Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. KA080622, George Genesta, Judge.
Nancy L. Tetreault, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Yun K. Lee and Lauren E. Dana, Deputy Attorneys General, for Plaintiff and Respondent.
TURNER, P. J.
Defendant, Romualdo Villanueva, appeals from his convictions for: spousal rape (Pen. Code, § 262, subd. (a)(1)); misdemeanor spousal battery (§ 243, subd. (e)(1)); and misdemeanor disobeying a domestic relations court order resulting in physical injury. (§ 273.6, subd. (a).) Defendant argues the trial court improperly failed to instruct the jury with CALCRIM No. 358 and the abstract of judgment should be corrected to more accurately reflect the fines orally imposed. The Attorney General argues the matter should be remanded for resentencing on the fines and penalties. We affirm with modifications.
All further statutory references are to the Penal Code unless otherwise indicated.
We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Elliot (2005) 37 Cal.4th 453, 466; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) M.C. was married to defendant for 26 years. They had seven children together. On September 24, 2007, M.C. had been separated from defendant for eight months. Following their separation, M.C. obtained a restraining order from the court. Both defendant and M.C. were present in court when they received a copy of the restraining order.
On September 24, 2007, M.C. was living in La Puente with her two older children and a 12-year-old daughter. At approximately 8 a.m., M.C. saw defendant at the window. Defendant knocked on the window and asked M.C. to open the door. M.C. refused, citing the restraining order. M.C. told defendant to leave. Defendant then asked M.C. to serve him breakfast. M.C.’s children were not home. M.C. had not invited defendant to her home. Defendant spoke to M.C. about getting back together with her. Defendant again asked M.C. to open the door. M.C. refused to admit defendant. Defendant said he had a key. Thereafter, defendant opened the door. Defendant came into the kitchen. When M.C. attempted to leave, defendant grabbed her arm. Defendant pulled M.C. into the living room. When M.C. attempted to go out the door, defendant picked her up. Defendant threw M.C. onto the couch. Defendant held M.C. down by placing his hands on her chest. M.C. repeatedly asked defendant to let her go. Defendant refused.
Defendant continued to hold M.C. down with one hand on her chest while removing her pants and underwear with his other hand. M.C. continued to ask to be released. M.C. said she did not want to have sexual relations. M.C. was yelling and crying. Defendant elbowed M.C.’s arms and punched her arms with a closed fist. Defendant placed his penis in M.C.’s vagina. When M.C. pushed defendant to move him, he threw her to the ground and continued to have sexual intercourse with her. M.C. was afraid because defendant had previously been violent. M.C. feared defendant would “do something” to her. Defendant had also threatened to go to Mexico and take their children.
M.C. bit defendant’s arm and hand in an effort to get him off of her body. Defendant told M.C. not to move so that he could ejaculate. M.C. continued to cry out for help in an effort to alert the neighbors. Suddenly, sheriff’s deputies yelled out. Defendant jumped up and hid in the bathroom. Defendant told M.C. not to open the door. M.C. pulled up her pants and opened the door for the deputies. As a result of defendant’s actions, M.C. had pain in her hands, back, and body for approximately three weeks. M.C. also experienced burning in her vaginal area. M.C. never bit her former husband as a form of lovemaking during prior consensual sex.
Los Angeles County Deputy Sheriff Hermelinda Rodriguez responded to the radio call regarding the disturbance. Deputy Rodriguez could hear screaming and loud crying as well as a woman’s voice saying in Spanish, “Leave me alone.” Neighbors directed the deputies to M.C.’s residence. Another deputy cut a padlock on a chain link fence. Deputy Rodriguez looked through a window and saw a woman running in the house. M.C., who looked terrified, opened the front door. M.C. was crying and trembling. M.C.’s hair was drenched in sweat and her clothes were dirty and disheveled. M.C. looked like she was in pain. M.C. pointed to the bathroom and said: “‘He’s in there. He’s in there.’” Deputy Rodriguez yelled in Spanish: “‘We know you’re in there. Come out with your hands up.’” After Deputy Rodriguez repeated her demand approximately five times, defendant exited the bathroom. Defendant was searched and escorted out to a patrol car.
Deputy Rodriguez advised defendant of his constitutional rights in Spanish. Defendant acknowledged those rights and agreed to speak to her. Defendant acknowledged that there was a restraining order against him. Defendant indicated that he should not be at M.C.’s residence. Defendant said he was dropping off money for his younger daughter. Defendant said he had consensual sexual intercourse with M.C. Defendant, who said the bites inflicted by M.C. on his forearms were “love bites,” was arrested.
