Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. VA088065, John A. Torribio, Judge.
Wallin & Klarich and Robert C. Kasenow II for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels and Stephanie C. Brenan, Deputy Attorneys General, for Plaintiff and Respondent.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
A jury decided that Efren Mancilla Verduzco committed eight counts of lewd acts on children under 14 years old. Verduzco says the trial court sentenced him illegally and incorrectly defined “reasonable doubt.” We affirm.
I
The facts of Verduzco’s crimes do not affect the issues he raises on appeal. Suffice it to say that Verduzco victimized one girl when she was five years old and another when she was six. The timing, however, is pertinent to the appellate issues. All of Verduzco’s criminal actions were before 2005. Of note, effective January 1, 2006 the Legislature amended a relevant sentencing statute: Penal Code section 1203.066, subdivision (c). (All further statutory references are to the Penal Code.) The trial court then sentenced Verduzco on September 6, 2006. The sentence was a prison term of 15 years-to-life. The sentence was partly based on the jury’s finding that Verduzco committed his crimes against multiple victims. (See § 667.61 subd. (e)(5).)
II
Verduzco’s most substantial argument is his attack on the 15 years-to-life prison sentence. The crux of this argument is that the trial court incorrectly applied the sentencing statute in effect when Verduzco committed his crimes. Verduzco says the right version was the one in effect when he was sentenced. Verduzco’s argument is incorrect.
The decisive issue is which version of a statute is to govern this case: the old version of section 1203.066, subdivision (c), or the new amendment effective in 2006? This is a question of legislative intent. The general rule of statutory construction is that, absent contrary signs, statutes apply prospectively and not retroactively. (E.g. In re Estrada (1965) 63 Cal.2d 740, 746.) That means the governing law is the one in effect when Verduzco committed his criminal acts. That would be the old law, effective before 2006. There is a special exception. It applies when the Legislature determines a criminal penalty is too severe and a lighter punishment is proper. In that situation, the courts presume the Legislature meant the newer and lighter penalty to apply to criminal cases that are not yet final. (In re Estrada, supra, 63 Cal.2d at pp. 744-745; In re Pedro T. (1994) 8 Cal.4th 1041, 1044-1046; People v. Nasalga (1996) 12 Cal.4th 784, 791-794; People v. Vieira (2005) 35 Cal.4th 264, 305-306.)
For the statutory amendment in this case, the general rule and not the exception applies. The 2006 statutory amendment to section 1203.066, subdivision (c), did not determine “that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act.” (In re Estrada, supra, 63 Cal.2d at p. 745.) This 2006 amendment had nothing to do with lightening punishment for child molesters. That is plain from its language. The old law directed that certain sentencing consequences followed “when the court makes all of the following findings . . .” (Former § 1203.066, subd. (c), italics added.) The new law directed that certain sentencing consequences followed when the existence of certain facts are “found to be true by the trier of fact.” (Current § 1203.066, subd. (c), italics added.) Usually the trier of fact in a criminal case is the jury. So this 2006 amendment shifted fact-finding duties from judge to jury. Plainly this amendment was a response to groundbreaking constitutional decisions that shifted criminal sentencing fact-finding duties from judge to jury. (See, e.g., Blakely v. Washington (2004) 542 U.S. 296, 301-306.) There was a desire by the Legislature to make California’s sentencing law constitutional. There was no desire by the Legislature to lighten the penalties for child molesters in any way. So the exception does not apply to this case, and neither does the 2006 amendment.
Once we have in focus the pre-2006 version of section 1203.066, subdivision (c), Verduzco’s sentencing objection collapses.
First we summarize Verduzco’s argument. He says there was a decisive requirement that the charging document and jury verdict forms contain the words “Penal Code section 1203.066.” The charging document and jury verdict forms do not contain those words, everyone agrees. Verduzco concludes that, by statute, he therefore potentially qualified for probation. Verduzco faults the trial judge for failing to notice that potential, and for failing to follow the necessary procedures on this issue. He concludes we must remand for resentencing.
Next we review the binding law. We determined above that the statutes that apply are the ones in effect when Verduzco committed his crimes. All of his criminal actions, Verduzco agrees, were before 2005. So the relevant statutes were those in effect before 2005. They were not the statutes in effect on Verduzco’s sentencing date of September 6, 2006. Verduzco’s sentencing argument thus hinges on an inapplicable statute.
Verduzco focuses on this statutory language:
“(c)(1) Except for a violation of subdivision (b) of Section 288, this section shall only apply if the existence of any fact required in subdivision (a) is alleged in the accusatory pleading and is either admitted by the defendant in open court, or found to be true by the trier of fact.
“(2) For the existence of any fact under paragraph (7) of subdivision (a), the allegation must be made pursuant to this section.” (Current § 1203.066, subd. (c), italics added.)
But this language was effective only from January 1, 2006. It was not effective before 2005, when Verduzco committed his crimes. The statutory provision that was in effect then contained decisively different language:
“(d) The existence of any fact that would make a person ineligible for probation under subdivision (a) shall be alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the jury trying the issue of guilt or by the court where guilt is established by plea of guilty or nolo contendere or by trial by the court sitting without a jury.” (Former § 1203.066, subd. (d), italics added.)
