Opinion
A113032
5-1-2007
THE PEOPLE, Plaintiff and Respondent, v. DOUGLAS A. DIAZ, Defendant and Appellant.
NOT TO BE PUBLISHED
Defendant Douglas A. Diaz appeals his conviction by jury trial of committing a lewd act upon a child under age 14 (Pen. Code, § 288, subd. (a)). He contends the court erred in instructing the jury with CALJIC No. 10.43, and in instructing the jury with a redacted version of CALJIC No. 2.71. We reject the contentions and affirm.
BACKGROUND
In February 2004, the eight-year-old victim lived with her parents and siblings at Travis Air Force Base. She generally walked to and from school, which was about five blocks from home. Most of the time the victim walked home from school with a friend. Often, while walking home from school, the victim would see defendant, who was picking up his granddaughter at school, and they would exchange greetings.
On one occasion, in mid-February, defendant called the victim over to an area behind the fence of a vacant house next to the victims house. Defendant kissed her twice on the mouth, tickled her stomach and put his hand inside her underwear for about three seconds. When he removed his hand he told her not to tell her parents. After the incident the victim had trouble sleeping. Eventually she told her mother what defendant had done and her mother called the police. The victim appeared to deny that defendant had committed other lewd acts with her.
On March 23, 2004, Air Force Special Agent Kenneth James had conducted a videotaped interview of the victim, which was played for the jury. During the interview the victim told James that defendant kissed her and touched her "private area" under her pants. She also said he kissed her and touched her on more than one occasion. Subsequently, in a "show-up" James arranged, the victim identified defendant as the man who molested her.
The Defense
Testifying in his own defense, defendant denied engaging in any inappropriate behavior with the victim. He said that on a rainy afternoon in mid-February, while waiting at a bus stop for his young granddaughter, his arthritis caused him to lose his balance and he grabbed onto the victim who was walking nearby. Defendant said the victim seemed "shocked." He apologized to her and walked off toward his granddaughter.
DISCUSSION
I. The Jury Was Properly Instructed With CALJIC No. 10.43
Over defendants objection, the court instructed the jury pursuant to CALJIC No. 10.43: "Evidence has been introduced for the purpose of showing lewd or lascivious acts between the defendant and the alleged victim on one or more occasions other than that charged in this case. [¶] If you believe this evidence, you may use it only for the limited purpose of tending to show the defendants lewd dispositions or intent toward the child. [¶] You must not consider that evidence for any other purpose."
Defendant contends that because conflicting testimony was presented as to whether the victim claimed he molested her on one or more than one occasion, the instructions admonition that the jury not consider the uncharged acts evidence for any purpose other than to show defendants lewd disposition or intent prevented the jury from considering the uncharged evidence to evaluate the victims credibility. He concedes that the jury was instructed as to credibility with CALJIC Nos. 2.13 (Prior Consistent or Inconsistent Statements as Evidence), 2.20 (Believability of Witness), 2.20.1 (Evaluation of Testimony of Child 10 Years of Age or Younger), 2.21.1 (Discrepancies in Testimony), 2.21.2 (Witness Willfully False), and 2.22 (Weighing Conflicting Testimony). However, he argues it is reasonably probable the jury concluded that the "restriction" in CALJIC No. 10.43 constituted an exception to the rule in CALJIC No. 2.13 that inconsistent prior statements could be considered for the purpose of testing witness credibility.
Preliminarily, the People contend defendant waived the instructional error claim by failing to object to the instruction given at trial. The record establishes that when the court and counsel first discussed the prosecutors request for CALJIC No. 10.43, defense counsel stated he did not think the instruction applied and the court stated it would take the matter under submission. At a later conference on CALJIC No. 10.43, the court stated the instruction was appropriate and would be given. Assuming arguendo, that defense counsels objection below was sufficient to avoid waiver of the instructional error claim on appeal and to forestall an incompetence of counsel claim, we review the claim on the merits.
"The proper test for judging the adequacy of instructions is to decide whether the trial court `fully and fairly instructed on the applicable law . . . . [Citation.] ` "In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole . . . [and] assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given. [Citation.] [Citation.]" (People v. Martin (2000) 78 Cal.App.4th 1107, 1111.) Moreover, the jury is presumed to have followed the courts instructions. (People v. Harris (1994) 9 Cal.4th 407, 426.)
