outweighed in criminal domestic violence cases by the policy considerations favoring the admission of such evidence.

Moreover, like Evidence Code section 1108, Evidence Code section 1109 is limited to prior acts of domestic violence in prosecutions for domestic violence, thus avoiding far-ranging attacks, and the statute requires pretrial notice to the defendant. Also, Evidence Code section 1109, by expressly allowing the trial court to exclude evidence under Evidence Code section 352, allows the trial court to preclude inefficient mini-trials of prior acts. Evidence Code section 352 provides a safeguard against undue prejudice. The trial court’s discretion to exclude the prior acts evidence under Evidence Code section 352 saves Evidence Code section 1109 from defendant’s due process challenge. Evidence Code section 1109 does not lessen the prosecution’s burden of proof, because a properly instructed jury will be told the defendant is presumed innocent and the prosecution must prove him guilty beyond a reasonable doubt in order for the jury to convict.

Accordingly, we conclude Falsetta, by parity of reasoning, supports upholding the constitutional validity of Evidence Code section 1109 against a due process challenge.

Under his due process heading, defendant appears to argue Evidence Code section 1109 also violates the prohibition against cruel and unusual punishment, because it allows a defendant to be convicted based on his status as a perpetrator of domestic violence rather than his commission of the charged offenses. However, in People v. Fitch (1997) 55 Cal.App.4th 172, we rejected an argument that Evidence Code section 1108 allowed conviction based on status, where the jury was instructed it could not convict the defendant simply because it found he had a character trait that tended to predispose him to commit the charged crime. (People v. Fitch, supra, 55 Cal.App.4th at pp. 183-184.) Here, as we discuss post, the jury instructions adequately instructed the jury not to convict defendant based on status.

II. Evidence Code Section 352

Defendant argues that even if Evidence Code section 1109 is constitutional, the trial court abused its discretion by failing to exclude the evidence as more prejudicial than probative under Evidence Code section 352. We disagree.

The prosecution moved to admit under Evidence Code section 1109 (and Evidence Code section 1370--hearsay statements of unavailable physical abuse victim) evidence of prior uncharged acts of domestic violence by defendant against Linza between 1986 and 1992. The court and counsel discussed this evidence and the use of evidence of the current charged offenses in the fall of 1996 as evidence relevant to the December 1996 murder count. Prior acts were discussed, and the trial court weighed the prejudicial effect against the probative value, and indicated it would consider the cumulative effect of the evidence. The trial court excluded some of the evidence under Evidence Code section 1370 but admitted the incidents recounted in our statement of facts.

On appeal, defendant complains the trial court did not expressly consider the cumulative impact of the evidence. Defendant also complains the trial court did not consider the prejudicial "blurring" effect of using the same evidence both for propensity evidence and as evidence of the charged offenses. However, the trial court need not expressly state its reasoning in ruling on an Evidence Code section 352 matter. (People v. Lucas (1995) 12 Cal.4th 415, 448-449.) The record amply demonstrates the trial court understood and fulfilled its obligations under Evidence Code section 352; nothing more was required. (Ibid.) We reject defendant’s contention that the court’s failure to exclude any of the propensity evidence, while excluding some of the victim’s hearsay statements under Evidence Code section 1370, demonstrates a failure to consider the cumulative effect of the propensity evidence. We see no support for defendant’s claim that the court was "affected" by public pressure to demonize defendant.

Defendant argues the prosecution did not seek to justify the prior acts evidence as relevant to show motive, intent, common plan or any other rationale justifying such evidence under Evidence Code section 1101. Consequently, defendant argues, the probative value of the evidence must be extraordinarily high to be admissible. Assuming any residual validity to defendant’s cited case authority--which predated the legislative enactment of Evidence Code section 1108 (Stats. 1995, ch. 439, § 2) and section 1109 (Stats. 1996, ch. 261, § 2)--the evidence in this case did have very high probative value.

