Filed 7/25/17 P. v. Perez CA5







NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT



THE PEOPLE,

Plaintiff and Respondent,

v.

FERNANDO RAMIREZ PEREZ,

Defendant and Appellant.

F071910

(Super. Ct. No. 14CM1208)


OPINION

APPEAL from a judgment of the Superior Court of Kings County. Donna L. Tarter, Judge.
David Y. Stanley, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Defendant Fernando Ramirez Perez was charged by second amended information with 11 counts of sexual abuse committed against two minor victims, A.C. and C.E. The jury convicted defendant of all eight charged counts against A.C. as follows: Penal Code section 288.7, subdivision (a) (sexual intercourse or sodomy with a child under the age of 10 years) (count 1); section 261, subdivision (a)(2) (rape) (count 2); section 288, subdivision (a) (lewd or lascivious acts) (counts 3–7); and section 136.1, subdivision (b)(1) (dissuading a victim or witness) (count 8). The jury found true the enhancement attached to counts 1 and 2 for infliction of great bodily injury (GBI) (§ 12022.8) and the special circumstances allegation attached to count 2 pursuant to the One Strike law (§ 667.61, subd. (j)(1)). The jury was unable to reach a verdict on counts 9 through 11, which were lewd or lascivious act charges committed against victim C.E. (§ 288, subd. (a)), and it found not true the multiple victims enhancement under the One Strike law (§ 667.61, subds. (e), (j)(2)).
The trial court imposed an aggregate sentence of 16 years 8 months plus life in prison without the possibility of parole. On count 1, the trial court sentenced defendant to 25 years to life plus five years for the GBI enhancement, stayed pursuant to section 654. (§ 288.7, subd. (a).) On count 2, the trial court sentenced defendant to a term of life without the possibility of parole. (§ 667.61, subd. (j)(1).) On count 3, the court imposed the aggravated term of eight years and on each of counts 4 through 7, the trial court imposed consecutive terms of two years (one-third of the middle term), for a total determinate term of eight years. (§ 288, subd. (a).) Finally, on count 8, the court sentenced defendant to eight months (one-third of the middle term).
Defendant advances two claims on appeal. He contends the trial court erred in instructing the jury with both CALCRIM Nos. 301 and 1190, which in combination impermissibly bolstered the victim’s testimony. He also contends there is a clerical error in the abstract of judgment, which the People concede.
We conclude resolution of defendant’s instructional error claim is controlled by the California Supreme Court’s decision in People v. Gammage (1992) 2 Cal.4th 693, 702 (Gammage) and we therefore reject the claim. We agree with the parties that the abstract of judgment reflects a clerical error, however, and we shall order its correction. The judgment is otherwise affirmed.
SUMMARY OF FACTS
Victim A.C.’s mother and defendant began dating in April 2013. A.C. was eight years old. Approximately five months later, defendant moved into A.C.’s mother’s two bedroom apartment. A.C. shared one bedroom with her mother and defendant, although she had a separate bed. A.C.’s older sister and her sister’s boyfriend shared the second bedroom.
In April 2014, A.C.’s mother took her to the doctor for a vaginal rash, which led to defendant’s arrest shortly thereafter for the crimes in this case. Over several visits, A.C.’s doctor determined she had vaginal injuries consistent with penile penetration and she tested positive for a sexually transmitted disease (STD) that had been contracted within approximately four weeks of the time she complained of a rash. Defendant had symptoms of the STD, which he contracted from A.C.’s mother, around the time of A.C.’s exposure.
During trial, A.C. testified she was nine years old when defendant first touched her inappropriately. She testified defendant touched her vagina on a number of occasions, both over and under her clothes. She also testified he licked her breasts, and “he put his private in [her] private” and “in [her] butt.” In a recorded interview that was conducted as part of her SART examination and played for the jury, A.C. stated defendant’s private was in her private on two occasions. She stated her private hurt the first time and the second time, her private hurt inside and she went to the school nurse.
DISCUSSION
I. Instructional Error
A. Background
Pursuant to CALCRIM No. 301, 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.” It then instructed the jury pursuant to CALCRIM No. 1190, which provides, “Conviction of a sexual assault crime may be based on the testimony of a complaining witness alone.”
Defendant contends it was error for the court to read both instructions to the jury, as the instructions had the effect of “propping up the testimony of a complaining witness” and “improperly lighten[ed] the prosecutor’s burden of proof,” in violation of the due process clause. Defendant also appears to suggest the instruction may have violated his rights under the Sixth Amendment.
The People respond that defendant’s failure to object during trial forfeits the claim on appeal and the claim fails on its merits pursuant to the California Supreme Court’s decision in Gammage.
B. Forfeiture
