Opinion
E051761
08-31-2011
THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO GARCIA, Defendant and Respondent.
Brett Harding Duxbury, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Peter Quon, Jr. and Kyle Niki Shaffer, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. RIF140493)
OPINION
APPEAL from the Superior Court of Riverside County. Larrie R. Brainard, Judge. (Retired judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Brett Harding Duxbury, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Peter Quon, Jr. and Kyle Niki Shaffer, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
A jury found defendant Francisco Garcia guilty as charged of one count of forcibly raping a child under the age of 14 and more than 10 years his junior (Pen. Code, former § 269, subd. (a)(1); § 261, subd. (a)(2); count 1) and eight counts of committing lewd and lascivious acts on a child under the age of 14 (§ 288, subd. (a); counts 2-9). All of the offenses, including the rape, were allegedly committed against defendant's stepgrandaughter, Jane Doe, between 1997 and 2005 when Jane was between the ages of 6 or 7 and 14. Defendant was sentenced to 35 years to life, and appeals.
All further statutory references are to the Penal Code unless otherwise indicated. Section 269 was amended in 2006 to apply to certain sex offenses, including rape, committed against a child under the age of 14 years and seven or more years younger than the defendant. (Stats. 2006, ch. 337, § 6, p. 2132 (Sen. No. 1128).) Prior to the amendment, when the rape charged in count 1 was allegedly committed, the statute applied to sex offenses committed against a child under the age of 14 years and 10 or more years younger than the defendant.
Defendant's 35-year-to-life sentence consisted of 15 years to life for the rape conviction in count 1, plus consecutive terms totaling 20 years for the lewd act convictions in counts 2 through 9.
Defendant raises three contentions. First, he claims that statements he made to a detective during an interview at the police station were erroneously admitted in violation of his Miranda rights. He argues he unequivocally invoked his right to silence by answering "no" after the detective advised him of his Miranda rights and asked him whether, having his rights in mind, he wished to waive his rights and speak with the detective. We conclude that defendant's "no" response was ambiguous under the circumstances, and that defendant waived his right to silence after the detective properly asked him to clarify whether he in fact wished to remain silent.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
Second, defendant claims that CALCRIM No. 1191 (Evidence of Uncharged Sex Offense), in combination with CALCRIM No. 3501 (Unanmity: When Generic Testimony of Offense Presented), effectively lowered the prosecution's burden of proof on the charged crimes to proof by a preponderance of the evidence. In light of Jane's testimony that he committed numerous acts of rape and lewd acts on her over a period of years, without distinguishing the uncharged offense from the charged offenses, defendant argues it is reasonably likely the jury failed to distinguish the charged crimes from the uncharged crimes, and convicted him of the charged crimes based on proof by a mere preponderance of the evidence—the same standard of proof that CALCRIM No. 1191 told the jury it could use to infer he had a propensity to commit the charged crimes. Defendant further argues that the unanimity instruction, CALCRIM No. 3501, also "invited" the jury to apply a preponderance of the evidence standard to the entirety of Jane's testimony, including the charged offenses.
We reject this claim because the jury was clearly and consistently instructed that the prosecution had the burden of proving each charged crime beyond a reasonable doubt. Furthermore, in arguing the case to the jury, the prosecution tied the charged crime of rape in count 1 and the lewd acts charged in counts 2 through 9 to specific acts testified to by Jane. Thus, the only "undifferentiated" charged crimes were the lewd acts charged in counts 3 through 9, and the unanimity instruction, CALCRIM No. 3501, specifically told the jury it had to unanimously agree that defendant committed a lewd act in each of counts 3 through 9. Based on the entire record, including all of the instructions, it is not reasonably likely the jury convicted defendant of any of the charged crimes based on proof by a preponderance of the evidence, rather than proof beyond a reasonable doubt.
Third and lastly, defendant claims the trial court erroneously awarded him one less day of presentence custody credit than he actually served, namely, 1,004 days instead of 1,005 days. (§ 2900.5.) The record shows, however, that defendant served 1,004 days in presentence custody, not 1,005 days. We therefore affirm the judgment in all respects.
