I concur in the disposition of this appeal, and agree with the reasoning of the majority as to all issues except the impropriety of the trial court’s modified propensity instruction. While the majority concludes that giving modified CALJIC No. 2.50.02 was a harmless error, I do not believe that it was an error at all.
As the majority correctly points out, evidence of a defendant’s criminal propensity is ordinarily inadmissible. (Evid. Code, § 1101.)1 However, as the majority also recognizes, the Legislature has created exceptions to this rule in cases involving sexual offenses (§ 1108) and domestic violence (§ 1109). Our Supreme Court has held that section 1108 satisfies the requirements of due process. (People v. Falsetto (1999) 21 Cal.4th 903, 922 [89 Cal.Rptr.2d 847, 986 P.2d 182].) It has also ruled that CALJIC No. 2.50.01, which explains the application of section 1108, is a correct statement of the law. (People v. Reliford (2003) 29 Cal.4th 1007, 1012 [130 Cal.Rptr.2d 254, 62 P.3d 601].) Following these decisions, the constitutionality of section 1109 has been upheld (People v. Price (2004) 120 Cal.App.4th 224, 240 [15 Cal.Rptr.3d 229]; People v. Jennings (2000) 81 Cal.App.4th 1301, 1312 [97 Cal.Rptr.2d 727]), as has the corresponding CALJIC instruction, No. 2.50.02 (People v. Pescador (2004) 119 Cal.App.4th 252, 261-262 [14 Cal.Rptr.3d 165]).
There is no justification in the language of section 1109 for restricting its application to prior offenses that are not charged in the case on trial. Section 1109 renders admissible in an action in which the defendant is accused of an offense involving domestic violence “evidence of the defendant’s commission of other domestic violence” if that evidence is not inadmissible under section 352. The terms of the statute apply equally to other charged and uncharged acts of domestic violence.
The absence from section 1109 of a restriction to charged offenses is no oversight. Section 1108, subdivision (a) similarly applies to “evidence of the defendant’s commission of another sexual offense or offenses,” without regard to whether the other offenses have been charged. Section 1101, subdivision (a) refers to “evidence of a person’s character or a trait of his or *585her character” without regard to whether such evidence relates to charged or uncharged offenses. Section 1101, subdivision (b) refers to “evidence that a person committed a crime,” again without reference to charges, and permits the admission of such evidence to prove facts other than criminal propensity, including motive, opportunity, intent, plan, or preparation.
The exceptions provided in section 1101, subdivision (b) have not been limited to uncharged offenses. The Supreme Court has made clear that juries may properly consider evidence underlying other charged crimes for the purposes permitted by these exceptions as well as to establish the charged offenses, so long as the evidence would have been cross-admissible if the charges were tried separately. (People v. Ochoa (1998) 19 Cal.4th 353, 410-411 [79 Cal.Rptr.2d 408, 966 P.2d 442]; People v. Catlin (2001) 26 Cal.4th 81, 153 [109 Cal.Rptr.2d 31, 26 P.3d 357] .)2
Evidence of criminal propensity is both circumstantially relevant and highly probative. (People v. Falsetta, supra, 21 Cal.4th at p. 915; People v. Reliford, supra, 29 Cal.4th at p. 1012.) Like most domestic violence cases, the charges against Quintanilla involved intimate, secretive behavior and turned on a credibility contest between the victim and the defendant. (People v. Jennings, supra, 81 Cal.App.4th at p. 1313.) The relevance of the conduct for which Quintanilla was separately charged, in evaluating his propensity to engage in domestic violence and the likelihood that he committed a particular offense here, was no less than if that conduct had not been the subject of separate charges.
In Falsetta, the court identified three considerations underlying the usual rule barring propensity evidence despite its relevance—the unfair burden of defending against uncharged as well as charged offenses, the inefficiency of holding protracted “mini-trials” on uncharged offenses, and the prejudice that may arise from the admission of other offenses. (People v. Falsetta, supra, 21 Cal.4th at pp. 915-916.) The first two of these factors are not present when the evidence is relevant to other charges that are being tried together with the offense to which the propensity evidence relates. The third factor, prejudicial effect, is an inherent aspect of trials on multiple charges, which is mitigated to some extent by the rules governing severance. (See, e.g., People v. Catlin, supra, 26 Cal.4th at p. 110; People v. Arias (1996) 13 Cal.4th 92, 126-127 [51 Cal.Rptr.2d 770, 913 P.2d 980].)
