Opinion
C082620
08-31-2018
THE PEOPLE, Plaintiff and Respondent, v. NICKY WAYNE BOONE, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15F6739)
Defendant Nicky Wayne Boone sexually abused two of his brother's stepsons, J.M. and J.B. He was convicted by jury of three counts of oral copulation with a child who is 10 years of age or younger (Pen. Code, § 288.7, subd. (b)), three counts of committing a lewd or lascivious act on a child who is under the age of 14 years (id., § 288, subd. (a)), and one count of possession of child pornography (id., § 311.11, subd. (a)). With respect to the counts of lewd or lascivious conduct, the jury also found multiple victim special allegations to be true. (Id., § 667.61, subd. (b).) In a bifurcated hearing, defendant admitted he was previously convicted of a serious felony offense, i.e., rape of an unconscious person. (Id., §§ 1170.12, 1192.7, subd. (c)(3).) The trial court sentenced him to serve an aggregate determinate prison term of six years eight months consecutive to an aggregate indeterminate term of 90 years to life and imposed other orders.
On appeal, defendant contends: (1) the evidence is insufficient to support his conviction for possession of child pornography; (2) the trial court prejudicially erred and violated his federal constitutional rights by (A) admitting evidence of two uncharged sexual offenses and (B) preventing defense counsel from engaging in certain cross-examination of a prosecution witness, Shannon Rawlins, a fellow jail inmate who was soon to be released and whom defendant asked to dissuade two of his jurors from voting to convict; (3) the trial court prejudicially erred by instructing the jury with CALCRIM No. 357 regarding adoptive admissions; and (4) the abstract of judgment contains a clerical error that must be corrected.
We affirm. The evidence establishing defendant knowingly possessed child pornography was overwhelming. Evidence of uncharged sexual offenses was properly admitted under Evidence Code section 1108. And because the probative value of this evidence was not substantially outweighed by the danger of undue prejudice, or any other statutory counterweight contained in section 352, we also conclude admission of the evidence did not violate defendant's federal constitutional rights. Nor did the reasonable limitations placed on defense counsel's cross-examination of Rawlins amount to an abuse of discretion or violation of defendant's constitutional rights. Defendant's challenge to CALCRIM No. 357 is both forfeited and without merit. We do, however, agree the abstract of judgment must be corrected and direct the trial court to do so.
Undesignated statutory references are to the Evidence Code.
FACTS
Between February and August 2015, defendant lived on and off with his brother, his brother's wife, and her four children. During this time period, defendant sexually abused two of these children, J.M. and J.B., who were eight and five years old, respectively. J.M. testified to the details of one of these incidents. As the boy explained, he periodically went into defendant's room to play a car racing video game on defendant's cell phone. On one of these occasions, defendant was in his closet using a small torch while J.M. was playing the game on defendant's bed. By the time defendant came out of the closet, J.M. had transitioned his game playing to the floor next to the bed. Defendant walked over to J.M., who was in a kneeling position, pulled out his penis, and using his hand to hold onto the top of J.M.'s head, tried to put his penis in the boy's mouth. According to J.M., defendant's penis touched his mouth on this occasion, but did not go inside. The boy ran out of the room.
As we explain more fully later, defendant was using the torch to make a glass pipe.
J.M. testified similar incidents occurred more than four times. When shown a thumbnail image recovered from defendant's cell phone, J.M. identified himself in the image. We have reviewed the image, and while the resolution is low, it clearly depicts a young boy, eyes closed, with something in his mouth. J.M. identified that something as defendant's penis and testified he believed defendant's penis was placed in his mouth on more than one occasion. J.M. did not tell anyone about the abuse because he "felt like [he] did something wrong" and "thought [he would] get in trouble" if he told anyone.
The abuse came to light when defendant's cousin stayed at the house for a short period of time during the summer of 2015. The cousin borrowed defendant's cell phone and discovered a video of defendant sexually abusing both J.M. and J.B. As the cousin described the contents of the video during his trial testimony, J.B. briefly orally copulated defendant and then J.M. did the same. The boys then got onto defendant's bed, at which point the cousin stopped the video. He gave the phone back to defendant without saying anything about having seen the video and left the house. The cousin did not call the police because he wanted to tell defendant's brother and "let him make the decision of how he wanted to handle it." This disclosure, however, was not made for over a month. As the cousin explained, because watching the video brought back memories of sexual abuse he witnessed as a child, he "stayed pretty numb," i.e., under the influence of alcohol and sometimes opioid pain medication, during the intervening time period. The cousin eventually informed defendant's brother via text message, providing a description of the video largely consistent with his trial testimony, but also alleging defendant and J.M. engaged in anal intercourse in the video. While this allegation was repeated when the cousin was later interviewed by a detective, the cousin claimed at trial that he "exaggerated" the video's contents when he spoke to the detective because he was "very upset" and under the influence of alcohol and amphetamines.