II. FACTUAL BACKGROUND
A. Prosecution Evidence
Jane was born in May 1991 and was nearly 19 years old when she testified at trial in April 2010. Jane and her grandmother, Maria A., had always shared a close relationship. Beginning in 1996, when Jane was five or six years old, and continuing through the time Jane was 15 or 16 years old, Jane often spent weekday afternoons, weekends, and school vacations with Maria A. and her then-husband, defendant. To Jane, Maria A. and defendant's home was like her "second home," and she was often left alone with defendant while Maria A. was working. Defendant was born in 1950 and is not Jane's biological grandfather.
At trial, Jane vividly recalled one instance in which she performed oral sex on defendant when she was six or seven years old, but this was not the first time defendant forced her to perform oral sex on him. The oral sex acts finally stopped when Jane was 15 years old. Jane knew she was supposed to give defendant oral sex whenever he removed his pants. Jane performed oral sex on defendant as often as 10 to 15 times each month when she was between the ages of 6 and 15.
In addition to the acts of oral sex, defendant forced Jane to have sexual intercourse with him around once or twice each year for seven or eight years. Jane's testimony concerning the sexual intercourse focused on two specific instances—the first act of intercourse, which occurred around 1997 when Jane was six or seven, and the last act of intercourse, which occurred shortly before she turned age 15. The first act of intercourse occurred immediately following the incident in which Jane vividly recalled giving defendant oral sex when she was six or seven years old. The intercourse hurt, and defendant covered Jane's mouth to stop her from yelling or screaming.
In early 2007, when Jane was nearly 16 years old, she finally told family members, including Maria A., about the molestations. At that point, Maria A. stopped living with defendant. For years, Jane did not tell anyone about the molestations because she feared for Maria A.'s safety and her own safety. Defendant once threatened to kill Mari aA., and he was "mean" and would "yell" at Jane when she did not do something.
Several months after Jane first disclosed the molestations to her family, Jane told Child Protective Services about the molestations while speaking with them at school about an unrelated matter. Then, on December 5, 2007, Moreno Valley Police Detective Richard Beatty interviewed defendant about the molestations.
During the police station interview, defendant initially denied having had any sexual contact with Jane, but eventually admitted to three incidents of sexual contact between himself and Jane. Defendant claimed the three incidents occurred when Jane was at least 15 years old, and he "lost control" and allowed the incidents to happen after she came into his room and began touching his penis. At Detective Beatty's suggestion, defendant wrote a letter of apology to Jane, telling her he never meant to hurt her and she was not "guilty of anything." At the end of the interview, defendant was placed under arrest. At trial, an audiotape of the interview was played for the jury, and the letter of apology was read to the jury. B. Defense Evidence
Defendant did not testify or present any affirmative evidence.
III. DISCUSSION
A. Defendant Did Not Unequivocally Invoke His Right to Silence; Thus His Interview Statements to Detective Beatty Were Properly Admitted
Defendant first claims the statements made during the police station interview were admitted in violation of his Miranda rights. He argues he unambiguously invoked his right to remain silent by answering "no" when Detective Beatty asked him whether, having his Miranda rights in mind, he wished to talk to the detective.
We conclude defendant's "no" response was equivocal under the circumstances, and that defendant unequivocally waived his right to silence after Detective Beatty properly asked him to clarify whether he in fact wished to remain silent. The interview statements were therefore properly admitted. Further, any error in admitting defendant's interview statements was harmless beyond a reasonable doubt because defendant did not contest the evidence that he committed the lewd acts charged in counts 2 through 9, and the jury could not have convicted him of the rape charge in count 1 based on his interview statements, but must have relied on Jane's testimony that he forcibly raped her.
1. Relevant Background
Detective Beatty interviewed defendant at the Colton Police Department on December 5, 2007. Detectives Lenton and Holland also assisted in the interview. After Detective Beatty advised defendant of his Miranda rights, the following colloquy ensued:
"[DETECTIVE] BEATTY: Okay? Do you understand that?
"GARCIA: Right.
"[DETECTIVE] BEATTY: Okay, now having that in mind, do you wish to talk to me[?]
"GARCIA: No.
"[DETECTIVE] BEATTY: No?
"GARCIA: No, because I don't want to, uh, I don't know what to—what is these charges, or, uh . . . .
"[DETECTIVE] BEATTY: Okay. Here . . . .