The failure to object to jury instructions at trial generally forfeits the issue on appeal (People v. Capistrano (2014) 59 Cal.4th 830, 875, fn. 11), and “[a] trial court has no sua sponte duty to revise or improve upon an accurate statement of law without a request from counsel” (People v. Lee (2011) 51 Cal.4th 620, 638). There is an exception, however, if the error complained of “affected the substantial rights of the defendant” (§ 1259) and, here, defendant challenges the instructions on grounds of federal constitutional error (People v. Johnson (2016) 62 Cal.4th 600, 638–639).
Defendant acknowledges the California Supreme Court upheld substantially similar instructions in Gammage and he fails to identify any basis under which Gammage would not apply, constitutional or otherwise. Therefore, we conclude the claim is forfeited. In any event, we find the claim lacks merit, discussed post. (People v. Johnson, supra, 62 Cal.4th at p. 639.)
C. No Error
1. Standard of Review
Trial courts have a sua sponte duty to instruct “‘on those general principles of law that are closely and openly connected with the facts before the court and necessary for the jury’s understanding of the case.’” (People v. Simon (2016) 1 Cal.5th 98, 143, citing People v. Price (1991) 1 Cal.4th 324, 442; People v. Cruz (2016) 2 Cal.App.5th 1178, 1183.) We review defendant’s claim of instructional error de novo. (People v. Guiuan (1998) 18 Cal.4th 558, 569; People v. Cruz, supra, at p. 1183.)
2. Analysis
As defendant indicates, in some instances instructional error rises to the level of federal constitutional error. (E.g., Sullivan v. Louisiana (1993) 508 U.S. 275, 277–278; Cage v. Louisiana (1990) 498 U.S. 39, 41, disapproved on another ground in Estelle v. McGuire (1991) 502 U.S. 62, 72, fn. 4; People v. Cage (2015) 62 Cal.4th 256, 285.) In the context of Fifth and Sixth Amendment violations, the United States Supreme Court has explained, “The Fifth Amendment to the United States Constitution guarantees that no one will be deprived of liberty without ‘due process of law’; and the Sixth, that ‘in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.’ We have held that these provisions require criminal convictions to rest upon a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.” (United States v. Gaudin (1995) 515 U.S. 506, 509–510, fn. omitted.)
We find defendant’s claim of federal constitutional error unavailing. The California Supreme Court has unequivocally rejected the same instructional challenge defendant advances in this case. (Gammage, supra, 2 Cal.4th at pp. 700–702.)
In Gammage, the court held that the instructions challenged here by defendant “correctly state the law” and “it is proper for the trial court to give [both] in cases involving sex offenses.” (Gammage, supra, 2 Cal.4th at pp. 700, 702; accord, People v. Adames (1997) 54 Cal.App.4th 198, 210 (Adames).) While the court agreed the two instructions overlap, it concluded one focused on the fact finding process and the other was a substantive rule of law. It explained, “The jury is instructed that the prosecution must prove its case beyond a reasonable doubt. This places a heavy burden of persuasion on a complaining witness whose testimony is uncorroborated. CALJIC No. 10.60 does not affect this instruction but … when all the instructions are given, ‘a balance is struck which protects the rights of both the defendant and the complaining witness.’” (Gammage, supra, at p. 701.)
As well, we reject any suggestion that reading the instructions back to back somehow distinguishes defendant’s trial from that at issue in Gammage. The jury was instructed to consider all the instructions together and cautioned not to conclude that any repeated instructions were more important than others. The jury is presumed to have “understood and followed the court’s instructions.” (People v. Jackson (2016) 1 Cal.5th 269, 352.)
Finally, we decline defendant’s invitation to reconsider this instructional issue based on the passage of time. (Gammage, supra, 2 Cal.4th at p. 701; Adames, supra, 54 Cal.App.4th at p. 210.) In Gammage, the court stated, “[E]ven if we were to assume, which we do not, that all juries are aware of the no-corroboration requirement, or would glean it from [CALCRIM No. 301] itself, no harm is done in reminding juries of the rule.” (Gammage, supra, at p. 701, italics added.) Instructions that were of no harm 25 years ago do not become harmful simply because time has passed. Moreover, we are not free to disregard California Supreme Court precedent. (People v. Letner and Tobin (2010) 50 Cal.4th 99, 197–198.) Accordingly, we reject defendant’s claim of instructional error.
II. Clerical Error in Abstract of Judgment
For count 1, the abstract of judgment reflects imposition and stay of a five-year sentence enhancement under section 288.7, subdivision (a), which is a substantive offense rather than an enhancement. As the parties agree, it was pursuant to section 12022.8 that the trial court imposed and stayed the five-year GBI enhancement.
A trial court’s oral judgment controls and “[w]hen an abstract of judgment does not reflect the actual sentence imposed in the trial judge’s verbal pronouncement, this court has the inherent power to correct such clerical error on appeal, whether on our own motion or upon application of the parties.” (People v. Jones (2012) 54 Cal.4th 1, 89.) Therefore, we shall direct the trial court to correct this error on remand.
DISPOSITION
This matter is remanded to the trial court to issue an amended abstract of judgment reflecting imposition and stay of a five-year enhancement to count 1 pursuant to Penal Code section 12022.8. The trial court shall forward the amended abstract of judgment to the appropriate authorities. The judgment is otherwise affirmed.



MEEHAN, J.
WE CONCUR:



DETJEN, Acting P.J.



PEÑA, J.