Defendant's cell phone actually belonged to his brother, who turned it over to law enforcement authorities after learning about the abuse. In the meantime, the phone's microSD card had been removed. That card, the phone's memory storage device, was never recovered. The contents of the phone itself were downloaded by a forensic technician. While the video described by the cousin was not among these contents, the thumbnail image depicting J.M. with defendant's penis in his mouth was.
Defendant was interviewed by the same detective who interviewed the cousin. We need not recount the contents of the interview in any detail. For our purposes, it will suffice to note the following. When defendant was shown the thumbnail image described above, he said the person in the image "kinda looks like my nephew [J.M.]" After agreeing with the detective's statement that it looked like J.M. had "something in his mouth," defendant added it was "fuckin' disgusting." Throughout the interview, defendant repeatedly claimed he could not remember sexually abusing J.M. or J.B. Regarding the specific incident to which J.M. testified, defendant corroborated the boy's testimony concerning him using a torch in his closet, clarifying that he used the torch to make a glass pipe to smoke OxyContin, an opioid pain medication. Defendant claimed he smoked 30 milligrams of the substance and his memory "goes blank after that."
After defendant's interview with the detective, while in the jail, defendant had a phone conversation with his mother, during which he asked her to go to his bedroom and "get rid of" everything in his "green box," including "phone cards." He acknowledged the call was being recorded, but said: "I don't care, it's just garbage." At some point after this call, defendant asked another inmate, Rawlins, who was scheduled to be released from the jail within a matter of weeks, to dissuade two of his jurors from voting to convict. The plan was for Rawlins to contact defendant's mother upon his release and defendant's father would provide him with the jurors' identities. Defendant also wanted Rawlins to ask his mother whether "she's gotten rid of the SD cards," explaining the cards contained "stuff that would be bad to his case" and adding that he made "bad choices." Rawlins had this conversation with defendant's mother, but never followed through on the plan to dissuade any jurors.
In a second jailhouse call to his mother, defendant said the thumbnail image the detective showed him "looked like [J.M.] suckin' on somethin'[,]" but that he could not be identified in the image. His mother responded: "They have to - they have to prove that - out of reasonable doubt - that that is you in that picture. And as long as you pretend you're innocent . . ." Defendant interrupted: "What if it was? What if I was passed out on the Seroquel then took the picture?" At some point, defendant asked a different inmate at the jail, LeRoy Gibbs, to testify on his behalf and say he knew defendant's nephew "gave him medication unwillingly in his drink or something," specifically Seroquel. Gibbs refused.
Finally, the prosecution presented evidence of two uncharged sexual offenses committed by defendant. The first was a 2003 rape committed against defendant's brother's former wife. The second was forcible oral copulation and sodomy committed against Gibbs at the jail after the latter refused to testify on defendant's behalf. We describe these offenses in greater detail in the discussion portion of the opinion, to which we now turn.
DISCUSSION
I
Sufficiency of the Evidence
Defendant contends the evidence is insufficient to support his conviction for possession of child pornography. He is mistaken.
" 'To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citations.]" (People v. Wallace (2008) 44 Cal.4th 1032, 1077; Jackson v. Virginia (1979) 443 U.S. 307, 317-320 [61 L.Ed.2d 560, 572-574].) "In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.]" (People v. Young (2005) 34 Cal.4th 1149, 1181.)
In order to convict defendant of possession of child pornography, the prosecution was required to prove he: (1) knowingly possessed or controlled; (2) any matter, representation of information, data, or image; (3) the production of which involved the use of a person under 18 years of age; (4) knowing the matter depicts a person under 18 years of age personally engaging in or simulating sexual conduct. (Pen. Code, § 311.11, subd. (a).)
