(Super. Ct. No. 09F02968)
The opinion of the court was delivered by: Raye , P. J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ...