Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. 159739
Marchiano, P.J.
Defendant Bennie Lee Alder was convicted by a jury of kidnapping and committing multiple sex offenses against JD2 in 2002 and JD1 in 2004. He had an extensive criminal record, including three prior strike convictions, and received a state prison sentence of 180 years to life.
Defendant advances jury instruction arguments that he concedes have been rejected by the California Supreme Court, in order to preserve them for possible federal review. We must adhere to our high court’s decisions on the issues and affirm the judgment.
I.
Given the nature of the issues raised in the appeal, the evidence need not be recounted in detail.
JD2 testified that she was in Oakland waiting for a bus to take her home on the night of February 22, 2002, when defendant approached her at the bus stop. Defendant had been paroled from prison on January 26, 2002. Defendant said he had a car parked around the corner and offered her a ride home. They walked around the corner and defendant sat on the hood of a car. JD2 began to suspect that the car was not his, and told him that she was returning to the bus stop. Defendant pulled out a gun, and said that she was not going back to the bus stop, she was going with him. He grabbed her arm and walked her to a dark secluded area at a school, where he sexually assaulted her. She was 15 years old at the time of the incident.
JD2 reported the rape to her sister that night, her sister called the police, and the police took her to Highland Hospital, where her underwear and vaginal swabs were collected by a sexual assault examiner.
JD1 testified that defendant approached her outside a liquor store in Oakland on the night of June 9, 2004, and began talking to her as if they were acquainted. Defendant had been paroled from prison on May 31, 2004. JD1 told him that he must have her confused with someone else, went into the store, made a purchase, and returned to her car. As she got into the car, defendant jumped into the passenger seat, and yelled, “Get me up out of here.... I’m strapped and I’m dirty,” which JD1 took to mean he was carrying a gun and had drugs. He told her to take him around the corner; she drove him around a corner and asked him to get out. He said he was going to “get me some,” and that she was going to give him “30 minutes of [her] time.” He told her to drive, gave her directions where to turn, and told her to pull over in an isolated alley. She stopped the car and he sexually assaulted her.
JD1 went to Kaiser Hospital on June 10, 2004, and reported the assault. She was taken to Highland Hospital, where a sexual assault examiner collected her underwear and vaginal and rectal swabs.
Defendant was not apprehended until August 9, 2008, when JD1 spotted him standing on a street corner and reported his description and whereabouts to the police. Defendant’s DNA was found on underwear and swabs collected during the victims’ sexual assault examinations.
Defendant testified that he had consensual sexual encounters with the victims, and described how they transpired. He said that JD2 started talking to him on the street, told him she was 19 years old, and offered him sex for money. At a place near Frick Junior High School, she put her hand in his pants and massaged his penis. He leaked seminal fluid onto her fingers, and she put her fingers into her vagina. He said that JD1 approached him and asked him if he had drugs for sale. He showed her that he had rock cocaine, and accepted her invitation to get into her car. She drove for awhile, stopped the car, and took a hit off his pipe. They eventually parked by a garage and had consensual intercourse.
Defendant was impeached with the statement he gave to police after he was arrested and before the DNA test results were received. He said that he did not recognize the person in a photo of JD2, and that he had seen the person in the photo of JD1, but did not remember hooking up with her. Defendant was asked during the interview, “Is there any particular reason why your DNA would show up on either of these two girls?” He answered, “Not unless I’m framed. Brother, I haven’t done nothing... to neither one of them.... And if I did it was probably consensual sex with smoking some coke or something like that....”
II.
Defendant contends that CALJIC No. 2.21.2 and CALJIC No. 2.03 improperly served to undermine his credibility in the eyes of the jury, and that CALJIC No. 10.60, coupled with CALJIC No. 2.27, improperly bolstered the credibility of the victims.
CALJIC No. 2.21.2 (witness willfully false) provides: “A witness, who is willfully false in one material part of his or her testimony, is to be distrusted in others. You may reject the whole testimony of a witness who willfully has testified falsely as to a material point, unless, from all the evidence, you believe the probability of truth favors his or her testimony....” Arguments like the one defendant makes with respect to this instruction were rejected in People v. Beardslee (1991) 53 Cal.3d 68, 95, and People v. Lang (1989) 49 Cal.3d 991, 1023.
CALJIC No. 2.03 (consciousness of guilt—falsehood) states: “If you find that before this trial... [the] defendant made a willfully false or deliberately misleading statement concerning the crimes[s] for which [he]... is now being tried, you may consider that statement as a circumstance tending to prove a consciousness of guilt. However, that conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are for you to decide.” This instruction was upheld in People v. Kelly (1992) 1 Cal.4th 495, 531, and People v. Bacigalupo (1991) 1 Cal.4th 103, 128.
CALJIC No. 10.60 (sexual crimes—corroboration not necessary) reads: “It is not essential to a finding of guilty on a charge of... [sexual activity] that the testimony of the witness with whom sexual relations is alleged to have been committed be corroborated by other evidence.” CALJIC No. 2.27 (sufficiency of testimony of one witness) reads: “You should give the [uncorroborated] testimony of a single witness whatever weight you think it deserves. Testimony concerning any fact by one witness, which you believe, [whose testimony about that fact does not require corroboration] is sufficient for the proof of that fact. You should carefully review all the evidence upon which the proof of that fact depends.” Defendant’s argument against the use of CALJIC No. 10.60 in conjunction with CALJIC No. 2.27 was rejected in People v. Gammage (1992) 2 Cal.4th 693, 700−701.
We are bound to follow the foregoing precedents. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
III.
The judgment is affirmed.
We concur: Margulies, J., Dondero, J.