Defendant argues the prior acts evidence was merely cumulative to the evidence of the charged offenses and therefore had to be excluded under People v. Willoughby (1985) 164 Cal.App.3d 1054, 1062-1063. However, Willoughby was addressing the restrictive provisions of Evidence Code section 1101, and the case was decided before the legislative enactment of the statutory exceptions to Evidence Code section 1101 which are at issue in this case.

Defendant contends prejudice is shown because the jury acquitted him of two offenses (making a terrorist threat in the parking lot of Linza’s workplace and assault with an automobile), hence the jury must have questioned the credibility of the prosecution witnesses, and the propensity evidence must have improperly influenced the jurors in reaching their verdict on the offenses for which they convicted him. We disagree. To the contrary, although defendant sees those two counts as involving distinguishable facts, the fact that the jury acquitted defendant on two counts suggests the prior acts evidence was not prejudicially inflammatory.

The trial court did not abuse its discretion in admitting the evidence.

III. Jury Instructions

Defendant argues he was deprived of his right to a fair trial, in violation of the Fourteenth Amendment to the United States Constitution, because the combination of jury instructions concerning evidence of prior uncharged acts, given pursuant to CALJIC Nos. 2.50.01 and 2.50.1, deprived him of his constitutional right to be acquitted unless the jury was convinced of his guilt beyond a reasonable doubt. We see no basis for reversal.

The prosecution introduced evidence of prior domestic violence by defendant against Linza in 1986, 1988 and 1992 and argued to the jury that these prior acts could be used to help in determining that defendant committed the domestic violence in September 1996.

The jury was instructed with a version of CALJIC No. 2.50.01, which provided:

"Evidence has been introduced for the purpose of showing that the defendant engaged in domestic violence on one or more occasions other than that charged in the case. Domestic Violence is abuse committed against a person who is a spouse, cohabitant, former cohabitant, or a person with whom the suspect has had a child or has had a dating or engagement relationship.

"If you find that the defendant committed prior domestic violence, you may, but are not required to, infer that the defendant had a disposition to commit the same or similar type domestic violence. 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. You must not consider this evidence for any other purpose."

The jury in this case was also instructed with CALJIC No. 2.50.1, as follows: "Within the meaning of the preceding instruction, the prosecution has the burden of proving by a preponderance of the evidence that a defendant committed the crime[s] other than those for which he is on trial. You must not consider this evidence for any purpose, unless you find, by a preponderance of the evidence, that a defendant committed the other crimes." The court defined "preponderance of the evidence" for the jury.

The jury was also instructed that defendant’s not guilty plea "puts in issue every material allegation of the information and places upon the prosecution the burden to establish beyond a reasonable doubt that the defendant is guilty of the crimes charged in the information." The jury was also instructed with CALJIC No. 2.90, that, "A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to a verdict of not guilty. This presumption places upon the People the burden of proving him guilty beyond a reasonable doubt." Reasonable doubt was defined. The jury was told to consider the instructions as a whole.

The trial court rejected defendant’s request that a jury instruction be given "that the standard of truth with regard to the conduct which comes in under [Evidence Code section] 1109 be beyond a reasonable doubt as opposed to a preponderance of the evidence."

Defendant argues on appeal that the overall instructions reduced the prosecution’s burden of proof and allowed conviction on less than proof beyond a reasonable doubt that defendant committed the charged offenses. Even assuming the argument is not waived for failure to raise it in the trial court as the People suggest, we see no basis for reversal.

Thus, defendant was not entitled to his proposed instruction because it was an incorrect statement of the law; prior acts evidence need not be proved beyond a reasonable doubt. (See e.g., People v. Carpenter (1997) 15 Cal.4th 312, 380-383 [prior crimes used to prove intent may be established by a preponderance of the evidence]; People v. Medina (1995) 11 Cal.4th 694, 763-764 [preponderance of the evidence standard proper for proving prior crimes during guilt phase]; People v. Tewksbury (1976) 15 Cal.3d 953, 965 [collateral facts need not be proven beyond a reasonable doubt]; People v. Durham (1969) 70 Cal.2d 171, 187, fn. 15 ["Although a person charged with crime cannot be convicted thereof unless he is proved guilty beyond a reasonable doubt, other uncharged offenses introduced to show the existence of some element of the charged crime need only be proved by a preponderance of substantial evidence."]; People v. Van Winkle (1999) 75 Cal.App.4th 133, 140, fn. 6 [preponderance of the evidence standard applies to prior offenses under Evid. Code, § 1108].)

