Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF132758 Craig Riemer, Judge. Affirmed with directions.
Cliff Gardner, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and Ronald A. Jakob, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ P.J.
A jury convicted defendant, Louis Dominguez, of forcible oral copulation of a minor while being more than 10 years older than the victim (former Pen. Code, § 269, subd. (a)(4)), and three counts of committing forcible lewd and lascivious acts on a minor (§ 288, subd. (b)(1)). He was sentenced to prison for 15 years to life, plus seven years and appeals claiming evidence was improperly admitted and the jury was misinstructed. We reject his contention and affirm, while directing the trial court to correct errors in the abstract of judgment and minutes of the sentencing hearing.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTS
On different occasions, defendant molested his five-year-old granddaughter during July 2006.
ISSUES AND DISCUSSION
1.Judicial Council of California Criminal Jury Instructions, CALCRIM No. 224
Defendant, for the first time on appeal, faults the trial court for failing to make CALCRIM No. 224 applicable to direct evidence. He claims this failure requires reversal of his convictions. We disagree.
CALCRIM No. 224 provides, in pertinent part, “Before you may rely on circumstantial evidence to prove that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt. Also, before you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty.” The jury was also instructed, “Direct evidence can prove a fact about itself. For example, if a witness testifies he saw it raining outside..., that testimony is direct evidence that it was raining. [¶] Circumstantial evidence may also be called indirect evidence. Circumstantial evidence does not directly prove the fact to be decided but is evidence of another fact[s]... from which you may conclude the truth of the fact in question. For example, if a witness testifies that he saw someone come inside wearing a raincoat, covered with drops of water, that testimony is circumstantial evidence because it may support a conclusion that it is raining outside.”
First, defendant asserts that CALCRIM No. 224’s failure, in the first sentence quoted above, to include direct evidence suggested to the jury that he could be convicted on the basis of direct evidence that did not prove his guilt beyond a reasonable doubt. However, defendant ignores the instructions that he was presumed innocent and the evidence had to prove his guilt beyond a reasonable doubt, that in making this determination, the jury had to compare and consider all the evidence presented, that facts may be proved by direct evidence, circumstantial evidence or a combination of both and that the jury must decide whether a fact in issue has been proved based on all the evidence. Thus, there is no likelihood that omission of a reference to direct evidence in this portion of CALCRIM No. 224 led the jury to believe that they could convict defendant on the basis of direct evidence that did not prove his guilt beyond a reasonable doubt. (See Victor v. Nebraska (1994) 511 U.S. 1, 6, 22.)
People v. Vann (1974) 12 Cal.3d 220, which defendant cites in support of his argument, is inapplicable. In Vann, unlike here, the trial court failed to give the jury any specific instruction that the defendants were presumed to be innocent and that the prosecution had the burden of proving their guilt beyond a reasonable doubt. (Id. at p. 225.) The high court concluded that CALCRIM No. 224’s predecessor was an insufficient substitute for such instructions because it covered only circumstantial evidence and not all the evidence, including direct, which constituted a “large part” of the prosecution’s case. (Id. at p. 226.)
Defendant’s contention that the omission of direct evidence from the second sentence of CALCRIM No. 224 quoted above requires reversal is illogical. He is suggesting that the jury should have been instructed that, “If you can draw two or more reasonable conclusions from the direct evidence and one of the reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence.” The problem with this is that when a jury is presented with direct evidence of a crime, i.e., a witness testifying that she saw the defendant committing the crime, as occurred here, there are not two reasonable conclusions to draw from that testimony. There is only one conclusion to draw from such testimony and that is that the defendant committed the crime. Of course, the jury is completely free to disbelieve the testimony and reject it, but that is not the same as being able to draw two conclusions from the witness’ testimony that defendant committed the crime.
Our view is completely consistent with that expressed in People v. Anderson (2007) 152 Cal.App.4th 919, 931 (Anderson), which rejected an argument identical to the one advanced here thusly, “... [T]he obvious purpose of... [CALCRIM No. 224] is to limit the use of circumstantial evidence in establishing... proof [beyond a reasonable doubt.] It cautions the jury not to rely on circumstantial evidence to find the defendant guilty unless the only reasonable conclusion to be drawn from it points to the defendant’s guilt. In other words, in determining whether a fact necessary for conviction has been proved beyond a reasonable doubt, circumstantial evidence may be relied on only if the only reasonable inference that may be drawn from it points to the defendant’s guilt. [¶] The same limitation does not apply to direct evidence. Circumstantial evidence involves a two-step process: presentation of the evidence followed by a determination of what reasonable inference or inferences may be drawn from it. By contrast, direct evidence stands on its own. It is evidence that does not require an inference. Thus, as to direct evidence, there is no need to decide whether there is an opposing inference that suggests innocence.” (Accord, People v. Ibarra (2007) 156 Cal.App.4th 1174, 1187 (Ibarra).)
