Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Los Angeles County No. LA057966 Superior Court, Susan M. Speer, Judge. Affirmed.
Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Jaime L. Fuster, Deputy Attorney General, for Plaintiff and Respondent.
MOSK, J.
INTRODUCTION
A jury convicted defendant and appellant Omar Avelar of three counts of lewd act on a child. (Pen. Code, § 288, subd. (c)(1) .) The jury found defendant not guilty of two counts of forcible rape (§ 261, subd. (a)(2)) and one count of criminal threats (§ 422). The jury was unable to reach a verdict on one count of forcible rape (§ 261, subd. (a)(2), one count of rape by use of drugs (§ 261, subd. (a)(3)), one count of corporal injury to spouse/cohabitant/child’s parent (§ 273.5, subd. (a)), and one count of false imprisonment by violence (§ 236). Pursuant to section 1385, the trial court dismissed the counts on which the jury could not reach a verdict. The trial court sentenced defendant to three eight-month terms, one for each of defendant’s section 288, subdivision (c)(1) convictions (one third of the middle term), for a total of two years to run consecutively to defendant’s three-year sentence imposed in case number LA057971.
All statutory citations are to the Penal Code unless otherwise noted.
On appeal, defendant contends that the trial court erred in failing to instruct the jury on the defense of reasonable, good faith mistake regarding the alleged victim’s age; defense counsel was ineffective in failing to request an instruction on the reasonable, good faith belief defense; the trial court erred in instructing the jury on mistake of law with CALCRIM No. 3407; CALCRIM No. 220 improperly defined “reasonable doubt”; CALCRIM No. 226 invited the jury to consider matters outside the record in violation of his constitutional rights; there was insufficient evidence of the corpus delicti; the trial court erred in failing to instruct the jury on the corpus delicti rule; defense counsel was ineffective in failing to request an instruction on the corpus delicti rule; the trial court erred in admitting testimony concerning defendant’s plan to take Ashley to Las Vegas where she would participate in prostitution and adult entertainment; and the cumulative effect of the errors deprived him of his due process right to a fair trial. We affirm.
BACKGROUND
On August 17, 2007, 14-year-old Ashley J. met defendant through her friends Ana S. and Eileen R. Ashley had run away from home and was living with Ana. Ashley testified that she told defendant that she was 14 years old and denied that she told him she was 18 years old. That night, Ashley and Eileen went to the beach with defendant and his friend Marino (“Ruben”) Perez. They drank alcohol while at the beach. That was the first time Ashley drank alcohol. They remained at the beach until after midnight.
Ashley was born on November 29, 1992.
On August 18, 2007, Ashley, Ana, and Eileen went to defendant’s apartment. There, they drank alcohol with defendant and Perez. Ashley could not remember how much she drank or much about what had happened that day. At some point, Ashley blacked out. Ashley’s next memory was waking up the next morning in defendant’s bed. Ashley was naked. Defendant, who was lying next to Ashley, also was naked. Ashley felt pain between her legs and was bleeding from her vagina.
Ashley, Ana, and Eileen stayed with defendant and his roommate Levi until early September, when school started. While at defendant’s apartment Ashley and her friends drank every night. Ashley passed out frequently. During this time, Ashley told defendant that she was 14 years old. Defendant told Ashley that he was 25 years old. Ashley began to have “feelings” for defendant at the end of August.
Just before October 31, 2007, Ashley went back to defendant’s apartment where she stayed until near the end of January 2008. Ana and Eileen did not go with Ashley to defendant’s apartment. Ashley testified that Ana, Eileen, and other girls assaulted her in a school bathroom near the end of September. Shortly after Ashley moved in with defendant, defendant accused Ashley of having a relationship with Levi. Defendant was upset and hit Ashley. Defendant forced Levi out of the premises. Ashley wanted to leave because defendant hit her. Defendant threatened that he would kill her and “take [her] to the desert.” When Ashley told defendant she was not afraid of him, defendant “brought a gun.” Ashley stated that the gun did not have any bullets. Later, defendant loaded the gun, put the gun to Ashley’s head and told her he would kill her. At various times, Ashley attempted to leave. Ashley would cry and punch defendant in order to get away from him. On such occasions, defendant would take out the gun. Defendant threatened Ashley with the gun many times.
After returning to defendant’s apartment, Ashley slept with defendant in his room. During the period until before Thanksgiving of 2007, Ashley had sexual intercourse with defendant an average of twice a week. On some of those occasions, defendant forced Ashley to have intercourse with him.
Some time before Thanksgiving 2007, defendant and Ashley moved into a house with defendant’s brother Geovanny, his sister-in-law Diana Barajas, and their children. Defendant’s mother and her boyfriend also lived in the house. In December, defendant forced Ashley to have sexual intercourse with him. Ashley testified that she did not want to have intercourse with defendant, but defendant would not let her leave. Defendant was hitting Ashley.
In December 2007, defendant told Ashley that he wanted to take her to Las Vegas where he wanted Ashley to “be with other men” and to take off all her clothes. Ashley would be compensated in an unspecified amount. Ashley told defendant she did not want to go. Defendant did not like Ashley’s response. Defendant talked about Ashley going to Las Vegas with him in the weeks before she moved out of Geovanny’s house around January 25, 2008.
On January 27, 2008, Ashley met defendant at a Starbucks. Defendant again told Ashley that he wanted to take her to Las Vegas. Defendant said he wanted to “prostitute girls.” Defendant wanted Ashley to help him “get the girls” and to dance for men. Ashley told defendant that she would go with him to Las Vegas, even though she had no intention of doing so. Ashley wanted to turn in defendant for hitting her, forcing her to have sex with him, and not letting her go home.
Ashley asked defendant to take her to her friend’s house where she was staying. Defendant told Ashley that he would take her to her friend’s house. Instead, defendant took Ashley to Geovanny’s house. Defendant explained that he wanted to “have fun for a while.” Ashley told defendant that she wanted to go home. When they reached Geovanny’s house, defendant opened Ashley’s door and pushed her out of the car. Defendant then forced Ashley into the house. Ashley unsuccessfully resisted.