Defendant suggests the trial court should have tailored a limiting instruction such as that used in People v. Fitch, supra, 55 Cal.App.4th at pp. 182-183, footnote 4, which told the jury: "You may not convict [the defendant] merely because you believe he committed a--another offense or because you believe he has a character trait that tends to predispose him to committing the charged offense. [¶] The question before you is whether the defendant is guilty of the crime charged in this case, not whether he is guilty of any other offense. [¶] You may return a verdict of guilty only if you are convinced beyond a reasonable doubt that he committed the offense charged against him in this case. . . ."

However, the trial court’s failure to tailor an instruction does not constitute reversible error. Thus, while this appeal was pending, the California Supreme Court rejected a similar argument about instructing on the limited use of propensity evidence, in People v. Falsetta, supra, 21 Cal.4th 903. Falsetta held it was harmless error (under the standard of People v. Watson (1956) 46 Cal.2d 818, 836) for a trial court to reject (rather than tailor) a defendant’s proposed jury instruction to limit the use of evidence of prior acts. In the case before the court, Falsetta determined the instructional error was harmless because (1) the evidence of prior acts was neither lengthy nor cumulative; (2) the prior acts shared many similarities to the charged crimes and were not inflammatory when compared to the charged crimes; (3) the defendant was convicted of the prior acts, so it was unlikely the jury would want to convict him in the current trial for those acts; and (4) the prosecutor did not urge the jury to convict based on the past acts. (Id. at p. 924.) In all, said Falsetta, the propensity evidence was circumscribed and sufficiently related to the charged offenses such that there was very little likelihood that the jury would convict the defendant based on the prior crimes alone. (Ibid.) Moreover, said Falsetta, the other evidence of guilt was overwhelming. (Ibid.) Although Falsetta addressed prior sex offenses (Evid. Code, § 1108), the same conclusion applies to the parallel provision for prior domestic violence under Evidence Code section 1109.

Here, as in Falsetta, the evidence of prior acts, although arguably cumulative, was not lengthy or inflammatory. Although there was no prior conviction for the prior acts, it is unlikely the jury would have been tempted to convict him for prior uncharged acts rather than the charged crimes, particularly since there was so much other evidence of the charged offenses and the prior acts by comparison were not inflammatory. Contrary to defendant’s interpretation, the jury’s acquittal of defendant on two charged offenses suggests the jury did not use the propensity evidence indiscriminately. While the prosecutor argued the prior acts showed propensity, she did not argue the jury should convict defendant based on uncharged crimes. The prosecution’s argument to the jury acknowledged and addressed the burden to prove guilty beyond a reasonable doubt. In all, the propensity evidence was circumscribed and sufficiently related to the charged offenses such that there was very little likelihood that the jury would convict defendant based on the prior acts alone.

We note the version of CALJIC No. 2.50.01 given to the jury did not tell the jurors they could convict defendant based on the prior acts evidence. The instruction merely said the jurors could infer that he committed the charged offenses. A jury may believe a defendant committed the charged offense yet acquit because the prosecution failed to prove it beyond a reasonable doubt. The jurors here were told they could not convict defendant unless the People proved him guilty beyond a reasonable doubt and to consider the instructions as a whole. We thus disagree with the recent case of People v. Vichroy (1999) 76 Cal.App.4th 92, which concluded this version of CALJIC No. 2.50.01 permitted the jury to find the defendant guilty of the charged offenses solely because he committed prior offenses and that the instructions as a whole did not clarify that defendant was not to be convicted simply because the jury concluded he had committed the prior offenses.

