Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F08184
SCOTLAND, P.J.
A jury found defendant Timothy Kevin Shea guilty of seven counts of committing lewd acts on a child under age 14. Finding that defendant had two prior serious felony convictions within the meaning of the “three strikes law,” the trial court sentenced him to an aggregate indeterminate state prison term of 525 years to life, plus a determinate term of 70 years.
On appeal, defendant contends the court erroneously included the word “victim” in two of the jury instructions. We shall affirm the judgment.
BACKGROUND
In 2006, L. reported that approximately 7 to 12 years earlier and over a period of several years, when she was under the age of 14, defendant repeatedly molested her. He touched her breasts and vagina with his hands and mouth, put her hand on his penis, touched himself to the point of ejaculation, showed her child pornography, and touched her vagina as he posed her and took pornographic pictures of her.
Two pretext phone calls from L. to defendant were recorded and played for the jury. During those calls, defendant admitted molesting L. and acknowledged touching and kissing her vagina, making her touch his penis, masturbating in front of her, showing her child pornography, and posing her and taking pictures of her. When asked about his motivation, he said he was lonely at the time and looking for someone with whom to be close, is attracted to little girls, is “wired different” than others, and obviously has a problem. He apologized, said he would take it back if he could, and offered to pay for her counseling. He also told her not to worry about the ramifications of disclosing what he had done because it had been so long ago, they were not going to “come lock [him] up.”
Defendant’s half sister testified that defendant molested her when she was a young girl. The jury also learned that defendant had two prior convictions for committing lewd and lascivious acts upon a child under the age of 14.
Prior to trial, defense counsel asked that the term “victim” not be used in referring to L.; in an unreported session in chambers, counsel cited to a case which she contended supported the request. The prosecutor took the position that the case cited by defense counsel stood only for the proposition that use of the term “victim” by the court in jury instructions may be inappropriate and did not stand for the proposition that the prosecutor could not use the term “victim.” The trial court said it was amenable to not referring to L. as a victim but did not make any other ruling because it had not yet read the case cited by the parties. The issue was not revisited.
Prior to submitting the case to the jury, the court went over jury instructions with counsel in chambers and later reviewed the in-chambers discussions on the record. Although one of the two instructions of which defendant now complains was discussed at length on the record, defense counsel did not lodge an objection or otherwise comment on the isolated use of the word “victim” in either instruction.
After the jury had deliberated for an hour and one-half, it found defendant guilty of all seven counts and found, for each, that he had engaged in substantial sexual conduct.
DISCUSSION
Defendant contends the use of the term “victim” in two of the jury instructions requires reversal of his convictions. Because he did not object at trial to the challenged instructions, review on appeal is forfeited unless defendant’s substantial rights were affected. (Pen. Code, § 1259.) Substantial rights are affected if the error results in a “miscarriage of justice,” i.e., makes it “reasonably probable the defendant would have obtained a more favorable result in the absence of error.” (People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.) And even if defendant had objected to the instructions, reversal would be required only if it is reasonably probable that he would have received a more favorable result had the alleged error not occurred. (People v. Watson (1956) 46 Cal.2d 818, 836; see also People v. Peterson (1946) 29 Cal.2d 69, 78; People v. Owens (1994) 27 Cal.App.4th 1155, 1159.) We conclude there was no such reasonable probability here.
CALCRIM No. 1110, which instructs the jury on the elements of committing lewd or lascivious act on a child under 14 years of age, was read to the jury. After lengthy discussion with counsel, the trial court added the following language to the end of CALCRIM No. 1110 to address the statute of limitations issue in this case: “The People must also prove by a preponderance of the evidence that, four, on or about July 19th, 2006, [L.] reported to a California law enforcement agency that when she was under the age of 18 years, she was the victim of lewd and lascivious acts within the meaning of Penal Code Section 288(a).” (Italics added.) Defendant has not raised any claim of error with this portion of the instruction.
CALCRIM is shorthand for Judicial Council of California Criminal Jury Instructions (2007-2008).
Although unclear, defendant’s reply brief offers some argument that could be construed as taking issue with this portion of the instruction. But defendant may not raise arguments, or provide the requisite supporting analysis, for the first time in the reply brief without good cause. (People v. Baniqued (2000) 85 Cal.App.4th 13, 29.) In any event, use of the word “victim” in this instruction was proper.