Defendant dragged Ashley into his bedroom, pushed her on the bed, and locked the door. Defendant started to undress Ashley who resisted by trying to kick and push defendant away. Defendant punched and choked Ashley, and Ashley stopped resisting. Defendant finished undressing Ashley – except for her bra, which he took off later – took off his own clothes, and then had sexual intercourse with Ashley. Ashley told defendant that she did not want to be there and wanted to go home. Defendant did not listen to Ashley and called her a bitch. After defendant had sexual intercourse with Ashley, he did not take her to her friend’s house. Defendant forced Ashley into the car and dropped her off a couple of few streets away. As a result of defendant’s blows, Ashley suffered injuries to her thighs, arms, breasts, and neck.
On January 28, 2008, Ashley made a police report. That same day, Marilyn Stotts, a sexual assault nurse examiner, interviewed and examined Ashley. Ashley told Stotts that defendant sexually assaulted her. Stotts was asked at trial if Ashley had given Stotts an estimated age for defendant. Stotts replied, “I don’t think she was sure, but I’m recalling 25 or 26.” Ashley recounted defendant’s sexual and physical abuse from August 18, 2007, to January 27, 2008.
Stotts physically examined Ashley. Stotts took a vaginal swab that she transmitted to the police. Subsequent DNA testing demonstrated that the DNA profile of the semen found on Ashley’s vaginal swab matched defendant’s DNA profile. During a later physical examination of Ashley, Stotts found genital warts inside Ashley’s vagina. The virus that causes genital warts is spread mainly through sexual contact. On January 29, 2008, Sandra Wilkinson, a sexual assault nurse examiner, examined defendant and determined that he had genital warts underneath the glans of his penis.
On January 29, 2008, Los Angeles Police Department Detective Brigitta Shapiro searched the house defendant shared with his brother and other family members. Detective Shapiro seized defendant’s California driver’s license, an iPod, two laptop computers, seven used condoms, and a gun case. Detective Shapiro did not find a gun. Detective Shapiro testified that defendant’s driver’s license listed defendant’s date of birth as the same date reflected on a field interview card for defendant – November 21, 1981. The laptop computers contained hundreds of photographs of Ashley in lingerie and various stages of nudity, including some photographs of her entirely nude.
In the defense case, Ana testified that in August 2007, she had a MySpace account on which she listed her age as 16 years old, even though she was only 14 years old at the time. Eileen testified that the MySpace account that she, Ana, and Ashley were using listed Ashley’s age as 19 years old. Perez testified that he met Ashley through MySpace. At trial, Ana asked if she ever heard Ashley say anything to defendant or Perez about her age. Ana responded, “Well, they had asked me, but I had told them I don’t know. But they had told me that she said she was 19.” On January 30, 2008, Eileen told Detective Shapiro that Ashley told defendant that she was 15 or 16 years old.
Barajas testified that she met Ashley around October 2007. Ashley told Barajas that she was 18 years old. Barajas testified that she knew that defendant’s birthday was in November and that he was 26 years old. Asked if that was his age at the time of trial, Barajas responded, “I believe. 27? I don’t know.” Asked if she were sure, Barajas said that she was not.
Eileen testified that Ashley told her that she was having sexual relations with defendant. The first time that Eileen heard Ashley and defendant have sexual relations, she asked Ashley if defendant had forced her. Ashley responded, “No, I wanted to.” On January 27, 2008, Barajas’s son opened defendant’s bedroom door and Barajas saw Ashley “on top of” defendant. Neither defendant nor Ashley was clothed, and they were having sexual intercourse. Barajas denied that the case the police recovered was used to store or transport a gun. Barajas had never seen defendant in possession of a firearm.
DISCUSSION
I. The Trial Court Did Not Have A Sua Sponte Duty To Instruct The Jury On The Defense Of Reasonable, Good Faith Mistake About Ashley’s Age
Defendant contends that the trial erred in failing to instruct the jury that his reasonable, good faith belief that Ashley was over 18 years of age was a defense to the offense of lewd act on a child, and in instructing the jury that a reasonable, good faith mistake about the age of a 14- or 15-year-old victim was not a defense to the offense. The trial court properly instructed the jury.
In criminal cases, a trial court has the sua sponte duty to instruct on the general principles of law that are relevant to the issues raised by the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 154.) This duty extends to instructing on an affirmative defense if it appears that the defendant is relying on the defense, or if substantial evidence supports that defense and the defense is not inconsistent with the defendant’s theory of the case. (People v. Boyer (2006) 38 Cal.4th 412, 468-469.)
Section 288 proscribes “willfully and lewdly commi[tting] any lewd or lascivious act” upon a minor under the age of 16 “with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires” of either the perpetrator or the child. (§ 288, subd. (a).) If the child is under the age of 14, the crime is a felony punishable by three, six, or eight years in state prison. (Ibid.) If the child is 14 or 15 years old, and the perpetrator is at least 10 years older than the victim, the crime can be prosecuted as either a misdemeanor or a felony; if prosecuted as a felony, the crime is punishable by one, two or three years in state prison. (§ 288, subd. (c)(1).) Defendant recognizes that the mistake-of-age defense does not apply in prosecutions under section 288, subdivision (a) involving victims under 14 years of age. (People v. Olsen (1984) 36 Cal.3d 638 (Olsen).) Defendant contends, however, that section 288, subdivision (c)(1) should not be read to exclude the mistake-of-age defense in cases involving victims who are 14 or 15 years old. Defendant points to People v. Hernandez (1964) 61 Cal.2d 529, in which the California Supreme Court held that a defendant’s good faith, reasonable belief that his or her underage sex partner was 18 or older can be a defense in statutory rape prosecutions under section 261, subdivision (1) (now section 261.5).
Section 288 provides, in relevant part: “(a) Any person who willfully and lewdly commits any lewd or lascivious act... upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years.
