Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC598708
Premo, J.
A jury convicted defendant Dana Clark Anderson of lewd or lascivious act upon a child age 14 or 15. On appeal, defendant contends that the trial court erred by instructing the jury with CALCRIM No. 358 (extra judicial statements by a defendant). We disagree and affirm the judgment.
BACKGROUND
Defendant and his son lived in a converted garage at the home of family friend J.T. Defendant had a house key in order to access one of the home’s bathrooms. Three daughters lived with J.T. The daughters considered defendant as an uncle. One evening, two of the daughters and defendant’s son went to a party and engaged in a drinking game that involved consuming vodka. Over a two- to three- hour period, the victim daughter had between three and five six- to eight-ounce shots. She became intoxicated and vomited twice. At about 1:00 a.m., one of the partygoers drove the daughters home. Defendant was standing outside when the daughters arrived. The victim needed assistance entering the home, and defendant helped her inside. The victim’s sister then helped her to bed. At 5:30 a.m., J.T. awoke and prepared to go to work. She heard someone in the bathroom. Because it was unusual for anyone to be awake at that hour, she called out to identify the person. Defendant replied, “It’s me, Dana.” J.T. left for work at 6:00 a.m. Defendant then entered the victim’s room where the victim was sleeping on her side facing the wall. He sat on the bed and began rubbing the victim’s stomach. The victim elbowed defendant, and he started to rub her breasts. The victim sat up and saw defendant sitting there. She exclaimed, “what the fuck.” Defendant replied, “shh, go back to sleep.” Defendant exited the home. Later, the police tape recorded an interview in which defendant denied rubbing the victim. At trial, the recordings were introduced in evidence. In his defense, defendant theorized that the victim had been too drunk to be an accurate historian of events occurring so soon after the party and the bedroom had been too dark for a reliable identification.
DISCUSSION
The People preliminarily argue that defendant has forfeited his claim of instructional error by failing to object at trial.
Generally, a party may not complain on appeal about a given instruction that was correct in law and responsive to the evidence unless the party made an appropriate objection. (People v. Hudson (2006) 38 Cal.4th 1002, 1011-1012.) But we may review any instruction which affects the defendant’s “substantial rights,” with or without a trial objection. (Pen. Code, § 1259.) “Ascertaining whether claimed instructional error affected the substantial rights of the defendant necessarily requires an examination of the merits of the claim--at least to the extent of ascertaining whether the asserted error would result in prejudice if error it was.” (People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.) In any event, defendant’s position is that the challenged instruction, as given, was not “correct in law.” Thus, defendant did not have to raise his argument at trial. We therefore review defendant’s claim on the merits.
Defendant initially contended that the trial court erred by instructing the jury with CALCRIM No. 358 in its entirety. This instruction provides, in two paragraphs: “You have heard that the defendant made an oral statement before trial. You must decide whether or not the defendant made any such statement in whole or in part. If you decide that the defendant made such a statement, consider the statement, along with all the other evidence, in reaching your verdict. It is up to you to decide how much importance to give such a statement. [¶] You must consider with caution evidence of a defendant’s oral statement unless it was written or otherwise recorded.” (Italics added.) According to defendant, the trial court should not have given the second paragraph because his statement to the police was tape recorded. At oral argument, however, defendant conceded that the instruction was appropriate.
Defendant argues, however, that the trial court misread CALCRIM No. 358. The reporter’s transcript indeed reflects that the trial court misstated the second paragraph. According to the transcript, the trial court informed as follows: “You must consider with caution evidence of the defendant’s oral statement that was written or otherwise recorded.” (Italics added.) Defendant urges that the misstated second paragraph was prejudicial because it caused the jury to abandon its deliberative role by effectively telling the jury to view his exculpatory police statement with caution. There is no merit to this claim.