*586In Falsetta, the Supreme Court held that the crucial factor ensuring that a defendant’s right to due process is not violated by the admission of prejudicial propensity evidence under section 1108 is the explicit requirement, found in both sections 1108 and 1109, that the evidence not be “inadmissible pursuant to Section 352.” (People v. Falsetta, supra, 21 Cal.4th at pp. 911, 917-918.) The Falsetta court contemplated that in the usual case involving uncharged other offenses, section 352 would provide a safeguard against undue prejudice by requiring the court to exclude the propensity evidence if its prejudicial impact outweighed its probative value. (People v. Falsetta, supra, at pp. 916-917.) The majority is correct, of course, that evidence of other charged crimes cannot be excluded on this basis. However, assuming that the potential prejudice is not so great as to require separate trials (which in some cases may be the only effective means of preventing prejudice), permitting the jury to draw an inference concerning the defendant’s propensity to engage in such conduct will not necessarily aggravate that potential. There is no reason why the same factors that the court must consider in determining whether to exclude evidence under section 352 cannot be considered in determining whether to give an instruction along the lines of CALJIC No. 2.50.02 permitting consideration of the evidence to show propensity or, alternatively, to give an instruction along the lines of CALJIC No. 2.09 limiting consideration of the evidence to the offense to which it directly relates. If the court determines that the particular evidence would be admissible under section 352 if the offense with respect to which it is offered as propensity evidence were tried separately, then an instruction such as CALJIC No. 2.50.02 is appropriate. If under section 352 the evidence is not cross-admissible, such an instruction should not be given. In this case, Quintanilla neither objected to the instruction that was given on section 352 grounds nor did he request an instruction limiting consideration of the disputed evidence to specified charges. His only objection at trial was that section 1109 does not permit evidence of any other charged crimes to be used to establish a defendant’s criminal propensity.
However, sections 1108 and 1109, like section 1101, are concerned with admissibility for particular purposes, and these purposes have nothing to do with whether charges are brought separately or together. As pointed out, ante, section 1101 has been applied to permit juries to consider charged as well as uncharged misconduct. If other-crimes evidence would be admissible and a proper subject of jury instructions in separate trials on domestic violence charges, there is no reason why propensity instructions should not also be given when the charges are tried jointly. Indeed, it is entirely illogical to permit the prosecution to show propensity to commit domestic violence with evidence of prior similar misconduct that was not felt to warrant prosecution in the same case, but to prohibit the use of such evidence when the conduct is deemed sufficiently aggravated to justify a separate charge.
*587The majority suggests that the “mental gymnastics” required to weigh evidence of domestic violence charges under two different standards of proof—beyond a reasonable doubt on each charged offense and preponderance of the evidence in assessing propensity—indicate that the Legislature did not intend to permit evidence of other charged domestic violence to be considered under section 1109. (Maj. opn., ante, at p. 583.) Passing the fact that this is not what the Legislature said in section 1109, this is precisely the type of analysis that the Supreme Court emphatically rejected in People v. Reliford, supra, 29 Cal.4th at page 1016. It is well settled that “evidentiary facts” such as other-crimes evidence are governed by the preponderance standard, while the reasonable doubt standard applies to the ultimate determination of guilt. (People v. Medina (1995) 11 Cal.4th 694, 763 [47 Cal.Rptr.2d 165, 906 P.2d 2]; People v. Lisenba (1939) 14 Cal.2d 403, 430 [94 P.2d 569].) It is not uncommon for a jury to be instructed on multiple standards in the same case, even when the different standards must be applied to the same evidence for the purpose of making different determinations. The Reliford court rejected the argument that CALJIC No. 2.50.01, which parallels the court’s instruction in this case,3 was likely to mislead the jury concerning the limited purpose for which the prior crimes evidence could be considered, or concerning the proper burden of proof to convict. (People v. Reliford, supra, 29 Cal.4th at pp. 1012-1016.) The court observed: “We do not find it reasonably likely a jury could interpret the instructions to authorize conviction of the charged offenses based on a lowered standard of proof. Nothing in the instructions authorized the jury to use the preponderance-of-the-evidence standard for anything other than the preliminary determination whether defendant committed a prior sexual offense in 1991 .... [f] We likewise reject the Court of Appeal’s assertion that the instruction, even if correct, is too ‘complicated’ for jurors to apply. This is not the first time jurors have been asked to apply a different standard of proof to a predicate fact or finding in a criminal trial. [Citations.] As we do in each of those circumstances, we will presume here that jurors can grasp their duty—as stated in the instructions—to apply the preponderance-of-the-evidence standard to the preliminary fact identified in the instruction and to apply the reasonable-doubt standard for all other determinations.” (Id. at p. 1016.) Thus, the interpretation that the majority opinion places on section 1109 disregards not only the explicit language of the statute but the clear directive of the Supreme Court in Reliford.
