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People v. Malena

Court of Appeals of California, Fifth Appellate District.
Nov 21, 2003
F041488 (Cal. Ct. App. Nov. 21, 2003)

Opinion

F041488.

11-21-2003

THE PEOPLE, Plaintiff and Respondent, v. ERNEST CAL MALENA, Defendant and Appellant.

William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, and John G. McLean, Deputy Attorney General, for Plaintiff and Respondent.


OPINION

THE COURT

A jury convicted appellant, Ernest Cal Malena, of annoying or molesting a child while having a prior conviction (Pen. Code, § 647.6, subd. (c)(1)). In a separate proceeding, the court found true a prior prison term enhancement (Pen. Code, § 667.5, subd. (b)) and allegations that Malena had a prior conviction within the meaning of the three strikes law (Pen. Code, § 667, subds. (b)-(i)). On September 3, 2002, the court sentenced Malena to an aggregate seven-year term, the aggravated three-year term on Malenas annoying a child conviction, doubled to six years because of his three strikes conviction, and a one-year prior prison term enhancement. On appeal, Malena contends the court committed instructional error. We will affirm.

FACTS

At Malenas trial, 10-year-old Christina A. testified that on February 10, 2002, Malena took her to clean his house for an agreed amount of $10. While Malena was in the garage, Christina went there to tell him he had a telephone call. As she was leaving the garage, Malena said he did not know whether he should ask her something because she might get mad. Christina told him to go ahead and Malena then held his hand in a cupped position and moved it back and forth. Christina told Malena that what he did was "sick" and left.

While Christina continued cleaning inside the house, her mother called and told her she would be picking her up. As Christina waited for her mother outside the house, Malena approached and told her she looked like a girl in a magazine. Out of curiosity, Christina accompanied Malena to the garage. However, when Malena showed her a magazine with a naked woman on the cover, she told him she did not want to look at it and went outside to resume waiting for her mother. Malena followed Christina, gave her $20, and told her that he would give her more if she could do stuff but that she was too young.

Jennifer T. testified that in 1993 when she was seven years old, Malena gave her and another young girl money to buy candy. After the other girl left, Jennifer asked Malena for money to buy a toy. Malena asked her to do him a favor and had her walk into a secluded spot in some bushes. Malena then had Jennifer get on her knees, close her eyes and open her mouth. Jennifer, however, opened her eyes and saw Malena unzip his pants and expose his penis. Jennifer ran away when Malena tried to pull her head toward his penis.

DISCUSSION

The court charged the jury with the language of CALJIC No. 2.50.01 (2001 revision) as follows:

"Evidence has been introduced for the purpose of showing that the defendant engaged in a sexual offense . . . other than that charged in the case. "

`Sexual offense means a crime under the laws of a state or of the United States that involves any of the following:

"[A.] Any conduct made criminal by Penal Code Section 674c(1). The elements of this crime are set forth elsewhere in these instructions. [¶] . . . [¶]

"If you find that the defendant committed a prior sexual offense, you may, but are not required to, infer that the defendant had a disposition to commit sexual offenses. If you find that the defendant had this disposition, you may, but are not required to, infer that he was likely to commit and did commit the crime of which he is accused.

"However, if you find by a preponderance of the evidence that the defendant committed a prior sexual offense, that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged crime. The weight and significance of the evidence, if any, are for you to decide.

"Unless you are otherwise instructed, you must not consider this evidence for any other purpose."

Malena contends that this "instruction leaves the jury, if they find both that the defendant committed the prior sexual misconduct and that he or she had a disposition to commit sexual offenses, free to convict for the present offenses without any additional evidence" and "implicitly authorizes the jury to convict if the prior crimes evidence is found to be true beyond a reasonable doubt (as opposed to a preponderance of the evidence)." (Original emphasis.) We disagree.

On February 10, 2003, the California Supreme Court announced its decision in People v. Reliford (2003) 29 Cal.4th 1007. Reliford concluded that the use of this instruction did not establish constitutional error, noting, however, its language could be, and has been, improved. (CALJIC No. 2.50.01 (2002 rev.) (6th ed. 1996); Reliford, supra, 29 Cal.4th at p. 1016.)

In Reliford, the court addressed contentions that the complained-of instruction would likely mislead a jury concerning both the purpose for which the evidence of prior misconduct could be used and the prosecutions burden of proof in proving the instant charges. (Reliford, supra, 29 Cal.4th at p. 1012.) At issue was the 1999 version of CALJIC No. 2.50.01 instruction, which was substantially identical to the instruction Malenas jury received. (Reliford, supra, at pp. 1011-1012.) The Supreme Court held that where, as here, a jury is properly instructed as to each element of the crime or crimes charged, and is instructed that the prosecution had the burden to prove each element beyond a reasonable doubt, there is no reasonable possibility the jury could be mislead to believe it could convict on the present charges solely on the basis of proof of prior uncharged offenses. (Id . at pp. 1013-1014.)

The court in Reliford also rejected the defendants contention that CALJIC No. 2.50.01 allowed the jury to find that the present sex offense was proven beyond a reasonable doubt if it found that the prior sex offense was proven beyond a reasonable doubt. (Reliford, supra, 29 Cal.4th at p. 1015.) The court held that no reasonable jury could attach such meaning to the instruction in light of other instructions requiring proof of each element of the current crimes beyond a reasonable doubt and requiring proof of a "union or joint operation of act or conduct and the requisite intent for each charged crime." (Ibid.)

Although the instruction given here was based on the 2001 revision of CALJIC No. 2.50.01, it is virtually identical to the one found to be constitutional in Reliford. Thus, in accordance with Reliford, we reject appellants constitutional claim and conclude that his convictions need not be reversed because the complained-of instruction was given.

DISPOSITION

The judgment is affirmed.


Summaries of

People v. Malena

Court of Appeals of California, Fifth Appellate District.
Nov 21, 2003
F041488 (Cal. Ct. App. Nov. 21, 2003)
Case details for

People v. Malena

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ERNEST CAL MALENA, Defendant and…

Court:Court of Appeals of California, Fifth Appellate District.

Date published: Nov 21, 2003

Citations

F041488 (Cal. Ct. App. Nov. 21, 2003)