Defendant’s argument was rejected in People v. Paz (2000) 80 Cal.App.4th 293 (Paz). In that case, a 28-year-old defendant was convicted of lewd or lascivious acts upon a 14-year-old victim. (Id. at pp. 294-295.) The victim admitted telling the defendant that she was 16 years old. The defendant argued that the trial court should have instructed the jury on his mistake-of-age defense, contending that a 14- or 15-year-old victim did “not warrant the same public policy child protection given by the law to victims under the age of 14.” (Id. at p. 295.) The court of appeal disagreed. After engaging in a detailed review of subdivision (c)(1)’s legislative history, the court in Paz held that permitting a mistake-of-age defense “would undermine the purpose the Legislature sought to achieve by enacting subdivision (c).” (Paz, supra, 80 Cal.App.4th at pp. 295-296.) The statute was enacted to fill a gap in the felony laws with respect to victims of lewd conduct who were 14 or 15 years old. (Id. at p. 296.) To avoid criminalizing consensual sexual contact short of intercourse between consenting teenagers, subdivision (c)(1) applies only if the perpetrator is at least ten years older than the victim. (Paz, supra, at pp. 296-297.) The Legislature was thus “attuned to and took action to prevent” situations in which a “‘sexually naïve’” 14- or 15-year-old child could “fall victim to a more experienced adult.” (Id. at p. 297.) Subsection (c)(1) thus reflects a “legislative desire to protect 14- and 15-year-olds from predatory older adults to the same extent children under 14 are protected by subdivision (a)[.]” (Id. at p. 297.) That is, “section 288 offenses set out a hierarchy of victims, from the most vulnerable—infants and children under subdivision (a)—to those perceived as less vulnerable – young teenagers under subdivision (c)(1). The age distinctions help define the gravity of, and the range of punishment for, the offense.” (Ibid., italics omitted.)
Defining crimes by reference to the relative ages of the perpetrator and victim has been a favorite strategy of state legislatures seeking to avoid the injustice of criminalizing sexual contact between minors of roughly similar age. (See, e.g., §§ 261.5, subds. (b)-(c); 288a, subds. (b)-(c); see generally, Carpenter, On Statutory Rape, Strict Liability, and the Public Welfare Offense Model (2003) 53 Am. L.Rev. 313, 354-358.)
The court in Paz also found persuasive the complete absence in subdivision (c)(1) of any consent element. This “strongly suggests the Legislature did not intend the ‘understanding’ of the perpetrator to affect the application of the subdivision.” (Paz, supra, 80 Cal.App.4th at pp. 297.) Also, subdivision (c)(1) prescribes a lower range of prison terms than does subdivision (a), and, in appropriate cases, a violation of subdivision (c)(1) can be prosecuted as a misdemeanor, whereas a violation of subdivision (a) is always a felony. (Paz, supra, 80 Cal.App.4th at p. 297.) The sentencing structure of section 288 thus supports the conclusion that the Legislature did not intend to permit defenses based on mistake of age, but rather intended that any such mistake would be considered in sentencing. (Paz, supra, 80 Cal.App.4th at pp. 297-298.)
As noted above, section 288, subdivision (a) prescribes prison terms of three, six or eight years; subdivision (c)(1) prescribes terms of one, two or three years in cases prosecuted as a felony.
Finally, the court in Paz, supra, 80 Cal.App.4th at page 298, noted that in Olsen, supra, 36 Cal.3d 638, the California Supreme Court held that mistake of age is not a defense under section 288, subdivision (a). The decision in Olsen predated by some four years the enactment of subdivision (c)(1). The Legislature was thus aware of the holding in Olsen, and could have included language permitting a mistake-of-age defense had it intended “to forbid application of the Olsen rationale to this later subdivision, a part of the same statute dealt with in Olsen.” (Paz, supra, 80 Cal.App.4th at p. 298.) The Legislature had a ready model for doing so, having enacted in 1981 section 1203.066, subdivision (a)(3), which provides that a defendant convicted under section 288 is not eligible for probation unless he or she had an honest and reasonable belief that the victim was 14 years or older. (Paz, supra, 80 Cal.App.4th at p. 298.) That provision had been expressly relied upon by the Olsen court In rejecting a mistake-of-age defense under subdivision (a). (Olsen, supra, 36 Cal.3d at p. 647.) The court in Paz also noted that other courts had refused to extend the holding in People v. Hernandez, supra, 61 Cal.2d 529 to section 288 crimes. (Paz, supra, 80 Cal.App.4th at p. 300.)
The court in Paz, supra, 80 Cal.App.4th 293, concluded, “At one time the Legislature decided that the age of 14 was the appropriate line of demarcation. After hearing the proposals and arguments in favor of and against the bill to add what ultimately became subdivision (c)(1) to section 288, the Legislature exercised its prerogative and elected to make potential felonies of lewd acts against 14- and 15-year-olds, just as such acts are felonies when committed upon children 13 and under. We therefore believe the public policy rationale of Olsen for rejecting good faith mistake of age in section 288 cases involving victims under age 14 holds true for victims of ages 14 and 15 as well—‘to protect children against harm from amoral and unscrupulous [adults] who prey on the innocent.’” (Paz, supra, 80 Cal.App.4th at p. 298.)
We agree with the analysis and holding in Paz, supra, 80 Cal.App.4th 293. The Legislature enacted section 288, subdivision (c)(1) to protect 14- and 15-year-old children from lewd conduct committed by adults who are substantially older than the children they victimize. We therefore construe subdivision (c)(1) to extend the same protections to these children that subdivision (a) affords to younger children. Accordingly, absent an express statement by the Legislature to the contrary, mistake of age is not a defense in prosecutions under subsection (c)(1).
Defendant argues that Paz is factually distinguishable because the victim in that case told the defendant she was 16 years old (Paz, supra, 80 Cal.App.4th at pp. 295, 300), whereas there is evidence in the record that Ashley represented her age to be 18 or 19. The Paz court did rely on that aspect of the case in distinguishing Staples v. United States (1994) 511 U.S. 600 (Staples), in which the United States Supreme Court construed a federal statute prohibiting the possession of unregistered firearms to require proof of guilty knowledge, based in part on its concern that dispensing with a mens rea requirement “potentially would impose criminal sanctions on a class of persons whose mental state – ignorance of the characteristics of weapons in their possession – makes their actions entirely innocent.” (Id. at pp. 614-615.) The Paz court noted that the defendant’s conduct in that case could not be “entirely innocent,” because his sexual contact with the victim would have been a crime even if she was 16, as he believed her to be. (Paz, supra, 80 Cal.App.4th at p. 299-300.)
