People v. Scott CA3 ( 2023 )

Filed 5/8/23 P. v. Scott CA3
NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Shasta)
----
THE PEOPLE, C095465
Plaintiff and Respondent, (Super. Ct. No. 20F5303)
v.
WILLIAM JOE SCOTT,
Defendant and Appellant.
A jury found defendant William Joe Scott guilty of one count of aggravated sexual
assault of a child under 14 years old by sexual penetration (Pen. Code, §§ 269, subd.
(a)(5), 289, subd. (a); count 1),1 one count of aggravated sexual assault of a child under
14 years old by oral copulation (§ 269, subd. (a)(4); count 2), three counts of oral
copulation or sexual penetration of a child 10 years old or younger (§ 288.7, subd. (b);
1 Undesignated statutory references are to the Penal Code.
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counts 3, 4, & 5), two counts of lewd or lascivious acts with a child under 14 years old
(§ 288, subd. (a); counts 6 & 7), one count of preventing or dissuading a victim from
reporting a crime (§ 136.1, subd. (b)(1); count 8), and one count of providing lewd
material to a minor (§ 288.2, subd. (a); count 9). The trial court sentenced defendant to a
determinate term of 10 years eight months, plus an indeterminate term of 60 years to life.
On appeal, defendant contends the trial court (1) erroneously instructed the jury
with CALCRIM No. 1191A (Evidence of Uncharged Sex Offense) in combination with
CALCRIM No. 3051 (Unanimity: When Generic Testimony of Offense Presented) and
(2) violated defendant’s right to due process by giving CALCRIM No. 1191A where the
evidence of both charged and uncharged offenses consisted entirely of the victim’s
testimony. Finding no reversible error, we affirm.
BACKGROUND
A. The Prosecution’s Case
The victim, E., who was 14 years old at the time of trial, is defendant’s
granddaughter.
When E. was in a lower grade in elementary school—closer to kindergarten than
to fifth grade—she was sitting on defendant’s lap in a dark green GMC truck. Defendant
tried to put his fingers in her vagina. E. could feel his fingernails. She told him it hurt
and to stop. Defendant did not stop. Defendant also pulled out his penis and told E. to
touch it. E. refused. E. could see defendant’s penis was “hard.”
When E. was in second grade, she told a friend what defendant was doing to her.
E. believed her friend told E.’s mother, C.S., because C.S. and E. had a conversation
about it.2 C.S. asked if defendant had touched her, and E. pointed to her vagina. During
2 We refer to E. and C.S., as well as other witnesses, by initials, pursuant to California
Rules of Court, rule 8.90, with no informality or disrespect intended.
2
her trial testimony, however, C.S. denied having a conversation with E. about defendant
sexually abusing her.
When E. was still in elementary school but closer to fifth grade, E. spent time with
defendant in his Ford truck with a line on it. The truck was parked in a “dirt area” by a
creek near where E.’s family lived when they were homeless. E. was lying down on the
passenger seat and the middle part between the seats. Defendant pulled E.’s shorts down
and put his tongue on her vagina. Defendant was standing outside the truck with his
hands on her upper thighs and his tongue moving on her vagina. Defendant stopped
when E. told him her siblings were coming back. This happened more than once when
they were in that area.
That same day, when E.’s siblings returned, defendant and E. went to find a place
that a friend of defendant’s had dug out. It was a large hole with a blue tarp over it.
They walked down into the hole where there was a chair. Defendant sat in the chair and
put E. with her legs on his shoulders facing him. Her shorts and underwear were off.
Defendant put his tongue on E.’s vagina. E. saw defendant “jerking off.” Defendant
made E. “pinky promise” not to tell anyone or he would be sent to jail. Defendant would
have E. pinky promise “all the time.”
Defendant said he touched E. to teach her, for her to learn. Toward the end,
defendant gave E. $20 once or twice if she “did good” and would let him touch her.
Defendant also showed E. video clips on his phone of men touching their daughters and
granddaughters.
Another time in the Ford truck, defendant put his mouth on E.’s vagina when they
went to an AM/PM by a junkyard to buy food for everyone. E. was lying on the driver’s
seat across the middle console with her clothes off and defendant was standing outside
the truck. E. testified that defendant put his mouth on her vagina “[p]robably around 20”
times. E. did not remember the specific dates and times of other times when defendant
put his mouth on her vagina.
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Defendant also touched E.’s breast five times, but she could not remember specific
dates and times. Another night, E. acted like she was asleep in the back of defendant’s
truck and defendant grabbed her buttocks.
