Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC786827
Bamattre-Manoukian, ACTING P.J.
I. INTRODUCTION
In June 2008, defendant Demar Winston Cannon was convicted after jury trial of subornation of perjury by declaration (Pen. Code, § 127). The jury found that defendant had willfully procured F., who was almost 13 years old at the time, to commit perjury by making a false statement in a declaration concerning whether she had been molested by Brian Allen. The trial court sentenced defendant to three years in prison.
Although the information and abstract of judgment also refer to defendant by other names, defendant testified at trial that his name is “Demar Winston Cannon.”
All further statutory references are to the Penal Code unless otherwise indicated.
As background, defendant’s father used to be married to the mother of Allen. Allen is married to the mother of F. In a criminal trial against Allen in 2005, F. testified about incidents during which Allen molested her. Allen was convicted of lewd and lascivious acts on F. and sentenced to 15 years in prison. Defendant had contact with F. after Allen’s trial, and on June 30, 2006, F. signed a declaration under penalty of perjury stating that Allen “was innocent,” her “testimony came about because of pressure” from her grandmother, Allen “never molested” her, and “the charges against him were false.” Allen’s attorney thereafter filed F.’s declaration in connection with habeas proceedings pertaining to Allen, but Allen ultimately abandoned his attempt to seek habeas relief.
At defendant’s subsequent jury trial in June 2008, F. testified that her statements in the June 30, 2006 declaration were false and that defendant told her to make some of the statements.
On appeal, defendant contends that (1) his trial counsel rendered ineffective assistance by failing to request a limiting instruction concerning Allen’s conviction for lewd and lascivious acts on F., (2) the trial court prejudicially erred by allowing the prosecution to refer to F. as a victim with regard to Allen’s case, and (3) the court prejudicially erred when instructing the jury about subornation of perjury by omitting an element of the crime.
For reasons that we will explain, we determine that defendant’s contentions are without merit. Therefore, after correcting a clerical error, we will affirm the judgment as modified.
Although defendant was convicted after jury trial, the abstract of judgment indicates that defendant was “convicted by” “plea.” (Capitalization omitted.) We will order the abstract amended to reflect the jury finding of guilt.
II. FACTUAL AND PROCEDURAL BACKGROUND
On March 14, 2008, defendant was charged by information with subornation of perjury by declaration (§ 127). The information alleged that defendant procured F. to commit perjury by making a declaration, on June 30, 2006, containing the following statements that she knew to be false: “that Brian Allen ‘was innocent’; the ‘subsequent testimony came about because of pressure from [her] grandmother’; ‘Brian Allen never molested [her]; the ‘charges against him were false[.]’ ”
Defendant’s Pretrial Motion
On April 22, 2008, defendant filed a pretrial motion seeking to preclude the prosecution from referring to F. as “ ‘the victim.’ ” On June 17, 2008, the trial court ruled that F. could be referred to as a victim with regard to the prior case against Allen, but that she should be referred to as a witness with regard to defendant’s case.
The Prosecution’s Case
The jury trial began in June 2008. At the time of trial, F. was almost 15 years old and living with her paternal grandmother (grandmother). Grandmother obtained legal custody of F. when F. was a young child.
F.’s mother (mother) started dating Allen when F. was approximately six years old, and she eventually married him. F. periodically visited mother and Allen. Mother and Allen had one child together, S., in 2004.
Defendant was sometimes present at mother and Allen’s residence. Defendant was introduced to F. as Allen’s brother. She referred to defendant as “uncle.”
According to F., Allen molested her. He would “rub on” her with his penis. Before her 10th birthday, he tried to put his penis in her mouth. Sometime after the incident, F., who was at mother’s house, told grandmother by telephone what had happened. Grandmother asked F. whether she had told mother. F. did not want to tell mother and told grandmother to do it.
Grandmother spoke with mother by telephone. Grandmother wanted to pick up F., but F. wanted to be with mother. Grandmother told mother to leave the home with F., and mother “said she would.”
After this conversation, however, mother called Allen and told him to come home. Mother made F. and Allen “sit in the room and talk about it” and stated that “it was between” them. Allen told F. that it was an “accident” and to convince grandmother that he “didn’t do it.” Mother also wanted F. “to convince everybody that he didn’t do it.”
F. later disclosed to grandmother that mother and Allen wanted her to convince grandmother that “it didn’t happen.” At some point, grandmother learned from F. that there had been more than one incident involving Allen. Grandmother did not try to convince F. that more had happened to her than what she had disclosed.