Even assuming that the oral instruction is an accurate transcription of the judge’s statements to the jury, we do not believe that reversal is warranted on this ground. Our Supreme Court has repeatedly held that “the misreading of a jury instruction does not warrant reversal if the jury received the correct written instructions.” (People v. Prieto (2003) 30 Cal.4th 226, 255; accord, People v. Box (2000) 23 Cal.4th 1153, 1212 [“misreading instructions is at most harmless error when the written instructions received by the jury are correct”]; People v. Osband (1996) 13 Cal.4th 622, 717 [“as long as the court provides the jury with the written instructions to take into the deliberation room, they govern in any conflict with those delivered orally”]; People v. Garceau (1993) 6 Cal.4th 140, 189 [“error was harmless, because the jury received the correct version . . . in its written form”]; People v. Andrews (1989) 49 Cal.3d 200, 216 [“error in misreading . . . was harmless [because] court provided the jury with written copies of all the instructions”].)
The fact that neither party objected to the court’s reading of the instruction suggests that there was no error, but simply a mistranscription, a suggestion that is supported by the fact that the reporter’s transcript displays other apparent mistranscriptions. For example, defendant is reported to have argued to the jury the following incomprehensible point: “It’s a different standard he’s applying to his own witnesses when why they say doesn’t help the defense.” Nevertheless, we assume for purposes of this appeal that the transcript accurately represents the trial court’s oral pronouncement.
Here, the trial court gave the jury copies of CALCRIM No. 358. The clerk’s transcript reveals that the trial court’s copy of CALCRIM No. 358 is accurate. Given the complicated network of definitions and elements upon which the jury’s verdict depended, it would be implausible to assume that the jurors worked through the case nuances based solely on their recollection of the oral instructions they received. Rather, as there is no indication to the contrary, we presume that the jury followed the proper written instructions it received for purposes of its deliberations, rather than the oral instruction containing the misstatement. (People v. Osband, supra, 13 Cal.4th at p. 687 [stating in assessing challenge to oral instructions that differed from proper written instructions that “[t]he jurors had before them six copies of the written version when they began to deliberate, and we presume that they were guided by those copies”]; People v. Davis (1995) 10 Cal.4th 463, 542 [“It is generally presumed that the jury was guided by the written instructions”]; People v. McLain (1988) 46 Cal.3d 97, 111, fn. 2 [“We presume that the jurors were guided by the written version”].)
The trial court initially informed the jury that “You have a copy of these instructions to take with you in the jury assembly room if you need to refer to them.” It then instructed the jury in the language of CALCRIM No. 200 that “I will give you copies of the instructions to use in the jury room.” We presume that the trial court performed the duty to give the jury a copy of the instructions since there is no evidence to the contrary. (Evid. Code, § 664.)
Defendant’s brief overlooks the Supreme Court cases we have just cited. At oral argument defendant suggested that the cases were distinguishable and it is mere speculation to suppose that the jury in this case actually read the written instructions. But the rule announced by the Supreme Court is bright-line and consistent. It also does not appear to depend on facts not present here given that the Supreme Court cases had differing circumstances aside from the one in common. We are required to follow the decisions of our state’s highest court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455; see, e.g., People v. Rodriguez (2000) 77 Cal.App.4th 1101, 1113 [“as long as the court provides accurate written instructions to the jury to use during deliberation, no prejudicial error occurs from deviations in the oral instructions”].)
Moreover, there is no reason to suppose that the jury abandoned its deliberative role as defendant suggests, since the trial court instructed the jury in the language of CALCRIM No. 358 and the first paragraph of that instruction explicitly informed them, “It is up to you to decide how much importance to give to such statements,” and other instructions reminded them, “You will decide what the facts are,” “It is up to you exclusively to decide what happened,” “You alone must judge the credibility or the believability of witnesses in deciding whether testimony is true,” and “You may believe all, part, or none of any witness’s testimony.” (See CALCRIM Nos. 200, 222, 226.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: Rushing, P.J., Elia, J.