In May 2020, E. told her foster sister, M., about defendant touching her. M.
testified that E. told her that defendant touched her vagina with his mouth. E. said
defendant tried to have sex with her and “it hurt.” E. also said that defendant touched her
vagina with his fingers and it was really uncomfortable because his hands hurt. E. said
this happened one time by a creek, a few times by a gas station, and at places all around
Redding. Defendant would try to get E. to give him oral sex and masturbate him. E. was
very nervous, stuttering and crying when she told M. about these things.
During a forensic interview in July 2020, a police officer showed E. a photograph
of defendant. Prior to seeing the photograph, E. was uncomfortable during the interview
but very matter of fact. When shown the photograph, E. became visibly upset and
immediately started crying.
B. The Defense Case
In the July 2020 forensic interview, E. described only three incidents total where
defendant put his mouth on her vagina: two times in a truck and once in the dugout. She
also said defendant put his finger in her vagina each time. In the dugout, E. did not say
anything about seeing defendant’s penis or defendant masturbating. E. also said that
defendant would give her money each time he touched her inappropriately. In another
interview with a police officer, E. said that defendant would give her between $40 and
$50 if she would allow him to orally copulate her.
A.F. testified that she had known defendant for 11 years and E. since she was
born. From 2012 to 2019, defendant lived in a camp by a creek. A.F. saw E. and her
siblings there with defendant but never saw him send them down to the creek. At trial,
A.F. described E. as “a normal kid,” “[r]eal smart,” “a good big sister, a good little
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sister,” and “a polite kid.” However, A.F. previously told an investigator that E. was “a
bully, a liar, and very manipulative if she wanted to.”
M.T. testified she had known E. since she was eight years old. M.T. described E.
as “[m]anipulative.” If E. was in trouble, she would bring up something about her
parents and demand money. E.’s parents would bribe E. with money and that felt
manipulative.
DISCUSSION
I
CALCRIM No. 1191A in Combination with CALCRIM No. 3501
Defendant contends that by instructing the jury with CALCRIM No. 1191A in
combination with CALCRIM No. 3501, the trial court effectively lowered the
prosecution’s burden of proof to preponderance of the evidence. Defendant argues that
CALCRIM No. 3501 converted uncharged offenses into charged offenses by allowing the
jury to convict defendant based on uncharged acts. Thus, defendant argues that the jury
convicted him of the charged crimes based on mere preponderance of the evidence, the
standard of proof CALCRIM No. 1191A instructed the jury could be used to infer from
uncharged crimes that he had a propensity to commit the charged crimes. Defendant
asserts “there really were no uncharged offenses in this case” because the jury could
render a unanimous verdict under CALCRIM No. 3501 based on the 20 times that E.
testified defendant orally copulated her or the five times she testified he touched her
breast.
We reject this claim because the jury was clearly and consistently instructed that
the prosecution had the burden of proving each charged crime beyond a reasonable doubt,
and CALCRIM No. 1191A just as clearly told the jury uncharged offenses proved by a
preponderance of the evidence could only be considered for propensity. CALCRIM No.
3501 is a unanimity instruction required, where, as here, a victim offers “generic”
testimony of sexual abuse that does not identify the time and place of acts that occurred
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within a given time period. (See People v. Avina (1989) 211 Cal.App.3d 48, 53.)
However, the prosecution clearly tied the oral copulation charges to specific acts testified
to by E., not generic testimony, and the incidents where defendant touched E.’s breast
were not included in CALCRIM No. 3501.
A. Additional Background
In discussing potential jury instructions with counsel, the trial court asked if
counsel had reviewed CALCRIM No. 1191A. When counsel answered in the
affirmative, the court said, “that will be given.” The trial court then said, “But under our
particulars of our case, 3501 will be given, and we’ve specifically identified Counts 4 and
5,” as well as count 8 to be included in the instruction. The court asked for “any
comments about 3501,” and defense counsel answered, “Submit.”
The trial court instructed the jury with CALCRIM No. 1191A as follows:
“The People presented evidence that the Defendant committed the crimes of oral
copulation of a child 10 years and under and lewd and lascivious acts of a child under 14
years of age that were not charged in this case. These crimes are defined for you in these
instructions. You may consider this evidence only if the People have proved by
preponderance of the evidence that the Defendant, in fact, committed the uncharged
offenses.
