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People v. Gilmore

Court of Appeal of California
Sep 5, 2008
No. E043278 (Cal. Ct. App. Sep. 5, 2008)

Opinion

E043278

9-5-2008

THE PEOPLE, Plaintiff and Respondent, v. STEVEN CHRISTOPHER GILMORE, Defendant and Appellant.

David McNeil Morse, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Peter Quon, Jr., and Angela M. Borzachillo, Deputy Attorneys General, for Plaintiff and Respondent.

Not to be Published


I. INTRODUCTION

Defendant Steven Christopher Gilmore appeals his conviction for violation of Penal Code section 261.5, subdivision (d). He contends Judicial Council of California Criminal Jury Instructions CALCRIM No. 220, as given to the jury, failed to properly instruct that the evidence must induce a subjective certainty in each of the jurors to satisfy the due process requirement of proof beyond a reasonable doubt. We find no error and affirm.

All further statutory references are to the Penal Code unless otherwise indicated.

II. FACTS AND PROCEDURAL BACKGROUND

A. Procedural Background

On February 27, 2007, an amended information was filed in the trial court charging defendant with one count of unlawful sexual intercourse with a person under 16 (§ 261.5, subd. (d)) and one count of failing to provide registered sex offender information (§ 290, subd. (g)(9)). The amended information also alleged that defendant had four prior serious and violent felony convictions of lewd act with a child under the age of 14 years (§ 288, subd. (a)). All four prior convictions allegedly fell within the meaning of the "Three Strikes" law (§§ 667, subds. (c) & (e)(2)(A), and 1170.12, subd. (c)(2)(A)).

Defendant waived his constitutional rights and entered a guilty plea to the charge of failing to provide registered sex offender information. The jury found defendant guilty of unlawful sexual intercourse with a person under 18 .

While some references in the reporters transcript and the clerks transcript refer to "unlawful sexual intercourse with a person under 18 years of age," defendants amended information, as well as Penal Code section 261.5, subdivision (d), state "under 16 years of age." (Emphasis added.)

In a bifurcated trial, the trial court determined the four prior serious and violent conviction allegations were true beyond a reasonable doubt. Under the Three Strikes law, the court sentenced defendant to an indeterminate term of 25 years to life for his unlawful sexual intercourse conviction, plus 324 days in jail for his failure to provide registered sex offender information.

Defendant received credit of 324 days for time served plus 162 days pursuant to section 4019.

B. Facts

1. Defendants Prior Offenses

In July 2003, the Riverside County Sheriffs Department conducted an investigation of the alleged child molestation of a 12-year-old girl, J. J. cooperated with the sheriffs department to make a pretext telephone call to defendant, while the sheriffs department listened. During the call, defendant admitted he had ejaculated in J. and also acknowledged she was "too young" when J. asked if defendant knew her age. Defendant, who was then 18 years old, was interviewed by the sheriffs department and admitted having had sexual intercourse with J. Defendant also admitted that he knew J. was 12 years old. J. told police that it was a consensual encounter.

Based on the conduct with J., defendant pleaded guilty to four counts of violating section 288, subdivision (a), lewd act with a child under the age of 14 years.

2. Defendants Current Offense

Jane Doe was 15 years old in March 2006. Doe lived in a house with her brother, her mother and her grandfather. Defendants father and stepmother were friends with Janes mother. On March 23, 2006, Corporal Mike Medeiros of the Riverside County Sheriffs Department interviewed defendant about his new living arrangements, because defendant was moving into Janes house. Defendant told Corporal Medeiros that Doe was his cousin and was 19 years old.

Between March and June 2006, Jane Doe and defendant engaged in sexual intercourse with each other. Does mother did not know that Doe and defendant were having sexual intercourse. Doe testified she did not know if defendant knew she was 15 years old when they were having sexual intercourse. Doe and defendant stopped engaging in sexual intercourse after Doe revealed to her mother her sexual conduct with defendant.