Also, after significant discussion with counsel, the court addressed the statute of limitations requirements in Penal Code section 803, subdivision (f)(2)(B)--requiring that “[t]he crime involved substantial sexual conduct, as described in subdivision (b) of [Penal Code] [s]ection 1203.066, excluding masturbation that is not mutual”-- with the following jury instruction: “Substantial sexual conduct as described in subdivision (b) of [Penal Code] [s]ection 1203.066 means oral copulation or masturbation of either the child or the perpetrator, or penetration of the child’s or perpetrator’s vagina or rectum by any foreign object. [¶] Oral copulation is any contact, no matter how slight, between the mouth of one person and the sexual organ or anus of another person. Penetration is not required. [¶] Masturbation is any touching or contact, no matter how slight, of the genitals or sexual organ of either the victim or the perpetrator, either on the bare skin or through the clothing. Penetration is not required. [¶] Masturbation that is not mutual means masturbation wherein the offender touches only himself or the victim touches only herself.” (Italics added.)
Defendant contends that the use of the term “victim” in the definitions of masturbation was error because it characterized L. as a victim and implied to the jury that the judge believed defendant was guilty. We disagree.
The use of the word “victim” in the definitions of masturbation did not refer specifically to L. but, rather, provided a reference comparison (perpetrator versus victim) of the possible parties involved when describing the type of conduct that would constitute masturbation. There was no error.
The word “victim” was also used in CALCRIM No. 375, which instructs the jury on the use of evidence of uncharged sexual offenses. In pertinent part, CALCRIM No. 375 was read to the jury as follows: “The People presented evidence that the defendant committed other sexual behavior and offenses that were not charged in this case. 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 and acts. [¶] [Definition of proof by a preponderance.] [¶] If you decide that the defendant committed the offenses and acts, you may, but you are not required to, consider that evidence for the limited purpose of deciding whether or not the defendant acted with the intent to arouse, appeal to, or gratify the lusts, passions, or sexual desires of himself or the child in this case. Or the defendant had a plan or scheme to commit the offenses alleged in this case. Or the victim was credible. [¶] . . . Do not consider this evidence for any other purpose except as instructed in these instructions. [¶] 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.” (Italics added.)
Again, defendant contends that this instruction was error and requires reversal because it characterized L. as a “victim” and, thus, implied to the jury that the judge believed defendant was guilty. He argues this was akin to a directed verdict of guilty. Not so.
Defendant relies on People v. Williams (1860) 17 Cal. 142 (hereafter Williams), for the proposition that it is error to use of the term “victim” in a jury instruction. The appellant in Williams claimed he had killed the deceased in self-defense. (Id. at p. 147.) The jury was instructed “‘[t]he fact that the deceased was a Chinaman gave the defendant no more right to take his life than if he had been a white person; nor did the fact, if you so find, that the defendant was seeking to enforce the collection of taxes against another Chinaman, or even against his victim, give the defendant any right to take his life.’” (Id. at p. 146.) The use of the term “victim” in the jury instruction was found improper because it assumed the deceased had been wrongfully killed, when the very issue was as to the nature of the killing. (Id. at p. 147.)
Assuming Williams has application to modern jury instructions, it is distinguishable from this case. Here, not only was there overwhelming evidence of guilt, defendant offered no evidence or defense to the prosecution’s case-in-chief. Indeed, he did not contend that he did not molest L. or even that she was not a victim. Moreover, the court also instructed the jury with CALCRIM No. 3550, stating: “It is not my role to tell you what your verdict should be. So don’t take anything I said or did during the trial as an indication of what I think about the facts, the witnesses, or what your verdicts should be.”
In closing argument, defense counsel emphasized defendant was a “different person” than he had been 10 years before, and invited the jury to consider whether defendant had technically performed the precise touching according to the medical terminology used in the amended information.
In any event, for these same reasons, defendant was not harmed by the challenged use of the term “victim.” It is not reasonably probable that the jury would consider the isolated use of the word “victim” in one of the instructions as a directed verdict from the court. This is particularly true since the jury was instructed with CALCRIM No. 3550. In addition, the evidence of defendant’s guilt was overwhelming and uncontradicted. L.’s testimony in support of each of the charged offenses was descriptive and clear. The jury listened to recordings of two telephone conversations during which defendant essentially admitted his guilt--both the alleged acts and the requisite intent. Defendant’s half sister testified that defendant molested her when she was a young girl, and the jury was told of defendant’s two other prior convictions for committing lewd and lascivious acts upon a child under the age of 14.
In sum, it is unreasonable to suggest, and it would be folly to conclude, that the isolated use of the term “victim” caused the jury to believe that the judge had already decided defendant’s
guilt or otherwise swayed the jury into finding defendant guilty of the charged offenses. There was no instructional error.
DISPOSITION
The judgment is affirmed.
We concur: SIMS, J., ROBIE, J.