“Proof by a preponderance of the evidence is a different burden of proof from
beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you
conclude that it is more likely than not that the fact is true. If the People have not met
this burden of proof, you must disregard this evidence entirely.
“If you decide that the Defendant committed the uncharged offenses, you may, but
are not required to, conclude that from that evidence that the Defendant was disposed or
inclined to commit sexual offenses, and based on that decision also conclude that the
Defendant was likely to commit and did commit aggravated sexual assault with a child by
sexual penetration by force, . . . aggravated sexual assault of a child by forcible oral
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copulation, oral copulation or digital penetration with a child 10 years and under, lewd or
lascivious acts with a child under the age of 14 years, and exhibiting harmful material to
a minor, all as charged in this case.
“If you conclude that the Defendant committed the uncharged offenses, that
conclusion is only one factor to consider along with all the other evidence. It’s not
sufficient by itself to prove that the Defendant is guilty of aggravated sexual assault of a
child by sexual penetration by force, aggravated sexual assault of a child by forcible oral
copulation, oral copulation or digital penetration of a child 10 years and under, . . . lewd
or lascivious acts with a child under 14 years of age, and exhibiting harmful material to a
minor. The People must still prove each charge beyond a reasonable doubt. Do not
consider this evidence for any other purpose.”
After instructing the jury with CALCRIM No. 1191B (Evidence of Charged Sex
Offense), the trial court instructed the jury with CALCRIM No. 3501:
“And the Defendant is charged with oral copulation with a child 10 years and
under in Counts 4 and 5 some time during the period of May 24, 2012, to May 24, 2017.
“The Defendant is charged with preventing, dissuading a witness, victim from
reporting a crime in Count 8 during a period between May 24, 2012, to May 24, 2018.
The People here presented evidence of more than one act to prove that the Defendant
committed these offenses.
“You must not find the Defendant guilty unless: One, you all agree that the
People have proved that the Defendant committed at least one of these acts, and you all
agree on which act he committed for each offense; or, two, you all agree that the People
have proved that the Defendant committed all the acts alleged to have occurred during
this time period and have proved that the Defendant committed at least the number of
offenses charged.”
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In closing, the prosecutor argued:
“Counts 4 and 5 are referring to the other two times that the Defendant pu[t] his
mouth on [E.’s] vagina. She was under 10 years old in those two times. She testified
they happened closer to her being in fifth grade but not in fifth grade. And while it was
really unclear from [C.S.] how old her child was when she was in fifth grade, we know,
based on the fact that she was in kindergarten at approximately five, she will be nine or
10. And she does not have to be under 10, she has to be 10 years or under. So that’s
what Counts 4 and 5 refer to.
“The first time in the truck where she’s laying down and the Defendant is sitting
next to her and bends down and puts his mouth on her vagina, and the other time where
he’s standing outside of the truck and putting his mouth on her vagina. So . . . we have
three oral copulations charged; one is the forcible, and the other two are Counts 4 and
5.”3
The prosecutor continued: “You heard something called a unanimity instruction.
What that instruction basically means is that there are three -- well, let’s go for Counts 4
and 5 are oral copulations that are charged. [E.] testified pretty specifically about what
those are.”
After explaining that the unanimity instruction also applied to count 8, the
dissuading a witness charge, because E. testified defendant told her to “pinky promise”
not to tell “multiple times,” the prosecutor said:
“The way the unanimity instruction works is that you either all have to agree on
one time that it happened because it’s only one count, or you can all agree that it
happened a bunch of times, and then he would be guilty of one count. And that’s
explained to you in the instruction.
3 The forcible oral copulation charged in count 2 involved defendant picking E. up and
placing her on his shoulders, and putting his mouth on her vagina.
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“Similarly, you could apply it to Counts 4 and 5 because [E.] testified that the
Defendant put his mouth on her vagina certainly more than three times. She testified that
it happened closer to over 10, 15, 20 times. So she was very specific in the two times,
but she did testify that it happened -- well, the two times without force. I’m sorry. There
were three total times. She did testify that it happened many, many more times than that.
So if you all agree that it happened more than three times, then you can find him guilty of
the two times that it was charged.”
Turning to CALCRIM Nos. 1191A and 1191B, the prosecutor said:
“You heard instructions about using evidence of charged sexual acts and
uncharged sexual acts against one another, I guess, is how I’ll put it. When we’re talking
about the charged sexual acts, that is sort of what I was referring to earlier. If you find I
have proven one of them, you can use that to determine whether or not the other counts
happened. The only count you can’t use it for is Count 8, and that is the pinky promises
not to tell.
