P. v. Daniels

Filed 4/4/07 P. v. Daniels 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 COURT^*

APPEAL from a judgment of the Superior Court of Fresno County. Hilary A. Chittick, Judge.

David Y. Stanley, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, John G. McLean and George M. Hendrickson, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

Appellant, Gene Marion Daniels, was convicted after a jury trial of continuous sexual abuse of a child under age 14 (Pen. Code,  288.5, count five).^[1] Appellant was acquitted of two counts of committing lewd or lascivious acts on a child under age 14 ( 288, subd. (a)) and two counts of oral copulation of a child under age 14 (288a, subd. (c)(1)). In a bifurcated proceeding, appellant admitted a prior prison enhancement ( 667.5, subd. (b)).

The trial court sentenced appellant to the midterm of 12 years for continuous sexual abuse, plus a consecutive term of one year for the prison term enhancement for a total prison term of 13 years. The court awarded custody credits and imposed a restitution fine.

On appeal, appellant contends the trial court erred in instructing the jury with CALCRIM No. 226 because the instruction undermined his credibility and improperly shifted the focus of the jury from testing the prosecutions evidence to testing appellants veracity. We find no error and will affirm the judgment.

FACTS

Appellant was the boyfriend of the victims mother, T. A. The victim, A. A., moved into appellants home in July 2001. A. A. was 13 years old when the alleged molestations began and 14 years old at the time of trial.

In 2005, the family was living in Fresno. A. A. was sharing a room with her younger sister. In February 2005, appellant found a letter that led him to search A. A.s backpack. There, appellant found a condom. T. A. was furious at A. A. and left the house to calm down.

Appellant showed A. A. a book of people having sex. A. A. felt uncomfortable having a man explain this to her. The other children were in their rooms working on homework or listening to music. T. A. returned home about midnight. Appellant and

A. A. were in a room alone. Appellant turned off the television set and the lights and told

A. A. that instead of having a guy place his penis into her, A. A. should play with herself. Appellant placed A. A. on his lap and put his finger into her vagina and moved it for about two minutes. Appellant asked A. A. if what he did felt good.

A. A. stood up and told appellant, Well, that was very uncomfortable, you know, youre supposed to be my step-father, youre supposed to be like a father to me, and this is happening. Appellant said he was sorry and that he was just trying to educate her. On one other occasion, appellant placed his finger into A. A.s vagina just before having intercourse with her.

Shortly after this first incident, appellant kissed A. A. and then engaged in oral sex with her.^[2] Appellant bribed A. A. with a cell phone, money, and other items. Although A. A. had a bad feeling about these activities, she worried that if she refused appellant, he would take it out on the other kids. According to A. A., they engaged in oral sex at least five times.

After T. A. had surgery, appellant attempted to put his penis into A. A.s vagina. A. A. backed away because it was painful. Later that day, appellant had sexual intercourse twice with A. A. They also had intercourse twice the next day. Appellant would wake A. A. after the other children were in bed. He would talk to her and have sex, taking A. A.s legs and placing them on top of his shoulders. A. A. said appellant had sexual intercourse with her more than five times. Appellant often applied a cream to

A. A. and then to himself. On one occasion, appellant attempted to have anal sex with

A. A.

Appellant ejaculated twice on A. A.s stomach. The second time, about two weeks after they started having sex, A. A. became scared and told her mother what appellant was doing. A. A. also told a younger sister. A. A. told T. A. that appellant had a bump under his penis and used cream. A. A. brought out containers of cream appellant used.

T. A. called appellant and told him to come home. When appellant arrived about five minutes later, T. A. told him to start packing. T. A. was yelling at appellant. Appellant told T. A. he did not do this to A. A. Appellant asked T. A. why she believed A. A. T. A. replied that A. A. described appellants penis. A. A. told T. A. that appellant directed her to place her legs on top of his shoulders. T. A. looked at A. A. and said that was how T. A. had sex with appellant. T. A. told appellant that she believed A. A.

A. A. was examined at the hospital on July 19, 2005. Connie Harris, a nurse trained in sexual assault cases, found some redness on A. A.s vagina which was consistent with either sexual activity or an infection. An ultraviolet lamp illuminated apparent secretions on A. A.s lower left leg. The lamp test was not conclusive of sexual activity. Vaginal swabs taken from A. A. were also inconclusive of sexual activity. A. A. gave a statement to a police officer at the hospital.

