Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F06652.
NICHOLSON, J.
Convicted by jury of numerous counts of molesting A.C. and sentenced to 68 years in state prison, defendant appeals. He contends that (1) an incorrect pronoun in the instruction concerning expert testimony on child sexual abuse accommodation syndrome was prejudicial, (2) CALCRIM Nos. 220 and 222, prevented the jury from finding reasonable doubt based on a lack of evidence, and (3) the cumulative effect of the errors deprived him of a fair trial. We conclude that (1) the use of the incorrect pronoun was harmless, (2) the CALCRIM instructions do not misstate the reasonable doubt standard and did not mislead the jury, and (3) there was no prejudicial cumulative effect.
Further references to CALCRIM are to the Judicial Council of California Criminal Jury Instructions (2006-2007).
BACKGROUND
Defendant lived with his girlfriend, Erica, her daughter, A.C., and Erica’s two sons. While they were living together, defendant and Erica had a son.
When A.C. was seven years old, defendant went into A.C.’s bedroom one night while she was sleeping. She awakened while defendant was touching her chest and vagina. The next day, defendant took A.C. into his bedroom. He put a gun in A.C.’s mouth and told her that if she ever said anything about what happened, he would kill her, her mother, or one of her brothers.
After that, and for several years, defendant went into A.C.’s room almost every night or had her come into his room when Erica was gone. He touched A.C.’s chest and vagina, made her touch and rub his penis, and rubbed his penis between her buttocks. He also threatened her when she hesitated or objected. A.C. did not report the molestations because she was afraid of what defendant would do.
When a police officer and, on another occasion, Child Protective Services workers asked her, A.C. denied that defendant had molested her. Later, A.C. told a family friend.
With instructions from sheriff’s deputies, A.C. made two recorded telephone calls to defendant. During those conversations, A.C. asked why defendant had molested her. He apologized and said it was wrong and should never have happened. He said he did it because he was stupid. He was not getting along with Erica during that time. He said that he felt bad and asked her to forgive him.
At trial, defendant admitted that he touched A.C. inappropriately, but only once. He was under the influence of drugs and alcohol at the time.
The jury convicted defendant of two counts of lewd conduct on a child under 14 (Pen. Code, § 288, subd. (a)) and 10 counts of aggravated lewd conduct on a child under 14 (Pen. Code, § 288, subd. (b)(1)).
DISCUSSION
I
Credibility Instruction
An expert, Dr. Anthony Urquiza, testified at trial concerning child sexual abuse accommodation syndrome. The testimony was relevant to A.C.’s credibility because she denied to authorities that any sexual abuse had taken place and then reported the abuse later to a family friend. The trial court instructed the jury on how to use Dr. Urquiza’s testimony.
Defendant asserts that by using the word “his” instead of “her” in the instruction concerning Dr. Urquiza’s testimony, the trial court improperly directed the jury to use the testimony to evaluate defendant’s credibility rather than A.C.’s. He claims this violated his due process and fair trial rights.
Although we agree the trial court used the wrong pronoun in the jury instruction, we reject defendant’s argument that the error requires reversal because (A) it is not at all clear that the jury would have understood the instruction as referring to defendant’s credibility and (B) the error was harmless beyond a reasonable doubt.
The flawed instruction, given during the court’s final instructions to the jury, stated: “You have heard testimony from Dr. Urquiza. [¶] Dr. Urquiza’s testimony is not evidence that the defendant committed any of the crimes charged against him. [¶] You may consider this evidence only in deciding whether or not [A.C.’s] conduct was not inconsistent with the conduct of someone who has been molested, and in evaluating the believability of his testimony.” (Italics added.)
A. Pronominal Reference
It is apparent that the trial court should have used “her” instead of “his” in the last sentence of this instruction. The jury was to use Dr. Urquiza’s testimony on child sexual abuse accommodation syndrome to evaluate A.C.’s credibility. But we do not agree that the mistaken pronoun led the jury to evaluate defendant’s credibility using Dr. Urquiza’s testimony for two reasons: (1) it is more likely that “his” would refer back to Dr. Urquiza, not defendant, and (2) evaluating defendant’s credibility using Dr. Urquiza’s testimony would be illogical.