“The evidence of uncharged sexual acts is slightly different. The uncharged acts
are the 10, at least, other times that [E.] said the Defendant put his mouth on her vagina.
So you can use the fact that [E.] testified it happened many more times to determine that
it happened the times that are charged.
“And, remember, most important thing, is I still need to prove every element to
you beyond a reasonable doubt.”
B. Analysis
Defendant did not object to the trial court instructing the jury with either
CALCRIM No. 1191A or CALCRIM No. 3501, nor does defendant contend that these
instructions are incorrect statements of the law. Therefore, defendant has forfeited his
claim of instructional error by failing to raise it in the trial court. (People v. Bolin (1998)
18 Cal.4th 297, 326; People v. Phea (2018) 29 Cal.App.5th 583, 608 (Phea).) Defendant
contends, however, that an objection is unnecessary under section 1259 if the error
9
affects a defendant’s substantial rights. Determining whether instructional error affects a
defendant’s substantial constitutional rights requires examination of the merits of the
claim. (Phea, at p. 608.) Therefore, we consider defendant’s contentions on the merits
and reject them.4
To begin with, defendant’s contention that CALCRIM No. 1191A allowed the
jury to find him guilty based on uncharged crimes proved by a preponderance of evidence
does not apply to count 7 (defendant’s touching E.’s breast), as defendant contends.
CALCRIM No. 3501 only referred to counts 4 and 5 (oral copulation) and count 8
(dissuading a witness) as subject to the instruction. Even if we accept defendant’s
proposition—which we do not—that CALCRIM No. 3501 converted uncharged offenses
into charged offenses for purposes of CALCRIM No. 1191A, defendant does not provide
a basis to reverse count 7 for lewd or lascivious acts (§ 288, subd. (a)) in light of E.’s
testimony that defendant touched her breast five times. Rather, on count 7, the trial court
gave CALCRIM No. 3502, which instructed the jury: “[Y]ou must not find the
Defendant guilty of lewd and lascivious acts with a child under 14 years of age in Count
7 unless you all agree that the People have proved specifically that the Defendant
committed that offense based upon testimony that the Defendant touched the breast of
[E.] beyond a reasonable doubt.” Thus, the prosecutor had to elect a single incident
where defendant touched E.’s breast and prove it beyond a reasonable doubt.
Accordingly, defendant’s argument only embraces counts 4 and 5 for oral copulation.
4 Defendant also contends he need not object to an instructional error that violated his
substantial constitutional rights. The constitutional right defendant refers to is an
instruction that lowers the burden of proof inconsistent with the presumption of
innocence. This argument does not invoke facts or legal standards different from
defendant’s claim under section 1259. Therefore, rejection on the merits of the state law
claim necessarily leads to rejection of this constitutional “gloss,” and no separate
constitutional discussion is required. (People v. Lewis and Oliver (2006) 39 Cal.4th 970,
990, fn. 5.)
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Even limited to counts 4 and 5, defendant’s argument fails for multiple reasons.
First, we conclude a reasonable jury would convict defendant of counts 4 and 5 under the
prong of CALCRIM No. 3501 that a unanimous guilty verdict may be based on all jurors
agreeing on which acts defendant committed. (People v. Fernandez (2013)
216 Cal.App.4th 540, 555-556 [CALCRIM No. 3501 is a unanimity instruction that
allows the jury to unanimously agree that the defendant committed specific acts but also
allows conviction if the jury unanimously agrees the defendant committed all the acts
described by the victim].) Notwithstanding E.’s testimony that defendant orally
copulated her multiple times, the prosecutor tied counts 4 and 5 to specific incidents, i.e.,
the incidents in defendant’s truck that E. described in detail. Even when explaining
CALCRIM No. 3501, the prosecutor argued that E. “testified pretty specifically” about
the oral copulations charged in counts 4 and 5 and “was very specific in the two times.”
Thus, E.’s testimony about the oral copulations charged in counts 4 and 5 was not truly
generic. E.’s brief reference to oral copulation occurring “[p]robably 20 times” may have
been sufficient to require CALCRIM No. 3501, but her testimony recounted the specifics
of the two incidents of oral copulation in defendant’s Ford truck. Thus, the jury had
detailed testimony of two acts based on which it could unanimously agree to convict
defendant on counts 4 and 5, but little to no evidence on which to convict defendant
based on any other incidents.
