Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC624282
Statement of the Case
RUSHING, P.J.
A jury convicted defendant Ignacio Jimenez of two counts of rape by force or violence, seven counts of lewd conduct by force or violence, and five counts of aggravated sexual assault on a child under the age of 14. In connection with the latter five counts, the jury found that defendant had been convicted of a sex offense against more than one victim. (Pen. Code, §§ 261, subd. (a)(2), 288, subd. (b)(1), 269, 667.61, subd. (b), 667.61, subd. (e).) The court imposed a prison term of 210 years to life.
On appeal from the judgment, defendant claims that the trial court erred in directing the jury to find that he perpetrated the charged offenses.
We disagree and affirm the judgment.
Given the sole issue raised on appeal, we only briefly summarize the facts underlying defendant’s offenses.
Defendant was convicted of sexually abusing four minors: D., her sister Ja., and their cousins Y. and Jo.
D., who was 18 at the time of trial, testified that in 1998, when she was 10 years old, defendant, who was living with her family, started inappropriately touching her and digitally penetrating her. For over two years, he did this to her more times than she could remember. She also testified that she witnessed defendant do similar things to her sister Ja.
Ja. testified that in 1998, when she was in the first grade, defendant started touching and digitally penetrating her, and he continued doing this until 2002, when she was in the fourth grade. By that time, defendant was also having forcible intercourse with her. Ja. said he touched her more than 30 times and had intercourse with her more than 20 times. Ja. admitted that she had also been molested by her cousin Adrian. However, she was certain that defendant committed the acts she attributed to him and not Adrian.
Ja. also testified that she witnessed defendant touch and have forcible intercourse with her cousin Y. on numerous occasions. On some occasions, defendant would molest both of them. In June 2005, Ja. reported the abused to her school counselor and then told her mother.
Y. testified that defendant started molesting her when she was six or seven years old, which was around 1999 or 2000. He touched her inappropriately and digitally penetrated her. He had forcible intercourse with her at least 10 times and also sodomized her a few times. At one point, she told her cousin Ja. Y. also testified that she witnessed defendant molest and have forcible intercourse with Ja., and, on one occasion, he molested both of them. Y. also witnessed defendant sodomize her younger brother Jo.
Jo. testified that defendant touched his genitals, buttocks, and chest, and sodomized him. He said that Y. was present once when he was sodomized. Jo. also testified that defendant sodomized Y.
S.P., D. and Ja.’s mother and Y. and Jo.’s aunt, made a pretext call to defendant to elicit incriminating statements from him. She accused him of molesting the children. Although he initially denied culpability, defendant ultimately admitted it, apologized, and claimed that he was sick and perverted.
Discussion
Defendant contends that the court erred in giving the CALCRIM instructions defining forcible rape (CALCRIM No. 1000), forcible sodomy (CALCRIM No. 1030), and forcible lewd conduct (CALCRIM No. 1111). He argues that, in giving them, the court effectively directed jurors to find that he perpetrated the charged offenses. We disagree.
CALCRIM numbers 1000, 1030, and 1030 enumerate the elements of each offense. One element of each offense is that the defendant committed the unlawful act with “force, violence, duress, menace, or fear of immediate and unlawful bodily injury . . . .” (CALCRIM No. 1000 [forcible rape], 1030 [forcible sodomy], 1111 [forcible lewd acts] italics added.) The instructions go on to define force, duress, and menace; and, in defining duress, the instructions state that it “means a direct or implied threat of force, violence, danger or retribution that would cause a reasonable person to do [or submit to] something that she would not do [or submit to] otherwise.” (CALCRIM No. 1000, 1030, 1111.) In connection with this definition, the instructions advise the jury that “[w]hen deciding whether the act was accomplished by duress, consider all the circumstances, including the age of the [victim] and [his or her] relationship to the defendant.” (See CALCRIM Nos. 1000, 1030, 1111, italics added.)
