P. v. Whitehurst

Filed 8/27/02 P. v. Whitehurst CA2/4
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
JAMES HERMAN WHITEHURST,
Defendant and Appellant.
B151901
(Super. Ct. No. BA203309)
APPEAL from a judgment of the Superior Court of Los Angeles County,
James M. Ideman, Judge. Reversed and remanded.
Victor J. Morse, under appointment by the Court of Appeal, for Defendant
and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant
Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Ana R.
Duarte and Betty B. Chim, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant James Herman Whitehurst was convicted by a jury of committing
three lewd and lascivious acts upon his wife’s 10-year-old daughter. He appeals
from judgment granting him probation, contending that the judgment must be
reversed due to instructional error. For reasons explained in this opinion, we reverse
the judgment and remand for retrial.
FACTUAL SUMMARY
The evidence, briefly recounted in the light most favorable to the judgment
proved that on the morning of May 27, 2000, appellant walked into the living room
of his apartment and found his 10-year-old stepdaughter Danielle lying on the couch
in her pajamas. He lay down behind her and rubbed her buttocks through her
clothing for about 30 seconds, until Danielle got up and left the room.
The next day the same thing happened except that this time appellant rubbed
Danielle’s buttocks underneath her panties, and then moved his hand forward to rub
her vagina. Again, Danielle got up from the couch and left the room.
On June 2, 2000, appellant accosted Danielle as she lay on her mother’s bed.
Appellant, who was wearing only boxer shorts, touched Danielle’s buttocks with his
hand and his penis. When Danielle’s younger brother entered the room, appellant
went into the bathroom. When he returned, appellant said to Danielle, “When you
wear shorts they get in the way.” Appellant asked Danielle to go into the bathroom
with him, but she refused.
DISCUSSION
I
Pursuant to Evidence Code section 1108, and over appellant’s objection, the
court allowed 20-year-old prosecution witness Rosie Houston to testify that when

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she was 10 years old, appellant sexually assaulted her on two occasions when she
was babysitting for Danielle’s mother.
The court instructed the jury concerning this testimony, in the words of
CALJIC 2.50.01, as modified in 1999, as follows: “Evidence has been introduced
for the purpose of showing that the defendant engaged in a sexual offense other than
that charged in the case. [¶] ‘Sexual offense’ means a crime under the Law of a
state . . . of the United States that involves any of the following: Including any
conduct made criminal by Penal Code section 288(A). The elements of this crime
are set forth elsewhere in these instructions. [¶] If you find that the defendant
committed a prior sexual offense, you may, but are not required to, infer that the
defendant had a disposition to commit the same or similar type sexual offenses. 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. [¶] However, if you find by a preponderance of the evidence that the
defendant committed a prior sexual offense, that is not sufficient by itself to prove
beyond a reasonable doubt that he committed the charged crimes. The weight and
significance of the evidence, if any, are for you to decide. [¶] Unless you are
otherwise instructed, you must not consider this evidence for any other purpose, and
that’s the only purpose for which you are to consider it.”
The trial court followed this instruction with an instruction on preponderance
of the evidence, after which it stated: “[P]reponderance of the evidence is the rule
applying to the incident involving Rosie. The test for the defendant’s guilt of this
case is proof beyond a reasonable doubt which I will now read to you.”
In People v. Reliford, previously reported at 93 Cal.App.4th 973, we held that
the that the version of CALJIC 2.50.01 given in this case (the 1999 modification)
did not clearly delineate for the jury how it should use the lesser standard of proof
for the inference of propensity, but the greater beyond-a-reasonable-doubt standard