At first, the children were not upset after appellant was arrested because appellant used to yell at them. After a time, the other children began to miss appellant. A. A. saw her younger sister crying. District Attorney Investigator Jody ONeill visited A. A. at middle school on October 28, 2005. A. A. told ONeill the molestations did not happen. Later during the same interview, however, A. A. said her original report was true. A. A. said she would never lie about something like this.

T. A. wrote a letter to the prosecutor saying she did not believe A. A. ONeill spoke to T. A. after she talked to A. A. ONeill described T. A. as looking very sad and teary eyed during the conversation. T. A. told ONeill she knew her daughters story was true and absolutely believed her daughter. T. A., however, had difficulty believing appellant was capable of such a thing.

Psychologist Randall Robinson testified it is common for child victims of sexual abuse to put up with the abuse, delay reporting it, and to recant their stories. Robinson explained that typically children will do anything to preserve the integrity of their family because they have nowhere else to go. Children tend to minimize abuse. Children commonly continue to love the abuser. In fact, most victims do not report abuse. Robinson explained that when children are abused, they commonly accommodate the perpetrator. A description therapists use to describe this accommodation is Child Abuse Accommodation Syndrome. Child Abuse Accommodation Syndrome is descriptive of how abused children can act, not a diagnostic tool.

Appellant testified. He admitted he was convicted of a non-sexual assault in 2000 and of grand theft in 1994. Appellant denied sexually molesting or touching A. A. inappropriately. Appellant explained that he first learned of the allegations when T. A. called him as he was looking for a job. Appellant suggested they drive to the hospital to have A. A. examined. Appellant told T. A. that he did not touch A. A. Shortly after the police arrived, they arrested appellant.

Appellant explained that when he was at home, A. A. would come up behind him and pull his pants down.^[3] Appellants genitals would be completely exposed when this happened. T. A. became angry with A. A. for doing this and told A. A. to stop. Appellant explained that he does have bumps on his penis. Appellant explained that

A. A. also pulled the covers off his bed when he was lying underneath them naked.

DISCUSSION

Appellant contends the trial court erred in instructing the jury with CALCRIM No. 226.^[4] Appellant argues this instruction improperly directs the jury to focus on the defendants veracity, encouraging the jury to reject the entire testimony of the defendant if it finds a material falsehood somewhere in the defendants testimony. Appellant believes this defect in the instruction is worse than in the predecessor instruction, CALJIC No. 2.21.2, because the jury is instructed that it should consider not believing the entire testimony of a witness it believes is not telling the truth.^[5]

We find there is nothing in CALCRIM No. 226 that expressly or impliedly focuses the jurys attention only on the defendants veracity. The instruction is a neutral in its treatment of witnesses. In finding CALJIC No. 2.21.2 valid, the California Supreme Court noted that it was not primarily aimed at the defendant. (People v. Millwee (1998) 18 Cal.4th 96, 159 (Millwee).) Millwee noted that the instruction is phrased in a neutral fashion and applies to witnesses called by either side. (Ibid.) Though CALCRIM No. 226 and CALJIC No. 2.21.2 are worded differently, both instructions are phrased neutrally and apply equally to the witnesses called by either side. Neither instruction is aimed primarily at the defendant.

Appellant argues that CALCRIM No. 226, more than CALJIC No. 2.21.2, encourages the jury to reject the entire testimony of the defendant if it finds a material falsehood somewhere in the defendants testimony. The instruction only says that the jury should consider rejecting a witnesss testimony if that witness deliberately lied about something significant to the case. The instruction only suggests that the jury consider rejecting a witnesss testimony, it does not direct the jury to do so. Also, the jury must first find a lie about something significant to the case. The instruction goes on to provide: Or, if you think the witness lied about some things, but told the truth about others, you may simply accept that part that you think is true and ignore the rest. The jury was, therefore, advised to consider an alternative to complete rejection of a witnesss testimony: to believe that portion of a witnesss testimony it found true and to ignore the rest.