We thus decline to take judicial notice of the briefs in Anderson and Ibarra.
Defendant cites People v. Naumcheff (1952) 114 Cal.App.2d 278 (Naumcheff) and People v. Foster (1926) 198 Cal. 112 (Foster) in support of his position that CALCRIM No. 224 is applicable to direct evidence. His reliance is misplaced.
In Naumcheff, the defendant contended that the trial court erred by failing to instruct the jury on circumstantial evidence based on his theory that the jury could have disbelieved the testimony of the prosecution witnesses, leaving the prosecution’s case to rest entirely on circumstantial evidence. (Naumcheff, supra, 114 Cal.App.2d. at p. 281.) The appellate court rejected defendant’s contention, pointing out that where, as in that case, there is direct evidence of a crime, and circumstantial evidence is incidental to and corroborative of that direct evidence, it is not reversible error to not fully instruct on circumstantial evidence. (Ibid.) The appellate court pointed out that in addition to instructions that had been given about how the jury should view the expert testimony presented, which constituted the circumstantial evidence, the jury was also instructed “‘that if from the evidence you can with equal propriety draw two conclusions, the one of guilt, the other of innocence, then in such a case it is your duty to adopt the one of innocence and find the defendant not guilty.’” (Id. at pp. 281-282.) The appellate court concluded, based on the presence of these instructions, that that jury had been fully instructed and no prejudicial error resulting from the absence of instruction(s) about circumstantial evidence had occurred.
The opinion does not specify what particular instruction(s) on circumstantial evidence defendant wanted.
Contrary to defendant’s assertion, Naumcheff does not stand for the proposition that the principle that where two reasonable interpretations of direct evidence exist, the one favorable to the defendant must be adopted by the jury. The instruction last mentioned in the opinion referred to all the evidence adduced at trial pointing to either guilt or innocence, not to competing reasonable conclusions that can be drawn from each piece of evidence that is capable of producing such conclusions. It was simply a restatement of the burden of proof and reasonable doubt standards.
In Foster, the defendant twice robbed a retail outlet of that glorious bastion of California culinary culture, See’s Candy. The defendant wanted an alibi instruction given to the jury which stated that he was not required to prove that he was somewhere else at the time of the crimes either beyond all reasonable doubt or by a preponderance of the evidence. (Foster, supra, 198 Cal. 112, 127.) The proffered instruction went on to provide that if, after hearing all the evidence introduced by the defendant concerning his alibi, the jury had a reasonable doubt that he was at the scene of the robberies when they occurred, he must be acquitted. (Ibid.) The California Supreme Court upheld the trial court’s refusal to give this instruction because of its direction that the jury consider just the evidence introduced by the defendant, and not all the evidence concerning alibi. (Ibid.) The high court went on to hold that the trial court did not have a sua sponte duty to instruct that the burden was not on defendant to establish an alibi by a preponderance of the evidence and if, after considering all the evidence presented, the evidence of alibi raised a reasonable doubt about defendant’s guilt, acquittal was required. (Id. at p. 128.) This holding was based, inter alia, on the presence at trial of an instruction providing, in part, “that every material fact in the case must be proved beyond a reasonable doubt; that, considering the evidence as a whole, if it was susceptible of two reasonable interpretations, ‘one looking towards guilt and the other towards the innocence of the defendant, it was [the jurors’] duty to give such facts and evidence the interpretation which makes for the innocence of the defendant’....” As is the case with Naumcheff, Foster is not authority for the proposition that CALCRIM No. 224 must be applied to direct evidence.
Again, our conclusion is in accord with that reached in Anderson, supra, 152 Cal.App.4th 919, 931, 932, which held, “[The argument that CALCRIM No. 224] should not be limited to circumstantial evidence, because California law has long recognized the principle that ‘if two reasonable interpretations of the evidence exist, the one favoring the defendant’s innocence must be adopted,’... mixes apples and oranges.... [T]he question addressed by CALCRIM No. 224 is not how to consider the evidence as a whole but how to consider specific circumstantial evidence. The instruction concerns whether a necessary fact may reasonably be inferred from circumstantial evidence when that evidence can be construed in a way that points to the defendant’s innocence, not whether the evidence as a whole may reasonably be construed to point to the defendant’s innocence.”