First, defendant argues the trial court improperly failed to instruct the jury with CALCRIM No. 358 because his trial testimony differed from the statements he made to Deputy Rodriguez. We conclude any error was harmless. The California Supreme Court has held: “A trial court has a sua sponte duty to instruct the jury to view a defendant’s oral admissions with caution if the evidence warrants it. (People v. Dickey (2005) 35 Cal.4th 884, 905; People v. Carpenter (1997) 15 Cal.4th 312, 393[] [purpose of cautionary instruction applies ‘to any oral statement of the defendant, whether made before, during, or after the crime’].) To determine prejudice, ‘[w]e apply the normal standard of review for state law error: whether it is reasonably probable the jury would have reached a result more favorable to defendant had the instruction been given.’ (People v. Carpenter, supra, 15 Cal.4th at p. 393.) Because the cautionary instruction’s purpose is ‘“to help the jury to determine whether the statement attributed to the defendant was in fact made, courts examining the prejudice in failing to give the instruction examine the record to see if there was any conflict in the evidence about the exact words used, their meaning, or whether the admissions were repeated accurately. [Citations.]” [Citation.]’ (People v. Dickey, supra, 35 Cal.4th at p. 905.)” (People v. Wilson (2008) 43 Cal.4th 1, 19.)
CALCRIM No. 358 states: “You have heard evidence that the defendant made [an] oral or written statement[s] (before the trial/while the court was not in session). You must decide whether the defendant made any (such/of these) statement[s], in whole or in part. If you decide that the defendant made such [a] statement[s], consider the statement[s], along with all the other evidence, in reaching your verdict. It is up to you to decide how much importance to give to such [a] statement[s]. [¶] [Consider with caution any statement made by (the/a) defendant tending to show (his/her) guilt unless the statement was written or otherwise recorded.]”
People v. Carpenter, supra, 15 Cal.4th 312 was superseded by statute on a different point in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106-1107.
Defendant cites to Deputy Rodriguez’s representations that he: acknowledged his awareness of the restraining order against him; said he knew he should not be at his wife’s residence; said he came to leave money for his daughter; said the sexual intercourse with M.C. was consensual; and said that the bites he received were “love bites.” Although these statements were statements made before trial, they did not materially conflict with his trial testimony, as defendant alleges. At trial, defendant testified that he knew there was a restraining order against him. Defendant went to M.C’s home on September 20, 2007, to give her money. The money was for their daughter. Defendant returned to M.C.’s home on September 24, 2007, to arrange to have his daughter transferred to another school. When defendant arrived on September 24, 2007, he entered through an open door. M.C. was upset and crying. After defendant calmed M.C., he testified she began to touch his penis. Thereafter, both of them undressed and had consensual intercourse. Defendant’s testimony was consistent with his extrajudicial statements to Deputy Rodriguez.
Citing People v. Dickey, supra, 35 Cal.4th at page 906, in People v. Wilson, supra, 43 Cal.4th at page 19, our Supreme Court held: “A defendant’s simple denials about making the statements, along with uncontradicted testimony about his statements, may support the conclusion that the instructional error was harmless. [Citation.]” Here, the contradiction of defendant’s testimony was with that of M.C.’s statements regarding the September 24, 2007 events. The contradiction at issue was not with the extrajudicial statements attributed to him by Deputy Rodriguez. Moreover, we review the instructions as a whole in evaluating instructional error. (People v. Roybal (1998) 19 Cal.4th 481, 526-527; People v. Mendoza (1998) 18 Cal.4th 1114, 1134; People v. Frye (1998) 18 Cal.4th 894, 957, disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; People v. Musselwhite (1998) 17 Cal.4th 1216, 1248; People v. Castillo (1997) 16 Cal.4th 1009, 1014-1016.) It is not reasonably probable that the jury would have reached a more favorable verdict if CALCRIM No. 358 had been given. As a result, any error in failing to give CALCRIM No. 358 was harmless.
Second, defendant argues that the abstract of judgment should be corrected to delete the section 290.3, subdivision (a) sex offender fine. The Attorney General argues that matter should be remanded for resentencing on the fines and penalties. At the sentencing hearing, the trial court ordered: “Defendant shall provide a [deoxyribonucleic acid] sample pursuant to Penal Code section 296; [¶]... [¶]... pay a $200 state restitution fine; [¶]... pay a $200 parole revocation fine. Parole revocation fine is stayed pending any parole revocation hearing; [¶]... pay a $20 court security fee; [¶]... pay a $200 restitution fine pursuant to [section] 1202.4[, subdivision] (b) because of the domestic violence aspects of this case.” The abstract of judgment reflects these fines as well as: “Defendant is ordered to pay $300 sexual habitual offender fine plus penalty assessments amount of $720. Total of $1020. Pursuant to Penal Code 290.3.” The section 290.3, subdivision (a) sexual offender fine was not orally imposed by the trial court. Nor did the deputy district attorney request the fine be imposed.
