P. v. Crego
On counts one and two, a jury convicted defendant David Thomas Crego of lewd and lascivious acts with a 15-year-old child. The trial court declared a mistrial on count three. Nonetheless, the trial court had instructed the jury that if the jury determined, either beyond a reasonable doubt or by a preponderance of the evidence, that defendant committed the act alleged in count three, the jury could consider that act in determining whether defendant was disposed or inclined to commit the offenses charged in counts one and two.
Defendant challenges that instruction, claiming it violated his federal due process rights because the trial court did not conduct an Evidence Code section 352[1] analysis, and because the instruction improperly included references to both the beyond-a-reasonable-doubt standard and the preponderance-of-the-evidence standard.
We conclude the trial court did not commit instructional error. We will affirm the judgment.
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