IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
October 24, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
BILLY LEE OWENS, JR., DEFENDANT AND APPELLANT.
(Super. Ct. No. 09F02968)
The opinion of the court was delivered by: Raye , P. J.
P. v. Owens
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Despite a Supreme Court opinion expressly approving the two challenged jury instructions given in this child molestation case (People v. Gammage (1992) 2 Cal.4th 693 (Gammage)), defendant Billy Lee Owens, Jr., boldly asks us to reject the Supreme Court's reasoning, disapprove giving both CALCRIM Nos. 301 and 1190, and reverse the judgment. This, of course, we cannot do. As an intermediate court of review, we are bound by the decision of our Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 (Auto Equity).) We affirm.
On February 20, 2009, a number of cousins gathered at their grandmother's house, including S.K., age 6, and sisters O.A., age 8, and B.A., age 5. The girls testified at trial. S.K. testified that defendant came into her grandmother's room where she was playing, grabbed her by the waist, and put her on the bed where he rubbed her vagina over her clothes with his elbow. O.A. testified defendant came into her grandmother's room while she was alone watching television, started playing with her, and, while she sat on his lap, touched her vagina over her clothes. B.A. also testified that defendant touched her vagina over her clothes on the same day.
Defendant's niece and her friend testified that he came into their room in 1995 when they were in bed and touched their vaginas under their clothes. The girls were 22 and 24 years old at the time of trial.
A jury convicted defendant of one count of lewd and lascivious acts upon a child under the age of 14 by use of force, violence, duress, menace, or threat of great bodily harm (Pen. Code, § 288, subd. (b)(1)) and two counts of lewd and lascivious acts upon a child under the age of 14 (Pen. Code, § 288, subd. (a)). The trial court found true the allegations that defendant had suffered two prior convictions of lewd and lascivious acts upon a child and that the prior convictions were strikes. He was sentenced to a total term of 75 years to life plus 30 years. He appeals.
The trial court instructed the jury: "The testimony of only one witness can prove any fact. Before you conclude that the testimony of one witness proves a fact, you should carefully review all the evidence." (CALCRIM No. 301.) Immediately following CALCRIM No. 301, the court further instructed the jury: "Conviction of a sexual assault crime may be based on the testimony of a complaining witness alone." (CALCRIM No. 1190.) Defendant contends the instructions, when taken together, dilute the prosecution's burden of proof in violation of the Sixth and Fourteenth Amendments to the United States Constitution.
Defendant urges us to ignore the majority opinion in Gammage because, in his view, the court answered the wrong question. He accuses the court of incorrectly asking, what is the harm in advising the jury that the testimony of a complaining witness in a sexual assault case need not be corroborated when there is the risk that some jurors might believe there should be some corroboration? He insists the proper question is, why would any juror even dream up the issue of corroboration in the absence of any instruction suggesting that corroboration is necessary? A little historical context, as provided in Gammage, is helpful in understanding defendant's argument.
For centuries, courts have entertained the notion that sexual assault charges are easy to make and hard to defend. Thus, for some time juries were instructed to "'examine the testimony of the female person named in the information with caution.'" (Gammage, supra, 2 Cal.4th at p. 695.) By 1975 the Supreme Court recognized that this instruction had "outworn its usefulness" and "performs no just function," and disapproved of its continued use. (People v. Rincon-Pineda (1975) 14 Cal.3d 864, 875, 877, 883.) In its place, the Court admonished courts to instruct juries, "'"Testimony which you believe given by one witness is sufficient for the proof of any fact. However, before finding any fact to be proved solely by the testimony of such a single witness, you should carefully review all of the testimony upon which proof of such fact depends."'" (Gammage, supra, 2 Cal.4th at p. 695.)
In Gammage, the trial court also instructed the jury, "'It is not essential to a conviction of a charge of rape that the testimony of the witness with whom sexual intercourse is alleged to have been committed be corroborated by other evidence.'" (Gammage, supra, 2 Cal.4th at pp. 696-697.) The defendant, as here, argued that the additional instruction unduly emphasized there was no corroboration needed and unconstitutionally created "a preferential credibility standard for the complaining witness" despite the fact that it correctly stated the law. (Id. at p. 701.) The Supreme Court rejected the argument, which leaves us no choice but to do the same.
"Because of [the] difference in focus of the instructions, we disagree with defendant . . . that, in combination, the instructions create a preferential credibility standard for the complaining witness, or somehow suggest that that witness is entitled to a special deference. The one instruction merely suggests careful review when a fact depends on the testimony of one witness. The other tells the jury there is no legal corroboration requirement. Neither eviscerates or modifies the other. As we observed early in this century, 'There was no singling out of the testimony of the prosecuting witness with a view of giving it undue prominence before the jury.' [Citation.] Nor do the instructions 'dilute the "beyond a reasonable doubt" standard.' [Citation.] The instructions in combination are no less correct, and no less fair to both sides, than either is individually." (Gammage, supra, 2 Cal.4th at p. 701.) Overruling earlier cases to the contrary, the court held it was proper to give both instructions in cases involving sex offenses. (Id. at p. 702.)
We point out that CALCRIM No. 301 appeared as CALJIC No. 2.27 in its Gammage incarnation, and CALCRIM No. 1190 was essentially the same as CALJIC Nos. 10.21 and then 10.60. As the Attorney General reminds us, California Supreme Court rulings on CALJIC instructions apply to comparable CALCRIM instructions if they are not materially different. (People v. Cromp (2007) 153 Cal.App.4th 476, 480.)
Defendant poses nothing new. He reiterates the very arguments raised and rejected in Gammage. Indeed, the concurring justices agreed with defendant that the no-corroboration instruction should be barred because, in the absence of an instruction that the victim's testimony should be viewed with caution, "it is without function." (Gammage, supra, 2 Cal.4th at p.703 (conc. opn. of Mosk & Kennard, JJ.).) But the majority held there is a legitimate benefit from the continued use of the no-corroboration instruction. We therefore are not at liberty to challenge the majority assessment of the legitimacy of the no-corroboration instruction in conjunction with an instruction advising the jury to carefully review all the evidence before concluding that the testimony of one witness proves a fact is sound. Even if, as the concurring justices and the defendant maintain, the no-corroboration instruction has outlived its usefulness, we are bound by the Supreme Court holding and thus there was no instructional error. (Auto Equity, supra, 57 Cal.2d at p. 455.)
The judgment is affirmed.
We concur: HULL , J. MAURO , J.
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