In this case the trial court was clearly sensitive to the potential for prejudice and carefully modified CALJIC No. 2.50.02 and related instructions *588to minimize that risk. The court restricted the jury’s consideration of propensity evidence to charges “that involve domestic violence, such as injuring a cohabitant, false imprisonment, assault or making threats of death or great bodily injury,” and admonished the jurors “not [to] draw the inference that the defendant is likely to commit any other crimes charged in this trial.” The court further limited the instruction so the jury would not be allowed to draw any inferences from the sexual assaults, even though the statutory definition of “domestic violence” was broad enough to include those charges. The court also modified the CALJIC instruction to provide that if the jury found that Quintanilla was predisposed toward domestic violence, it could infer only that he “was likely to commit” the domestic violence offenses, rather than that he “did commit” the offenses as the unmodified CALJIC instruction would permit. (See People v. James (2000) 81 Cal.App.4th 1343, 1357, fn. 8 [96 Cal.Rptr.2d 823]; cf. People v. Reliford, supra, 29 Cal.4th at p. 1013 [“did commit” inference is legitimate].) Moreover, the court carefully and repeatedly admonished the jury to adhere to the reasonable doubt standard when determining Quintanilla’s guilt on each charge. The court also gave CALJIC No. 17.02, as follows: “Each count charges a distinct crime. You must decide each count separately. The defendant may be found guilty or not guilty of any or all of the crimes charged. Your finding as to each count must be stated in a separate verdict . . . .” This instruction properly directed the jury to consider each charge independently, without limiting the jury’s consideration of all the evidence. (People v. Beagle (1972) 6 Cal.3d 441, 456 [99 Cal.Rptr. 313, 492 P.2d 1], superseded by constitutional amendment on other grounds as stated in People v. Castro (1985) 38 Cal.3d 301, 307-313 [211 Cal.Rptr. 719, 696 P.2d 111] [instruction to decide each count separately does not mean jury should disregard relevant facts pertaining to other counts]; see also People v. Catlin, supra, 26 Cal.4th at p. 153.) In short, the instructions in this case were well tailored by the trial judge to avoid prejudice and were not reasonably likely to cause confusion as to the proper use of the propensity evidence. Nor were they likely to distract the jury from the necessity of finding Quintanilla guilty on each charge beyond a reasonable doubt.
There is no gainsaying the potential for prejudice in the use of propensity evidence. The tendency of such evidence to “overpersuade” the jury has been acknowledged. (Michelson v. United States (1948) 335 U.S. 469, 475-476 [93 L.Ed. 168, 69 S.Ct. 213]; Old Chief v. United States (1997) 519 U.S. 172, 181 [136 L.Ed.2d 574, 117 S.Ct. 644]; People v. Falsetto, supra, 21 Cal.4th at p. 915; see 1 Imwinkelried, Uncharged Misconduct Evidence (1999 rev.) § 1.03, p. 12.) Yet, the Legislature has recognized two instances in which *589such evidence is permissible, and our Supreme Court has upheld the constitutionality of these provisions. In my opinion, there is no justification for limiting the scope of these provisions in a manner that disregards both their language and purpose, and does little to avoid the inherent risk of prejudice from a consolidated trial of multiple offenses.
Appellant’s petition for review by the Supreme Court was denied November 30, 2005.
All statutory references are to the Evidence Code.
Quintanilla claims there is a “vast difference” between propensity evidence and evidence admitted under section 1101, subdivision (b), but propensity evidence is similar to other-crimes evidence of motive or plan, in particular. (See People v. Falsetta, supra, 21 Cal.4th at p. 914 [“far-ranging” exceptions in § 1101, subd. (b) compared to exception provided by § 1108].) In any event, by enacting section 1109 the Legislature abolished the distinction between other-crimes evidence admissible under section 1101, subdivision (b) and evidence of other crimes of domestic violence.
Reliford upheld the sufficiency of the 1999 version of CALJIC No. 2.50.01, but observed that a change that was made in the 2002 revision of that instruction was an improvement. (People v. Reliford, supra, 29 Cal.4th at p. 1016.) The version of CALJIC No. 2.50.02 that was revised and used in this case incorporates the improvement noted by the Supreme Court.