Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. BA271983 of Los Angeles County, Ruth Ann Kwan, Judge.
Mark D. Lenenberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Mary Sanchez and Michael A. Katz, Deputy Attorneys General, for Plaintiff and Respondent.
MALLANO, Acting P. J.
In People v. Lopez (2008) 42 Cal.4th 960, the Supreme Court unanimously reversed a split decision of this court in which we had reversed defendant’s judgment on the ground of prosecutorial misconduct. The Supreme Court also remanded the matter to us for further proceedings consistent with its opinion. (Id. at p. 973.) On remand, we affirm the judgment and order that a clerical error in the abstract of judgment be corrected.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant, a Catholic priest, was assigned to a Los Angeles parish in 2001. The parishioners were mostly low-income Hispanics. Each parish priest had his own living quarters, including a bedroom, bathroom, and sitting room. Church policy prohibited priests from allowing minors in their private quarters or vacationing with them. The policy also discouraged priests from having minors ride with them in cars. Defendant attended a meeting at which these policies were discussed, and defendant’s pastor thought that defendant understood them.
Gerardo V. testified that he was 13 years old when he first met defendant in confession. Afterward, defendant came to Gerardo’s home regularly to visit Gerardo’s ill grandmother. Defendant once drove Gerardo to get some food for his grandmother. While the two were in the car, defendant masturbated Gerardo. On another occasion, when Gerardo asked to confess, defendant took Gerardo to defendant’s quarters, where he masturbated and orally copulated Gerardo. Defendant also placed Gerardo’s hand on defendant’s penis over defendant’s clothing. While there, Gerardo saw a piano in defendant’s quarters. On another trip to buy food for Gerardo’s grandmother, defendant masturbated Gerardo, and on a later similar trip, defendant masturbated and orally copulated Gerardo. And on an occasion while defendant was driving Gerardo to the hospital to visit his grandmother, defendant placed his hand inside Gerardo’s pants and touched his penis.
Luis B. testified that when he was 19 or 20, he was in church to speak to a priest when defendant told him to go to the church office. Luis did so and defendant took Luis to defendant’s bedroom where defendant removed his own pants and placed Luis’s hand on defendant’s penis. Defendant then helped Luis remove Luis’s pants and touched Luis’s penis. Defendant masturbated himself. Then defendant told Luis to go to church and say 10 “Our Fathers” and God would forgive Luis.
Nicholas M. testified that he met defendant while visiting Nicholas’s brother, who volunteered as a secretary at the parish. When Nicholas was 17, defendant offered to take him out to eat. On the drive, defendant rubbed Nicholas’s thigh and touched Nicholas’s penis outside of Nicholas’s clothing. Defendant attempted to place his hand under Nicholas’s waistband, but Nicholas resisted defendant’s efforts. While on a church sponsored retreat in Victorville, Nicholas confessed to defendant. Defendant rubbed Nicholas’s leg. Finally, after a ceremony at church, defendant took Nicholas to the basement, where he rubbed Nicholas’s knee.
Gerardo, Luis, and Nicholas testified that they did not know each other. Photographic evidence established that there was a piano in defendant’s living quarters, as Gerardo had described in his testimony.
Defendant testified in own behalf and denied committing any of the lewd acts described by the complaining witnesses. Defendant said he first met Luis when Luis testified at the preliminary hearing. Defendant denied taking any minor into his living quarters. He admitted having Gerardo in his car during visits to Gerardo’s grandmother and her family but denied any physical contact. He admitted driving Nicholas to a restaurant but denied ever being in the church basement with him. Defendant admitted he may have hugged Nicholas while participating in a church activity and slapped his thigh during the trip to the restaurant but denied any other physical contact.
Based on the foregoing evidence, defendant was convicted by jury of five felony counts, consisting of four counts of engaging in a lewd act on Gerardo V., who was 14 or 15 years old and at least 10 years younger than defendant (Pen. Code, § 288, subd. (c)(1); counts 1–4) and one count of sexual battery by restraint of Luis B. (id., § 243.4, subd. (a); count 5). The jury also convicted defendant of three misdemeanor counts with respect to Nicolas M., consisting of one count of sexual battery (id., § 243.4, subd. (e)(1)) and two counts of annoying or molesting a child under the age of 18 (id., § 647.6, subd. (a)(1)). Defendant was sentenced to state prison for 6 years 8 months.
Defendant appealed and, as noted above, his contention regarding prosecutorial misconduct was rejected by the Supreme Court. We now address his contentions regarding instructional error (a contention regarding the statute of limitations has been abandoned) and the Attorney General’s contention that the abstract of judgment should be corrected.
DISCUSSION
1. Instruction on Willfully False Testimony
The trial court instructed the jury how to weigh willfully false testimony pursuant to CALJIC No. 2.21.2. Defendant, relying primarily on People v. Lescallett (1981) 123 Cal.App.3d 487, 492–493, contends that the court thereby erred because there was no evidence of witness fabrication and thus the jury wrongly would have construed it as applying to his testimony. Defendant further argues that this error unconstitutionally lowered the prosecution’s burden of proof. We disagree.
As given, the instruction stated: “A witness who is willfully false in one material part of his or her testimony is to be distrusted in others. You may reject the whole testimony of a witness who willfully has testified falsely as to a material point, unless, from all the evidence, you believe the probability of truth favors his or her testimony in other particulars.”
As the Attorney General notes, our Supreme Court approved CALJIC No. 2.21.2 as a correct statement of the law against the identical challenge and questioned the cited dictum in Lescallett. (People v. Allison (1989) 48 Cal.3d 879, 894–896.) The Supreme Court also rejected the claim that CALJIC No. 2.21.2 lowered the prosecution’s burden of proof. (E.g., People v. Maury (2003) 30 Cal.4th 342, 428–429.)
In any event, Gerardo V.’s testimony, corroborated by a photograph of a piano in defendant’s living quarters that was received in evidence, constitutes evidence that defendant testified falsely when he claimed no minor had ever been in those quarters. Thus, the instruction was proper.
2. Instruction on Uncharged Sexual Offenses
The trial court instructed the jury that, in considering evidence of uncharged sexual offenses, those offenses must be proved by a preponderance of the evidence. We reject defendant’s contention that such instruction unconstitutionally lowered the prosecution’s burden of proof.
Defendant concedes that People v. Reliford (2003) 29 Cal.4th 1007, 1015–1016 rejected this contention, and that we must follow Reliford. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Rather, he advances the contention only to “preserv[e] this issue for federal review[.]”
3. Abstract of Judgment
Defendant’s aggregate sentence of 6 years 8 months consisted of 4 years on count 5, and 8 months each on counts 1–4. Although the minute order of the sentencing and the abstract of judgment correctly indicate the sentences imposed on the individual counts, box 8 of the abstract of judgment incorrectly reflects the total time as 5 years 8 months. The Attorney General contends and defendant concedes that the abstract of judgment should be corrected. We shall so order.
DISPOSITION
The judgment is affirmed and the matter is remanded with instructions that the trial court correct the abstract of judgment to reflect that the total time of defendant’s sentence is 6 years 8 months, and to forward a copy of the amended abstract to the Department of Rehabilitation and Corrections.
We concur: VOGEL, J., ROTHSCHILD, J.