We do not find this factual distinction to be persuasive. The court in Paz held that the Legislature did not intend section 288, subdivision (c)(1) to permit a mistake-of-age defense because subdivision (c)(1) presents a clear mandate to protect sexually vulnerable 14- and 15-year-old children from predatory older adults. (Paz, supra, 80 Cal.App.4th at p. 298.) In so holding, the court did not rely on the fact that the victim in that case pretended to be 16 – indeed, the court’s discussion in that regard is in a separate section of the opinion. (Id. at pp. 299-300.) Rather, the Paz court discussed the defendant’s belief that the victim was 16 only to demonstrate, as the court states, that “even under the most favorable interpretation of the relevant facts,” the defendant could not avail himself of any argument based on Staples, supra, 511 U.S. 600. We conclude that section (c)(1) does not permit a mistake-of-age defense, regardless of what age the victim pretended to be.
Even if defendant could have a defense based on a good faith belief that the victim was 18 years old, any error in not giving the instruction would be harmless because no such belief would be reasonable in this case. Ashley testified she told defendant her age. Even if the jury disbelieved Ashley’s testimony that she told defendant her age, Ashley’s companions were around 14 years old; defendant knew she was in middle school or high school, her actual age and size would suggest she was not an adult, and defendant had inquired about Ashley’s age. Because the defense of reasonable, good faith mistake about a victim’s age is not a defense to a prosecution of section 288, subdivision (c)(1), the trial court did not have a duty to instruct on such a non-defense, and any error in this respect would be harmless.
II. Defense Counsel Did Not Provide Ineffective Assistance Of Counsel In Failing To Request The Trial Court To Instruct The Jury On The Defense Of Reasonable, Good Faith Mistake About Ashley’s Age
Defendant contends that defense counsel provided ineffective assistance of counsel in failing to request the trial court to instruct the jury on the defense of reasonable, good faith mistake about Ashley’s age. We disagree.
“‘Generally, a conviction will not be reversed based on a claim of ineffective assistance of counsel unless the defendant establishes both of the following: (1) that counsel’s representation fell below an objective standard of reasonableness; and (2) that there is a reasonable probability that, but for counsel’s unprofessional errors, a determination more favorable to defendant would have resulted. [Citations.]” (People v. Foster (2003) 111 Cal.App.4th 379, 383.) As we held above, there is no defense of reasonable, good faith mistake about a victim’s age to a prosecution under section 288, subdivision (c)(1). If defense counsel had requested the trial court to instruct the jury on such a “defense,” the trial court properly would have denied such a request. Accordingly, defense counsel was not ineffective in failing to request the trial court to so instruct the jury. Moreover, even if the mistake of age defense were available, any claim of ineffective assistance of counsel is more appropriately raised in a petition for habeas corpus. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
III. The Trial Court Properly Instructed The Jury With CALCRIM No. 3407
Defendant contends that the trial court erred when it instructed the jury with CALCRIM No. 3407 that a mistake of law is not a defense to the offense of lewd act on a child because he did not assert such a defense in the trial court, and there was no evidence adduced at trial relevant to such a defense. Defendant contends that the evidence supported a defense of a mistake of fact about Ashley’s age – that he mistakenly believed that Ashley was 18 years old or older, but no evidence that supported a defense of mistake of law – that he knew that Ashley was only 14 or 15 years old but believed sexual contact with her was not against the law. The instruction was prejudicial, defendant contends, because it left the jury with the impression that he knew Ashley was 14 years old and did not know sexual contact with her was illegal or believed that it was legal. This prejudice “compounded the prejudice from the erroneous instruction on mistake of fact and the failure to instruct[] on the defense of a reasonable belief concerning Ashley’s age.” The trial court properly instructed the jury.
The trial court instructed the jury with CALCRIM No. 3407 as follows, “It is not a defense to the crime of child molestation or lewd act on a child that the defendant did not know he was breaking the law or that he believed his act was lawful.”
As we note above, in criminal cases, a trial court has the sua sponte duty to instruct on the general principles of law that are relevant to the issues raised by the evidence. (People v. Breverman, supra, 19 Cal.4th at p. 154.) A trial court errs when it gives an instruction “which, while correctly stating a principle of law, has no application to the facts of the case.” (People v. Guiton (1993) 4 Cal.4th 1116, 1129.) We review such error for prejudice under People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Guiton, supra, 4 Cal.4th at pp. 1129-1130.) Neither ignorance of the law nor a mistake of law is a defense to a violation of the law. (Hale v. Morgan (1978) 22 Cal.3d 388, 396 [“ignorance of a law is not a defense to a charge of its violation”]; People v. Meneses (2008) 165 Cal.App.4th 1648, 1661 [a mistake of law usually is not a defense to a criminal charge].)
The evidence adduced at trial supported instructing the jury with CALCRIM No. 3407. The prosecution presented evidence that Ashley told defendant that she was 14 years old and that defendant engaged in sexual contact with Ashley. There also was evidence that Ashley lived with defendant for an extended period of time during which time Ashley shared a bedroom with defendant. A reasonable juror could conclude from such evidence that defendant was having an open sexual relationship with Ashley and that he was doing so because he believed that sexual contact between himself and a 14 or 15 year old girl was not illegal. An instruction informing the jury that such a belief was not a defense to the offense of lewd act on a child thus was relevant to the issues raised by the evidence and CALCRIM No. 3407 was properly given.