Sometime after F. returned to grandmother’s home, F. talked to law enforcement about Allen’s conduct. F. testified that she did not talk to law enforcement immediately after returning to grandmother’s home, because she did not want mother to be mad at her. According to grandmother, F. stated that mother had said that she (mother) would not have anywhere to live if F. reported Allen’s conduct.
F. eventually told defendant what Allen had done to her. Defendant stated that he believed F. Most of mother’s family, however, “didn’t really want to believe” what Allen had done to F. They told F. that she was lying, so F. “didn’t really talk to them much about it.”
Criminal charges were brought against Allen based on his conduct with F. and with another female. At Allen’s trial, a third female also testified about Allen’s conduct. During Allen’s trial, F. testified “about the incidents where... Allen molested” her. She also testified that mother and mother’s family members did not believe her, or did not want to believe her. At defendant’s trial, F. testified that she told the truth at Allen’s trial. Allen’s defense at his own trial was that any touching was accidental and F. had been prompted to exaggerate the claims of touching by her grandmother and others.
At defendant’s trial, the parties stipulated to and the court took judicial notice of Allen’s “conviction” on December 2005 for two counts of lewd and lascivious acts on F., a minor under the age of 14, and Allen’s 15 year sentence.
Before Allen’s trial, F. did not have much contact with mother. Mother told F. that she did not want F. to testify against Allen. During the trial, neither mother nor her sister (F.’s maternal aunt) supported F. F.’s maternal aunt told F. that it was her fault she could not be with mother because she said Allen molested her. After Allen’s trial, F. believed that mother did not talk to her a lot because mother was mad at her. According to grandmother, mother blamed F. “for what had happened to” Allen.
Between the time F. reported Allen’s conduct to grandmother and the time F. testified at Allen’s trial, grandmother did not pressure F. to lie. F. also denied that grandmother told her that she needed to “make up” what Allen did because grandmother “doesn’t like black people.” After Allen’s trial ended, F. was still living with grandmother. F. acknowledged that she went to Cabo San Lucas with grandmother after Allen’s trial, but denied that grandmother had bribed her with the trip so that she would testify that Allen molested her.
In mid-2006, at the end of seventh grade, F. ran away from grandmother’s because she wanted to be with mother. Mother, F., and F.’s half-brother, S., stayed with defendant and his family for approximately two months.
While living at defendant’s house, mother received numerous calls from Allen, who was in prison. Mother and defendant talked to F. about getting Allen out of prison. They told F. that they did not think Allen “deserve[d] that long in prison.” They also said that if F. “didn’t tell them that he didn’t molest” her, then she “wouldn’t be able to be with [mother] legally” and they would “always be on the run.” In addition, they told F. that she should meet with Allen’s attorney, David Martin, and “[l]ie and say that [Allen] didn’t molest” her. In particular, they told her to tell Martin that grandmother “pressured [her] into... saying that he molested [her], because [grandmother] doesn’t like black people and if [she] didn’t tell... the police that [Allen] molested [her],... [grandmother] would be really angry and hit [her] and stuff like that.”
None of this was the truth. F. agreed, however, to tell Martin these things because mother told her that if she “didn’t, [she] wouldn’t be able to be with” mother. Further, F. felt “kind of bad” when she was told that Allen “didn’t deserve this long in prison.” She also felt guilt when mother and defendant told her that S., her half-brother, “would grow up and not have a dad” and his “dad might die in prison” and “stuff like that.”
Defendant contacted Martin by telephone on June 30, 2006. Martin was representing Allen in connection with Allen’s appeal, but he had not yet received the file regarding Allen’s case. Defendant identified himself to Martin as Allen’s brother, although he later clarified that he was not a “blood brother.” Defendant told Martin that F. had stated that the conduct with Allen had never occurred.
Later that same day, defendant contacted Martin a second time by telephone, and Martin talked to F. F. was almost 13 years old at the time. F. “basically told [Martin] that [they] needed to talk, because [she] lied about [Allen] molesting” her. At defendant’s trial, F. testified that mother and defendant had told her to say this to Martin. F. testified that she did not tell anyone, other than Martin, that Allen did not molest her.
Based on his telephone conversation with F., Martin prepared a declaration for F. to sign and drove to defendant’s house on June 30, 2006. Before Martin arrived, mother again suggested to F. that she lie to him. Mother left upon Martin’s arrival.
Martin wanted to interview F. in private, so defendant went upstairs while Martin talked to F. in the kitchen. The declaration prepared by Martin reflected “all the things” that F. and Martin had “talked about.” Before F. signed the declaration, Martin told her to look at it to make sure that everything was accurate. He also explained what it meant to sign the document under penalty of perjury.