Defendant posits that the relationship between a victim and a defendant is relevant to show that an unlawful act was accomplished with duress only if the defendant in fact perpetrated the act. Given this general proposition, defendant claims that, in advising the jurors to consider the defendant’s relationships with the victims, the court implied that it believed defendant perpetrated the charged offenses. Defendant opines that to avoid conveying this belief, the court should have use the word “perpetrator” rather than “defendant” and instructed jurors to consider all circumstances, including each victim’s age and relationship to the perpetrator. He argues that it is especially important to do so where, as here, the identity of the perpetrator is disputed.
Defendant further claims that that the court’s implied belief tainted the jury before it started deliberating and, for all practical purposes, directed the jury to find that he was the perpetrator. Defendant argues that the error is structural and reversible per se. We find no error.
“In assessing a claim of instructional error, ‘we must view a challenged portion “in the context of the instructions as a whole and the trial record” to determine “ ‘whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way’ that violates the Constitution.” ’ [Citations.]” (People v. Jablonski (2006) 37 Cal.4th 774, 831, quoting People v. Reliford (2003) 29 Cal.4th 1007, 1013, & Estelle v. McGuire (1991) 502 U.S. 62, 72.)
We agree with defendant that evidence of a defendant’s relationship with a victim is relevant to prove duress only if the defendant committed the underlying unlawful act. However, we disagree that, in advising jurors to consider defendant’s relationships with his victims, the court implicitly broadcast its belief that defendant committed the underlying acts.
As noted, each of the challenged instructions states the elements of a charged offense and informs jurors that the prosecution has the burden to prove these elements. As the first element to be proved, each instruction lists that the defendant committed the alleged criminal act; as the last element to be proved, each instruction lists that “[t]he defendant accomplished the act” by force, violence, duress, menace, or fear of immediate and unlawful bodily injury. After listing that last element, each instruction defines force, duress, and menace. Each instruction then advises jurors that, in determining whether the unlawful acts were accomplished by duress, they should consider all surrounding circumstances in determining duress, including the victim’s relationship with the defendant.
Because the CALCRIM instructions inform jurors that the purpose of the definition and advice to consider defendant’s relationships is to help jurors determine the last element listed—i.e., whether “[t]he defendant accomplished the act” by duress—the instructions do not suggest that the definition and the advice are relevant in determining the first element—i.e., whether the defendant committed the underlying acts—or should even be considered in making that determination. Moreover, as described in the instructions, that element presupposes a prior determination that the defendant committed the underlying act. In other words, requiring jurors to determine whether “[t]he defendant accomplished the act” implies that jurors should first determine whether the defendant was the perpetrator and then determine whether he or she used duress. Indeed, it would be illogical to try to decide whether “the defendant” accomplished an unlawful act by force, violence, fear, duress, etc. before determining whether the defendant committed the act in the first place. In our view, therefore, the structure of the instructions, the description of the last element to be proved, and the explicit purpose of the advice to consider defendant’s relationships make it highly unlikely that, upon hearing that advice, jurors would consider it a comment on the first element to be proved and jump to the conclusion that the court believed the defendant was the perpetrator. Defendant concedes that this alleged message was at best “subtle,” and we observe that it was so subtle defense counsel, who, one would expect to be vigilant about improper judicial comment, did not perceive it.
We do not suggest that defendant had a duty to object to the alleged instructional error to preserve the issue for appeal. (See Pen. Code, § 1259 [court reviews instructional error even if no objection was made below if error affected the substantial rights of the defendant]; People v. Prieto (2003) 30 Cal.4th 226, 247.)
The possibility that jurors would have misinterpreted and did misinterpret the instructions becomes even less likely when they are viewed in light of the court’s other instructions. The court directed jurors to “[p]ay careful attention to all of [the] instructions, and consider them together.” It then instructed jurors to “decide what the facts are. It is up to you, exclusively, to decide what happened, based only on the evidence that has been presented to you in this trial.” It warned jurors “not [to] assume . . . just because I give a particular instruction, that I am suggesting anything about the facts.” The court informed jurors that defendant is “presumed to be innocent” and “[t]his presumption requires that the people prove each element of a crime and any special allegation beyond a reasonable doubt.” The court further stated that “[w]henever I tell you the people must prove something, I mean they must prove it beyond a reasonable doubt, unless I specifically tell you otherwise.” The challenged instructions reiterated the prosecution’s burden to prove all elements of the charged offenses, including the first listed element that the defendant committed the alleged acts. Finally, we note that immediately before deliberations commenced, the court advised jurors that their “role is to be an impartial judge of the facts,” and that “[i]t is not my role to tell you what your verdict should be. Do not take anything I said or did during the trial as an indication of what I think about the facts, the witnesses, or what your verdicts should be.”