Riverside County Sheriffs Deputy Luis Scull testified he spoke to Jane Doe on June 27, 2006, about her sexual relationship with defendant. Doe told the deputy she knew defendant was 21 years old and that defendant knew how old she was. Doe also said defendant wanted to keep their sexual relationship secret but that they had to reveal it when she believed she had become pregnant.

Deputy Scull interviewed defendant on June 29, 2006. The interview was tape recorded and played for the jurors. During the interview, defendant admitted he engaged in sexual intercourse with Jane Doe between 15 and 19 times. When defendant was asked whether he was aware of how old Doe was, he replied, "Im not gonna [sic] put the bullets in the gun for this time around . . . ." Defendant also said that his father warned him not to get involved with Doe and that "everybody knew" she was only 15 years old. Defendant also admitted he had originally told investigators that Doe was 19, when he knew that she was actually 15.

III. DISCUSSION

A. Reasonable Doubt Jury Instruction

1. Background

Defendant contends CALCRIM No. 220 used by the trial court to define "reasonable doubt" for the jury did not properly convey to the jurors that they must have both an objective and subjective certainty in the truth of the charged offense to find defendant guilty. Specifically, defendant argues that this instruction does not accurately reflect the subjectivity required for the reasonable doubt standard as set forth in section 1096. Defendant states that nothing in CALCRIM No. 220 conveys to jurors that "the issue is not only a cognitive assessment of the evidence, but something that is also felt subjectively in the sense outlined" by section 1096. Furthermore, defendant asserts the reference to "abiding conviction" in CALCRIM No. 220 is not enough to indicate to jurors the required subjectivity.

Simply stated, defendant claims CALCRIM No. 220 is an incorrect statement of law or, at least, "one that is reasonably likely to be applied in an unconstitutional manner," and is therefore deficient under the Due Process Clause of the Fourteenth Amendment.

Section 1096 states: "A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his or her guilt is satisfactorily shown, he or she is entitled to an acquittal, but the effect of this presumption is only to place upon the state the burden of proving him or her guilty beyond a reasonable doubt. Reasonable doubt is defined as follows: `It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case, which, after the entire comparison and consideration of all the evidence, leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge."

As provided to the jury, CALCRIM No. 220 states: "The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true. You must not be biased against the defendant just because (he) (has) been arrested, charged with a crime, or brought to trial. [¶] A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt unless I specifically tell you otherwise. [¶] Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. [¶] 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. Unless the evidence proves the defendant guilty beyond a reasonable doubt, (he) (is) entitled to an acquittal and you must find (him) not guilty."

In Victor v. Nebraska (1994) 511 U.S. 1, 14-15 (Victor ), the Supreme Court stated that a reasonable doubt instruction "cast in terms of an abiding conviction as to guilt, without reference to moral certainty, correctly states the governments burden of proof." Defendant argues, however, that the term "abiding conviction" depends on the context in which it is placed and the Victor court did not validate all reasonable doubt instructions containing the term. Defendant notes that abiding conviction, as defined in Hopt v. People (1887) 120 U.S. 430, 439, tells jurors they must have "an abiding conviction of the defendants guilt, such as you would be willing to act upon in the more weighty and important matters relating to your own affairs . . . ." Because of the simile, defendant asserts the term "abiding conviction" as defined in Hopt v. People gave jurors the proper guidance and insight to the heavy burden that is reasonable doubt, but the term, used without explanation in CALCRIM No. 220, does not.

2. Standard of Review

When reviewing whether jury instructions correctly state the law, we apply an independent or de novo standard of review. (People v. Westbrooks (2007) 151 Cal.App.4th 1500, 1506.)