These elements were overwhelmingly proved in this case. Taking them out of order, J.M. identified himself in the thumbnail image recovered from defendant's cell phone and testified defendant's penis was in his mouth in the image. Oral copulation is "sexual conduct" within the meaning of the child pornography statutes. (Pen. Code, § 311.4, subd. (d)(1).) J.M. was eight years old at the time the image was taken. Thus, the production of the image involved use of a person under 18 years of age and the image depicts that person engaging in sexual conduct. And while the image itself does not clearly show that sexual conduct, because defendant was the one engaging in the conduct with the boy when the picture was taken, there can be no doubt he knew that was what the image depicted. Indeed, when the detective showed him the image during his interview, defendant said it was "fuckin' disgusting." Finally, because J.M. testified only he and defendant were in the room when the act depicted occurred and denied taking the picture himself, a reasonable inference arises that defendant took the picture. This inference is corroborated by the angle of the shot. Thus, there can also be no doubt defendant knew he possessed the image on his cell phone since he was the one who took it. Moreover, defendant's knowledge in this regard is further supported by his jailhouse phone call to his mother asking her to dispose of phone cards in his bedroom and subsequent statements to Rawlins explaining the cards contained "stuff that would be bad to his case."
The evidence was more than sufficient to support defendant's possession of child pornography conviction.
II
Claimed Evidentiary Errors
Defendant also claims the trial court prejudicially erred and violated his federal constitutional rights by (A) admitting evidence of two uncharged sexual offenses and (B) preventing defense counsel from engaging in certain cross-examination of Rawlins. We address and reject each evidentiary claim in turn.
A.
Admission of Uncharged Sexual Offense Evidence
The first uncharged sexual offense admitted into evidence was a 2003 rape committed against defendant's brother's former wife. The officer who interviewed defendant regarding that crime testified defendant admitted knowing the victim but claimed he was "extremely intoxicated the night of the incident" and "once he arrived home, he could not remember any details of the rest of the evening." The second uncharged sexual offense was committed after defendant was arrested for the charged crimes. As we have already described, defendant and another inmate, Gibbs, were briefly housed together in the jail's medical unit. After Gibbs refused to testify on defendant's behalf, defendant became upset. Later that night, Gibbs took anti-seizure medication, which made him "really sleepy," and fell asleep. He awoke to find defendant putting his penis in his mouth. While holding Gibbs's mouth open with one of his hands, defendant said, "this is what you get when you tell me no." Gibbs tried to get away from defendant, but defendant was able to turn him over on the bed, pull his pants down, and insert his penis into Gibbs's anus. As Gibbs explained, the medication made it difficult for him to prevent the assault.
Defendant moved in limine to exclude the foregoing evidence, arguing, "there are no significant similarities between the prior offense[s] and the charged offense" and the probative value was substantially outweighed by the danger of undue prejudice. The trial court ruled the evidence was admissible under sections 1108 and 1101, subdivision (b), and "the probative value far outweighs the prejudicial effect and certainly justifies allowing that evidence to come in" under section 352. Defendant argues this determination was an abuse of discretion and violated his federal constitutional right to due process. We disagree.
With certain exceptions, "evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion." (§ 1101, subd. (a).) One such exception is found in section 1108, which provides: "In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352." (§ 1108, subd. (a).) "Section 1108 permits ' " 'consideration of . . . other sexual offenses as evidence of the defendant's disposition to commit such crimes, and for its bearing on the probability or improbability that the defendant has been falsely or mistakenly accused of such an offense.' " ' [Citation.] As this court has previously observed, ' "[i]n enacting . . . section 1108, the Legislature decided evidence of uncharged sexual offenses is so uniquely probative in sex crimes prosecutions it is presumed admissible without regard to the limitations of . . . section 1101." [Citation.]' [Citations.]" (People v. Holford (2012) 203 Cal.App.4th 155, 182.) This provision is, however, expressly subject to the limitations of section 352. (§ 1108, subd. (a).) Indeed, "section 1108 passes constitutional muster if and only if section 352 preserves the accused's right to be tried for the current offense. 'A concomitant of the presumption of innocence is that a defendant must be tried for what he [or she] did, not for who he [or she] is.' [Citations.]" (People v. Harris (1998) 60 Cal.App.4th 727, 737, italics added.)
Here, defendant was accused of several sexual offenses and the prosecution sought to introduce evidence of two other sexual offenses committed by him. Such evidence was therefore admissible under section 1108 unless inadmissible under section 352. Defendant does not appear to argue otherwise, but rather asserts section 352 and his constitutional right to due process required exclusion of the evidence because significant factual differences between the charged offenses and the uncharged offenses rendered evidence of the uncharged offenses insufficiently probative when weighed against the substantial danger of undue prejudice admission of the evidence entailed. We are not persuaded.
