Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD215542 Cynthia Bashant, Judge.
HALLER, J.
Steven Bimson appeals from a judgment convicting him of numerous offenses arising from his molestation of three boys. He raises three contentions of instructional error, contending the trial court erred by (1) failing to define the term "complaining witness" in CALCRIM No. 1190 concerning the noncorroboration requirement for sexual offense victim testimony; (2) instructing the jury that unlawful oral copulation is a general intent crime; and (3) refusing to instruct that defense character evidence can alone create a reasonable doubt of guilt. We reject his first two contentions, but agree with his third contention. However, we find the instructional error harmless.
Bimson also asserts the trial court should have stayed some of his sentences under Penal Code section 654. The Attorney General concedes this issue. We agree and modify the sentence accordingly. As so modified, the judgment is affirmed.
Subsequent unspecified statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
Bimson molested the three victims in this case (Brandon, Steven, and Sam) when he was in his 50's, using a common modus operandi of meeting the boys, acting like a father figure, and then engaging in the molestation when he had gained their trust. The boys were 12 or 13 years old when the molestations began, and were in their 20's when they testified at trial.
Victim Brandon met Bimson in about November 1994 when Brandon was almost 13 years old and living on the streets in Phoenix, Arizona. Brandon had been physically abused by his father and had run away from home. As he was walking on the street with his friend, Bimson pulled up in his car. The boys got in the car and Bimson took them to McDonald's. Thereafter, Brandon visited Bimson at his residence, where Bimson was living with two other boys (Nick and Scott) whom Bimson had befriended. Brandon told Bimson about the abuse and drug usage occurring at his home, and Bimson allowed Brandon to move into Bimson's home. Brandon slept in Bimson's bedroom, and Bimson orally copulated him almost every night during the three years that they lived together. Brandon continued living with Bimson because Bimson gave him a somewhat normal life, providing him with clothes and whatever else he needed and giving him the opportunity to go to school and play sports.
In about June 1996, Bimson moved to San Diego with Brandon, Nick, and Scott. In August 1997, Brandon left Bimson's residence and moved to Nevada. That same year victim Steven, age 12, met Bimson at a fundraiser for a middle school club sponsored by the Rotary Club. Bimson and Steven became close friends, seeing each other about five days a week and going to dinner and the movies. Steven trusted Bimson and considered him a father figure because he did not have a father. They went to a concert in Las Vegas at the end of 1997, and were planning a trip to Mexico. In May 1998, the night before the Mexico trip, Steven spent the night at Bimson's residence. When Steven was lying on a cot next to Bimson's bed to go to sleep, Bimson talked to him about friendship and trust; rubbed his shoulders and back; told him he wanted to show him something that could make him feel good; and that they could stop if it did not feel good. When Bimson started moving his hand down Steven's abdomen, Steven felt "very, very uncomfortable" and believed Bimson was going to touch his penis. Steven told Bimson to stop. Bimson stopped, but he was angry and told Steven he needed to learn to trust people.
Victim Sam is Nick's younger brother. Sam met Bimson in about 1992 through a Big Brother program while Sam was living in a Phoenix homeless shelter with his mother and Nick. After Nick moved in with Bimson, Sam also wanted to move in because he saw that Bimson was acting as a father figure for Nick, taking him on trips, and giving him money and clothes. In 1998, when Sam was 13 years old, Sam went on a trip with Bimson to a Tuscon resort. At night in the hotel room, Bimson told Sam to sleep in the bed, not on the sleeper couch, and in the middle of the night Sam woke up to find Bimson touching his penis. After the Tucson trip, Bimson agreed that Sam could come and live with him and Nick.
In June 1998 Sam went to San Diego to live with Bimson. Nick and Scott shared a bedroom, and Sam slept in Bimson's room. Bimson orally copulated Sam almost every night until he was about 15 or 16 years old. Sam did not tell anyone about the molestation because he wanted to live with his brother and he got trips, clothes, money, a car, and anything he needed from Bimson.
In 2005, Sam told Nick about the molestation. In 2006, Sam told Nick that Bimson had applied to be a foster parent, and at this point Nick contacted Child Protective Services. During the ensuing investigation, Sam spoke to Bimson in a recorded phone call monitored by the police. When Sam asked for an apology for the molestation, Bimson stated he did not understand what Sam was talking about; however, he never expressly denied the molestation accusation, stated he was sorry he hurt Sam, and suggested they get together to talk about it. When Bimson was arrested, he asked a detective what sentence he would get if he agreed to a plea bargain and whether all the boys would be brought in to testify, and stated that he did not want the case to be in the news.