Even if the trial court erred in instructing the jury with CALCRIM No. 3407, any such error was harmless. Defendant concedes that “there was no real dispute that a sexual relationship had developed between Ashley and [himself]” and that his only defense, based on the evidence presented at trial, was that he was mistaken about Ashley’s age. Defendant contends that CALCRIM No. 3407 countered the evidence in support of his mistake of fact defense and suggested that he did not believe that Ashley was over 18 years old. As we held above, a mistake in fact about Ashley’s age is not a defense to the offense of lewd act on a child. Thus, even if CALCRIM No. 3407 made it less likely that the jury would find that defendant was mistaken about Ashley’s age, defendant suffered no prejudice.
IV. CALCRIM No. 220 Properly Defines Reasonable Doubt
Defendant argues that the trial court erred in instructing the jury on reasonable doubt with CALCRIM No. 220. Defendant argues that that part of the instruction that told the jury that it “must impartially compare and consider all the evidence that was received throughout the entire trial” in determining whether the prosecution proved its case beyond a reasonable doubt limited the jury’s determination of reasonable doubt to the evidence received at trial thus precluding the jury from considering the lack of evidence in making its determining, and reduced the prosecution’s burden of proof effectively to the civil preponderance of the evidence standard. The trial court did not err.
The trial court instructed the jury with CALCRIM No. 220 as follows:
Appellate courts have consistently rejected defendant’s arguments. (People v. Zavala (2008) 168 Cal.App.4th 772, 781; People v. Garelick (2008) 161 Cal.App.4th 1107, 1117-1119; People v. Stone (2008) 160 Cal.App.4th 323, 330-332; People v. Campos (2007) 156 Cal.App.4th 1228, 1237-1238; People v. Guerrero (2007) 155 Cal.App.4th 1264, 1267-1269; People v. Flores (2007) 153 Cal.App.4th 1088, 1091-1093; People v. Westbrooks (2007) 151 Cal.App.4th 1500, 1508-1510; People v. Hernandez Rios (2007) 151 Cal.App.4th 1154, 1156-1157.) Defendant acknowledges, but disagrees with these decisions, and asserts the issue on appeal to preserve the issue for possible further review by the California Supreme Court and the federal courts. We follow the many decisions rejecting defendant’s arguments.
V. The Trial Court Properly Instructed The Jury With CALCRIM No. 226
Defendant argues that the trial court erred in instructing the jury with CALCRIM No. 226 because that instruction invited the jury to consider matters outside the record and to employ a lesser standard than proof beyond a reasonable doubt, thereby violating his constitutional rights to due process, a fair trial, and confrontation. The trial court properly instructed the jury.
The trial court instructed the jury with CALCRIM No. 226 which provides, in pertinent part, “You alone, must judge the credibility or believability of the witnesses. In deciding whether testimony is true and accurate, use your common sense and experience. You must judge the testimony of each witness by the same standards, setting aside any bias or prejudice you may have. You may believe all, part, or none of any witness’s testimony. Consider the testimony of each witness and decide how much of it you believe.”
Defendant objects to that part of the instruction that directed the jurors to use their “common sense and experience” in deciding whether any witness’s testimony was true and accurate. Such language, defendant contends, could cause the jury to rely on extrajudicial evidence or to employ a standard less than proof beyond a reasonable doubt. Defendant acknowledges that our colleagues in Division Two of this District have rejected the same challenge to CALCRIM No. 226 in People v. Campos, supra, 156 Cal.App.4th at pp. 1239-1240. In rejecting these same challenges, the court in People v. Campos reasoned when the instructions were considered as a whole, it was not reasonably likely that a jury would understand CALCRIM No. 226 to mean they were to rely on extrajudicial evidence or employ a standard less than proof beyond a reasonable doubt. (Id. at p. 1240.)
The court in People v. Campos, supra, 156 Cal.App.4th 1228 explained that “To tell a juror to use common sense and experience is little more than telling the juror to do what the juror cannot help but do. In approaching any issue, a juror’s background, experience and reasoning must necessarily provide the backdrop for the juror’s decisionmaking, whether instructed or not. CALCRIM No. 226 does not tell jurors to consider evidence outside of the record, but merely tells them that the prism through which witnesses’ credibility should be evaluated is common sense and experience. Unlike People v. Bickerstaff (1920) 46 Cal.App. 764, 773 [190 P. 656] and People v. Paulsell (1896) 115 Cal. 6, 7 [46 P. 734], cited by Campos, CALCRIM No. 226 does not instruct jurors to use their common sense and experience in finding reasonable doubt, which could potentially conflict with the beyond a reasonable doubt standard, but only in assessing a witnesses’ credibility.” (Id. at p. 1240.)
The court further stated, “other instructions given to jurors make clear that the term ‘common sense and experience’ is not a license to consider matters outside of the evidence. Jurors were instructed that they must decide the facts based on the evidence presented (CALCRIM No. 200), that they were not to conduct research or investigate the crime (CALCRIM No. 201), that their determination of guilt had to be based on evidence received at trial (CALCRIM No. 220), that they were only to consider evidence (sworn testimony and exhibits) presented in the courtroom (CALCRIM No. 222), that they had to decide whether facts have been proved based on ‘all the evidence’ (CALCRIM No. 223), that they should review all the evidence before concluding that the testimony of one witness proves a fact (CALCRIM No. 301) and other instructions emphasizing the exclusive significance of the evidence. (CALCRIM No. 302.)” (People v. Campos, supra, 156 Cal.App.4th at p. 1240.) The trial court in defendant’s case instructed the jury with these same instructions.
We agree with the court’s analysis in People v. Campos, supra, 156 Cal.App.4th 1228, from which analysis defendant does not offer a persuasive reason to depart. Accordingly, we reject defendant’s argument.
VI. There Was Sufficient Evidence Of The Corpus Delicti
Defendant claims that there was insufficient evidence to establish the corpus delicti for his lewd act on a child convictions (§ 288, subd. (c)(1)) because, apart from his extrajudicial admissions, there was no evidence that established that he was at least 10 years older than Ashley. We disagree.
A. Background
Stotts, the sexual assault nurse examiner who interviewed Ashley on January 28, 2008, was asked at trial if Ashley had given her an estimated age for defendant. Stotts responded, “I don’t think she was sure, but I’m recalling 25 or 26.”