Second, even assuming that the jury based its unanimous verdict on counts 4 and 5
on the second prong of CALCRIM No. 3501, i.e., the conclusion that all 20 acts of oral
copulation E. testified to occurred, defendant’s argument assumes the jury used generic
evidence of the acts in this group to infer propensity under CALCRIM No. 1191A and
also to prove that defendant committed the crimes alleged in counts 4 and 5. The
problem with this argument is that CALCRIM No. 1191A instructed the jury that it could
only convict defendant of counts 4 and 5 based on proof beyond a reasonable doubt.
CALCRIM No. 1191A told the jury that “[i]f you conclude that the Defendant committed
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the uncharged offenses, that conclusion is only one factor to consider along with all the
other evidence,” and is “not sufficient by itself to prove that the Defendant is guilty” of
the charged offenses, including oral copulation of a child 10 years and under. “The
People must still prove each charge beyond a reasonable doubt.” (Italics added.) Thus,
“the jurors [were] effectively admonished that, even if they find defendant committed the
uncharged sexual misconduct, the reasonable doubt standard ‘still’ applies to the charged
offenses.” (Phea, supra, 29 Cal.App.5th at p. 614, fn. omitted.)
In People v. Reliford (2003) 29 Cal.4th 1007, the California Supreme Court
rejected a similar claim. The defendant in that case argued that instructing the jury with
CALJIC No. 2.50.01, the predecessor to former CALCRIM No. 1191, was “ ‘likely to
mislead the jury concerning . . . the prosecution’s burden of proof.’ ” (Reliford, at
p. 1012.) Focusing on the plain language of the instruction, the court in Reliford
concluded: “We do not find it reasonably likely a jury could interpret the instructions to
authorize conviction of the charged offenses based on a lowered standard of proof.
Nothing in the instructions authorized the jury to use the preponderance-of-the-evidence
standard for anything other than the preliminary determination” whether the defendant
committed an uncharged sex crime. (Id. at p. 1016; Phea, supra, 29 Cal.App.5th at
p. 614 [“it is not reasonably likely a jury would conclude that the lower standard of proof
applicable to the uncharged offenses would apply to the proof of the charged offenses”].)
While acknowledging that “[i]t is technically true, of course, that CALCRIM No.
1191A told the jury to apply the preponderance standard” to crimes “ ‘that were not
charged in this case,’ ” defendant asserts that “there really were no uncharged offenses in
this case.” Defendant relies on People v. Nicolas (2017) 8 Cal.App.5th 1165, to support
his argument but the case is clearly distinguishable.
In that case, the defendant was texting on her phone while driving on the freeway.
(People v. Nicolas, supra, 8 Cal.App.5th at p. 1170.) She crashed into the victim’s car
stalled in a traffic jam and killed the victim. (Id. at pp. 1169-1170.) The defendant was
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convicted of vehicular manslaughter with gross negligence. (Id. at p. 1170.) The trial
court instructed jurors they could use uncharged behavior of cell phone use under
Evidence Code section 1101, subdivision (b), to show intent and knowledge and to
determine that defendant’s actions were not due to mistake or accident, if the jury found
the People had proved the uncharged acts by a preponderance of evidence. (Nicolas, at
pp. 1177-1178.) The appellate court found the error reversible per se because there were
no uncharged acts admitted in evidence. (Id. at p. 1178.) “The instruction told the jury
that the evidence concerning defendant’s phone use immediately prior to the collision
could be proven under a preponderance of the evidence standard. This had the effect of
lowering the prosecution’s burden of proof because this was the same evidence that the
prosecution was using to prove gross negligence. Even though the jury was also told
(through other jury instructions and argument) that it needed to find gross negligence
(and ultimately defendant’s guilt) under a reasonable doubt standard, the two competing
standards of proof were addressing the same evidence.” (Id. at pp. 1181-1182.)
Here, the uncharged acts were not, as defendant suggests, part of the same course
of conduct as the charged acts or an indivisible part of those offenses, as in Nicolas. A
violation of section 288.7, subdivision (b), charged in counts 4 and 5, is not a continuous
course of conduct offense. (See People v. Anderson (2012) 208 Cal.App.4th 851, 891;
see also People v. Jones (1990) 51 Cal.3d 294, 314.) The prosecutor explained that
uncharged sexual acts were not the specific incidents that E. specifically testified
occurred in defendant’s trucks, but the “10, at least, other times that [E.] said the
Defendant put his mouth on her vagina.” (Italics added.) Thus, the uncharged offenses
were not part of the charged offenses in the same way they were in Nicolas.