"[DETECTIVE] LENTON: Well, you don't want to talk to us because you don't know the charges. Bottom line is we'd like your side of the story, but we can't talk to you without you agreeing to do so. We can't tell you what everything we—we wanted to tell you about without you talking to us, okay. You just said you didn't want to talk to us because you don't know what we're gonna talk to you about.
"GARCIA: Well, [n]o, no, I—I . . . .
"[DETECTIVE] LENTON: You're telling [me] we can't tell you about it . . . .
"GARCIA: No, I—I don't want to—I just want to be, you know, very respected with you, because you—you treat me really good, you know. [¶] . . . [¶] Yeah, but just in—in basis, you know, you say you have a right to—to remain, you know . . . .
"[DETECTIVE] LENTON: No, absolutely.
"[DETECTIVE] BEATTY: You do have the right, absolutely.
"GARCIA: That's just my point, you know, only, you know, I don't want to, you know, say something or if—if I don't know what's going on.
"[DETECTIVE] BEATTY: Okay, well would you like to hear what's going on?
"GARCIA: Yeah, of course, you know, the reasons you brought me here, you know."
Detective Beatty then told defendant that Jane had made allegations of sexual abuse against him, and the colloquy resumed.
"[DETECTIVE] BEATTY: Okay, uh, do you want to talk to me about it?
"GARCIA: Okay, you know, I want to—want to cooperate, you know. I want to be, you know, to —to make more easy, you know, just treat them, you know.
"[DETECTIVE] BEATTY: Okay.
"GARCIA: I don't want to have . . . .
"[DETECTIVE] BEATTY: Do you want to have a second to thing [sic] about things?
"GARCIA: No, just—just tell me, you know.
"[DETECTIVE] BEATTY: Okay, well, I mean, you said that you didn't want to talk to us, so is it my understanding right now that you do want to talk to me then?
"GARCIA: Well, the—the point . . . you know, again, uh, with all respect, you know, when you say you—you have the right to remain, you know . . . .
"[DETECTIVE] BEATTY: Absolutely.
"GARCIA: [U]ntil you . . . .
"[DETECTIVE] BEATTY: Absolutely.
"GARCIA: [G]et a lawyer.
"[DETECTIVE] BEATTY: And I'm just trying to understand where you're coming from, now.
"GARCIA: Yeah, yeah.
"[DETECTIVE] BEATTY: Do you want to talk to me now or . . . .
"GARCIA: Yeah, we can talk, yeah, I guess, why not."
During the ensuing interview, defendant admitted to three incidents of sexual contact between himself and Jane. He claimed the first incident occurred when Jane came into his room and began "playing with" his penis. Despite knowing it was wrong, defendant claimed he "lost control" and allowed it to happen. He claimed the other two incidents also occurred after Jane began touching his penis and he "lost control," and that all three incidents occurred when Jane was 15 years old. He denied having any sexual contact with Jane before she was 15 years old, and denied ever having sexual intercourse or oral sex with Jane.
As indicated, an audiotape of the interview was played for the jury. Before the recording was played, defense counsel objected to its admission on the ground defendant unequivocally asserted his right to silence by answering "no" when Detective Beatty asked him whether, having his Miranda rights in mind, he wished to waive those rights and answer the detective's questions. The court overruled the objection on the ground defendant's initial "no" response was "equivocal" because, as defendant told the detective, he did not know what charges had been leveled against him.
2. Applicable Law and Analysis
In considering a claim on appeal that statements were admitted in violation of a suspect's Miranda rights, we independently review the trial court's legal determination and defer to its factual findings if substantial evidence supports them. (People v. Williams (2010) 49 Cal.4th 405, 425 (Williams).)Here, the relevant facts are undisputed, and we independently determine whether defendant unambiguously invoked his right to silence during the police station interview.
Miranda created a set of procedural safeguards intended to protect a criminal suspect's Fifth Amendment right against self-incrimination from the coercive nature of custodial interrogation. (Miranda, supra, 384 U.S. at p. 444; see Williams, supra, 49 Cal.4th at p. 425.) These procedural safeguards require that, prior to any questioning, a person in custody must be apprised of (1) his or her right to remain silent, (2) that anything he or she says may be used as evidence against him or her in a court of law, (3) his or her right to the presence of an attorney, and (4) should he or she not be able to afford an attorney, one will be provided. (Miranda, supra, at p. 444.) Statements obtained in violation of these procedural safeguards are inadmissible to prove the suspect's guilt in a criminal case. (Id. at p. 479; People v Stitely (2005) 35 Cal.4th 514, 535.)