Barajas, defendant’s sister-in-law, testified that she knew that defendant’s birthday was in November and that he was 26 years old. Asked if that was his age at the time of trial, Barajas responded, “I believe. 27? I don’t know.” Asked if she were sure, Barajas said that she was not.
Detective Shapiro testified that a field identification card is a three-by-five card “that is filled out at the time of arrest or at the time anybody’s detained by the police.” According to Detective Shapiro, a field identification card is made at or near the time of the event and defendant’s field identification card listed defendant’s birth date as November 12, 1981. Later, Detective Shapiro testified that defendant’s California driver’s license was recovered during a search of his residence. Defendant’s date of birth on the driver’s license was November 12, 1981.
The trial court stated that Detective Shapiro did not fill out defendant’s field identification card.
B. Forfeiture
Defendant did not object in the trial court that there was insufficient evidence to satisfy the corpus delicti rule. “A defendant cannot on review complain of insufficiency of evidence based on improper admission of corpus delicti evidence where defendant omitted to interpose a specific objection on the ground of the corpus delicti rule....” (People v. Sally (1993) 12 Cal.App.4th 1621, 1628.)
Citing People v. Alvarez (2002) 27 Cal.4th 1161, defendant argues that because the “Right to Truth-In-Evidence” provisions in Proposition 8 (Cal. Const., art. I, § 28, subdivision (d)) abrogated the corpus delicti rule as a basis for excluding from evidence a defendant’s extrajudicial statements, he was not required to object in the trial court to preserve his sufficiency argument for appeal. Defendant is mistaken. Although Proposition 8 may have abrogated the corpus delicti rule as a basis for exclusion, it did not abrograte the sufficiency component of the corpus delicti rule – that a conviction must be supported by proof of the corpus delicti apart from or in addition to the defendant’s statements. (People v. Alvarez, supra, 27 Cal.4th at p. 1165.) People v. Sally, supra, 12 Cal.App.4th 1621, which was decided prior to People v. Alvarez, has not been overruled.
C. Relevant Legal Principles
Even if defendant has not forfeited review of his corpus delicti claim, his claim nevertheless fails. “In any criminal prosecution, the corpus delicti must be established by the prosecution independently from the extrajudicial statements, confessions or admissions of the defendant. [Citations.] The elements of the corpus delicti are (1) the injury, loss or harm, and (2) the criminal agency that has caused the injury, loss or harm. (Jones v. Superior Court (1979) 96 Cal.App.3d 390, 393 [157 Cal.Rptr. 809].) ‘The independent proof may be by circumstantial evidence [citation], and it need not be beyond a reasonable doubt. A slight or prima facie showing, permitting the reasonable inference that a crime was committed, is sufficient. [Citations.]’ [Citation.] It is not necessary for the independent evidence to establish that the defendant was the perpetrator. [Citations.]” (People v. Wright (1990) 52 Cal.3d 367, 403-404.)
“We reemphasize that the quantum of evidence the People must produce in order to satisfy the corpus delicti rule is quite modest; case law describes it as a ‘slight or prima facie’ showing. [Citations.] This minimal standard is better understood when we consider that the purpose of the corpus delicti rule is ‘to protect the defendant against the possibility of fabricated testimony which might wrongfully establish the crime and the perpetrator.’ [Citation.] As one court explained, ‘Today’s judicial retention of the rule reflects the continued fear that confessions may be the result of either improper police activity or the mental instability of the accused, and the recognition that juries are likely to accept confessions uncritically.’ [Citation.] [¶] Viewed with this in mind, the low threshold that must be met before a defendant’s own statements can be admitted against him makes sense; so long as there is some indication that the charged crime actually happened, we are satisfied that the accused is not admitting to a crime that never occurred.” (People v. Jennings (1991) 53 Cal.3d 334, 368; see also People v. Jones (1998) 17 Cal.4th 279, 301-302.)
Defendant contends that the admissions contained in his field identification card and driver’s license are the only evidence of his date of birth. As for the field identification card, defendant contends that Detective Shapiro testified that field identification cards contain data provided during field interviews with suspects and detainees. Thus, defendant asserts, “since the information concerning [his] date of birth was elicited from him, it constitutes an admission.” Defendant does not accurately describe Detective Shapiro’s testimony. The detective testified that a field identification card “is filled out at the time of arrest or at the time anybody’s detained by the police.” Detective Shapiro testified that a field identification card is made at or near the time of the event and that defendant’s field identification card listed defendant’s birth date as November 12, 1981. Detective Shapiro did not testify that defendant’s birth date or any other information on defendant’s field identification card was elicited from defendant. The record is silent on the source of that information.
Defendant contends that the information on his driver’s license is an admission because it was “self-reported and adopted by him by signing the license.” Implicit in this contention is the assertion that defendant was the sole source of the information establishing his date of birth for purposes of obtaining his driver’s license. Nothing in the record supports such an assertion. No evidence was adduced at trial about the manner in which a California driver’s license is obtained or that defendant made any statement in connection with obtaining his license. Moreover, the birth date verification and legal presence requirements of the California Department of Motor Vehicles provide, in pertinent part, “State law requires every applicant for an original California identification (ID) card and driver license to show verification of birth date and proof of legal presence within the United States to help safeguard the accuracy and integrity of departmental documents.” (http://www.dmv.ca.gov/dl/dl_info.htm#BDLP [as of March 25, 2010].) The requirements further provide that “[o]nly the original or a certified copy of one of the following documents is acceptable.” (Ibid.) The list of acceptable documents includes such documents as a United States birth certificate, United States passport, certificate of naturalization or citizenship, and permanent resident card. (Ibid.) Accordingly, consistent with the birth date verification and legal presence requirements of the California Department of Motor Vehicles, defendant could not have obtained a driver’s license based only upon his own statement of his birth date – he also had to provide independent documentary evidence.
We take judicial notice of the California Department of Motor Vehicle’s web site and its birth date verification and legal presence requirements. (Evid. Code, §§ 452, subds. (c) & (h); 459; see Shaw v. People ex rel. Chiang (2009) 175 Cal.App.4th 577, 606, fn. 10 [judicially noticing the California Department of Transportation’s web site].)