Our summation of the recorded phone call is based on the witnesses' responses to counsels' questions about the call. The recorded call was played for the jury, but the record on appeal does not include a recording or transcript of the call.
Several witnesses who were not alleged as victims in the case also testified about being molested by Bimson. Sam's brother Nick (age 29 at the time of trial) was 12 years old when he met Bimson in 1992. Bimson took Nick and Scott on a trip to Disney World and then Nick moved in with Bimson and Scott. While living with Bimson in Arizona, Bimson regularly came to Nick's bedroom at night and engaged in oral copulation with Nick. When Brandon moved into the residence, Bimson stopped molesting Nick. Bimson's two adult nephews (Duane and Steven L.), age 47 and 50 at the time of trial, also testified that they were molested by Bimson when they were boys. In the early 1970's, when Duane was about 9 to 12 years old, he spent the night at Bimson's home. Bimson insisted that Duane sleep with him in his bed, and while they were in bed Bimson fondled Duane's penis. In 2004, Duane called Child Protective Services because he heard that a young cousin was spending a lot of time with Bimson and he was concerned the boy would be molested. Bimson engaged in similar conduct with Steven L. when Steven was about 10 to 13 years old. When Steven L. was sleeping with Bimson in Bimson's bed, Bimson "grabbed" Steven's penis.
Defense
Testifying on his own behalf, Bimson described how he helped Scott, Nick, Brandon, Sam and other children, and claimed he did not molest them. Scott (now in his 30's) testified that he began living with Bimson in 1990 when he was almost 13 years old; he lived with him for nine years; and Bimson never molested him. Likewise, another witness, J.C. (age 21 at the time of trial), testified that in 2003 when he was 15 years old he moved in with Bimson; he lived with him for about three years; and Bimson never molested him. The defense also called two businessmen who had known Bimson for many years through the Rotary Club. These witnesses described Bimson's involvement in the education and improvement of the boys who lived with him, and his extensive leadership activities in the community, including developing a high school service club, a middle school environmental educational facility, a computer network for a Tijuana orphanage, and a preschool in El Salvador.
Jury Verdict and Sentence
Bimson was charged and convicted of 11 counts of lewd act upon a child under age 14 (§ 288, subd. (a), involving Steven and Sam); 10 counts of lewd act upon a child age 14 or 15 by a person at least 10 years older (§ 288, subd. (c)(1), involving Sam and Brandon); and 10 counts of participating in oral copulation with a person under age 16 by a person over age 21 (§ 288a, subd. (b)(2), involving Sam and Brandon). Bimson was sentenced to an indeterminate term of 165 years to life and a determinate term of 14 years eight months.
The charges and convictions were limited to the offenses that occurred in California, not in Arizona.
DISCUSSION
I. Failure to Define Complaining Witness
In the language of CALCRIM No. 1190, the jury was instructed: "Conviction of a sexual assault crime may be based on the testimony of a complaining witness alone." Because sex offense cases often involve acts committed in private and turn on a credibility contest between the accused and accuser, the instruction underscores that the alleged sex offense victim's testimony need not be corroborated. (See People v. Gammage (1992) 2 Cal.4th 693, 697, 700-702.)
Bimson contends the trial court erred in failing to sua sponte define the term "complaining witness" in CALCRIM No. 1190. He asserts it was necessary to define the term so the jury would know that a verdict on a particular count could not be based solely on the testimony of (1) a complaining witness who testified about uncharged acts of molestation, or (2) a complaining witness who testified about acts involving another count.
To support his argument, Bimson also points to the language of CALJIC No. 10.60 which sets forth the noncorroboration principle as follows: "It is not essential to a finding of guilt 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." (Brackets in original.)
The trial court has a sua sponte duty to instruct the jury on the general principles of law that are necessary for the jury's understanding of the case. (People v. Mayfield (1997) 14 Cal.4th 668, 773.) Once the trial court correctly instructs the jury on the law it has no further duty to give clarifying instructions, and defense counsel's failure to request clarification forfeits the issue on appeal. (Id. at p.778; People v. Lee (2011) 51 Cal.4th 620, 638.) In reviewing a claim that the court's instructions were misleading, we inquire whether there is a reasonable likelihood the jury misunderstood and misapplied the instructions. (People v. Mayfield, supra, 14 Cal.4th at p. 777.) We consider the instructions as a whole, and we assume the jurors use intelligence and common sense when applying and correlating the instructions. (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088; People v. Bragg (2008) 161 Cal.App.4th 1385, 1396.)