Because we conclude the uncharged crimes evidence was admissible under section 1108 for purposes of proving propensity to commit the charged crimes, we need not determine whether the evidence was also admissible under section 1101, subdivision (b), for the more limited purposes of proving defendant's intent or absence of mistake. (See People v. Branch (2001) 91 Cal.App.4th 274, 280-281 ["Because the court found the testimony admissible under both sections, we would only find error in its admission if the testimony were inadmissible under both"].) Nor does defendant appear to argue the evidence was inadmissible under section 1101, subdivision (b), but rather confines his argument to section 352 and his right to due process.
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 begin by observing "that ' "[t]he prejudice which exclusion of evidence under . . . section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. '[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant's case. The stronger the evidence, the more it is "prejudicial." The "prejudice" referred to in . . . section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues.' " [Citations.]' [Citation.]" (People v. Holford, supra, 203 Cal.App.4th at p. 167.) Moreover, "[e]vidence is not inadmissible under section 352 unless the probative value is 'substantially' outweighed by the probability of a 'substantial danger' of undue prejudice or other statutory counterweights." (Ibid.)
Here, while the victims in the uncharged offenses were adults and the charged offenses were committed against children, the uncharged offenses were nevertheless highly probative of defendant's propensity to sexually assault vulnerable victims. Defendant's brother's former wife was apparently unconscious when defendant raped her in 2003. Gibbs was medicated when defendant sexually assaulted him in the jail's medical unit. In both attacks, defendant took advantage of their vulnerable condition in order to gratify himself sexually. In the charged offenses, defendant similarly took advantage of highly vulnerable victims, young children who considered him their uncle, for purposes of sexual gratification. Nor does the fact that 12 years separated the 2003 rape and the charged offenses render that prior crime too remote to have significant probative value. (See, e.g., People v. Ewoldt (1994) 7 Cal.4th 380, 405 [12-year gap did not "significantly lessen the probative value" of the uncharged crime].) Weighed against this high level of probative value is the inevitable prejudice flowing from the admission of prior crimes evidence. However, we cannot conclude the nature of the uncharged crimes was "more inflammatory than the charged offenses." (People v. Branch, supra, 91 Cal.App.4th at p. 283.) Indeed, we conclude the very dissimilarity defendant uses to argue diminished probative value, i.e., the fact the victims in the uncharged offenses were adults, renders the charged offenses more inflammatory in nature. At the very least, the prejudice flowing from these uncharged crimes does not substantially outweigh that evidence's significant probative value.
While this fact was not brought out during trial, it was part of the prosecution's offer of proof.
The trial court did not abuse its discretion under section 352 in allowing admission of the challenged uncharged crimes evidence. Having so concluded, "we must also reject defendant's argument that he was deprived of his constitutional right to a fair trial. ' "The admission of relevant evidence will not offend due process unless the evidence is so prejudicial as to render the defendant's trial fundamentally unfair." ' [Citations.]" (People v. Holford, supra, 203 Cal.App.4th at p. 180.) As in People v. Branch, supra, 91 Cal.App.4th 274, "it is unlikely that the jury would have been so prejudiced against [defendant] as a consequence of [the uncharged offenses] that he was denied a fair trial." (Id. at pp. 283-284.)
In People v. Harris, supra, 60 Cal.App.4th 727, we also balanced the probative value of the evidence against the possibility of confusion of the issues and the amount of time involved in introducing and refuting the evidence of uncharged offenses. (Id. at pp. 737-741.) Here, however, defendant's appellate briefing does not address these section 352 statutory counterweights. We therefore consider forfeited any argument that they substantially outweigh the probative value of the evidence.
B.
Limitations on Cross-Examination
While in the jail, defendant asked another inmate, Rawlins, who was scheduled to be released within a matter of weeks, to dissuade two of his jurors from voting to convict. As we explained previously, Rawlins testified defendant told him to contact defendant's mother when he was released and defendant's father would provide him with the jurors' identities. Defendant also told Rawlins to ask his mother whether "she's gotten rid of the SD cards," explaining the cards contained "stuff that would be bad to his case." Relevant to this claim on appeal, Rawlins also testified he did not know what defendant was in custody for, but he knew defendant was lying when he said he was "accused of murder." Rawlins further testified he was "snitching" by testifying against defendant, and by doing so placed himself in danger of being violently assaulted. When defense counsel asked whether defendant had ever threatened him, Rawlins answered: "No."