1. Reference
Defendant argues: “In the instruction given to the jury, the last male subject referred to was [defendant], and thus the pronoun ‘his’ refers to [defendant].” This rather simplistic view of the syntax is unconvincing. The pronominal reference was “his testimony.” The only other explicit use of the term “testimony” in the paragraph pertains to Dr. Urquiza’s testimony. Therefore, in context, it was more likely that the jury, if misled by the pronoun, connected the incorrect pronoun to Dr. Urquiza.
2. Logic
Furthermore, it would be illogical for the jury to apply Dr. Urquiza’s testimony to defendant’s testimony. The expert testimony was to the effect that there is a reason that children who are sexually abused initially deny that there has been any abuse. This can logically be applied only to whether A.C. was telling the truth in her later reporting of the abuse. It has no logical connection to whether defendant is being truthful.
B. Lack of Prejudice
Defendant contends that the mistaken pronoun violated his right to due process by lightening the prosecution’s burden of proving defendant’s guilt beyond a reasonable doubt. Therefore, he argues, we must apply the federal standard, asking whether the error was harmless beyond a reasonable doubt. (See Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711].) Even assuming, without deciding, that defendant is correct concerning the standard to be applied, we conclude the error was harmless.
It is unlikely the jury misused Dr. Urquiza’s testimony to evaluate defendant’s credibility. As noted, the only logical use for Dr. Urquiza’s testimony was to evaluate A.C.’s credibility. Immediately after Dr. Urquiza testified, the trial court instructed the jury concerning the proper use of his testimony: “Dr. Urquiza’s testimony is different from any other testimony you are going to hear in this case. The reason for that is that his testimony is limited purpose testimony. And that is different. The reason it’s different is that Dr. Urquiza’s testimony is not evidence that the Defendant committed any crimes that are charged against him. [¶] Instead, you may consider the evidence that Dr. Urquiza offered solely for the purpose of whether or not [A.C.’s] conduct in not reporting was not inconsistent with the conduct of someone who has been molested. And so, therefore, his testimony is solely for that purpose.” This instruction properly focused the jury’s attention, immediately after Dr. Urquiza testified, on A.C.’s credibility. We therefore conclude that the use of the incorrect pronoun in the later instruction was harmless beyond a reasonable doubt.
II
Instructions Concerning Evidence to be Considered
Defendant argues that the standard CALCRIM instructions concerning reasonable doubt and the definition of evidence prevented the jury from considering that a reasonable doubt could arise from an absence of evidence. We disagree.
The portion of CALCRIM No. 220 with which defendant finds fault is as follows: “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.” (Italics added.)
The portion of CALCRIM No. 222 with which defendant finds fault is as follows: “You must use only the evidence that was presented in this courtroom.”
As to CALCRIM No. 220, we recently rejected in People v. Guerrero (2007) 155 Cal.App.4th 1264 the same contention that defendant raises here. “Contrary to defendant’s suggestion, CALCRIM No. 220 instructs the jury to acquit in the absence of evidence. In addressing defendant’s claim, we consider whether a ‘reasonable juror would apply the instruction in the manner suggested by defendant.’ [Citation.] The jury is instructed to consider only the evidence, and to acquit unless the evidence proves defendant’s guilt beyond a reasonable doubt. If the government presents no evidence, then proof beyond a reasonable doubt is lacking, and a reasonable juror applying this instruction would acquit the defendant.” (People v. Guerrero, supra, supra, at pp. 1268-1269.)
Likewise, the argument that CALCRIM Nos. 220 and 222, combined, violated due process was rejected in People v. Flores (2007) 153 Cal.App.4th 1088, 1092-1093. (See also People v. Rios (2007) 151 Cal.App.4th 1154; People v. Westbrooks (2007) 151 Cal.App.4th 1500.)
Accordingly, defendant’s contention is without merit.
III
Cumulative Effect
Defendant argues that the cumulative effect of the asserted errors deprived him of due process and a fair trial. Having concluded that any error in giving the instruction concerning Dr. Urquiza’s testimony was harmless and that the other instructions were not erroneous, we conclude that there was no cumulative effect of errors and defendant’s due process and fair trial rights were not violated.
DISPOSITION
The judgment is affirmed.
We concur: BLEASE, Acting P.J., HULL, J.