3. Analysis

a. Failing to object

During trial, defendant did not object to CALCRIM No. 220. Thus, the alleged error is not appealable because the failure to object to an instruction in the trial court forfeits any claim of error. (People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.) But, if the "claimed error affect[s] the substantial rights of the defendant, i.e., resulted in a miscarriage of justice, making it reasonably probable the defendant would have obtained a more favorable result in the absence of error," then the claimed error can be reviewed. (Ibid.) "[A]n appellate court may ascertain whether the defendants substantial rights will be affected by the asserted instructional error and, if so, may consider the merits and reverse the conviction if error indeed occurred, even though the defendant failed to object in the trial court." (Ibid.)

Therefore, although defendant did not object to the jury instruction to which he now claims is a misstatement of law, this court can consider whether a misstatement of reasonable doubt in a jury instruction affected the substantial rights of the defendant and, if so, then we can review the alleged error. (§ 1259) In this instance, the alleged error pertains specifically to the jurys verdict. If the jury instruction is a misstatement of reasonable doubt and incorrectly informed the jury how it should decide the defendants guilt, to the detriment of the defendant, then the defendants substantial rights are clearly affected. Thus, an alleged error in the standard determining his guilt can be reviewed even though the defendant failed to object to CALCRIM No. 220 during trial.

b. Proof beyond a reasonable doubt

The beyond-a-reasonable-doubt standard is required by due process. (Victor, supra, 511 U.S. at p. 5.) "This standard of proof enshrines and protects the presumption of innocence, `that bedrock axiomatic and elementary principle whose enforcement lies at the foundation of the administration of our criminal law." (Stoltie v. California (C.D.Cal. 2007) 501 F.Supp.2d 1252, 1256 (Stoltie), quoting In re Winship (1970) 397 U.S. 358, 363.) Consequently, the prosecution bears the burden of proving all elements of the offense and must persuade the jury beyond a reasonable doubt of the facts necessary to establish each of those elements. (Sullivan v. Louisiana (1993) 508 U.S. 275, 277-278.) "This beyond-a-reasonable-doubt requirement, which was adhered to by virtually all common-law jurisdictions, applies in state as well as federal proceedings. [Citation.]" (Id. at p. 278.) Ultimately, "the reasonable-doubt standard is indispensable, for it `impresses on the trier of fact the necessity of reaching a subjective state of certitude on the facts in issue. [Citation.]" (In re Winship, supra, at p. 364.)

Notwithstanding the above, the Constitution does not require or prohibit courts to define reasonable doubt. (Victor, supra, 511 U.S. at p. 5.) "Indeed, so long as the court instructs the jury on the necessity that the defendants guilt be proved beyond a reasonable doubt [citation], the Constitution does not require that any particular form of words be used in advising the jury of the governments burden of proof. [Citation.]" (Ibid.)

California has defined the reasonable doubt standard statutorily and in two different jury instructions. Originally enacted in 1872 and amended in 1927 and 1995, section 1096 provides the states definition for reasonable doubt. (See Historical and Statutory Notes, 50B Wests Ann. Pen. Code (2004 ed.) foll. § 1096, p. 287.) The origin of section 1096 stems from an explanation given by Chief Justice Shaw of the Massachusetts Supreme Judicial Court more than a century ago in Commonwealth v. Webster (1850) 59 Mass. (5 Cush.) 295 (Webster), wherein reasonable doubt is defined as: "It is not mere possible doubt; because every thing relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt. It is that state of the case, which, after the entire comparison and consideration of all the evidence, leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge." (Id. at p. 320; see also People v. Freeman (1994) 8 Cal.4th 450, 501, fn. 8.) In People v. Strong (1866) 30 Cal. 151, 155, the California Supreme Court characterized the Webster instruction as "probably the most satisfactory definition ever given to the words `reasonable doubt in any case known to criminal jurisprudence."

Subsequently, in 1927 the state Legislature adopted the bulk of the Webster instruction as a statutory definition of reasonable doubt in section 1096. (People v. Freeman, supra, 8 Cal.4th at p. 501, fn. 8, 527.) At the same time, the Legislature also enacted section 1096a, which states: "In charging a jury, the court may read to the jury Section 1096, and no further instruction on the subject of the presumption of innocence or defining reasonable doubt need be given." (§ 1096a.)