Because there is no evidence in the record that a statement or “admission” by defendant was the sole source or even a source of the information on the field identification card or driver’s license, defendant’s argument that insufficient evidence supports the corpus delicti fails. Moreover, as for any statement defendant may have made about his date of birth in connection with his application for a driver’s license, it is apparent that such a statement would not have implicated the essential purpose of the corpus delicti rule, which is to protect a defendant against the admission of an extrajudicial confession to a crime that did not occur. (People v. Jennings, supra, 53 Cal.3d at p. 368.) Any statement made in connection with an application for a driver’s license had nothing to do with the lewd conduct on a minor offenses alleged against defendant and any such statement was not made in the context of a criminal investigation. Thus, there is no concern that any statement by defendant concerning his date of birth made in connection with obtaining a driver’s license resulted from either improper police activity or defendant’s mental instability. (People v. Jennings, supra, 53 Cal.3d at p. 368.)
Finally, defendant’s claim fails because evidence independent of any extrajudicial admission by defendant established the corpus delicti. The three counts of lewd conduct of which defendant was convicted alleged conduct on or between October 31, 2007, and January 27, 2008. Ashley was born on November 29, 1992, thus making her 14 years old when the alleged conduct began and 15 years old when it ended. The “slight or prima facie” evidence needed to meet the “low threshold” of the corpus delicti rule was met in this case by Stott’s testimony that Ashley told her in January 2008 that she was uncertain of defendant’s age but believed he was 25 or 26 years old and Barajas’s June 1, 2009, testimony that defendant’s birthday was in November and that she was unsure of defendant’s age but believed he was 26 or 27 at the time of her testimony. (People v. Jennings, supra, 53 Cal.3d at p. 368; People v. Wright, supra, 52 Cal.3d at p. 404.)
VII. The Trial Court Did Not Have A Sua Sponte Duty To Instruct The Jury On The Corpus Delicti Rule
Defendant contends that the trial court erred in failing to instruct the jury on the corpus delicti rule with CALCRIM No. 359. The trial court properly instructed the jury.
CALCRIM No. 359 provides:
When a defendant’s extrajudicial statements form part of the prosecution’s evidence, the trial court has a sua sponte duty to instruct on the corpus delicti rule. (People v. Alvarez, supra, 27 Cal.4th at p. 1170.) As discussed above, defendant’s extrajudicial statements did not form part of the prosecution’s evidence that defendant was at least 10 years older than Ashley. The prosecution relied on testimony from Stotts about what Ashley estimated defendant’s age to be, Barajas’s testimony about her personal knowledge of defendant’s age, and Detective Shapiro’s testimony about documents—defendant’s field identification card and driver’s license—that established defendant’s age. As for Detective Shapiro’s testimony, there was no showing in the trial court that any statement by defendant was the basis for his date of birth on either document. Accordingly, the trial court was not under a duty to instruct the jury on the corpus delicti rule.
Even if the trial court erred in failing to instruct the jury on the corpus delicti rule, any error was harmless. A trial court’s error in failing to give the jury a corpus delicti instruction is reviewed for error under People v. Watson, supra, 46 Cal.2d at page 836. (People v. Alvarez, supra, 27 Cal.4th at p. 1181.) Under that standard, there is no basis for reversal unless there is a reasonable probability the jury would have reached a result more favorable to defendant if a corpus delicti instruction had been given. (Ibid.) Explaining the application of the Watson standard in the context of the failure to give a corpus delicti instruction, the court in People v. Alvarez noted that “the modicum of necessary independent evidence of the corpus delicti, and thus the jury’s duty to find such independent proof, is not great. The independent evidence may be circumstantial, and need only be ‘a slight or prima facie showing’ permitting an inference of injury, loss, or harm from a criminal agency, after which the defendant’s statements may be considered to strengthen the case on all issues. [Citations.] If, as a matter of law, this ‘slight or prima facie’ showing was made, a rational jury, properly instructed, could not have found otherwise, and the omission of an independent-proof instruction is necessarily harmless.” (Ibid.)
As discussed above, Stotts’s and Barajas’s testimony was independent evidence of sufficient weight to establish defendant’s age under the corpus delicti rule. Once that rule was satisfied, any statement by defendant reflected in his field identification card or driver’s license could “be considered to strengthen the case on all issues.” (People v. Alvarez, supra, 27 Cal.4th at p. 1181.) Given the testimony from Stotts, Barajas, and Detective Shapiro, it is not reasonably probable that the jury would have found that defendant was not at least 10 years older than Ashley if the trial court had given a corpus delicti instruction.
VIII. Defense Counsel Did Not Provide Ineffective Assistance Of Counsel In Failing To Request The Trial Court To Instruct On The Corpus Delicti Rule
Defendant contends that if we conclude that he forfeited review of his corpus delicti instruction argument, then defense counsel provided ineffective assistance of counsel in failing to request such an instruction. Defendant’s contention fails.
As we discussed above, if the state of the evidence merited an instruction on the corpus delicti rule, the trial court would have been under a sua sponte duty to so instruct. (People v. Alvarez, supra, 27 Cal.4th at p. 1170.) Because the evidence did not merit an instruction on the corpus delicti rule, the trial court did not err in failing to give such an instruction, and, necessarily, defense counsel’s performance was not deficient for having failed to request such an instruction. And, any claim of ineffective assistance of counsel is more appropriate in a habeas corpus proceeding. (People v. Mendoza Tello, supra, 15 Cal.4th at pp. 266-267.)
IX. The Trial Court Properly Admitted Evidence Concerning Defendant’s Plan To Take Ashley To Las Vegas To Participate In Prostitution And Adult Entertainment
Defendant claims that the trial court abused its discretion and violated his right to due process in admitting evidence that he planned to take Ashley to Las Vegas to participate in prostitution and adult entertainment. The trial court did not abuse its discretion in admitting the evidence.