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for determining guilt. We concluded the prejudicial effect of this ambiguous
instruction should be determined by asking, after consideration of the context of the
instructions as a whole and the trial record, whether there was a reasonable
likelihood that the jury applied the instruction in a way that violates the
Constitution. (Estelle v. McGuire (1991) 502 U.S. 62, 72.) The California Supreme
Court granted a petition for review in that case in February 2002, identifying the
issues as “(1) whether CALJIC 2.50.01 (1999 rev.) correctly instructs on the burden
of proof where evidence of prior sexual offenses is admitted under Evidence Code
section 1108; and (2) if not, whether the error is subject to review for harmless error
and the applicable standard of review.” (Judicial Council of California, News
Release, February 20, 2002.)
Until the Court decides these issues, we shall continue to resolve them as we
did in Reliford. The problem with the instruction arises from the words, “and did
commit.” These three words, in context, allowed the jury to infer that appellant
committed the charged crimes simply because a preponderance of evidence proved
he had the disposition to do so. This is inference is at odds with the constitutional
requirement that appellant’s guilt be proved beyond a reasonable doubt. Therefore,
we turn to the issue of prejudice, to determine whether, in light of the entire record,
there was a reasonable likelihood that the jury applied the instruction in a way that
violates the Constitution.
The erroneous instruction was given to the jury after closing arguments in
which both sides focused on the credibility of Danielle’s accusations and appellant’s
testimonial denial of those accusations. The prosecutor wove the evidence of the
prior and current crimes together, arguing that “history had repeated itself.” She
argued: “[In] these cases it just comes down to who do you believe and was the
defendant in any way credible when he claimed, one, he couldn’t remember
molesting Rosie; and when he claimed, two, he didn’t touch Danielle.” She

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expressed her hope that the jury would believe Danielle “because Rosie flew here
and has shown you who he [the defendant] is.” She relied heavily on the similarities
between the incidents, pointing out repeatedly that each victim was 10 years old,
each was abused in a home when children, but no adults, were present, one act with
each victim was interrupted by another child, each victim was rubbed and fondled
by appellant , and each victim was accused by appellant of lying about what
happened. She described the incident with Rosie as “corroboration” of the crimes
charged against appellant in this case. She referred to the fact that appellant was not
prosecuted for what he did to Rosie, arguing: “These cases are very tough because
usually it is just a child’s word against the abuser, that’s what the abusers count on,
that’s why so many abusers target children. That’s why eight years ago he targeted
Rosie, that’s how last time it worked out. This time it won’t. Because this time
you’re not just left with one little kid and an adult, you have a lot more to go on.”
Defense counsel countered these arguments, in part, by pointing out that
although the jury could consider the incident with Rosie, “that in and of itself is not
sufficient for you to convict him, that you must look at what the evidence is as to the
present charges and decide whether or not the people have proved these charges
beyond a reasonable doubt.” He argued that Danielle had reason to invent her
accusations because appellant had been “arbitrary and harsh to Danielle at times[.]”
He closed with the plea, “So I urge you to follow the law to not convict James
because he may have committed – and there’s certainly more evidence that he
committed the act eight years ago than there is in the present act. Beyond a
reasonable doubt is a very high standard and suspicion doesn’t come close to that
standard.”
The court’s instructions to the jury included not only the 1999 revision of
CALJIC 2.50.1, but also the instructions which are standard in every criminal trial,
including the presumption of innocence, the people’s burden of proving appellant’s

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guilt beyond a reasonable doubt, and the admonition to consider the instructions as a
whole and in light of all others.
Considering all of these matters, we cannot determine whether the jury
reached its verdicts because it concluded appellant’s guilt was proved beyond a
reasonable doubt, or whether it took the constitutionally impermissible shortcut
allowed by the 1999 revision of CALJIC 2.50.1. Therefore, we are unable to
conclude there is no reasonable likelihood that the jury applied the challenged
instruction in a way that violates the Constitution. (Estelle v. McGuire, supra, 502
U.S. 62, 72.)
Given this conclusion, we need not reach appellant’s contention that the court
also erred in instructing the jury in the words of CALJIC 17.41.1. Under the
holding of People v. Engelman (2002) 28 Cal.4th 436, that instruction may not be
given upon remand.
DISPOSITION
For the foregoing reasons, the judgment is reversed and the matter is
remanded for retrial.
NOT TO BE PUBLISHED
HASTINGS, J.
We concur:
EPSTEIN, Acting P.J. CURRY, J.

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