Defendant argues the "unique feature" of this case is that the prosecution offered evidence of the events of the fall of 1996 both as direct proof of the charged offenses and as propensity evidence. He claims the same evidence was offered to the jury for dual purposes, with no instructional guidance on the jurors’ separate obligations with respect to the two purposes. He claims this amounts to instructional error of constitutional dimension allowing him to be convicted on proof less than beyond a reasonable doubt. We disagree.

We view the instructions not in isolation but in light of the entire record to determine whether there is a reasonable likelihood that the jury understood the instructions as permitting a conviction on a standard less than beyond a reasonable doubt. (See People v. Carpenter (1997) 15 Cal.4th 312, 383; People v. Van Winkle, supra, 75 Cal.App.4th at pp. 142-143.) In making that determination, we consider the entire record of the trial, including other jury instructions and closing arguments to the jury. (Ibid.)

The People on appeal appear to agree the trial court indicated the prosecution could use the fall 1996 evidence both for the charged offenses and as propensity evidence for the later offenses. However, they point out the prosecution did not do so. In argument to the jury, the prosecution used the fall 1996 evidence as evidence of the stalking charge. The prosecutor’s only reference to evidence which should be used as propensity evidence was to the acts of 1986, 1988 and 1992. The prosecutor argued: "This incident [September 1996] is fully corroborated as it occurred by Linza Johnson’s statement, but the law allows you to look at more because, in this particular case, you heard evidence that the defendant has beat Linza Johnson numerous times. You heard evidence from 1986 that he beat Linza Johnson. You heard evidence from 1988 that he beat Linza Johnson. You heard evidence from 1992 that he beat Linza Johnson.

"You heard evidence from his own mouth that he beat Linza Johnson, and the law determines that you may consider that evidence in determining, if he did it before then, there is a--a good likelihood he did it again.

"The law says you are allowed to use that evidence for that purpose, and you have had that evidence presented to you strictly for that purpose, that he did it before and he’ll do it again. And it makes perfect sense that he did it again, and he did it on September 29th of 1996."

We disagree with defendant’s assertion that these comments by the prosecutor told the jurors they could find defendant guilty because of prior acts found to be true by a preponderance of evidence. As indicated, belief that a defendant committed a crime does not necessarily lead to conviction.

Defendant fails to cite anything in the record which supports his claim that evidence was improperly used for a dual purpose. He says in the argument section of his appellate brief that he will not restate the evidence, but that his statement of facts provides a "rough estimate" of the emphasis placed on the propensity evidence. However, his protracted discussion of propensity evidence in his appellate brief does not establish how much time or emphasis was devoted to the propensity evidence at trial. Our own review of the record satisfies us that there was no improper use of propensity evidence.

Defendant notes the prosecutor in argument to the jury used defendant’s threats to kill Linza in the fall of 1986 as evidence of premeditation/deliberation for the December 1996 murder. However, that argument did not constitute a use of the events of the fall of 1986 as propensity evidence.

Defendant fails to show that the prosecutor ever argued to the jury that propensity evidence found by a preponderance of the evidence should or could be used as substantive evidence of the charged offenses. Defendant cites the prosecutor’s comment in closing argument referring to the son’s testimony that about a week before shooting Linza, defendant threatened to shoot his son. However, this evidence does not appear to be one of the items the prosecution sought to use as propensity evidence, and the prosecutor did not argue it as such. She argued the evidence indicated defendant lied about his reason for going to the house on that occasion.

We conclude that on this record, it is not reasonably likely the jury misapplied the instructions.

We conclude there was no instructional error warranting reversal.

IV. Assistance Of Counsel

We allowed supplemental briefing on defendant’s tardy contention that his trial counsel rendered ineffective assistance of counsel (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; People v. Ledesma (1987) 43 Cal.3d 171, 215) by failing to object when the prosecutor asked defendant on cross-examination if opposing witnesses were lying in making inculpatory statements about him. Defendant asserts the questions were improper and deprived him of his constitutional right to a jury determination of all necessary factual issues, i.e., issues of credibility of witnesses. We shall conclude that, even assuming for the sake of argument that counsel should have objected, there is no basis for reversal.

