Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR496916
Margulies, J.
Robert Andrew Adams appeals following his conviction of forcible oral copulation (Pen. Code, § 288a, subd. (c)(2)), sodomy by use of force (§286, subd. (c)(2)), making a criminal threat, with an enhancement for use of a knife (§§ 422; 12022, subd. (b)(1)), assault with a deadly weapon (§ 245, subd. (a)(1)), assault by means likely to produce great bodily injury (§ 245, subd. (a)(1)), false imprisonment (§ 236, subd. (a)(1)), and misdemeanor battery (§ 243, subd. (e)(1)). The court sentenced defendant to the upper term of 16 years for the forcible oral copulation, four years for forcible sodomy, and a five-year enhancement for a prior serious felony, all sentences to be served consecutively, for an aggregate term of 25 years in state prison.
The court declared a mistrial as to a second count of oral copulation because the jury was unable to reach a verdict.
All subsequent statutory references are to the Penal Code unless otherwise indicated.
Defendant contends (1) the identification of the complaining witness as Jane Doe and the giving of CALCRIM No. 123 violated his constitutional rights to due process, jury trial, and confrontation of witnesses, and the court failed to engage in any weighing of competing interests before acceding to the victim’s request to be referred to by this pseudonym; (2) CALCRIM Nos. 371 and 372 on flight and concealing evidence invade the province of the jury and lessen the prosecution’s burden of proof by suggesting an improper permissive inference, and implying guilt without requiring the jury to first find necessary predicate facts; (3) the court’s misreading of CALCRIM No. 3426 constituted prejudicial error; (4) the court’s finding that defendant suffered a prior serious felony conviction is not supported by substantial evidence; and (5) the abstract of judgment must be corrected to reflect his conviction on Count 2 was for a violation of section 288a, subdivision (c)(2).
We direct the clerk to correct the abstract of judgment to reflect that defendant’s conviction on Count 2 is for a violation of section 288a, subdivision (c)(2), and in all other respects affirm the judgment.
We only briefly summarize the facts because a detailed summary is unnecessary to our analysis of defendant’s contentions on appeal.
In the early morning of October 8, 2006, defendant and his girlfriend, Jane Doe, returned to her home after attending a party. He wanted to have sex with her, but she refused, saying she was tired. She asked him to leave after he became aggressive. Defendant responded by physically beating her with his fists, attempting to strangle her, and beating her with a broomstick. He forced her to perform oral copulation and to submit to sodomy. During the attack he threatened to kill her, threatened her with knives, and blocked her repeated attempts to escape. At some point Jane Doe managed to contact a friend, who alerted 911. Defendant left the scene when he heard a message on the answering machine from a 911 operator that an officer was responding to the scene.
When defendant was stopped by the police, he confirmed he had been in an argument and had hit Jane Doe, but in a police interview following his arrest he stated he had only pushed the victim with the palm of his hand when she attacked him with a knife. He denied penetrating the victim’s anus with his penis, and attempted to wipe his genitalia clean when he was briefly left alone after having been told the police were going to swab him for DNA evidence.
A medical exam of Jane Doe substantiated she was sodomized and strangled and received blows to her head and body.
The defense at trial was that Jane Doe had engaged in consensual oral copulation with defendant and, out of jealousy, had fabricated the remainder of the allegations.
II. ANALYSIS
A. Reference to the Complaining Witness as Jane Doe
Section 293.5 provides that the court, at the victim’s request, may order the victim be identified as Jane or John Doe, “if the court finds that such an order is reasonably necessary to protect the privacy of the person and will not unduly prejudice the prosecution or the defense.” (§ 293.5, subd. (a).) Subdivision (b) of section 293.5 requires the court to instruct the jury that “the alleged victim is being so identified only for the purpose of protecting his or her privacy . . . .”
The victim requested she be referred to as Jane Doe and, without objection from defendant, the court acceded to that request. The court also gave CALCRIM No. 123, as follows: “In this case, a person is called Jane Doe. This name is used only to protect her privacy, as required by law. The fact that the person is identified in this way is not evidence. Do not consider this fact for any purpose.”
