Opinion
F060806 Super. Ct. No. 1219193
08-22-2011
THE PEOPLE,Plaintiff and Respondent, v. KENNETH JEFFERSON BURNS, Defendant and Appellant.
David Y. Stanley, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Barton Bowers, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from a judgment of the Superior Court of Stanislaus County. Ricardo Cordova, Judge.
David Y. Stanley, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Barton Bowers, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Kenneth Jefferson Burns was convicted of committing lewd acts on a child under age 14, lewd acts on a child age 14 or 15, and incest. On appeal, defendant contends the court erred in instructing the jury. We will affirm the judgment.
PROCEDURAL SUMMARY
In an information filed on September 24, 2007, the Stanislaus County District Attorney charged defendant in counts 1 and 2 with lewd acts on a child under age 14 (Pen. Code, § 288, subd. (a)), in counts 3 through 5 with lewd acts on a child age 14 or 15 (§ 288, subd. (c)(1)), and in counts 6 and 7 with incest (§ 285). On November 28, 2007, defendant pled not guilty to the charges.
Unless otherwise stated, all statutory references are to the Penal Code.
On May 19, 2009, a jury was impaneled. On May 26, 2009, the trial court denied defendant's motion for acquittal pursuant to section 1118.1. On May 28, 2009, the jury found defendant guilty as charged.
On July 20, 2009, the court denied defendant's application for probation. On count 1, the court imposed the middle term of six years. On count 2, the court imposed two years (one-third the middle term) to run consecutive to count 1. The court imposed eight months (one-third the midterm) for each offense in counts 3 through 7 to run consecutive to count 1. Defendant's total term was 11 years 4 months. He received 63 days for time served and statutory credit. The court imposed a $2,200 restitution fine pursuant to section 1202.4, subdivision (b). A second restitution fine of $2,200 was imposed but suspended pending defendant's successful completion of parole pursuant to section 1202.45.
FACTS
Defendant's daughter, K.B., was born in 1989. At the time of the trial, K.B. was 19 years old. Defendant often touched K.B. inappropriately. The first time that K.B. could recall, she was at defendant's store with her younger sister. K.B. and her sister were both school age at the time. Defendant took K.B. to the bathroom where "inappropriate things happened." He told her to lie on the floor, and then touched her breasts and vaginal area over her clothing. Defendant then told K.B. not to tell anyone.
Defendant molested K.B. on other occasions in his home. The molestations took place even when other people were present in the home. Other acts took place in hotel rooms or at the homes of defendant's friends and relatives. On one occasion, defendant tried to have sexual intercourse with K.B. in a hotel room.
K.B. did not want a sexual relationship with her father. She first disclosed the molestation to a school counselor at age 17 during her junior year in high school. She then told her friends, boyfriend, mother, and stepfather. K.B. reported the molestations to the police in November 2006. During their investigation of the case, K.B. placed a phone call to defendant. The jury heard the recording of the call. During the call, defendant told K.B., "it's not like we had sex [K.B.]" Two other witnesses testified that defendant had sexually assaulted them when they were girls. One testified that defendant had raped her twice. The other witness testified that on several occasions, defendant touched her inappropriately on her chest and buttocks when she was a girl.
The court instructed the jury pursuant to CALCRIM No. 1190 as follows: "Conviction of a sexual assault crime may be based on the testimony of a complaining witness alone." The jury was also instructed pursuant to CALCRIM No. 301 as follows: "The testimony of only one witness can prove any fact. Before you conclude that the testimony of one witness proves a fact, you should carefully review all the evidence."
DISCUSSION
Defendant asserts that the trial court's use of CALCRIM No. 1190 to instruct the jury constituted prejudicial error. He contends that when combined with CALCRIM No. 301, CALCRIM No. 1190 improperly lightened the prosecutor's burden of proof. We disagree.
The Supreme Court of California rejected defendant's very argument. The court stated, "Although the two instructions overlap to some extent, each has a different focus. CALJIC No. 2.27 focuses on how the jury should evaluate a fact (or at least a fact required to be established by the prosecution) proved solely by the testimony of a single witness. It is given with other instructions advising the jury how to engage in the fact- finding process. CALJIC No. 10.60, on the other hand, declares a substantive rule of law, that the testimony of the complaining witness need not be corroborated. It is given with other instructions on the legal elements of the charged crimes." (People v. Gammage (1992) 2 Cal.4th 693, 700-701.)
CALJIC No. 2.27 parallels CALCRIM No. 301, the instruction given in this case.
CALJIC No. 10.60 parallels CALCRIM No. 1190, the instruction given in this case.
"Because of this difference in focus of the instructions, we disagree with defendant ... that, in combination, the instructions create a preferential credibility standard for the complaining witness, or somehow suggest that that witness is entitled to a special deference. The one instruction merely suggests careful review when a fact depends on the testimony of one witness. The other tells the jury there is no legal corroboration requirement. Neither eviscerates or modifies the other. As we observed early in this century, 'There was no singling out of the testimony of the prosecuting witness with a view of giving it undue prominence before the jury.' [Citation.] Nor do the instructions 'dilute[] the "beyond a reasonable doubt" standard.' [Citation.] The instructions in combination are no less correct, and no less fair to both sides, than either is individually." (People v. Gammage, supra, 2 Cal.4th at p. 701.)
Defendant requests that we reconsider the decision in People v. Gammage, supra, 2 Cal.4th 693; however, we do not have the authority to do so. "The decisions of [the California Supreme Court] are binding upon and must be followed by all the state courts of California." (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
For the above reasons, we affirm the judgment.
DISPOSITION
The judgment is affirmed.
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Kane, J.
WE CONCUR:
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Gomes, Acting P.J.
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Franson, J.