Opinion
B165956.
11-25-2003
THE PEOPLE, Plaintiff and Respondent, v. ELMER ANTONIO RAMIREZ, Defendant and Appellant.
Athena Shudde, 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, Senior Assistant Attorney General, Kenneth C. Byrne, Supervising Deputy Attorney General, and Xiomara Costello, Deputy Attorney General, for Plaintiff and Respondent.
INTRODUCTION
Defendant Elmer Antonio Ramirez appeals from the judgment entered following his conviction by jury of a forcible lewd act with an 11-year-old family member (Pen. Code, § 288, subd. (b)(1); count 3). The trial court sentenced defendant to state prison for a term of eight years. His sole contention on appeal is that the trial court erred in instructing the jury with CALJIC No. 2.62. We affirm the judgment.
The jury found that defendant was not guilty of continuous sexual abuse, a violation of Penal Code section 288.5, subdivision (a), as charged in count 1 of the amended information. The jury failed to reach a verdict on count 2, charging a forcible lewd act with a minor, a violation of Penal Code section 288, subdivision (b)(1). The trial court declared a mistrial as to that count and ultimately dismissed it.
FACTS
Eleven-year-old S. lived with her mother in a two-bedroom apartment. Defendant and his girlfriend also lived in the apartment. S. and her mother shared one bedroom while defendant and his girlfriend shared the other.
One evening in November or December 2001, defendant entered S.s bedroom. He kissed her with an open mouth and touched her inappropriately. S. pushed defendant away and kicked him "in his part." Defendant left the room but returned a short time later.
On January 14, 2002, defendant once again inappropriately touched S. in ways that made her feel uncomfortable. He repeated this conduct approximately one week later and again in February 2002.
Defendant first started touching S. on the days her mother worked. S. did not tell anyone, in that she was scared and thought she had done something wrong.
S. spent the week with her mother and the weekends with her father. In April 2002, S. began crying when it was time to return to her mother. S. told her father she wanted to stay with him. When S.s father learned what defendant had done to his daughter, Ss father gave S. a video camera to set up in her bedroom.
On April 24, 2002, defendant again entered S.s bedroom. S. threatened defendant with a knife, but defendant stated he was not frightened. Defendant kissed S. on her neck, held her hands and placed one knee above her stomach. S. told defendant she would not let him and called out to his girlfriend. The girlfriend did not hear S. until the fourth time, however. At that point, S. pushed defendant away and he left. The incident was recorded by the video camera. S. closed the door and cried. Defendant returned to S.s room throughout the day and kissed her.
S. gave her father the videotape. Her father, in turn, gave the videotape to the police.
On April 26, 2002, police arrested defendant. Bell Police Detective Ralph Patino interviewed defendant, who waived his Miranda rights. The detective told defendant he was investigating a molestation case. Defendant volunteered that he played with his cousin all the time. He kissed and hugged her because he loved her.
Miranda v. Arizona (1966) 384 U.S. 436.
Detective Patino described defendant as "very remorseful." The detective said defendant was "sad" and at times became "teary-eyed." When the detective asked defendant if he had ever placed his hand inside S.s pants near her vaginal area, defendant initially denied doing so. When Detective Patino asked defendant why S. would accuse him of such a thing if he loved S. as much as he said he did and S. loved him, defendant became remorseful as evidenced by his becoming "teary-eyed." Defendant then admitted that he had placed his hand inside S.s pants once but caught himself and stopped. Defendant denied placing his finger inside S.s vagina but admitted to Detective Patino that he rubbed her vaginal area.
When Detective Patino asked defendant if he had ever touched S.s breasts, defendant lowered his head and said he may have touched them accidentally. When the detective inquired whether defendant kissed S. mouth-to-mouth or climbed on top of her while doing so, defendant said it was all part of his playing.
CONTENTION
Defendant contends the trial court erred in instructing the jury with CALJIC No. 2.62. Defendant has waived this issue. Assuming without deciding that instructional error was committed, the error did not result in a miscarriage of justice and therefore did not affect his substantial rights.
DISCUSSION
At the Peoples request, and absent an objection by defendant, the trial court instructed the jury in accordance with CALJIC No. 2.62. That instruction provides:
"In this case defendant has testified to certain matters. [¶] If you find that a defendant failed to explain or deny any evidence against him introduced by the prosecution which he can reasonably be expected to deny or explain because of facts within his knowledge, you may take that failure into consideration as tending to indicate the truth of this evidence and as indicating that among the inferences that may reasonably be drawn therefrom those unfavorable to the defendant are the more probable.
"The failure of a defendant to deny or explain evidence against him does not, by itself, warrant an inference of guilt, nor does it relieve the prosecution of its burden of proving every essential element of the crime and the guilt of the defendant beyond a reasonable doubt.