Miranda dictates that, upon a suspect's invocation of his or her right to remain silent, the interrogation must cease. (Miranda, supra, 384 U.S. at pp. 473-474; People v. Martinez (2010) 47 Cal.4th 911, 947.) However, interrogating officers need only cease the interrogation when the suspect unambiguously invokes these rights. (Berghuis v. Thompkins (2010) ____ U.S. ____ [130 S.Ct. 2250, 2259-2260], italics added.) In the absence of an unambiguous or unequivocal invocation, the interrogating officers have no obligation to end the interrogation or ask the suspect any clarifying questions. (Ibid.; People v. Martinez, supra, at p. 948.) When a suspect "'makes an ambiguous statement that could be construed as an invocation of his or her Miranda rights, "the interrogators may clarify the suspect's comprehension of, and desire to invoke or waive, the Miranda rights."'" (Williams, supra, 49 Cal.4th at p. 428, italics omitted.) The officers are not required to ask clarifying questions of a suspect after an ambiguous invocation; it is at their discretion. (Berghuis v. Thompkins, supra, 130 S.Ct. at pp. 2259-2260; People v. Martinez, supra, at p. 948.)
Ambiguity is determined under an objective inquiry—that is, statements deemed ambiguous are those that "a reasonable officer in light of the circumstances would have understood [to signify] only that the suspect might be invoking" his or her Miranda rights. (Davis v. United States (1994) 512 U.S. 452, 459; see also Williams, supra, 49 Cal.4th at p. 428.) "In certain situations, words that would be plain if taken literally actually may be equivocal under an objective standard, in the sense that in context it would not be clear to the reasonable listener what the defendant intends. In those instances, the protective purpose of the Miranda rule is not impaired if the authorities are permitted to pose a limited number of followup questions to render more apparent the true intent of the defendant." (Williams, supra, at p. 429.)
Viewed objectively and in context, defendant's "no" response was ambiguous. In the initial portion of the interview, before the detective advised defendant of his Miranda rights and was asking defendant identifying questions, such as his date of birth and past residences, defendant used the term "no" inconsistently when answering the detective's questions. In several instances, defendant, following his initial response of "no" to a question, proceeded to provide additional or contrary information despite his initial negative response. This is exemplified by the following colloquy:
"[DETECTIVE] BEATTY: Do you ever go by any other names?
"GARCIA: No.
"[DETECTIVE] BEATTY: No? And where . . . .
"GARCIA: Well, yeah, yeah, before you continue, sir. Uh, a long time ago when I was, uh, uh, illegal in this country, oh, so many years, I used, uh, Francisco Lopez. [¶] . . . [¶]
"[DETECTIVE] BEATTY: Okay. Were you ever in the military?
"GARCIA: No.
"[DETECTIVE] BEATTY: No?
"GARCIA: No.
"[DETECTIVE] BEATTY: Have you ever been arrested before?
"GARCIA: No.
"[DETECTIVE] BEATTY: No?
"GARCIA: No, in . . . '81 in Fullerton where I—where I used to live . . . they detained me . . . they let me . . . go."
This excerpt illustrates that sometimes defendant's "no" response was genuine and he had nothing further to state on the subject—as in his response to the question whether he had ever been in the military. But when defendant answered other questions by responding "no," he often provided additional information or changed his answer after the detective merely asked him to affirm his "no" response by asking "No?"—as in his responses to whether he had ever been arrested or had ever used a different name.
Defendant argues that his "no" response was unequivocal and required Detective Beatty to immediately cease the interrogation. This argument fails to place defendant's "no" response in the context of his preceding conversation with the detective. Although it may seem counterintuitive that a simple "no" response could be ambiguous, the context in which the response was made here shows it was an ambiguous response. And, given the ambiguity of defendant's response, the detective acted within his discretion in asking defendant to clarify whether he in fact wished to remain silent and not speak with the detective.