Using section 1096 as its foundation, the Los Angeles Superior Court Committee on California Criminal Jury Instructions prepared CALJIC No. 2.90. (As noted in People v. Hearon (1999) 72 Cal.App.4th 1285, 1286-1287, challenges to the definition of reasonable doubt, as set forth in CALJIC 2.90, have been "rejected by every appellate district," as well as by the United States Court of Appeals, Ninth Circuit, in Lisenbee v. Henry (9th Cir. 1999) 166 F.3d 997, 999-1000, and its constitutionality has been conclusively settled.

CALJIC No. 2.90 received this constitutional approval from the United States Supreme Court in Victor, supra, 511 U.S. at pages 14-15, when the Court sustained the then language of CALJIC No. 2.90. However, the Victor court did criticize the use of the phrase "moral certainty" in the instruction ("an abiding conviction as to guilt, without reference to moral certainty, correctly states the governments burden of proof"). (Victor, supra, at pp. 14-15.) Consequently, in 1995 the phrase "to a moral certainty" was removed from the instruction. (See Historical and Statutory Notes, 50B Wests Ann. Pen. Code, supra, § 1096, p. 287.)

In 2006 the California Judicial Council adopted the "`Judicial Council of California Criminal Jury Instructions (2006-2007)," which are cited as "`CALCRIM No.____." (People v. Anderson (2007) 152 Cal.App.4th 919, 924.) With the adoption of CALCRIM No. 220, California re-embraced some of the subjectivity language lost with the elimination of "moral certainty" from CALJIC No. 2.90 in 1995. (Stoltie, supra, 501 F.Supp.2d at pp. 1260-1261. According to the Stoltie court, "[t]he `abiding conviction language in the California instruction comes closer in definition to the concept of subjective certainty, but the antiquated wording likely leaves jurors confused." (Id. at p. 1262.) However, we are not bound by the decisions of lower federal courts like the Central District of California in Stoltie. (People v. Avena (1996) 13 Cal.4th 394, 431.) Thus, although we agree with the Stoltie court that "abiding conviction" does provide the concept of subjective certainty, we disagree that the wording is antiquated and confuses jurors. California courts have agreed that "abiding conviction" has been "found to adequately convey the requirement that the jurors belief in the truth of the charge must be both long lasting and deeply felt." (People v. Light (1996) 44 Cal.App.4th 879, 885.)

Although the new CALCRIM instructions are largely based on the CALJIC instructions, there have been various challenges to the new material in the CALCRIM instructions. "Most of the challenges [to the CALCRIM instructions] involve isolated language that defendant reads out of context from the instruction as a whole or the other instructions given to the jury. Other challenges concern language virtually identical to that previously approved in the CALJIC instructions that were used in California for many years." (People v. Anderson, supra, 152 Cal.App.4th at p. 924.)

With regard to CALCRIM No. 220, "The definition of reasonable doubt in CALCRIM No. 220 is derived from CALJIC No. 2.90 which in turn was taken directly from the language of section 1096 . . . ." (People v. Campos (2007) 156 Cal.App.4th 1228, 1239 (Campos ).) The Campos court went on to say that since CALCRIM No. 220 is derived from previously constitutionally approved language, then it did not make sense to make an argument that CALCRIM No. 220 was unconstitutional. "[W]e caution the bar that adoption of the Judicial Council of California Criminal Jury Instructions is not an excuse for advocates to dust off the old, hackneyed arguments that were thoroughly discredited under similarly worded CALJIC instructions and recycle them before this court." (Campos, supra, at p. 1239.)