Defendant contends identifying the complaining witness as Jane Doe and instructing the jury pursuant to CALCRIM No. 123 violated his federal and state constitutional rights to due process, jury trial, and confrontation of witnesses, and of due process, because this procedure implies the complaining witness is in fact a crime victim, and is more in need of protection than the defendant, whose identity is made public.
In People v. Ramirez (1997) 55 Cal.App.4th 47 (Ramirez), the court rejected nearly identical contentions. The court explained that “ ‘ “the right to confront and to cross-examine is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.” ’ [Citations.] What constitutes an appropriate case requires a balancing of the state’s interest on the one hand and the nature of the defendant’s right and degree of limitation on the other.” (Id. at p. 56.) The protection of the identity of a victim of a sex crime is justified not only by the victim’s right to privacy, but also the state’s compelling interest in encouraging the reporting of sex crimes. In light of these legitimate interests, using a pseudonym does not violate the defendant’s right to cross-examine and confront witnesses as long as the defense is informed of the victim’s true identity. (Id. at pp. 53-54.) Defendant does not dispute he knew the true name of Jane Doe, who was his former girlfriend. We therefore find the use of a pseudonym at trial did not violate his right to confront and cross-examine the witnesses.
The defendant in Ramirez also contended the statutorily required instruction that “the alleged victim is being so identified [as Jane Doe or John Doe] only for the purpose of protecting his or her privacy pursuant to this section” created an inference the trial court believed the alleged victim is an actual victim, thereby lightening the prosecution’s burden of proof resulting in a denial of due process. (Ramirez, supra, 55 Cal.4th at p. 58.) He suggested the instruction should have been modified to caution the jury “against drawing any inference concerning [the defendant’s] guilt from the use of a fictitious name by the alleged victim.” (Id. at p. 58.) The court noted that because the instruction given accurately stated the law, Ramirez had waived his claim of instructional error by failing to request a clarifying instruction below.
Nonetheless, the Ramirez court also addressed the merits of the argument, and found them unpersuasive. The jury had been instructed it “ ‘must determine the facts from the evidence received in the trial and not from any other source,’ ” that they were “ ‘the sole judges of the believability of a witness,’ ” and had been informed of specific factors to consider in resolving credibility, none of which included the fact that a witness testified under a fictitious name. (Ramirez, supra, 55 Cal.App.4th at p. 58.) The instructions given had also informed the jury the court did not intend by anything it said or did “ ‘to intimate or suggest what you should find to be the facts, or that I believe or disbelieve any witness.’ ” (Ibid.) The trial court had cautioned the jury not to “ ‘conclude that because an instruction has been given that I am expressing an opinion as to the facts.’ ” (Id. at p. 59.) The Court of Appeal concluded that, when these instructions are read as a whole, “no improper inference could be drawn from the trial court’s explanation of the use of the name ‘Jane Doe . . . .’ ” (Ibid.)
Here, defendant’s suggestion that the jury might nevertheless draw an improper inference is even less reasonable than in Ramirez because, unlike the instruction at issue in Ramirez, CALCRIM No. 123 itself cautions: “The fact that the person is identified [by pseudonym] is not evidence. Do not consider this fact for any purpose.” (Italics added.) Moreover, as in Ramirez, the court instructed the jury it must base its decision only upon evidence, determine credibility based upon specified factors not including use of a pseudonym, and should not interpret anything the court said or did during the trial as an indication of what the court thinks about the facts, witnesses, or what the jury’s verdict should be. When CALCRIM No. 123 is read in the context of all these instructions, the jury would necessarily understand it was not to draw any inference from the use of the pseudonym that the court believed the complaining witness was in fact a crime victim.
Defendant also asserts section 293.5 requires the court to engage in a balancing of interests, and to grant a request to use a pseudonym only when this procedure is “reasonably necessary to protect the privacy of the [witness] and will not unduly prejudice the prosecution or the defense.” (§ 293.5, subd. (a).) He argues the court erred by simply acceding to the victim’s request without balancing the interests. The record does not support this contention. The court did not engage in an express weighing of the competing interests because defendant did not oppose the victim’s request or articulate any potential prejudice to him. In the absence of an objection and statement from defendant of possible prejudice, the victim’s interest in protection of her privacy obviously prevailed. Nor is defendant correct in asserting that by adopting the pseudonym the court demonstrated greater concern for the victim’s privacy than for defendant’s. Many intimate photographs of the victim’s body were published to the jury, whereas the court allowed pictures of defendant’s body to be redacted to hide his genitals, and the court informed the jury the redaction was to protect defendant’s privacy.