Further ambiguity was cast upon defendant's initial "no" response when defendant answered the detective's clarifying question by telling him: "No, because I don't want to, uh, I don't know what to—what is these charges or, uh . . . ." In making this statement, defendant indicated his desire to remain silent was qualified based on his lack of knowledge or understanding concerning what charges or allegations had been made against him. In Berghuis, the defendant contended that, following a recitation of his Miranda rights, his prolonged silence of nearly three hours was sufficient to invoke his right to remain silent. (Berghuis v. Thompkins, supra, ____U.S. at p. ____ [130 S.Ct. at pp. 2258-2259].) In rejecting this claim, the high court stated that the defendant "did not say that he wanted to remain silent or that he did not want to talk with the police. Had he made either of these simple, unambiguous statements, he would have invoked his '"right to cut off questioning."'" (Id., 130 S.Ct. at p. 2260.) The same is true here. Had defendant simply made an unequivocal statement indicating he wished to remain silent, the detective would have been required to cease the interrogation.
In sum, defendant did not unambiguously invoke his right to remain silent and Detective Beatty was free to continue questioning him. We therefore reject defendant's claim that his police station interview statements were admitted in violation of his Miranda rights.
To be sure, Detective Beatty and his colleagues displayed a continued respect for defendant's Miranda rights by repeatedly assuring him he had the "absolute" right to remain silent.
In any event, the admission of defendant's police station interview statements could not have affected the jury's guilty verdicts in counts 1 through 9 and was therefore harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) During closing argument, defense counsel essentially conceded that defendant was guilty of the lewd act offenses charged in counts 2 through 9. Counsel told the jury that the difference between defendant's interview statements and Jane's trial testimony was whether the molestations occurred before Jane turned age 15, not whether they occurred, and if the jury believed Jane's testimony that the molestations occurred before she turned age 14, then it should convict defendant of "however many charges" occurred. Defense counsel also told the jury he was "not going to argue too much about the [section] 288 charges. You probably have your minds made up with regard to those."
Instead, counsel contested the rape charge in count 1 by arguing it was not committed by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on Jane or anyone else. (§ 261, subd. (a)(2).) But the jury could not have used defendant's interview statements to convict him of the rape charge. During the interview, defendant steadfastly denied ever having sexual intercourse with Jane, and did not admit to having sexual intercourse with Jane in his letter of apology to Jane. The prosecution urged the jury to convict defendant of the rape charge based on the 1997 or 1998 incident, when Jane was six or seven years old and defendant had sexual intercourse with her after making her orally copulate him, and Jane was the only witness who testified to this incident. (See People v. Sims (1993) 5 Cal.4th 405, 447-448 [erroneous admission of the defendant's involuntary confessions was harmless beyond a reasonable doubt because the crime was proved by uncontested evidence and evidence independent of the defendant's confessions].) B. CALCRIM Nos. 1191 and 3501 Did Not Lower the Prosecution's Burden of Proof
Defendant next claims CALCRIM Nos. 1191 and 3501, which instructed the jury on propensity and unanimity, violated his right to a fair trial by allowing the jury to convict him of the charged crimes based on a preponderance of the evidence rather than proof beyond a reasonable doubt. He argues that, in light of Jane's "generic" testimony, which failed to differentiate the charged acts of rape and lewd acts from numerous other uncharged acts of rape and lewd acts which defendant perpetrated upon her over the years, CALCRIM No. 1191 allowed the jury to conflate the uncharged crimes with the charged crimes and convict him of the charged crimes based on a preponderance of the evidence, rather than on proof beyond a reasonable doubt. He further argues that CALCRIM No. 3501 "invite[d]" the jury to apply the preponderance of the evidence standard to the entirety of Jane's undifferentiated trial testimony—again without distinguishing between the charged and the uncharged offenses.
Defendant has forfeited this claim of instructional error by failing to raise it in the trial court. (People v. Bolin (1998) 18 Cal.4th 297, 326.) The record does not indicate that defense counsel objected to CALCRIM Nos. 1191 or 3501, in any form or on any ground, before or during trial. To be sure, the record contains no discussion between the court and counsel concerning the jury instructions.
In any event, we conclude, based on the entire record, that it is not reasonably likely or even reasonably possible the jury interpreted CALCRIM Nos. 1191 and 3501 as allowing it to convict defendant of any of the charged crimes based on a mere preponderance of the evidence.(People v. Reliford (2003) 29 Cal.4th 1007, 1016 (Reliford).)The rape charge in count 1 and the lewd act charge in count 2 were tied to a specific incident of rape and oral copulation. And though the lewd acts charged in counts 3 through 9 were not tied to specific lewd acts, the jury was instructed it had to find defendant guilty of each charged crime beyond a reasonable doubt, and had to unanimously agree that at least one lewd act underlay counts 3 through 9.
