Opinion
D057962 Super. Ct. No. FWV900004
12-15-2011
THE PEOPLE, Plaintiff and Respondent, v. GABRIEL JIMENEZ GARCIA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Bernardino County, Stephan G. Saleson, Judge. Affirmed as modified, with directions.
A jury convicted Gabriel Jimenez Garcia of 12 counts of aggravated sexual assault of a child. The trial court sentenced him to a total prison term of 180 years to life. Garcia appeals, contending the trial court erred in: (1) failing to give a pinpoint instruction regarding the jury's consideration of circumstantial evidence of his lack of deviant behavior around children, and (2) denying him presentence conduct credits. We agree that Garcia should have been awarded presentence conduct credits and order the abstract of judgment be corrected. As so modified, the judgment is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
In 2000, Garcia began dating the victim's mother. They later had twins and moved in together. When the couple broke off their relationship, Garcia moved out but visited the twins once a week. He usually arrived at the house before the twins got out of school.
The victim, who was approximately 11 years old at the time, was alone in the house with Garcia while her mother picked up the twins from school. During this time, Garcia grabbed the victim's chest, kissed her, and had sexual intercourse with her. According to the victim, Garcia had sex with her at least once a month for a year.
A pediatric forensic nurse practitioner examined the victim and found that her anal-genital exam was abnormal and consistent with sexual assault. A child abuse pediatrician also examined the victim and opined that, based on permanent injuries to the victim's hymen, the victim had been penetrated multiple times by an adult penis.
DISCUSSION
I. Pinpoint Jury Instruction
A. Background
At trial, Garcia introduced evidence regarding his past behavior around children. Abel Ellingson, Garcia's employer at a ski lodge, testified that he observed Garcia around children. According to Ellingson, Garcia appeared to be a good father and was well liked by children at the lodge. Ellingson also stated that he never heard any complaints from parents regarding Garcia.
Pavel Dvorak, who often had dinner at the ski lodge with his family, testified that he had known Garcia for approximately three years. Dvorak observed Garcia around children and stated that "his behavior was just absolutely normal." Dvorak never saw Garcia take any children, other than his own twins, into his residence.
When discussing jury instructions, Garcia requested that the trial court include the following pinpoint instruction: "You have heard testimony from witnesses based on their personal observations of the defendant's behavior around children. A lack of deviant behavior is circumstantial evidence that the defendant is unlikely to have committed the charged acts of molestation." The trial court determined that this was not a proper pinpoint instruction and refused to give it.
During his closing argument, defense counsel informed the jury that "in this particular case you can consider the testimony of witnesses based on their observations of Mr. Garcia's behavior around children. A lack of deviant behavior around children can be considered circumstantial evidence that he's unlikely to have committed the charged acts of molestation." B. Analysis
Garcia argues that the court's failure to give the requested pinpoint instruction constituted error. The prosecution contends the trial court properly refused to give the instruction because it is both duplicative and argumentative. We conclude the trial court did not err in refusing to give the pinpoint instruction because it was improperly argumentative and thus need not consider whether it was also duplicative.
"An accused is entitled on request to nonargumentative instructions that 'pinpoint' the theory of the defense." (People v. Webster (1991) 54 Cal.3d 411, 443, italics omitted.) "But a trial court need not give a pinpoint instruction if it is argumentative [citation], merely duplicates other instructions [citation], or is not supported by substantial evidence." (People v. Bolden (2002) 29 Cal.4th 515, 558.) Argumentative instructions " 'select[] certain material facts, or those which are deemed to be material, and endeavor[] to force the court to indicate an opinion favorable to the defendant as to the effect of such facts, by incorporating them into instructions containing a correct principle of law.' " (People v. Wright (1988) 45 Cal.3d 1126, 1135.)