B. CALCRIM Nos. 371 and 372
The court gave CALCRIM Nos. 371 and 372, which permit the jury to infer the defendant was “aware of his guilt” if it finds defendant tried to hide evidence, or defendant fled after the crime was committed. Defendant argues these instructions invade the province of the jury, and lessen the prosecution’s burden of proof, by suggesting an improper permissive inference and implying guilt without requiring the jury to first find necessary predicate facts. Defendant acknowledges the California Supreme Court has upheld CALJIC Nos. 2.06 and 2.52, the predecessors to CALCRIM Nos. 371 and 372, against similar challenges. (See People v. Howard (2008) 42 Cal.4th 1000, 1021; People v. Navarette (2003) 30 Cal.4th 458, 502 (Navarette); People v. Mendoza (2000) 24 Cal.4th 130, 180; People v. Jackson (1996) 13 Cal.4th 1164, 1224.) Nevertheless, he suggests that by using the phrase “aware of his guilt” in CALCRIM Nos. 371 and 372, instead of the phrase “a consciousness of guilt” that appears in CALJIC Nos. 2.06 and 2.52, the CALCRIM instruction somehow changed the meaning so that these CALCRIM instructions now impermissibly presume the existence of guilt and lower the prosecution’s burden of proof.
The same argument was thoroughly considered and rejected in People v. Rios (2007) 151 Cal.App.4th 1154, 1158 (Rios). In Rios, the court held the use of the word “aware” in CALCRIM No. 372 was synonymous with “consciousness” as used in CALJIC. Nos. 2.06 and 2.52. The court reasoned that, since the CALJIC version was otherwise substantively the same as CALCRIM No. 372, and the California Supreme Court in Navarette, supra, 30 Cal.4th 458 andMendoza, supra, 24 Cal.4th 130had already upheld the CALJIC instruction in the face of similar challenges, CALCRIM No. 372 also did not impermissibly presume the existence of guilt or lower the prosecution’s burden of proof. (Rios, at pp. 1158-1159.) We find the reasoning of Rios persuasive and adopt it as our own.
C. Misreading of CALCRIM No. 3426
When the trial court read CALCRIM No. 3426 to the jury, it twice misread a line to state that, in connection with the charge of making a criminal threat, “the People have met the burden of proving beyond a reasonable doubt that the defendant acted with” specific intent. (Italics added.) On the first misreading the prosecutor interrupted, and the court acknowledged: “This doesn’t read right.” On the second try, the court made the same mistake. The prosecutor interrupted again, and pointed out the error with respect to “[t]he met part.” (Italics added.) The third time the court read the instruction correctly to state that “the People have the burden of proving beyond a reasonable doubt that the defendant acted with intent that the defendant’s statement be understood as a threat. If the People have not met this burden, you must find the defendant not guilty of criminal threat.” (Italics added).
After it finished reading the instructions, the trial court stated: “I want to go back and review one instruction which I read to you. [¶] I’m going to reread you the one instruction dealing with voluntary intoxication. I hope it will be clearer on my rereading of it.” The court then reread the correct version of CALCRIM No. 3426. It also told the jury it would be provided with the instructions in writing.
Defendant contends the initial misreading of CALCRIM No. 3426 was prejudicial error because it amounted to directing a verdict, and the jury would have interpreted the court’s second failed attempt to read the instruction correctly as a “Freudian slip” evincing the court’s opinion the jury should find defendant guilty. The contention fails for two reasons: First, “misreading instructions is at most harmless error when the written instructions received by the jury are correct.” (People v. Box (2000) 23 Cal.4th 1153, 1212, citing People v. Osband (1996) 13 Cal.4th 622, 687.) Defendant suggests that in the case of a conflict between the instructions as read to the jury and the written instructions, the presumption the jury would have followed the written instructions has been rebutted here because the court’s substantive error in misreading the instruction essentially directed a verdict. (See People v. McLain (1988) 46 Cal.3d 97, 115 [presumption the jury will follow the written instructions is rebuttable].) The court, however, corrected the misstatement twice; once, immediately after making the error, and again, at the end of reading all the instructions when it reread the correct version. In addition to the repeated oral correction, the court also gave the jury the correct written instructions. Therefore, the jury was not faced with the task of attempting to resolve a conflict between the written and the oral instructions. (Cf. People v. Osband, supra, at p. 687 [even where conflict exists between incorrect reading of instruction and written version given to jury the reviewing court may presume the jury followed written instructions].) In the absence of any conflict, and in the face of the repeated oral correction and provision of the correct written instruction, the jury may be presumed to have followed the correct version it was given orally and in writing.