1. Background/the Charges and Jane's Testimony
The information charged defendant in count 1 with raping Jane between 1997 and 1999 (§§ 269, subd. (a)(1), 261, subd. (a)(2)); in count 2 with committing a lewd act on Jane between 1997 and 1999 (§ 288, subd. (a)); and in counts 3 through 9 with committing seven additional lewd acts on Jane between 1999 and 2005 (ibid.). As discussed, Jane testified that defendant made her perform oral sex on him and have sexual intercourse with him on numerous occasions between 1997 and 2005.
More specifically, Jane testified that between 1997 and 2005, when she was between the ages of 6 and 15, defendant had her perform oral sex on him about 10 to 15 times per month. Jane could not recall exactly how and when the oral sex began or specific dates of the oral sex acts. Defendant also forced Jane to have sexual intercourse with him once or twice per year during the same time frame.
Jane's testimony regarding the sexual intercourse focused on two events, namely, the first and the last. The first incident of sexual intercourse occurred around 1997 when the family was in the process of moving. During this incident, defendant made Jane have sexual intercourse with him while covering her mouth with his hand to muffle her screams. Immediately before the first act of sexual intercourse, defendant had Jane orally copulate him. The last incident of sexual intercourse occurred around 2005 or 2006, before Jane's fifteenth birthday.
2. CALCRIM Nos. 1191 and 3501
Given that Jane testified to numerous acts of oral copulation and intercourse in excess of the number of charged crimes, the jury was instructed with CALCRIM Nos. 1191 (Evidence of Uncharged Sex Offense) and 3501 (Unanimity: When Generic Testimony of Offense Presented). CALCRIM No. 1191 instructed the jury that the People had presented evidence that defendant committed "crimes of lewd act on a child and rape that were not charged in this case," and if the People proved the uncharged crimes by a preponderance of the evidence, then the jury could, but was not required to, conclude based on that evidence that defendant "was disposed or inclined to commit sexual offenses, and based on that decision, also conclude [he] was likely to commit and did commit the charged offenses . . . ." CALCRIM No. 1191 also cautioned the jury that the uncharged crimes evidence was "not sufficient by itself" to prove defendant guilty of the charged crimes, and the People had to prove each charged crime beyond a reasonable doubt.
In its entirety, CALCRIM No. 1191 told the jury: "The People presented evidence that the defendant committed the crimes of lewd act on a child and rape that were not charged in this case. These crimes are defined for you in these instructions. [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged offenses. Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. [¶] If the People have not met this burden of proof, you must disregard this evidence entirely. [¶] If you decide that the defendant committed the uncharged offenses, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses, and based on that decision, also conclude that the defendant was likely to commit and did commit the charged offenses, as charged here. If you conclude that the defendant committed the uncharged offenses, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of the charged offenses. The People must still prove each charge beyond a reasonable doubt. [¶] Do not consider this evidence for any other purpose."
CALCRIM No. 3501 instructed the jury that defendant was charged in counts 3 through 9 with committing lewd acts upon Jane "during the period of 1999 to 2005," that the People had presented evidence of more than one lewd act, and the jury could not find defendant guilty in counts 3 through 9 unless it unanimously agreed he committed at least one discreet lewd act for each count charged.
CALCRIM No. 3501 told the jury: "The defendant is charged with lewd act on a child in Counts 3-9 sometime during the period of 1999 to 2005. [¶] The People have presented evidence of more than one act to prove that the defendant committed these offenses. You must not find the defendant guilty unless: [¶] 1. You all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act he committed for each offense; [¶] OR [¶] 2. You all agree that the People have proved that the defendant committed all the acts alleged to have occurred during this time period and have proved that the defendant committed at least the number of offenses charged. [¶] In other words, each count charges a separate offense and you must unanimously agree as to each count."