We presume that jurors are intelligent people, capable of understanding the instructions, correlating them all, and applying them in a commonsense way. (Conservatorship of Early (1983) 35 Cal.3d 244, 253; People v. Tatman (1993) 20 Cal.App.4th 1, 10-11; People v. Laws (1993) 12 Cal.App.4th 786, 796; People v. Mills (1991) 1 Cal.App.4th 898, 918; People v. White (1987) 188 Cal.App.3d 1128, 1138-1139, overruled on other grounds in People v. Wims (1995) 10 Cal.4th 293, 314, fn. 9.) Moreover, absent evidence to the contrary, we presume that jurors follow the court’s instructions. (People v. Hovarter (2008) 44 Cal.4th 983, 1005.)
Under the circumstances, it is inconceivable that the jurors would have abandoned or did abandon their common sense, disregard the instructions requiring them to determine the facts, ignore the court’s emphatic warning not to take any of its statements as an indication that it believed anything about the evidence, misunderstand the limited purpose of both the definition of duress and advice to consider defendant’s relationships, and instead infer from the definition and advice a judicial direction to find that defendant had committed the charged offenses.
Defendant’s reliance on the corresponding CALJIC instructions for forcible rape, sodomy, and forcible lewd conduct and on People v. Owens (1994) 27 Cal.App.4th 1155 is misplaced.
Concerning the CALJIC instructions, defendant opines that the CALJIC committee perceived a problem in using the word “defendant” in the definition of duress when identity is a disputed issue and as a result provided the trial court with the option of using “perpetrator” instead of “defendant.”
For example, CALJIC No. 10.00 (2005 Rev.) informs jurors that the totality of the circumstances, “including but not limited to [the age of the allege victim,] [his or her relationship to the [perpetrator] [defendant] . . . are factors to consider in appraising the existence of the duress.”
We first note that the statutory definition of duress is identical to the definition in the CALCRIM instructions and uses the term “defendant.” (Pen. Code, § 261, subd. (b).). It is settled that “ ‘[t]he language of a statute defining a crime or defense is generally an appropriate and desirable basis for an instruction, and is ordinarily sufficient when the defendant fails to request amplification. If the jury would have no difficulty in understanding the statute without guidance, the court need do no more than instruct in statutory language.’ ” (People v. Estrada (1995) 11 Cal.4th 568, 574, quoting People v. Poggi (1988) 45 Cal.3d 306, 327.)
Penal Code section 261, subdivision (b) provides, “As used in this section, ‘duress’ means a direct or implied threat of force, violence, danger, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act which otherwise would not have been performed, or acquiesce in an act to which one otherwise would not have submitted. The total circumstances, including the age of the victim, and his or her relationship to the defendant, are factors to consider in appraising the existence of duress.” (Italics added.)
Next, defendant cites no authority for his view that the CALJIC instructions provided the option to use “perpetrator” instead of “defendant” to avoid the implication that the court believed the defendant committed the charged offenses. Nor does defendant cite any authority suggesting that the use of “defendant” could be prejudicial or problematic, even when identity is a disputed issue. Moreover, given our analysis of the instructions, we are not convinced that the option was designed to prevent an implicit and improper judicial comment on an element of a charged offense. Indeed, if the CALJIC committee had thought that using “defendant” could be prejudicial, we would expect the use note and comments to explain when and why “perpetrator” should be used instead of “defendant.” However, the use note is silent concerning the purpose of the option.
We note that the comment to CALJIC No. 10.00 states that “the circumstances that may be considered in determining whether ‘duress existed’ have been derived from” several cases and lists People v. Pitmon (1985) 170 Cal.App.3d 38, 50; People v. Wilkerson (1992) 6 Cal.App.4th 1571, 1578-1579; People v. Senior (1992) 3 Cal.App.4th 765, 774; and People v. Schultz (1992) 2 Cal.App.4th 999, 1005. (See com. to CALJIC No. 10.00 (Fall 2006 Ed.) p. 634.)