Second, even if the court’s misstatement could theoretically have provoked some speculation the court believed the jury should find defendant guilty, the court specifically instructed the jury not to “take anything I say or do during the trial as an indication of what I think about the facts, witnesses, or what your verdict should be.” This instruction directed any juror tempted to engage in speculation about the meaning of the court’s slip of the tongue not to draw any inference about what the court thought the jury’s verdict should be, and it is presumed the jurors followed the instructions. (People v. Mooc (2001) 26 Cal.4th 1216, 1234.)
D. Sufficiency of Evidence That Prior Conviction Was a Serious Felony
Defendant next contends the evidence submitted at the court trial on the allegations of prior strike convictions was insufficient to support the finding that his conviction, in July 2003, was for first degree burglary and qualified as a prior serious felony within the meaning of section 667, subdivisions (a) and (b)-(i).
“On review, we examine the record in the light most favorable to the judgment to ascertain whether it is supported by substantial evidence. In other words, we determine whether a rational trier of fact could have found the prosecution sustained its burden of proving the elements of the sentence enhancement beyond a reasonable doubt.” (People v. Delgado (2008) 43 Cal.4th 1059, 1067 (Delgado).)
The evidence included an abstract of judgment which indicated defendant had entered a plea to burglary, a violation of section 459, but it did not specify the degree. The prosecutor also introduced a docket sheet with the plea waiver form attached. The plea waiver form described the offense defendant pleaded to as “459 1° Burglary.” Defendant argues this notation on the plea waiver form, considered together with the other admitted documents, was insufficient to support a finding this conviction was for burglary in the first degree.
The abstract of judgment and plea waiver form were relevant and admissible to prove the prior conviction, and in the absence of some evidence to rebut the authenticity or accuracy of the plea waiver form, the court could rely upon it as evidence defendant had pleaded guilty to the offense of first degree burglary in violation of section 459. (Delgado, supra, 43 Cal.4th at p. 1070 [abstract of judgment]; People v. Maestas (2006) 143 Cal.App.4th 247, 253 [plea agreement to second degree burglary precluded court from looking behind the plea to underlying facts to conclude conviction was for burglary of a residence].) The court, as trier of fact, is “ ‘entitled to draw reasonable inferences from certified records offered to prove a defendant suffered a prior conviction . . . .’ [Citations.] ‘[O]fficial government records clearly describing a prior conviction presumptively establish that the conviction in fact occurred, assuming those records meet the threshold requirements of admissibility. [Citation.] Some evidence must rebut this presumption before the authenticity, accuracy, or sufficiency of the prior conviction records can be called into question.’ ” (Delgado, supra, at p. 1066.) It is a reasonable inference from the plea waiver form that the offense to which defendant pleaded guilty was first degree burglary under section 459, and defendant identifies no evidence that called into question the accuracy or meaning of the notation on the plea waiver. We conclude the court’s finding that defendant’s July 2003 conviction was for first degree burglary and qualified as a prior serious felony within the meaning of section 667, subdivisions (a) and (b)-(i) is supported by substantial evidence.
E. Correction of Abstract of Judgment
Finally, defendant contends, and Attorney General agrees, the abstract of judgment incorrectly lists his conviction on Count 2 as a violation of section 288, subdivision (c)(2),instead of section 288a, subdivision (c)(2). We therefore direct the trial court to correct the abstract of judgment.
III. CONCLUSION
The clerk is directed to correct the abstract of judgment to reflect that the conviction on Count 2 is for a violation of Penal Code section 288a, subdivision (c)(2). As corrected, the judgment is affirmed.
We concur: Marchiano, P.J., Graham, J.
Retired judge of the Superior Court of Marin County assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.