Assuming for the sake of argument that counsel’s performance was defective, the standard for reversal is whether there is a reasonable probability that, but for counsel’s defective performance, defendant would have received a more favorable result at trial. (In re Ross (1995) 10 Cal.4th 184, 192.)

As indicated, defendant testified at trial. During cross-examination, the prosecutor went through a litany of the evidence against defendant and asked defendant if each prosecution witness had lied and if police officers lied by recording in their reports statements adverse to defendant--to all of which defendant responded yes, they were each lying, they all lied.

Defendant argues his attorney was deficient in failing to object on the basis of federal cases holding it is improper for a prosecutor to cross-examine a defendant as to whether prosecution witnesses lied; such opinion evidence regarding a witness’s credibility is inadmissible, in that determinations of credibility are for the jury, not for witnesses. (E.g., U.S. v. Sanchez (9th Cir. 1999) 176 F.3d 1214.)

However, assuming for the sake of argument that the federal cases are correct, they do not compel reversal in this case. Thus, some of the federal cases found the error was harmless or found it unnecessary to decide whether the error was prejudicial due to the court’s decision to reverse the judgment on other grounds. (E.g., U.S. v. Sanchez, supra, 176 F.3d 1214 [court stated it need not decide whether prosecutor’s error in compelling the defendant to give his opinion regarding deputy marshal’s credibility was prejudicial, because the judgment was being reversed on other grounds]; U.S. v. Sullivan (1st Cir. 1996) 85 F.3d 743, 750 [reversal not required where evidence of guilt was strong and prosecutor’s questions merely pointed out the obvious contradiction between testimony].) Where reversible error was found, the situation was different from the case before us. Thus, e.g., U.S. v. Sanchez-Lima (9th Cir. 1998) 161 F.3d 545, found reversible error in a trial court’s allowing one law enforcement agent to testify to his opinion that another law enforcement agent told the truth in a post-incident interview. (Id. at p. 548.) However, this inadmissible testimony bolstered the credibility of the prosecution’s witness. Here, in contrast, the only testimony produced by the alleged prosecutorial misconduct was defendant’s own testimony that prosecution witnesses were lying. In U.S. v. Richter (2d Cir. 1987) 826 F.2d 206, the appellate court said it might be inclined to overlook the prosecutor’s misconduct (in asking the defendant if a law enforcement agent was lying) if that were the sole problem, but the prosecutor had then called another law enforcement agent as a rebuttal witness for the purpose of corroborating the first agent’s testimony. (Id. at p. 208.) Here, in contrast, defendant complains of no other misconduct by the prosecutor beyond simply asking defendant if adverse witnesses were lying.

Here, the evidence of guilt was strong, and we see no prejudice in the alleged ineffective assistance of counsel. Defendant argues his trial counsel’s failure to object to the prosecutor’s improper questioning was prejudicial in this case because it allowed opinions about credibility to replace actual jury determination of credibility. We disagree and note the jury obviously did not adopt defendant’s opinion of the witnesses’ credibility. We also disagree with defendant’s complaint that the cross-examination forced him into a position of calling every witness a liar, which placed him in a poor light in the eyes of the jury. Defendant suggests the cumulative effect of this issue and his claim of instructional error total prejudice. We disagree.

In a supplemental reply brief, defendant cites People v. Torres (1995) 33 Cal.App.4th 37, 46 (which he miscites as People v. Moreno). Torres said it was improper for a police officer to give inferential opinion testimony that the defendant was guilty--because such an opinion is of no assistance to the trier of fact--but defense counsel’s failure to challenge this and other improper opinion testimony did not affect the outcome of trial, hence did not require reversal of the defendant’s conviction. (Id. at pp. 46-48) Here, defendant does not complain that any witness improperly opined as to his guilt.

We see no basis for reversal of the judgment.

DISPOSITION

The judgment is affirmed.

SIMS , Acting P.J.

We concur:

CALLAHAN , J.

KOLKEY , J.