A. Background
Prior to trial, defendant filed a motion in limine to exclude “defendant’s purported statements regarding any trip to Las Vegas to conduct either prostitution or some other adult entertainment activity or any statement concerning pimping.” In addition to claiming such evidence was irrelevant, defendant claimed the evidence should be excluded under Evidence Code section 352. The trial court denied defendant’s motion. The trial court stated that the evidence tended to prove the criminal threats (§ 422) and the false imprisonment by violence (§ 236) offenses and tended to show that defendant had an intimate relationship with Ashley and the “nonconsensual nature of the sexual acts.”
Based on the trial court’s ruling, Ashley was permitted to testify at trial that defendant told her that he wanted to take her to Las Vegas where he wanted to “prostitute girls.” Defendant wanted Ashley to help him “get the girls” and to dance for men. Defendant wanted Ashley to take off her clothes and “be with other men” for which Ashley would be compensated in an unspecified amount. Defendant “didn’t like it” when Ashley told him she did not want to go to Las Vegas.
B. Relevant Legal Principles
Evidence Code section 210 provides, “‘Relevant evidence’ means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” Evidence Code section 352 provides, “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
We review for abuse of discretion a trial court’s relevance determination and its decision to admit or exclude evidence under Evidence Code section 352. (People v. Jablonski (2006) 37 Cal.4th 774, 821, 824.) In determining whether the trial court abused its discretion in admitting defendant’s statements, “we address two factors: (1) whether the [statements] were relevant under Evidence Code section 210, and (2) if they were relevant, whether the trial court abused its discretion under Evidence Code section 352 in finding that the probative value of the evidence was not substantially outweighed by the probability that its admission would create a substantial danger of undue prejudice. (People v. Carter (2005) 36 Cal.4th 1114, 1166 [32 Cal.Rptr.3d 759, 117 P.3d 476].)” (People v. Hoyos (2007) 41 Cal.4th 872, 908.) “Evidence is substantially more prejudicial than probative... if, broadly stated, it poses an intolerable ‘risk to the fairness of the proceedings or the reliability of the outcome’ [citation].” (People v. Waidla (2000) 22 Cal.4th 690, 724.) “‘Prejudice for purposes of Evidence Code section 352 means evidence that tends to evoke an emotional bias against the defendant.’” (People v. Lenart (2004) 32 Cal.4th 1107, 1125.)
“[T]he application of ordinary rules of evidence like Evidence Code section 352 does not implicate the federal Constitution, and thus we review allegations of error under the ‘reasonable probability’ standard of Watson, supra, 46 Cal.2d at page 836. [Citations.]” (People v. Marks (2003) 31 Cal.4th 197, 226-227.) “[T]he admission of evidence, even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair. [Citations.]” (People v. Partida (2005) 37 Cal.4th 428, 439.) “Absent fundamental unfairness, state law error in admitting evidence is subject to the traditional Watson test: The reviewing court must ask whether it is reasonably probable the verdict would have been more favorable to the defendant absent the error.” (Ibid.)
The trial court did not abuse its discretion in admitting Ashley’s testimony concerning defendant’s Las Vegas plans. Defendant’s intention to use Ashley as a prostitute and in adult entertainment was relevant to the criminal threats and false imprisonment offenses because it tended to show that defendant was interested in maintaining physical control over Ashley so that he could use her as a source of income. Any danger of undue prejudice from this aspect of Ashley’s testimony did not substantially outweigh its probative value.
Even if we were to hold that the trial court erred in admitting Ashley’s testimony concerning defendant’s Las Vegas plans, the admission of Ashley’s testimony did not make defendant’s trial fundamentally unfair, and any error was harmless. Defendant was convicted of three counts of lewd act on a child. (§ 288, subd. (c)(1).) The uncontested evidence at trial demonstrated that defendant engaged in sexual contact with Ashley, that Ashley was 14 or 15 years old at the time of such contact, and that defendant was at least 10 years old than Ashley. Such evidence established all the factual requirements of the offense. Indeed, defendant has conceded on appeal that “there was no real dispute that a sexual relationship had developed between Ashley and [himself]” and that his only defense, based on the evidence presented at trial, was that he was mistaken about Ashley’s age. We rejected that defense above. Accordingly, it is not reasonably probable that defendant would have received a more favorable verdict had the trial court excluded Ashley’s challenged testimony. (People v. Partida, supra, 37 Cal.4th at p. 439; People v. Marks, supra, 31 Cal.4th at pp. 226-227.)
X. There Was No Cumulative Error
Defendant contends that the instructional and evidentiary errors he raises on appeal combined to deprive him of a fair trial. The cumulative effect of these errors, defendant asserts, was not harmless beyond a reasonable doubt and mandates reversal. Because we reject or find harmless each of defendant’s contended errors, there is no cumulative prejudicial effect justifying reversal.
DISPOSITION
The judgment is affirmed.
We concur: ARMSTRONG, Acting P. J.KRIEGLER, J.
“[¶]... [¶]
“(c)(1) Any person who commits an act described in subdivision (a) with the intent described in that subdivision, and the victim is a child of 14 or 15 years, and that person is at least 10 years older than the child, is guilty of a public offense and shall be punished by imprisonment in the state prison for one, two, or three years, or by imprisonment in a county jail for not more than one year. In determining whether the person is at least 10 years older than the child, the difference in age shall be measured from the birth date of the person to the birth date of the child.”
“The fact that a criminal charge had been filed against the defendant is not evidence that the charge is true. You must not be biased against the defendant just because he has been arrested, charged with a crime, or brought to trial.
“A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt.
“Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt.
“In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.”
“The defendant may not be convicted of any crime based on (his/her) out-of-court statement[s] alone. You may only rely on the defendant's out-of-court statements to convict (him/her) if you conclude that other evidence shows that the charged crime [or a lesser included offense] was committed.
“That other evidence may be slight and need only be enough to support a reasonable inference that a crime was committed.
“The identity of the person who committed the crime [and the degree of the crime] may be proved by the defendant's statement[s] alone.
“You may not convict the defendant unless the People have proved (his/her) guilt beyond a reasonable doubt.”