After Rawlins finished testifying, defense counsel explained for the record there had been two unreported bench conferences during that testimony. In the first bench conference, defense counsel "requested permission to go into the fact that Rawlins was housed in 1-B in the jail," i.e., "a location within the jail reserved for sex offenders." Counsel argued that was "relevant to show [Rawlins] was well aware of what [defendant] was charged with" and was therefore "being dishonest on the stand." In the second bench conference, counsel sought to elicit from Rawlins that he and defendant were transported to court together and defendant "took no steps whatsoever to assault him or threaten him in any manner." The trial court disallowed the first line of questioning and limited the second under section 352. With respect to the first, after the prosecutor clarified that placement in 1-B did not require pending sexual offense charges, the trial court explained it "didn't think a discussion of why people are placed into pod 1-B was sufficiently probative to be of any use to the jury and potentially only confusing." The court also explained, "other witnesses [would have to] come in and testify about that and that would be far from what I would deem sufficiently probative." With respect to the second, the court explained it did not "entirely deny that request," but instead allowed defense counsel to ask generally whether defendant had ever threatened Rawlins, and denied the request only to the extent that the proposed line of questioning would have revealed defendant's "current custodial status" to the jury, noting, "it would be potentially damaging to the defendant for the jury to know that he's being transported back and forth from the jail."
Defendant argues, "[e]xcluding this relevant cross-examination pertaining to the credibility of a critical witness constituted a prejudicially erroneous abuse of discretion." Not so. While " '[c]ross-examination to test the credibility of a prosecuting witness in a criminal case should be given wide latitude' [citation], such latitude does not 'prevent the trial court from imposing reasonable limits on defense counsel's inquiry based on concerns about harassment, confusion of the issues, or relevance' [citations]." (People v. Brown (2003) 31 Cal.4th 518, 545.)
The excluded evidence had marginal impeachment value at best. Rawlins testified he did not know what defendant was charged with, but knew he was lying about facing murder charges. The fact that Rawlins and defendant were housed in the jail's protective unit does not undermine this testimony. Indeed, it may well have supported it. It is entirely possible defendant's 1-B placement was what caused Rawlins to disbelieve defendant was charged with murder. At the same time, however, that placement alone would not have informed Rawlins as to the specific charges pending against defendant. And to the extent the jury was given the misleading impression that it did, the prosecutor would have been required to call another witness to clear up the fact that 1-B placement does not require current sexual offense charges. While such testimony would likely have been brief, we cannot conclude the trial court abused its discretion in determining the likelihood of confusion and undue time consumption substantially outweighed the marginal impeachment value of the evidence. Turning to the second proposed line of cross-examination, defense counsel was allowed to ask whether defendant had ever threatened Rawlins. The only limitation on the line of questioning was protective of defendant's right to have his custodial status shielded from the jury. We conclude this limitation was eminently reasonable and did not amount to an abuse of discretion.
Moreover, neither limitation implicated defendant's federal constitutional rights. "[R]eliance on . . . section 352 to exclude evidence of marginal impeachment value that would entail the undue consumption of time generally does not contravene a defendant's constitutional rights to confrontation and cross-examination." (People v. Brown, supra, 31 Cal.4th at p. 545; see also Delaware v. Van Arsdall (1986) 475 U.S. 673, 679 ["trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant"].) The marginal probative value of the evidence is also fatal to defendant's due process argument. (See People v. Marshall (1996) 13 Cal.4th 799, 836 [while "a criminal defendant is constitutionally entitled to present all relevant evidence of significant probative value in his [or her] favor, . . . the proffered evidence must have more than slight relevancy"].)
The reasonable limitations imposed upon defense counsel's cross-examination of Rawlins constituted neither an abuse of discretion nor a violation of defendant's federal constitutional rights.
III
Asserted Instructional Error
Defendant further asserts the trial court prejudicially erred by instructing the jury with CALCRIM No. 357 regarding adoptive admissions. Defendant did not object to this instruction at trial. "Failure to object to instructional error forfeits the issue on appeal unless the error affects defendant's substantial rights. [Citations.] The question is whether the error resulted in a miscarriage of justice under People v. Watson (1956) 46 Cal.2d 818, 299 P.2d 243. [Citation.]" (People v. Anderson (2007) 152 Cal.App.4th 919, 927.) We conclude there was no error, much less a miscarriage of justice.