Here, the trial court accurately instructed the jury that the complaining witness's testimony could suffice to establish guilt, and it had no further duty to clarify the term "complaining witness" absent a request. Further, even had defense counsel requested amplification of the instructions, there was no instructional error. The court is not required to give clarifying instructions when the terms in the instruction have a common meaning that will be understood by those familiar with the English language. (See People v. Smithey (1999) 20 Cal.4th 936, 981; People v. Miller (1999) 69 Cal.App.4th 190, 207.) It is self-evident that the term "complaining witness" in CALCRIM No. 1190 means the witness who was complaining about the particular count under evaluation by the jury. Contrary to Bimson's assertion, no reasonable juror would think that he or she could vote to convict on a particular count based solely on the testimony of a witness describing acts unrelated to that count. Such an approach defies common sense and no juror would use it.
Moreover, other instructions reinforced the concept that conviction on a particular count required credible witness testimony with respect to that count. The jurors were instructed that they alone must judge the credibility of the witnesses, and that a finding that the defendant committed an uncharged offense is not sufficient by itself to prove guilt of the charged offenses. (See CALCRIM Nos. 226, 1191.) Additionally, the jurors were provided with verdict forms that identified a particular victim for each count, and instructed that each of the counts was a separate crime that must be considered separately. Considering the record as a whole, there is no reasonable likelihood the jurors interpreted the term "complaining witness" in CALCRIM No. 1190 to mean they could find guilt on a particular count without crediting the testimony of the victim who described the acts related to that count. There was no instructional error based on the court's failure to define the term "complaining witness."
II. General Intent Instruction for Section 288a Offense
Bimson argues section 288a, subdivision (b)(2) requires the specific intent to arouse, appeal to, or gratify sexual desire, and hence the trial court erred by instructing the jury that the offense is a general intent crime. The contention is unavailing.
Section 288a sets forth the circumstances when oral copulation is unlawful, including when the act involves a minor under age 16 by a person over age 21. Section 288a, subdivision (b)(2) states: "Except as provided in section 288, any person over the age of 21 years who participates in an act of oral copulation with another person who is under 16 years of age is guilty of a felony." The courts have recognized that section 288a oral copulation is a general intent crime that does not contain the specific intent element of sexual gratification. (People v. Whitham (1995) 38 Cal.App.4th 1282, 1293; In re Paul C. (1990) 221 Cal.App.3d 43, 54, fn. 7.) For the offense of oral copulation, the nature of the act itself is deemed sexual, regardless of the motivations of the perpetrator. (See People v. Whitham, supra, at p. 1293.) The only required intent is that the perpetrator intend to do the act. (See People v. Brocklehurst (1971) 14 Cal.App.3d 473, 476.)
To support his contention, Bimson asserts that the specific intent element of section 288, subdivision (c)(1) applies to section 288a. Section 288, subdivision (c)(1) defines the offense of lewd act upon a child age 14 or 15 by a person at least 10 years older, and by its express terms requires the specific intent of arousing, appealing to, or gratifying sexual desire. (§ 288, subds. (a), (c)(1).) Bimson has not explained how the specific intent element for the section 288 lewd act offense is incorporated into the section 288a oral copulation offense. He has not cited any statutory language or case authority that supports such an interpretation. The phrase "except as provided in section 288" set forth in section 288a merely points to another statutory offense that may apply to the minor victim, but does not suggest incorporation of the section 288 specific intent element into section 288a.
The trial court properly instructed the jury that section 288a, subdivision (b)(2) is a general intent offense.
III. Refusal to Instruct that Defense Character Evidence Can Alone Create Reasonable Doubt
Defense counsel requested that the jury be instructed in the language of CALCRIM No. 350, which states that evidence of a defendant's particular character trait can by itself create a reasonable doubt of guilt. Defense counsel argued the instruction should be given based on the testimony of Scott and J.C. that they lived with defendant and he never molested them. The trial court refused to give the instruction, reasoning that no witnesses provided evidence of a reputation in the community inconsistent with being a molester. Bimson argues the court erred by refusing to give the instruction.