2. Evidence Code section 1108—Evidence and Instructions
a. Constitutionality of Evidence Code section 1108
The testimony of defendant’s then-adult granddaughter, who claimed that she had been molested as a child by defendant similarly to the way the victim claimed she had been, was admitted under Evidence Code section 1108. Defendant contends that the California Supreme Court’s holding in People v. Falsetta (1999) 21 Cal.4th 903, that Evidence Code section 1108 does not violate the due process clause, was incorrectly decided. Unfortunately for defendant, we are bound by it. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450.)
That provision states, in pertinent part, “(a) In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.”
b. Jury Instructions on Evidence Code section 1108 Evidence
The jury was instructed, “The People presented evidence that the defendant committed the crimes of aggravated sexual assault of a child under 14 years and a lewd or lascivious act by force or fear that were not charged in this case. These crimes are defined for you in these instructions. [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant, in fact, committed the uncharged offenses.... [¶] If you decide that the defendant committed the uncharged offenses, you may, but are not required to, consider that evidence for the limited purpose of deciding whether or not: [¶] The defendant was the person who committed the offenses alleged in this case; [¶] The defendant acted with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of himself or the child in this case; [¶] The defendant’s alleged actions were the result of mistake or accident; [¶] The defendant had a plan or scheme to commit the offenses alleged in this case; [¶] Or the defendant was disposed or inclined to commit sexual offenses, and based on that decision, also conclude whether the defendant was likely to commit aggravated sexual assault of a child under 14 years and lewd or lascivious acts by force or fear as charged here. [¶] In evaluating this evidence, consider the similarity or lack of similarity between the uncharged offenses and the charged offenses. If you conclude that the defendant committed the uncharged offenses, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of the charged offenses. The People must still prove each element of every charge beyond a reasonable doubt.”
Defendant contends, for the first time in this appeal, that these instructions violated due process because proof that he committed the acts involving this older granddaughter “substitute[d] for proof... that [he] committed the charged... offense[s]” against the victim. However, this is clearly not what the instructions provided. They stated that proof of the acts involving the older granddaughter could, but did not have to, be considered, inter alia, for the purpose of deciding whether defendant was disposed or inclined to commit sexual offenses, and, based on that, the jury could conclude whether defendant was likely to have committed the charged offenses. However, if the jury concluded that defendant had committed the acts involving his older granddaughter, that conclusion could be only one factor to consider along with all the other evidence in deciding defendant’s guilt of the charged offenses. It could not, in and of itself, be sufficient to prove guilt and the People still had the burden of proof of every element of each charged offense beyond a reasonable doubt. Therefore, contrary to defendant’s contention, proof of the prior acts was not a substitute for proof of the charged offenses. (People v. Reliford (2003) 29 Cal.4th 1007, 1013 (Reliford).)
Moreover, in Reliford, the California Supreme Court upheld the constitutionality of a version of these instructions that included a provision that the defendant was not only likely to have committed the charged offenses, but did, in fact, commit them and it omitted the concepts that proof of the prior acts was only one factor to be considered in determining defendant’s guilt and the People still bore the burden of proving each element of every charged offense beyond a reasonable doubt. (Id. at pp. 1012, 1016.) Despite defendant’s assertion that Reliford was wrongly decided we are bound by it.
3. Custody Credits
The parties agree that defendant was awarded excessive presentence custody credits in that his award should have been limited to 15 percent, or 48 days. We will direct the trial court to amend the abstract of judgment and minutes of the sentencing hearing to reflect this recalculated award.
DISPOSITION
The trial court is directed to amend the abstract of judgment and minutes of the sentencing hearing to show an award for presentence custody credits of 48 days, and that period applies once to defendant’s determinate and indeterminate terms. The court is further ordered to amend the abstract of judgment and minutes of the sentencing hearing to reflect the fact that defendant was sentenced to an indeterminate term of 15 years to life and a determinate term of 7 years, not “to state prison for a total of 22 years” as the abstract currently states. In all other respects, the judgment is affirmed.
We concur: RICHLI J., MILLER J.
Similarly, in People v. Crawford (1997) 58 Cal.App.4th 815, which defendant also cites in support of his position, the standard instruction on the presumption of innocence and the prosecution’s burden of proof beyond a reasonable doubt were not given. (Id. at p. 817.)