As delivered to the jury in this case, CALCRIM No. 357 provides: "If you conclude that someone made a statement outside of court that accused the defendant of the crime or tended to connect the defendant with the commission of the crime and the defendant did not deny it, you must decide whether each of the following is true:
"One, the statement was made to the defendant or made in his presence. Two, the defendant heard and understood the statement. Three, the defendant would under all the circumstances naturally have denied the statement if he thought it was not true. And four, the defendant could have denied it, but did not.
"If you decide that all of these requirements have been met, you may conclude that the defendant admitted the statement was true. If you decide that any of these requirements has not been met, you must not consider either the statement or the defendant's response for any purpose."
Defendant argues this instruction was not supported by the evidence. He is mistaken. Under section 1221, " '[e]vidence of a statement offered against a party is not made inadmissible by the hearsay rule if the statement is one of which the party, with knowledge of the content thereof, has by words or other conduct manifested his [or her] adoption or . . . belief in its truth.' [Citation.] The statute contemplates either explicit acceptance of another's statement or acquiescence in its truth by silence or equivocal or evasive conduct." (People v. Combs (2004) 34 Cal.4th 821, 842-843, italics added.) "Admissibility of an adoptive admission is appropriate when ' "a person is accused of having committed a crime, under circumstances which fairly afford him [or her] an opportunity to hear, understand, and to reply, and which do not lend themselves to an inference that he [or she] was relying on the right of silence guaranteed by the Fifth Amendment to the United States Constitution. . . ." ' [Citation.]" (Id. at p. 843.)
Here, the detective who interviewed defendant repeatedly accused him of sexually abusing J.M. and J.B. Defendant did not invoke his right to remain silent and instead chose to answer the detective's questions, providing equivocal and evasive answers in response to these repeated and direct accusations. In response to one such accusation, defendant stated: "I do not - I mean, either way, if I, you know, I - I don't - I don't remember. I really don't. I - I don't know that I really don't remember none of this." (Italics added.) In response to another, defendant said: "I don't remember, like, any of this. I really don't. And if - if it did happen, then, fuckin', take me the fuckin' outta here and put a bullet in my head because I fuckin' - that's not me." (Italics added.) He then added: "I do not fuckin' remember at all and - and that honest to God's truth. I mean, this - and - and if it did happen, then that's what I mean, take - take me the fuck outta here, or let me do somethin' stupid when one of you gotta shoot me in the head, because I was fuckin' stupid." (Italics added.) A short time later, when asked how he felt about J.M. having told the detective about the abuse, defendant answered: "If - if it did happen, then I'm grateful that he did and he was honest and he came through. And I'm not upset with him, I'm not upset with anything, but I truly don't remember this." (Italics added.) The detective then confronted defendant with the text message the cousin sent to defendant's brother, accusing defendant of both oral copulation and anal intercourse, defendant claimed he only saw that cousin "for maybe fuckin' 10 minutes" when he stayed at the house and "never let him borrow shit," referring to his cell phone. Defendant then accused the cousin of bringing drugs into the house. These are not denials. They are equivocal and evasive non-denials.
We conclude the jury reasonably could have concluded that defendant, under the circumstances, would naturally have denied these accusations if he thought they were untrue. CALCRIM No. 357 was adequately supported by the record.
IV
Correction of the Abstract of Judgment
We do, however, agree the abstract of judgment contains a clerical error that must be corrected. At sentencing, the trial court awarded defendant credit for 304 days of actual presentence custody plus 45 days of conduct credit, for a total of 349 days of custody credit. The abstract of judgment incorrectly reflects only 39 days of conduct credit, rather than the 45 days awarded. Where there is a discrepancy between the oral pronouncement of judgment and the abstract of judgment, the oral pronouncement controls. (People v. Mitchell (2001) 26 Cal.4th 181, 185-186; People v. Mesa (1975) 14 Cal.3d 466, 471.) We shall therefore remand the matter to the trial court with directions to correct the abstract of judgment to conform to the oral pronouncement of judgment.
DISPOSITION
The judgment is affirmed. The trial court is directed to correct the abstract of judgment to accurately reflect defendant was awarded 45 days of conduct credit. A certified copy of the corrected abstract of judgment shall be forwarded to the Department of Corrections and Rehabilitation.
/s/_________
HOCH, J. We concur: /s/_________
BLEASE, Acting P. J. /s/_________
MURRAY, J.