3. Analysis
Defendant claims that, in the context of Jane's "generic" testimony of numerous uncharged and charged acts of rape and oral copulation, CALCRIM Nos. 1191 and 3501 effectively lowered the prosecution's burden of proof on all of the charged crimes to proof by a preponderance of the evidence. He argues that when a single victim such as Jane offers undifferentiated testimony concerning uncharged and charged offenses, "[t]here is no proof of a distinct first [or uncharged] crime to leverage as evidence of propensity to commit a second [or charged] crime." Thus, he argues, CALCRIM Nos. 1191 and 3501 allowed the jury to engage in "circular" reasoning by using Jane's generic testimony to infer, based on a preponderance of the evidence, that he had both a propensity to commit the charged crimes and that he in fact committed the charged crimes. We disagree with defendant's interpretation of the instructions and the record as a whole.
First, it is not reasonably likely that the jurors interpreted CALCRIM Nos. 1191 or 3501 as allowing them to find defendant guilty in counts 1 and 2 based on proof by a preponderance of the evidence. (Reliford, supra, 29 Cal.4th at p. 1016.) To be sure, the jury could not have confused the rape charge in count 1 or the lewd act charge in count 2 with any of Jane's "generic" or undifferentiated testimony concerning numerous "uncharged" acts of rape or oral copulation, because counts 1 and 2 were tied to a specific incident of rape and oral copulation. This was the incident in which defendant raped Jane for the first time while covering her mouth with his hand, when she was six or seven years old. Jane also testified that the rape occurred just after defendant had Jane orally copulate him, though this was not the first time defendant had Jane orally copulate him.
The trial court instructed the jury that the prosecution was alleging that counts 1 and 2 occurred between 1997 and 1999, or when Jane was only six or seven years old. At the prosecutor's request, the court also told the jury that count 2 was based on the "San Bernardino incident," or the incident in which defendant had Jane orally copulate him just before he made her have sexual intercourse with him for the first time. And, during closing argument, the prosecutor urged the jury to find defendant guilty in counts 1 and 2 based on Jane's testimony concerning the first time defendant raped her, immediately after he had her orally copulate him.
The prosecutor accordingly elected to base counts 1 and 2 on the first rape and immediately preceding incident of oral copulation. (People v. Russo (2001) 25 Cal.4th 1124, 1132 [when the evidence discloses more than one discreet crime, either the prosecution must elect among the crimes or the court must require the jury to unanimously agree on the same criminal act].) Furthermore, CALCRIM No. 1191 told the jury that the People had the burden of proving defendant guilty of each charged crime beyond a reasonable doubt. CALCRIM Nos. 103 and 220 also instructed on the presumption of innocence, and that the People had the burden of proving defendant guilty beyond a reasonable doubt.
Nor is it reasonably likely that the jury convicted defendant of the additional lewd act charges in counts 3 through 9 based on proof by a preponderance of the evidence. Though counts 3 though 9 were not based on any specific lewd acts, including any specific acts of rape or oral copulation, CALCRIM No. 3501 instructed the jury it had to unanimously agree that defendant committed at least one lewd act for each of these counts. And, as noted, CALCRIM Nos. 103, 220, and 1191 consistently and repeatedly told the jury the People had the burden of proving each charged crime beyond a reasonable doubt.
Defendant concedes that, in dicta, the court in People v. Wilson (2008) 166 Cal.App.4th 1034, authorized the use of evidence of both charged and uncharged offenses to prove that the defendant had a propensity to commit "another" charged offense. (Id. at pp. 1052-1053.) Defendant points out, however, that Wilson involved evidence of both uncharged and charged offenses against multiple victims, and "the Wilson court did not confront the unique challenge that generic testimony from a single victim poses to propensity reasoning. Under the instructions here, generic testimony described a slew of crimes from which to infer propensity by a preponderance of the evidence, and [defendant's] disposition to commit the crimes then tended to prove the generic testimony true beyond a reasonable doubt. The problem in this scenario is that there is no distinction between the evidence used to infer propensity and the evidence used to subsequently convict. The evidence in both cases is the same — the generic, undifferentiated allegations of the victim. It is in this way, then, that instruction on propensity [CALCRIM No. 1191] in the context of generic testimony lowers the burden of proof: It ostensibly requires proof beyond a reasonable doubt when it is really just amplifying the same preponderant generic evidence by using it twice, once to infer the generically alleged criminal acts that imply propensity, and a second time to corroborate that this criminally predisposed defendant committed the generically alleged criminal acts." (Italics added.)