Appellants reading of this instruction is too selective. Jury instructions must be read together and understood in context as presented to the jury. Jurors are presumed to be intelligent persons capable of understanding the courts instructions. An erroneous instruction requires reversal only when it appears the error was likely to have misled the jury. (People v. Brock (2006) 143 Cal.App.4th 1266, 1277 (Brock).) We reject appellants suggestion that the cautionary instruction that the jury should ignore instructions for which it finds no evidentiary basis was undermined because the court stated it was conferring with counsel about the instructions.^[6]

We also find the language in CALCRIM No. 226 to be substantially similar to the language in CALJIC No. 2.21.2 that was upheld by our Supreme Court in Millwee. Both instructions allow a jury to completely reject the testimony of a witness it believes has lied about a material or significant matter, or, to believe that part of a witnesss testimony the jury believes and to reject that part it does not believe. CALCRIM No. 226 appears to be written in clearer and more understandable prose than CALJIC No. 2.21.2. Because we find the substantive meaning of both instructions is the same, we find the rationale of Millwee applicable to CALCRIM No. 226. We are bound by the decisions of our high court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

Respondent points out that in discussing CALCRIM No. 226 to the jury, the prosecutor did not refer to appellants credibility. The prosecutor noted instead that the jury should ignore the portion of the victims testimony that was false and accept the portion that was true. There was good reason for the prosecutor to make this point to the jury. The victims testimony and statements to investigators, as well as the statements and testimony of her mother, contained inconsistencies. Appellant, on the other hand, consistently denied the allegations. His trial testimony was consistent with his earlier statements to the victims mother. Understood in the context of the testimony of all the witnesses at trial, CALCRIM No. 226 would be more likely applied by the jury to the victims and her mothers statements than to those of appellant. CALCRIM No. 226 was arguably more beneficial to appellant than it was harmful. We find no error in the trial courts use of CALCRIM No. 226.

DISPOSITION

The judgment is affirmed.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by San Diego County Property line attorney.

^*Before Vartabedian, Acting P.J., Harris, J., and Cornell, J.

^[1] Unless otherwise noted, all statutory references are to the Penal Code.

^[2] When this occurred, appellant placed his penis in A. A.s mouth and put his mouth into her vagina. On this first occasion, A. A. noticed a bump under the tip of appellants penis.

^[3] A. A. testified she would never lie about something like this. She said she had heard the rape kit hurt and she did not want to go through with the procedure. A. A. knew she would have to testify. A. A. said she would pants appellant by pulling his shorts down, but she never saw his penis when she did so. She also tried to pull the covers off the bed when appellant and T. A. were there, but they would hold onto the covers. T. A. testified that when A. A. would pants appellant, she would be on the floor where she could see the underside of appellants penis.

^[4] CALCRIM No. 226 states: If you decide that a witness deliberately lied about something significant to this case, you should consider not believing anything that witness says. Or, if you think the witness lied about some things, but told the truth about others, you may simply accept that part that you think is true and ignore the rest.

^[5] CALJIC No. 2.21.2 provides: A witness, who is willfully false in one material part of his or her testimony, is to be distrusted in others. You may reject the whole testimony of a witness who willfully has testified falsely as to a material point, unless, from all the evidence, you believe the probability of truth favors his or her testimony in other particulars.

^[6] Appellant suggests at pages eight and nine of his opening brief that CALCRIM No. 226 creates a permissive inference and that such instructions are typically found not to be error or to be harmless error. This is so because trial courts use CALJIC No. 17.31 or its equivalent, CALCRIM No. 200, that advise the jury that some instructions may not apply. Appellant argues that CALCRIM No. 200 was blunted by the fact that the court told the jury that the court and counsel needed to confer about the jury instructions. Appellant suggests this implied that some selectivity about which instructions would be given was about to occur. Because the CALCRIM numbers were included on the instructions, appellant suggests the jury would have noticed missing instructions and would have inferred that not all instructions were given because the court did some winnowing.

It is unclear from appellants argument how the courts winnowing undid CALCRIM No. 200, or any other instruction. Appellant is drawing inferences concerning the jurys understanding of the instructions, or how it would interpret instructions out of sequence, which are not supported by the record. Furthermore, appellant ignores the requirements that the instructions must be read as a whole (Brock, supra, 143 Cal.App.4th at p. 1277) and that jurors are presumed to follow the courts admonitions and instructions. (People v. Young (2005) 34 Cal.4th 1149, 1214.)