The California Supreme Court has held: “[T]he abstract of judgment is not itself the judgment of conviction, and cannot prevail over the court’s oral pronouncement of judgment to the extent the two conflict. [Citations.]” (People v. Delgado (2008) 43 Cal.4th 1059, 1070; see also §§ 1213, 1213.5, People v. Mitchell (2001) 26 Cal.4th 181, 185; People v. Mesa (1975) 14 Cal.3d 466, 471; People v. Walz (2008) 160 Cal.App.4th 1364, 1367, fn. 3.) California Rules of Court, rule 8.155(c)(1) provides in pertinent part, “[O]n its own motion, the reviewing court may order correction... of any part of the record.” (See also People v. Mitchell, supra, 26 Cal.4th at pp. 185-188; People v. Boyde (1988) 46 Cal.3d 212, 256.) Here, the trial court never orally imposed the section 290.3, subdivision (a) sex offender fine. The deputy district attorney never mentioned the section 290.3, subdivision (a) sex offender fine nor objected to the trial court’s failure to have orally imposed it. Thus, it must be stricken from the abstract of judgment. (People v. Mesa, supra, 14 Cal.3d at p. 471; People v. Hartsell (1973) 34 Cal.App.3d 8, 14, disapproved on another point in People v. Karaman (1992) 4 Cal.4th 335, 345.)
There is no merit to the argument of the Attorney General that the mandatory nature of the section 290.3, subdivision (a) fine requires that it remain in place. Section 290.3, subdivision (a) states in part, “Every person who is convicted of any offense specified in subdivision (c) of Section 290 shall, in addition to any imprisonment or fine, or both, imposed for commission of the underlying offense, be punished by a fine of three hundred dollars ($300) upon the first conviction or a fine of five hundred dollars ($500) upon the second and each subsequent conviction, unless the court determines that the defendant does not have the ability to pay the fine.” (Italics added.) The trial court had discretion not to impose the section 290.3, subdivision (a) sex offender fine if defendant did not have the ability to pay it as explained in the italicized portion of the statute. Because the prosecutor never requested the section 290.3, subdivision (a) sex offender fine be imposed or interposed an objection when it was not assessed, the entire issue has been forfeited. As the statute provides a discretionary sentence choice based on defendant’s ability to pay, the prosecution may not now ask the section 290.3, subdivision (a) sex offender fine be imposed. (People v. Tillman (2000) 22 Cal.4th 300, 302-303; People v. Walz, supra, 160 Cal.App.4th at p. 1369.) The amended abstract of judgment is to delete any reference to the section 290.3, subdivision (a) sex offender fine.
Nor is there any merit to the argument of the Attorney General that the matter should be remanded to allow the trial court to impose the section 290.3, subdivision (a) sex offender fine. To do so would, as defendant argues, violate his double jeopardy rights. (People v. Hanson (2000) 23 Cal.4th 355, 360-361; People v. Mustafaa (1994) 22 Cal.App.4th 1305, 1311-1312.) As noted, the prosecution has forfeited the entire issue.
Third, the trial court orally imposed one section 1465.8, subdivision (a)(1) court security fee. The trial court should have imposed a $20 court security fee pursuant to section 1465.8, subdivision (a)(1) as to each count for which defendant was convicted. (See People v. Crittle (2007) 154 Cal.App.4th 368, 371; People v. Schoeb (2005) 132 Cal.App.4th 861, 865-866.) Therefore, three section 1465.8, subdivision (a)(1) fees shall be imposed. The trial court is to actively and personally insure the clerk accurately prepares a correct amended abstract of judgment which reflects the modifications to the court security fees and the abstract of judgment we have ordered. (People v. Acosta (2002) 29 Cal.4th 105, 110, fn. 2; People v. Chan (2005) 128 Cal.App.4th 408, 425-426.)
The judgment is modified to impose three $20 Penal Code section 1465.8, subdivision (a) court security fees. The abstract of judgment is to be corrected to delete any reference to the $300 Penal Code section 290.3, subdivision (a) fine. Upon remittitur issuance, the superior court clerk shall forward an amended abstract of judgment to the Department of Corrections and Rehabilitation. The judgment is affirmed in all other respects.
We concur: MOSK, J., KRIEGLER, J.