Here, Garcia points out that his proposed instruction was crafted from principles set forth in People v. Stoll (1989) 49 Cal.3d 1136 (Stoll)and People v. McAlpin (1991) 53 Cal.3d 1289 (McAlpin). In those cases, the court held that a defendant may introduce character evidence concerning his lack of sexually deviant behavior as circumstantial evidence that he is unlikely to have committed the charged acts of molestation. (Stoll, supra, 49 Cal.3d at p. 1158; McAlpin, supra, 53 Cal.3d at p. 1306.) Indeed, Garcia did introduce character evidence regarding his behavior around children through the testimony of Ellingson and Dvorak. Garcia's proposed instruction, however, went beyond the holdings in Stoll and McAlpin by referencing this testimony and subsequently stating that "[a] lack of deviant behavior is circumstantial evidence that the defendant is unlikely to have committed the charged acts." Garcia's instruction was argumentative because it suggested an opinion favorable to the defendant as to the effect of Ellingson's and Dvorak's testimony. "[T]he effect of certain facts on identified theories 'is best left to argument by counsel, cross-examination of the witnesses, and expert testimony where appropriate.' [Citation.]" (People v. Wharton (1991) 53 Cal.3d 522, 570.) Accordingly, the trial court did not err in refusing to instruct the jury with Garcia's pinpoint instruction.
Even if we assume the court erred, however, we would find the error harmless. A court's refusal to instruct with proposed pinpoint instructions is harmless under the People v. Watson (1956) 46 Cal.2d 818, 836 (Watson)standard where defense counsel's argument pinpoints the defense and the instructions given sufficiently cover the topic. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1144; People v. Hughes (2002) 27 Cal.4th 287, 363; People v. Earp (1999) 20 Cal.4th 826, 887; People v. Fudge (1994) 7 Cal.4th 1075, 1111-1112.) Here, defense counsel pinpointed the defense by arguing that the jury could consider testimony regarding Garcia's lack of deviant behavior around children as circumstantial evidence that he was unlikely to have committed the charged offenses. Further, the trial court sufficiently instructed the jury with CALCRIM Nos. 223 (defining direct and circumstantial evidence) and 224 (instructing the jury on how to evaluate circumstantial evidence and conclusions drawn from that evidence). In light of the given instructions and argument of counsel, any possible error was harmless under Watson.
Additionally, we reject Garcia's assertion that error in refusing to give his pinpoint instruction must be reviewed under the Chapman standard for federal constitutional error. (See Chapman v. California (1967) 386 U.S. 18.) Garcia was not prevented from introducing evidence of his lack of deviant behavior and arguing the impact of that evidence. The jury was instructed regarding its consideration of circumstantial evidence, the elements of the charged offenses, and the prosecution's burden of proof. Under these circumstances, we cannot find that the omission of the proposed pinpoint instruction deprived Garcia of due process or the right to a fair trial.
II. Presentence Conduct Credits
A. Background
The trial court sentenced Garcia to a total prison term of 180 years to life. He received 553 days of credit for time served, but the court refused to award him any presentence conduct credits. The trial court concluded that "conduct credits aren't entitled to the defendant in this case under this sentencing scheme." B. Analysis
Garcia contends the trial court erred in denying him presentence conduct credits. The People concede and we agree that Garcia is entitled to 82 days of presentence conduct credits.
"In general, a defendant receives what are commonly known as conduct credits toward his term of imprisonment for good behavior and willingness to work during time served prior to commencement of sentence." (People v. Thomas (1999) 21 Cal.4th 1122, 1125.) Penal Code section 4019, subdivision (a)(4), authorizes presentence conduct credits "following arrest and prior to the imposition of sentence for a felony conviction." However, Penal Code section 2933.1, subdivision (a), limits the conduct credits to 15 percent of the time served during presentence custody for those defendants convicted of violent felonies listed in section 667.5, subdivision (c).
Here, Garcia concedes that he was convicted of offenses that are considered violent felonies under Penal Code section 667.5, subdivision (c). Thus, under Penal Code section 2933.1, his presentence conduct credits are necessarily limited to 15 percent of his time in presentence custody. Because Garcia spent 553 actual days in presentence custody, he is entitled to 15 percent of that time (82 days) as conduct credits.
DISPOSITION
The judgment is modified to give Garcia 82 days of presentence conduct credits. The clerk of the superior court is directed to prepare an amended abstract of judgment and forward a copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
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MCINTYRE, J.
WE CONCUR:
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NARES, Acting P. J.
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AARON, J.