P. v. Leopard CA2/3
Defendant George Gary Leopard was convicted of 15 counts stemming from the molestation of his five-year-old step-granddaughter. On appeal, defendant contends there is insufficient evidence that any act was committed with duress or that 11 of the 15 charged acts were committed at all. He also contends the court’s instruction on the use of propensity evidence misstated the law and lowered the prosecution’s burden of proving guilt beyond a reasonable doubt. We conclude there was sufficient evidence that defendant committed the lewd acts but insufficient evidence of duress. We therefore modify the judgment to reflect convictions of lesser-included offenses that do not require duress. We also conclude—as have the other courts considering this issue—that the version of CALJIC No. 2.50.01 used in this case impermissibly lowered the prosecution’s burden of proof. We therefore reverse the modified judgment and remand for retrial.
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