CALCRIM No. 350 states: "You have heard character testimony that the defendant (is a person/ [or] has a good reputation for in the community where (he/she) lives or works). [¶] You may take that testimony into consideration along with all the other evidence in deciding whether the People have proved that the defendant is guilty beyond a reasonable doubt. [¶] Evidence of the defendant's character for can by itself create a reasonable doubt. However, evidence of the defendant's good character may be countered by evidence of (his/her) bad character for the same trait. You must decide the meaning and importance of the character evidence. [¶] [If the defendant's character for certain traits has not been discussed among those who know (him/her), you may assume that (his/her) character for those traits is good.]" (Some brackets in original.)
A defendant is entitled upon request to an instruction stating that evidence of the defendant's "good reputation... as to traits involved in the charge, should be weighed as any other fact established, and that it may be sufficient to create a reasonable doubt as to his guilt." (People v. Bell (1875) 49 Cal. 485, 490.) Generally, under Evidence Code section 1102, a defendant may present character evidence in the form of opinion or reputation evidence, but not in the form of defendant's specific acts. (People v. Felix (1999) 70 Cal.App.4th 426, 431; People v. Honig (1996) 48 Cal.App.4th 289, 348.) However, an exception to this general rule arises when the prosecution introduces evidence of defendant's uncharged sex offenses under Evidence Code section 1108 to show the defendant has a disposition to commit sex offenses. (People v. Callahan (1999) 74 Cal.App.4th 356, 374-379.) The defendant has the right to rebut the prosecution's sex offense propensity evidence with "all of the three types of character evidence—opinion evidence, reputation evidence, and evidence of specific instances of conduct." (Ibid.)
Here, Bimson was properly permitted to rebut the prosecution's uncharged molestation evidence by eliciting testimony from Scott and J.C. that he never molested them. (See People v. Callahan, supra, 74 Cal.App.4th at p. 379.) This was character evidence concerning a trait involved in the charged crimes. Although the character evidence instruction is normally based on the reputation established by the defendant (see People v. Bell, supra, 49 Cal. at p. 490), specific instances of conduct can be equally relevant to show the defendant is not disposed to commit the charged crime and hence to produce a reasonable doubt of guilt. (See People v. Jones (1954) 42 Cal.2d 219, 223-224.) It follows that Bimson was entitled to an instruction stating that the nonmolestation character evidence presented by Scott and J.C. could be sufficient to create a reasonable doubt of guilt.
However, the instructional error does not require reversal. Preliminary, we reject Bimson's contention that the error was structural requiring per se reversal because it lowered the prosecution's burden of proof. The United States Supreme Court has explained that most constitutional errors are subject to harmless error analysis, and it is only in rare cases that an error is structural requiring automatic reversal. (Washington v. Recuenco (2006) 548 U.S. 212, 218-219.) For example, automatic reversal may be required when the instructional error misinforms the jury about the beyond-a-reasonable-doubt standard of proof. (Id. at p. 218, fn. 2; see People v. Lindberg (2008) 45 Cal.4th 1, 35; People v. Flores (2007) 147 Cal.App.4th 199, 208; People v. Rubio (2004) 121 Cal.App.4th 927, 934.) No such error occurred here. The jury was instructed that the prosecution had to prove guilt beyond a reasonable doubt, and the omission of an instruction stating that defense character evidence may create a reasonable doubt did not detract from this requirement. Further, contrary to Bimson's assertion, the error is not comparable to that in Cool v. United States (1972) 409 U.S. 100, 102-104, where the court found reversible error in a case where the jury was instructed to reject defense evidence if it was not proven true beyond a reasonable doubt. Here, the omission of the character evidence instruction did not suggest the jury should reject the defense character evidence.
Turning to harmless error analysis, the instructional error was not prejudicial under any standard of review. (See People v. Humphrey (1996) 13 Cal.4th 1073, 1089 [reasonable probability of different outcome standard applies to state law instructional error affecting defense; harmless beyond a reasonable doubt standard applies to instructional error that prevents presentation of complete defense]; People v. Rogers (2006) 39 Cal.4th 826, 867-868, & fn. 16, 886-887.) The testimony of the three victims showed that the defendant engaged in the common modus operandi of befriending boys facing economic and/or emotional challenges, providing them with entertainment and/or financial support, and engaging in lewd conduct and/or oral copulation with them after he had won their trust. Notably, victim Steven did not know victim Brandon, thus refuting the suggestion that the victims engaged in a plan to fabricate the molestation claims. The veracity of the molestation claims was further buttressed by the testimony of Bimson's two nephews who described Bimson's sexual conduct towards them when they were minors.