The problem with defendant's argument is that CALCRIM No. 1191 instructed the jury that it could only convict defendant of the charged crimes based on proof beyond a reasonable doubt. The instruction also drew a distinction between the uncharged and charged offenses, and told the jury it could not convict defendant of the charged offenses based solely on proof of the uncharged offenses, or that defendant had a propensity to commit the charged offenses. CALCRIM No. 1191 told the jury: "If you conclude that the defendant committed the uncharged offenses, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of the charged offenses. The People must still prove each charge beyond a reasonable doubt." (Italics added.)
The defendant in Reliford raised a claim similar to the one defendant raises here. The defendant in Reliford argued that instructing the jury with CALJIC No. 2.50.01, the predecessor instruction to CALCRIM No. 1191, was "'likely to mislead the jury concerning . . . the prosecution's burden of proof.'" (Reliford, supra, 29 Cal.4th at p. 1012.) The court in Wilson and several other courts have concluded that CALCRIM No. 1191 is "'similar in all material respects'" to the 1999 version of CALJIC No. 2.50.01. (People v. Wilson, supra, 166 Cal.App.4th at p. 1049; People v. Schnabel (2007) 150 Cal.App.4th 83, 87; People v. Cromp (2007) 153 Cal.App.4th 476, 480; People v. Johnson (2008) 164 Cal.App.4th 731, 739.)
The Reliford court focused on the plain language of the instruction and concluded: "We do not find it reasonably likely a jury could interpret the instructions to authorize conviction of the charged offenses based on a lowered standard of proof. Nothing in the instructions authorized the jury to use the preponderance-of-the-evidence standard for anything other than the preliminary determination" of whether the defendant committed an uncharged sex crime. (Reliford, supra, 29 Cal.4th at p. 1016.)
Reliford's point is applicable to the case at hand. CALCRIM No. 1191 is clear in its instruction that the People carry a burden of proof that is beyond a reasonable doubt. Furthermore, and as noted, the jury was instructed with CALCRIM Nos. 103 and 220 that the People had the burden of proving the charged crimes beyond a reasonable doubt. Like the court in Reliford, we do not find it reasonably likely that the jury inferred from CALCRIM No. 1191, or the instructions as a whole, that it could have convicted defendant of any of the charged crimes based on anything less than proof beyond a reasonable doubt.
We note that the California Supreme Court recently granted review in People v. Villatoro (2011) 194 Cal.App.4th 214, review granted July 20, 2011, S192531, a case involving a question similar to the one defendant raises here. The court limited review to whether "the modification of [CALCRIM] No. 1191, which told jurors they could consider evidence of a charged offense in determining defendant's propensity to commit the other charged offenses pursuant to Evidence Code section 1108, [was] reversible error when the court told the jurors that all charged offenses must be proved beyond a reasonable doubt[.]" (Id., 2011 Cal. Lexis 7482.) For the reasons explained, however, here we find no reversible error based on the giving of CALCRIM Nos. 1191 or 3501. C. Defendant is Not Entitled to One Day of Additional Presentence Custody Credit
Lastly, defendant claims he is entitled to one additional day of presentence custody credit because the trial court incorrectly awarded him 1,004 days of credit instead of the 1,005 days he actually served. (§ 2900.5; People v. Goodloe (1995) 37 Cal.App.4th 485, 495.) Not so. Defendant was arrested on December 5, 2007, and was in presentence custody from that date through the time of sentencing on September 3, 2010.
Under section 2900.5, a criminal defendant is entitled to one day of presentence custody credit for each day he served in custody prior to sentencing—including one day for the day of his arrest and one day for the day of his sentencing. (§ 2900.5, subd. (a); see also § 4019, subd. (a)(1).) Though the People incorrectly state that December 4, 2007, was the date defendant was arrested, they correctly state that 1,004 days was the actual number of days he served in custody through the day of sentencing.
We have independently calculated the number of days defendant was in custody, through and including the date of sentencing, and conclude that defendant served 1,004 days of presentence custody. Thus, the trial court correctly awarded defendant 1,004 days of presentence custody credits.
The calculations are as follows: in 2007, defendant served 27 days (including the date of his arrest on December 5); in 2008, a leap year, defendant served 366 days; in 2009, he served 365 days; in 2010, he served 246 days (including the date of sentencing, September 3). These amounts total 1,004 days.
IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
King
Acting P.J.
We concur:
Miller
J.
Codrington
J.