CALJIC No. 10.43 is consistent with Evidence Code section 1101, subdivision (b), which permits the prosecutor to introduce evidence of a defendants prior offenses to establish a fact, such as the defendants intent. In the context of this case, the instruction limits the jurys use of the victims taped statement regarding uncharged lewd acts by defendant if, but only if, the jury believes such acts occurred. Nothing in the wording of CALJIC No. 10.43 limits the use of the victims claim, in her interview with Special Agent James, of uncharged lewd acts by defendant if the jury disbelieved it; specifically, nothing in CALJIC No. 10.43 precluded the jury from considering and following the instructions given relating to credibility of witnesses and the consistency and/or inconsistency of witness statements. In fact, in closing argument, defense counsel argued the jury should treat the victims claim as lies. Because the jury was instructed to consider the instructions as a whole, we are entitled to presume that the jury followed CALJIC No. 2.13, which permitted it to consider any inconsistency between the victims testimony and her statements to Special Agent James.
II. CALJIC No. 2.71
Defendant also contends the court erred in instructing the jury with the following redacted version of CALJIC No. 2.71: "An admission is a statement made by the defendant which does not by itself acknowledge his guilt of the crime for which the defendant is on trial, but which statement tends to prove his guilt when considered with the rest of the evidence. [¶] You are the exclusive judges as to whether the defendant made an admission, and if so, whether that statement is true in whole or in part."
Defendant contends the court erroneously neglected to instruct the jury with the final paragraph of CALJIC No. 2.71, which provides: "Evidence of an oral admission of [a] [the] defendant not made in court should be viewed with caution." (CALJIC No. 2.71 (Fall 2006 ed.) p. 90.) He contends that the instruction was compelled by the conflicting testimony by the victim that defendant told her not to tell her parents and by defendant that he made no such statement.
The purpose of the cautionary instruction is to assist the jury in determining if the defendants statement was in fact made. (People v. Padilla (1995) 11 Cal.4th 891, 922, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) The People concede the court had a sua sponte duty to instruct the jury with CALJIC No. 2.71, in its entirety, but contend the courts failure to do so is harmless. (See People v. Carpenter (1997) 15 Cal.4th 312, 392 [failure to give cautionary instruction subject to state harmless error standard]; People v. Watson (1956) 46 Cal.2d 818.) Thus, we consider "whether it is reasonably probable the jury would have reached a result more favorable to defendant had the [complete] instruction been given. [Citation.]" (Carpenter, at p. 393; People v. Quach (2004) 116 Cal.App.4th 294, 299.)
Having reviewed the entire record, we conclude the instructional error is harmless. In Quach, there was a conflict between the testimony of police officers as to what the defendant told them and the defendants own testimony. (People v. Quach, supra, 116 Cal.App.4th at pp. 298-299.) On appeal, the defendant asserted that given the conflicting statements the court erred in failing to instruct the jury with CALJIC No. 2.71. The Court of Appeal concluded the error was harmless because the jury was apprised of the conflict in the testimony regarding the defendants oral admissions, heard the defendants own testimony on the matter and was instructed pursuant to CALJIC No. 2.27 that although the testimony of a single witness is sufficient to prove a fact, the jury should carefully review all the evidence upon which the proof of that fact depends. (Quach, at pp. 298-300.)
We conclude the Quach analysis applies here. The jury heard both the victims testimony as to defendants purported statement and defendants own testimony denying such a statement. It was also instructed pursuant to CALJIC No. 2.27: "You should give the testimony of a single witness whatever weight you think it deserves. Testimony concerning any fact by one witness, which you believe, is sufficient for the proof of that fact. You should carefully review all the evidence upon which the proof of that fact depends." In addition, as noted previously, the jury was instructed on discrepancies in testimony and weighing conflicting testimony.
In essence, the jury had to determine whether the testimony of defendant or the victim was more credible as to whether defendant made the statement recited by the victim. Given the direction to the jury that it should carefully review the evidence, it is not reasonably probable that instructing the jury with the omitted paragraph of CALJIC No. 2.71 would have changed the outcome of the trial. Consequently, the instructional error is harmless.
DISPOSITION
The judgment is affirmed.
We concur.
GEMELLO, J.
NEEDHAM, J.