On the other hand, the Attorney General persuasively argues that the optional use of “perpetrator” is useful in cases where the defendant did not personally commit the unlawful act but aided and abetted the actual perpetrator. Thus, such a defendant could be convicted of forcible sexual offenses based on evidence that the perpetrator accomplished the unlawful acts by duress; and in determining whether duress was used, the jury would need to consider the victim’s relationship to the perpetrator and not his or her relationship to the defendant.
In short, the option in the corresponding CALJIC instructions does not lead us to conclude that the challenged CALCRIM instructions are flawed or that the use of “defendant” in the CALCRIM instructions could be inappropriate.
Defendant’s reliance on People v. Owens, supra, 27 Cal.App.4th 1155 is equally misplaced. There, the trial court instructed the jury that “ ‘[t]he People have introduced evidence tending to prove that there are more than three acts of substantial sexual conduct or lewd and lascivious conduct upon which a conviction in Count I may be based.’ ” (Id. at p. 1158, italics added.) On appeal, the court condemned the phrase “ ‘tending to prove’ ” because it implied that the People had established guilt. (Ibid.) Despite this, however, the court found that the impermissible implication was harmless because the court’s other instructions made it unlikely that the single phrase “ ‘tending to prove’ ” misled the jury on the reasonable doubt standard. (Ibid.)
Here, the court’s instructions did not directly tell jurors that any evidence tended to prove any particular fact. The alleged instructional error is based on what defendant admits is a subtle inference from advice about when to consider evidence of a defendant’s relationship to the victim. As noted, the challenged instructions themselves and the court’s other instructions made it unlikely that the jurors drew that inference.
Last, we reject defendant’s claim that the alleged instructional error is reversible per se. “[I]nstructional error relieving the prosecution of the burden of proving beyond a reasonable doubt each element of the charged offense violates the defendant’s rights under both the United States and California Constitutions. (People v. Flood (1998) 18 Cal.4th 470, 479-480 (Flood).) In Flood, the California Supreme Court held that instructional error that “improperly describes or omits an element of an offense, or that raises an improper presumption or directs a finding or a partial verdict upon a particular element, generally is not a structural defect in the trial mechanism that defies harmless error review and automatically requires reversal . . . .” (Id. at pp. 502-503, italics added.) Rather, misdirection of the jury on an element of an offense “falls within the broad category of trial error subject to Chapman review.” (Id. at p. 503.) The United States Supreme Court later reached the same conclusion in Neder v. U.S. (1999) 527 U.S. 1, 15. Thus, the alleged error in this case is not reversible per se; rather, it would compel reversal unless we found it to be harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. at p. 24 [standard of harmless error review].)
Chapman v. California (1967) 386 U.S. 18 (Chapman).
Even if we assume that the instructions erroneously implied a judicial finding that defendant was the perpetrator, we would not find that the error compelled reversal. First, defendant concedes that “the facts in this case showed force rather than duress . . . .” Thus, it is questionable whether the duress instructions had any impact on the jury deliberations. In any event, the record reveals that all of the victims knew the defendant, all were positive that he had molested them, and some corroborated the testimony of others concerning certain alleged acts because they were witnesses. Furthermore, the only evidence suggesting a third party perpetrator related to the offenses against one victim: Ja. She testified that her cousin Adrian had also molested her. However, she was certain about when Adrian molested her and when defendant molested her. Finally, and most importantly, the jury heard the tape of the phone call that S.P. made to defendant, in which he admitted molesting the girls and apologized for doing so. In our view, the victims’ testimony, the lack of evidence that some third party molested D., Y., and Jo., and defendant’s admission to S.P. would have rendered any subtle inference from the instructions harmless beyond a reasonable doubt.
Disposition
The judgment is affirmed.
WE CONCUR: PREMO, J., ELIA, J.
All of these cases state that the victim’s relationship to the defendant is relevant in determining the issue of duress. None suggest that a proper instruction on duress should use the word “perpetrator” instead of “defendant” or that the use of “defendant” would be prejudicial when the identity of the perpetrator is disputed.