Opinion
C042478.
7-22-2003
THE PEOPLE, Plaintiff and Respondent, v. CURTIS DEE HOLFORD, Defendant and Appellant.
Defendant Curtis Dee Holford was convicted after a jury trial of one count of committing a lewd and lascivious act upon a child 15 years of age and at least 10 years younger than defendant. Defendant was acquitted of 24 similar counts involving different alleged victims. Defendant admitted a prior serious felony conviction and a prior prison term. The trial court sentenced defendant to seven years in state prison.
On appeal, defendant contends the trial court committed reversible error in failing to instruct the jury, sua sponte, with CALJIC No. 2.70 or CALJIC No. 2.71, to view out-of-court confessions or admissions with caution. We affirm the judgment.
BACKGROUND
One weekend in August of 2001, 15-year-old K. went to her grandmothers house to spend the night, as she often did. Defendant, K.s father, was living at the residence at the time. Sometime after 9:00 p.m., while her grandmother was asleep on the couch, K. walked into the garage (where defendant slept) to return the telephone. Defendant was sitting at the computer desk at the time.
K. sat on defendants lap and they talked. Defendant put his arm around K.s waist and touched her stomach under her shirt. K. told him to stop, which he did, but then he put his hand back under her shirt and moved it until he was touching her chest. Defendant touched both of K.s breasts over her bra and under her bra. He used both hands and rubbed her breasts.
K. told defendant to stop and he moved his hand away. Defendant then starting touching her again and lifted her shirt over her head. K.s bra came off with her shirt. When K. stood up, defendant tried to unzip the back of her skirt. K. then moved away and defendant tried to put a shirt on her. K. told defendant she had to use the bathroom and left the room.
K. got the telephone from the kitchen, locked herself in the bathroom, and tried to call her mother. Defendant came to the door and asked her to come out so he could talk to her. When K. did not come out, he slipped a note under the door that asked her to come out and said he was sorry. After K. left the bathroom, defendant pulled her aside and said he was sorry.
K. called out for her grandmother and told defendant she wanted to go home. K.s aunt, who also lived at the residence, heard K., asked why she was yelling, and then summoned the grandmother. K.s grandmother took K. to a nearby relatives house and called K.s mother.
K.s mother had received a "hang-up" call from what was identified as defendants telephone number at around midnight that night. Shortly thereafter, she received the call from K.s grandmother informing her that something had happened to K. She spoke briefly with K., who told her defendant had tried to do something.
At approximately 11:30 p.m. or 12:30 a.m. that night, defendant called his friend, Michael Ely. According to Ely, defendant was "discombobulated" and upset. Defendant was breathing hard, mumbling, and saying he had "messed up." It sounded as if defendant had been crying. Defendant told Ely he had done something wrong or stupid. Ely tried to get defendant to calm down. Defendant then told Ely he had put his hand up K.s shirt. Ely asked defendant if he had talked to K.s mother. Defendant said he had not, so Ely called her for him. K.s mother had already been given some information about the incident and was upset.
At trial, K. testified that defendant did not say anything sexual during the incident and she did not sense that he was sexually aroused. Defendant did not dispute that "something happened with K.," but argued that he had no lewd or lascivious intent, as required for the offense.
DISCUSSION
Defendant contends the trial court erred in failing to give the cautionary portion of either CALJIC No. 2.70 ("Confession and Admission—Defined") or CALJIC No. 2.71 ("Admission—Defined"), which provide that evidence of an oral confession or admission of the defendant not made in court should be viewed with caution. He contends that the statements he made on the telephone to Ely constitute a confession, or a least an admission, thus necessitating the cautionary instruction.
I
Confession
We agree with the People that defendants statements to Ely do not constitute an out-of-court confession. CALJIC No. 2.70 provides: "A confession is a statement made by a defendant in which [he] [she] has acknowledged [his] [her] guilt of the crimes for which [he] [she] is on trial. In order to constitute a confession, the statement must acknowledge participation in the crimes as well as the required [criminal intent] [state of mind]." Since defendants statement to Ely did not acknowledge lewd intent, as required for conviction under Penal Code section 288, subdivision (c)(1), it did not amount to a confession. The statement could, however, be viewed by the jury as an admission, since it tended to prove defendants guilt when considered with the rest of the evidence.
II
Admission
CALJIC No. 2.71 provides: "An admission is a statement made by [a] [the] defendant which does not by itself acknowledge [his] [her] guilt of the crimes for which the defendant is on trial, but which statement tends to prove [his] [her] guilt when considered with the rest of the evidence. [P] You are the exclusive judges as to whether the defendant made an admission, and if so, whether such statement is true in whole or in part. [P] [Evidence of an oral admission of [a] [the] defendant not made in court should be viewed with caution.]" (CALJIC No. 2.71.)
When a defendants oral admission is introduced into evidence, the trial court must on its own motion instruct the jury with CALJIC No. 2.71. (People v. Marks (1988) 45 Cal.3d 1335, 1346, 248 Cal. Rptr. 874, 756 P.2d 260.) The purpose of the cautionary instruction is to assist the jury in determining if the statement was in fact made. (People v. Beagle (1972) 6 Cal.3d 441, 456, 99 Cal. Rptr. 313, 492 P.2d 1.) The failure to give the instruction, however, "does not constitute reversible error if upon a reweighing of the evidence it does not appear reasonably probable that a result more favorable to defendant would have been reached in the absence of the error." (Id. at p. 455.) The error has been found harmless where there was no dispute that the statement was made and was accurately reported. (See, e.g., People v. Stankewitz (1990) 51 Cal.3d 72, 94, 270 Cal. Rptr. 817, 793 P.2d 23.)
Here, there was no evidence the statement was not made, was fabricated, or was inaccurately remembered or reported. Defendant did not even argue that he did not make the statement or that Ely recounted his statement inaccurately. Instead, defendant argued to the jury that "something happened with K." but that it was "not a crime, because [defendant] didnt have any sexual intent." Accordingly, there is no reasonable probability the failure to give CALJIC No. 2.71 affected the verdict. The error by the trial court in failing to give the instruction was harmless. (People v. Beagle, supra, 6 Cal.3d at pp. 455-456.)
DISPOSITION
The judgment is affirmed.
We concur: DAVIS, Acting P.J., HULL, J.