The decisions in People v. Villatoro (2012) 54 Cal.4th 1152 and People v. Cruz
(2016) 2 Cal.App.5th 1178, cited by defendant, also do not support his claims. Villatoro
held that a modified version of CALCRIM No. 1191 that charged offenses must be
proven beyond a reasonable doubt even if those offenses are used to infer propensity did
13
not create a “risk the the jury would apply an impermissibly low standard of proof.”
(Villatoro, at pp. 1167-1168.) Cruz held that CALJIC No. 2.50.01, which did not
distinguish between charged and uncharged sex offenses, was incorrect in stating that a
charged offense found true only by a preponderance of evidence could be used to show
propensity to commit other offenses. (Cruz, at pp. 1183-1184.) The court concluded that
lay jurors could not reasonably be expected to find charged offenses true by a
preponderance of evidence to show propensity and then decide that the same offenses
were proven beyond a reasonable doubt. (Id. at p. 1186.) The court held the instruction
must specify “that a currently charged offense must be proved beyond a reasonable doubt
before it can be used as propensity evidence in support of another currently charged
offense.” (Ibid.) Following Villatoro and Cruz, CALCRIM No. 1191 was divided into
CALCRIM No. 1191A for uncharged offenses and CALCRIM No. 1191B for charged
offenses, the instructions given here, to expressly incorporate the differing standards of
proof. (See People v. Gonzales (2017) 16 Cal.App.5th 494, 496, fn. 1; People v. Jones
(2018) 28 Cal.App.5th 316, 327, fn. 8.)
Despite this jurisprudence carefully differentiating the burden of proof in a
propensity instruction given for uncharged offenses versus charged offenses, defendant in
effect asserts that whenever there is generic testimony requiring the trial court to instruct
the jury with CALCRIM No. 3501, there are no uncharged offenses and therefore only
CALCRIM No. 1191B may be given on propensity. Defendant cites no authority for this
proposition, and we are not aware of any.
We conclude that defendant’s contentions lack merit. (Phea, supra, 29
Cal.App.5th at p. 614.) As stated, we consider the merits of defendant’s claim only to
determine whether defendant forfeited his challenge to the trial court’s instructing the
jury with CALCRIM No. 1191A. Therefore, defendant would now forfeit this claim,
except that he raises another challenge to CALCRIM No. 1191A, which we address post.
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II
CALCRIM No. 1191A Where the Victim’s Testimony Is the Sole Evidence
of Uncharged and Charged Crimes
Defendant contends that CALCRIM No. 1191A violated his right to due process,
because the jury could not distinguish between the burden of proof by a preponderance of
the evidence for uncharged offenses and proof beyond a reasonable doubt for charged
offenses, given that the evidence in both cases consisted of solely E.’s testimony. We
disagree.
In People v. Gonzales, supra, 16 Cal.App.5th 494, the prosecution presented
evidence of uncharged sex offenses the defendant committed through the victim’s own
testimony. (Id. at p. 496.) The defendant contended, inter alia, that CALCRIM No. 1191
“likely resulted in the jury misapplying the burden of proof for the charged offenses,”
based on “that portion of CALCRIM No. 1191 that instructs the jury may consider the
uncharged offenses if the People have proved them by a preponderance of the evidence.”
(Gonzales, at p. 502.) The court pointed out, as we have, that “CALCRIM No. 1191 also
instructs that the uncharged offenses are only one factor to consider; that they are not
sufficient to prove by themselves that the defendant is guilty of the charged offenses; and
that the People must still prove the charged offenses beyond a reasonable doubt.” (Id. at
p. 502, citing People v. Reliford, supra, 29 Cal.4th at pp. 1011-1016 as rejecting a similar
challenge.)
So, too, in this case, CALCRIM No. 1191A told the jurors that the People must
prove each charge beyond a reasonable doubt. Further, the jury was instructed with
CALCRIM No. 220 (Reasonable Doubt), and, in closing argument, the prosecutor
emphasized the People’s burden to prove the charges beyond a reasonable doubt.
Accordingly, we conclude this contention is without merit, as well, and defendant
therefore has forfeited his claim that the trial court erred in instructing the jury. (Phea,
supra, 29 Cal.App.5th at p. 614.)
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DISPOSITION
The judgment is affirmed.
/s/
BOULWARE EURIE, J.
We concur:
/s/
RENNER, Acting P. J.
/s/
EARL, J.
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