As the Campos court anticipated, in a recently published opinion, People v. Garelick (2008) 161 Cal.App.4th 1107, 1115 (Garelick), the Sixth Appellate District was confronted with whether "abiding conviction," as used in CALCRIM No. 220, does provide a sufficient explanation to a jury about the meaning of reasonable doubt. The defendant alleged that because "abiding conviction" was not defined, his due process rights were violated. (Garelick, supra, at p. 1119.) The Garelick court disagreed. "The definition of `reasonable doubt in CALCRIM No. 220 is derived from section 1096 which, when given, requires `no further instruction . . . defining reasonable doubt . . . . (§ 1096a.) The California Supreme Court has rejected similar challenges to the `abiding conviction language as used in CALJIC No. 2.90, the predecessor to CALCRIM No. 220. [Citations.] The Courts of Appeal in every appellate district, including this one, have consistently rejected challenges to the definition of `reasonable doubt set forth in section 1096, and as embodied (formerly) in CALJIC No. 2.90 and (now) in CALCRIM No. 220. [Citation.]" (Garelick, supra, at p. 1119; see also People v. Carroll (1996) 47 Cal.App.4th 892, 895-896 [Fourth Appellate District, Div. One], overruled on other grounds in People v. Mosby (2004) 33 Cal.4th 353, 365.)

We agree with the Garelick court. Therefore, we reject defendants argument that CALCRIM No. 220 does not accurately reflect the statutory definition of reasonable doubt. As required by Victor, supra, 511 U.S. at page 5, the trial court did instruct the jury on reasonable doubt. This instruction made no reference to "a moral certainty," which was criticized by the Victor court and acknowledged by California in its changes to CALJIC No. 2.90 and subsequent creation of CALCRIM No. 220. (Victor, supra, 511 U.S. at pp. 14-15.) Additionally, "abiding conviction" has been repeatedly found to adequately convey to jurors the subjective requirement that their belief in the truth of the charged offense must be long lasting and deeply felt. (People v. Light; supra, 44 Cal.App.4th at p. 885.) Finally, the California Supreme Court has rejected challenges to the "abiding conviction" language used in CALCRIM No. 220s predecessor, CALJIC No. 2.90. (People v. Cook (2006) 39 Cal.4th 566, 601.) For these reasons, we conclude that CALCRIM No. 220 adequately conveys the subjective certitude required for the proof beyond a reasonable doubt standard.

c. Harmless error

We further note that even if CALCRIM No. 220 is a misstatement of reasonable doubt, all of the instructions given to the jury must be taken into account in evaluating whether resulting error was prejudicial. "We evaluate claims of instructional error `"in the context of the overall charge" to the jury." (People v. Williams (1997) 16 Cal.4th 635, 675.) In this instance, the jury was also instructed on reasonable doubt in CALCRIM Nos. 224, 359 and 1070. Also, CALCRIM No. 3550 told jurors "[e]ach of you must decide the case for yourself," which further highlighted the subjectivity involved in their decision making.

Moreover, the proper inquiry is not whether the instruction could have been applied in an unconstitutional manner, but whether there is a reasonable likelihood that the jury did so apply it. (People v. Rogers (2006) 39 Cal.4th 826, 873.) Again, even if the jurors did not understand the reasonable doubt standard as laid out in CALCRIM No. 220, this standard was explained to them in both the prosecutions and the defenses closing arguments and in other jury instructions as noted above. Thus, the jurors had multiple presentations and explanations on the requirements of proof beyond a reasonable doubt to adequately ensure their understanding of the governments burden. Therefore, we conclude there is no reasonable likelihood the jury applied CALCRIM No. 220 in an unconstitutional manner. Finally, we observe that the evidence against defendant was overwhelming.

IV. DISPOSITION

The judgment is affirmed.

We concur:

RAMIREZ, P.J.

GAUT, J.


Summaries of

People v. Gilmore

Court of Appeal of California
Sep 5, 2008
No. E043278 (Cal. Ct. App. Sep. 5, 2008)
Case details for

People v. Gilmore

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. STEVEN CHRISTOPHER GILMORE…

Court:Court of Appeal of California

Date published: Sep 5, 2008

Citations

No. E043278 (Cal. Ct. App. Sep. 5, 2008)