Further, even without express instruction that Scott and J.C.'s claims of no molestation could suffice to create a reasonable doubt of guilt, it is apparent the jury understood this concept. In closing arguments to the jury, the prosecutor and defense counsel addressed whether the jury should render verdicts in Bimson's favor based on Scott's and/or J.C.'s denials of molestation. For example, the prosecutor raised the question as to whether Scott's testimony undermined the prosecution's case, and then presented arguments as to why it did not. Presenting the contrary argument, defense counsel argued that the jury should ask why Bimson would molest some boys but not Scott and J.C. We have no doubt that the jurors readily grasped that Scott's and J.C.'s claims of no molestation should be evaluated to determine whether the evidence created a reasonable doubt of guilt.
Given the strength of the evidence of guilt and the clear relevancy of the defense character evidence on the issue of reasonable doubt, there is no reasonable possibility the jury's guilty verdict was influenced by the absence of an express instruction that the defense character evidence could suffice to create reasonable doubt. We also reject Bimson's assertion that the cumulative effect of error deprived him of his due process right to a fair trial. The single instructional error did not prevent a fair trial.
IV. Stayed Sentences Required for Section 288, Subdivision (c)(1) Counts
The trial court sentenced Bimson to an indeterminate term of 165-years to life and a determinate term of 14 years eight months. The indeterminate term consisted of 11 consecutive terms of 15 years to life based on the multiple victim enhancements applicable to the section 288, subdivision (a) lewd act offenses (§ 667.61, subds. (b), (c)(8), (e)(4)) involving Steven and Sam (counts 1 through 11). The determinate term consisted of two years for a section 288a, subdivision (b)(2) oral copulation offense involving Sam (count 12); nine consecutive eight-month terms for the remaining section 288a, subdivision (b)(2) oral copulation offenses involving Sam and Brandon (counts 14, 16, 18, 20, 22, 24, 26, 28, and 30); and 10 consecutive eight-month terms for the section 288, subdivision (c)(1) lewd act offenses involving Sam and Brandon (counts 13, 15, 17, 19, 21, 23, 25, 27, 29, and 31).
We note the verdict forms submitted to the jury did not expressly ask the jury to make a finding on the multiple victim enhancements. However, because the information alleged the multiple victim enhancement for counts 1 through 11, and because the jury necessarily found multiple victims based on its guilty verdicts for the two victims (Steven and Sam), the error was harmless. (See People v. Mancebo (2002) 27 Cal.4th 735, 748; People v. Jones (1997) 58 Cal.App.4th 693, 707-708, 710-712.) Bimson does not contend otherwise.
Bimson argues that under section 654 the trial court was required to stay the sentences for the section 288, subdivision (c)(1) convictions (counts 13, 15, 17, 19, 21, 23, 25, 27, 29, and 31) because they involve the same conduct as the section 288a, subdivision (b)(2) convictions. The Attorney General concedes that this is correct, and we agree. (People v. Deloza (1998) 18 Cal.4th 585, 591-592.) The record shows that the section 288, subdivision (c)(1) lewd act convictions and the section 288a, subdivision (b)(2) oral copulation convictions are based on Bimson's conduct of engaging in oral copulation with Sam and Brandon during the same time periods, respectively. Accordingly, we shall modify the judgment to stay the sentences on the section 288, subdivision (c)(1) convictions. As so modified, the determinate term is eight years rather than 14 years eight months.
DISPOSITION
The judgment as to the convictions and the 165-years-to-life indeterminate sentence is affirmed. The judgment as to the determinate sentence is modified to stay the eight-month sentences on the section 288, subdivision (c)(1) convictions (counts 13, 15, 17, 19, 21, 23, 25, 27, 29, and 31), which reduces the determinate term to eight years. As so modified, the judgment is affirmed in its entirety. The trial court is directed to amend the abstract of judgment to reflect the eight-year determinate term and to send a copy of the amended abstract to the California Department of Corrections and Rehabilitation.
WE CONCUR: BENKE, Acting P. J., McDONALD, J.