"If a defendant does not have the knowledge that he would need to deny or to explain evidence against him, it would be unreasonable to draw an inference unfavorable to him because of his failure to deny or explain this evidence."
Sometime after this instruction and others had been given to the jury, the prosecutor stated, "[W]ith regard to the jury instructions, we met informally in chambers. We all concur as to the proper instructions and that was what was effectively given to the jury." Defendants trial counsel interjected, "Thats correct, Your Honor." The trial court in turn "[c]oncur[red] with that."
The People argue that defendant has waived any claim of instructional error with respect to CALJIC No. 2.62, in that he failed to object to it below, and defense counsel actually concurred in the giving of that instruction. Defense counsels mere acquiescence to the instructions, including CALJIC No. 2.62, does not constitute a waiver to a claim of instructional error, however. (People v. Collins (1992) 10 Cal.App.4th 690, 694-695.) Whether defendants failure to object expressly to the giving of CALJIC No. 2.62 constitutes a waiver of his claim of instructional error, on the other hand, depends upon whether the error affected defendants substantial rights. (Pen. Code, § 1259.) "Substantial rights are affected if the error `result[s] in a miscarriage of justice, [i.e.,] making it reasonably probable defendant would have obtained a more favorable result in the absence of error. [Citation.]" (People v. Elsey (2000) 81 Cal.App.4th 948, 954, fn. 2.) As we now explain, the giving of CALJIC No. 2.62 did not affect defendants substantial rights.
Assuming for the sake of argument that the trial court erred in instructing the jury with CALJIC No. 2.62, the error was unquestionably harmless. We reject as meritless defendants assertion that the giving of CALJIC No. 2.62 was prejudicial because this was a close case. That the jury deliberated for more than two days and acquitted defendant of count 1, charging continuous sexual abuse, and deadlocked on count 2, charging a forcible lewd act against a child, demonstrates that the jury rendered its verdicts after diligently evaluating the evidence. There is nothing in the record to indicate that the jury was influenced by CALJIC No. 2.62. As noted in People v. Ballard (1991) 1 Cal.App.4th 752 at pages 756 to 757: "CALJIC No. 2.62 does not direct the jury to draw an adverse inference. It applies only if the jury finds that the defendant failed to explain or deny evidence. It contains other portions favorable to the defense (suggesting when it would be unreasonable to draw the inference; and cautioning that the failure to deny or explain evidence does not create a presumption of guilt, or by itself warrant an inference of guilt, nor relieve the prosecution of the burden of proving every essential element of the crime beyond a reasonable doubt)."
Moreover, S. described in detail several incidents during which defendant molested her sexually. Defendant was quite remorseful during his interview with Detective Patino and admitted unequivocally that he committed one act of sexual abuse against S. In light of defendants admission that he rubbed S.s vaginal area on one occasion, it is not the least surprising that the jury convicted him of one count of forcible lewd conduct against a child.
Defendants admission of sexual wrongdoing, S.s testimony that defendant sexually molested her on numerous occasions, the jurys instruction with CALJIC No. 17.31, the prosecutors failure to expressly direct the jurys attention to CALJIC No. 2.62 during his summation to the jury, and the jurys acquittal on count 1 and inability to reach a verdict on count 2 (People v. Saddler, supra, 24 Cal.3d at pp. 683-684; People v. Haynes (1983) 148 Cal.App.3d 1117, 1122; People v. Campbell (1978) 87 Cal.App.3d 678, 685-686), collectively compel the conclusion that it is not reasonably probable that the jury would have acquitted defendant of committing a forcible lewd act against S. as charged in count 3 of the information if CALJIC No. 2.62 had not been given to the jury. Thus error, if any, in instructing the jury with CALJIC No. 2.62 did not result in a miscarriage of justice. (Cal. Const., art. VI, § 13; People v. Watson (1956) 46 Cal.2d 818, 836.) Because defendants substantial rights were not affected by the giving of CALJIC No. 2.62 (People v. Elsey, supra, 81 Cal.App.4th at p. 954, fn. 2), he has waived his claim of instructional error by his failure to object to that instruction (Pen. Code, § 1259).
CALJIC No. 17.31 provides that "[t]he purpose of the courts instructions is to provide you with the applicable law so that you may arrive at a just and lawful verdict. Whether some instructions apply will depend upon what you find to be the facts. Disregard any instruction which applies to facts determined by you not to exist. Do not conclude that because an instruction has been given I am expressing an opinion as to the facts." While this instruction "does not render an otherwise improper instruction proper, it may be considered in assessing the prejudicial effect of an improper instruction." (People v. Saddler (1979) 24 Cal.3d 671, 684.)
The judgment is affirmed.
We concur: ORTEGA, J. and MALLANO, J.