The key “fact” was whether Verduzco was a “person who is convicted of committing a violation of Section 288 or 288.5 against more than one victim.” (Former § 1203.066,subd. (a)(7).) The information and verdict forms here nail down that fact. Counts 1 through 4 explicitly alleged crimes against Diana P. Counts 5-8 explicitly alleged crimes against Alondra T. Diana P. and Alondra T. count as “more than one victim.” The jury returned guilty verdict forms that explicitly match up. The information and the verdict forms explicitly and fully complied with the governing statute.
The trial court correctly sentenced Verduzco. Verduzco’s complaint about his sentence is misplaced.
III
In his opening brief, Verduzco also challenges the reasonable doubt instruction the trial judge gave the jury. Where the court instructs on reasonable doubt but defendants argue the court should have modified the instruction, they must object at trial. Verduzco forfeited this claim by failing to object. (People v. Campos (2007) 156 Cal.App.4th 1228, 1236.) In the alternative, we also reject Verduzco’s contention on its merits. Thus we do not address Verduzco’s argument that, were he required to object, his counsel was incompetent for failing to do so.
The trial court defined reasonable doubt according to CALCRIM No. 220 (Fall 2007 ed.; all further CALCRIM references are to that edition). Many decisions validate CALCRIM No. 220. (See People v. Campos, supra, 156 Cal.App.4th at pp. 1236-1239; People v. Flores (2007) 153 Cal.App.4th 1088, 1092-1093; People v. Westbrooks (2007) 151 Cal.App.4th 1500, 1505-1510; People v. Rios (2007) 151 Cal.App.4th 1154, 1156-1159.) Verduzco does not mention these cases.
Verduzco’s challenge to CALCRIM No. 220 is insubstantial. His first argument, if we understand it correctly, is that CALCRIM No. 220 improperly allows jurors to convict even though the evidence does not “eliminate all possible doubt.” Apparently Verduzco is complaining about this sentence in CALCRIM No. 220: “The evidence need not eliminate all possible doubt, because everything in life is open to some possible or imaginary doubt.” He says this standard is too “forgiving” of the prosecution. Verduzco cites Victor v. Nebraska (1994) 511 U.S. 1, 6-7. Yet Victor v. Nebraska affirmed a reasonable doubt definition that included similar language: “[reasonable doubt] is not a mere possible doubt; because everything relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt.” (Id. at pp. 7, 8.) Indeed, Victor v. Nebraska emphasized this similar language and explained it meant, “in other words, that absolute certainty is unattainable in matters relating to human affairs.” (Id. at p. 13.) This Victor v. Nebraska instruction is essentially the same as CALCRIM No. 220. Verduzco’s first argument fails.
Second, Verduzco argues CALCRIM No. 220 leads a reasonable juror to convict despite excessive “cumulative doubt.” Not so. CALCRIM No. 220 specifies “[p]roof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. . . . [¶] . . . . Unless the evidence proves [Verduzco] guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.” Again, Victor v. Nebraska approved virtually identical language. (Id. at pp. 14-15.)
Third, Verduzco would condemn CALCRIM No. 220 because he says it “fails to convey to the jury that the presumption of innocence carries forward even into the jury instruction phase of the case.” This is incorrect. As edited by the trial court, CALCRIM No. 220 states a “defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove each element of a crime and special allegation beyond a reasonable doubt.” The final sentence, which we italicize, rebuts Verduzco’s point. Verduzco says it was vital to include these words: “the presumption continues to until the jury is convinced that the ‘contrary is proved.’” These suggested words are redundant. There was no error about reasonable doubt.
Fourth, Verduzco complains about the prosecutor’s effort to explain the difference between circumstantial and direct evidence. Verduzco does not show he preserved this point through timely objection. In any event, there is nothing wrong with a lawyer’s effort to use ordinary events or standard and homely illustrations to explain the difference between circumstantial and direct evidence. CALCRIM No. 220 required the jury to acquit unless there was proof beyond a reasonable doubt. That proof properly could have taken the form of direct evidence, circumstantial evidence, or both. The form is not significant. The amount is. The prosecutor’s explanation of the difference between types of proof did not lower the burden of proof.
Even presuming error, any misstatements about reasonable doubt in CALCRIM No. 220 were minor. “Small errors in the reasonable doubt instruction that are not likely to confuse or mislead the jury are harmless. [Citations.]” (People v. Hawkins (1995) 10 Cal.4th 920, 963, dictum disapproved on other grounds in People v. Lasko (2000) 23 Cal.4th 101, 110-111.) The court instructed the jury to presume Verduzco innocent and to convict him only if the prosecution proved his guilt beyond a reasonable doubt, which it properly defined to require an abiding conviction of his guilt. Even if the instruction was incorrect as Verduzco contends, the errors involved slight semantic mistakes that were, given the evidence, highly unlikely to be significant. Six victims testified that Verduzco sexually assaulted them as children. Two of these witnesses were children and four were adults. Verduzco admitted to an investigator he did molest the adult women when they were children. At trial, however, Verduzco claimed he molested no one. He denied his admissions to the investigator. The jury resolved this credibility contest against Verduzco. Beyond a reasonable doubt, the jury would not have reached different verdicts had the court given CALJIC No. 2.90 (Fall 2007-2008 ed.), which Verduzco now advocates, rather than CALCRIM No. 220.
IV
The judgment is affirmed.
We concur: PERLUSS, P. J., ZELON, J.