At defendant’s trial, F. identified the statements in the June 30, 2006 declaration that were lies. For example, F. stated in the declaration that Allen was innocent. This was a lie that mother and defendant had persuaded F. to say. The statement that she complained to authorities and testified against defendant because she was pressured by grandmother also was not true. Mother and defendant had told her to blame grandmother and pressured her into making this statement. In the declaration, F. stated that in 2002, when she was visiting Allen, he picked her up to carry her and she “looked down and saw his thing through the opening in his pajamas.” This, however, “wasn’t really what happened.” Although she occasionally did see Allen’s penis through the opening of his pajamas, during this particular incident she was lying on her mother’s bed when Allen took his penis out and rubbed it on her mouth.
There were other lies in the declaration, including that F. told grandmother that she saw Allen’s penis when he picked her up and carried her, that grandmother became very upset and told her that “this is what black men do to white girls,” that grandmother kept insisting that other things must have happened and kept badgering F. about them, and that grandmother “frequently hits” her and she was “very afraid” of grandmother. F. initially testified that mother told her to make the comment about black men and white girls. She later acknowledged that at defendant’s preliminary hearing, she testified that defendant had influenced her to make this comment. F. subsequently clarified at defendant’s trial that both mother and defendant influenced her to make this comment. F. testified that grandmother had never used any racial insults regarding African Americans. Mother and defendant told her to make the comment about grandmother badgering her. Further, mother told F. to say that she was frequently hit by grandmother and that she was afraid of grandmother. F. testified that grandmother only hit her once, after F. repeatedly lied about smoking, and she was not afraid of grandmother.
F. stated in the declaration that due to grandmother’s “constant insistence” and her fear of grandmother, she agreed to file a complaint with authorities and testify at trial against Allen. F. testified that mother and defendant had pressured her to say these things, which were not true. She had testified against Allen because he had molested her, not because she was scared of grandmother.
Other lies in the declaration were that Allen “never molested” her and that “the charges against him were false.”
After F. signed the declaration, Martin “impress[ed] upon her” that signing the declaration “doesn’t mean everything’s over with.” He explained to F. that she would have to go back to court and testify as to what she stated in the declaration. Martin recalled F. stating either during this meeting or at a subsequent meeting that she could not “testify to this if [she is] staying at [her] grandmother’s.” At the time, Martin interpreted F. to be saying that the statements in the declaration were true. At defendant’s trial, however, Martin acknowledged that F. could have meant that the statements in the declaration were false and that her grandmother would not let her lie on the witness stand. Indeed, at defendant’s trial, F. stated that she told Martin that she “wouldn’t be able to say” the statements in the declaration if she was living with her grandmother. F. explained that the declaration contained lies and if she had been living with her grandmother, her grandmother would not have let her lie.
F. testified that when she signed the document, she knew she was “signing a lie” and that “it was going to be filed and hopefully get [Allen] out of jail.” She signed the document “for [mother], because [she] wanted to be with” mother. F. testified that she was “ashamed” for signing the declaration because she “made up a whole bunch of lies about [her] grandmother that are not true.” She told the lies because she “wanted to be with [her] mom.” She felt “a lot of pressure from [her] mom” and defendant, “but most of the pressure was just from [her] mom” because “that’s who [she] wanted to live with.” Defendant knew, however, that she “really wanted to live with [her] mom.”
Mother was “really happy” after F. signed the declaration.
Neither F. nor Martin told grandmother about the declaration before F. signed it. Grandmother did not see the declaration until defendant’s trial.
On July 25, 2006, Martin met with F. a second time at defendant’s house. By this time, Martin had reviewed the trial record and police reports regarding Allen. Martin recorded this second meeting with F. The audio recording was played for the jury at defendant’s trial, and the jury received a transcript of the recording.
During this second meeting, Martin asked F. questions about Allen’s conduct and about her testimony from Allen’s trial. F. told Martin that she was in her mother’s bed when she woke up and saw defendant’s penis while he was standing. Defendant’s penis did not touch her, and he continued walking to the bathroom. She called grandmother and told her what she saw. As a result of this and subsequent conversations with grandmother, F. started believing that Allen had done “stuff” to her. F. eventually realized that it was a lie, but she did not want to say anything because she was scared of grandmother. When grandmother talked about Allen touching F., grandmother was angry. F. was scared because grandmother would hit her or would send her to her father’s where he would hit her. F. was afraid that if she did not lie, she would get in trouble. Grandmother got mad at F. when F. denied that certain things had happened. Grandmother pressured her to talk to the police, and F. started making things up. Grandmother told the police that according to F., mother and Allen were telling F. to convince grandmother that the molestation did not happen. This was not true, but when the police questioned F., she said that mother and Allen were saying these things. F. did it to keep grandmother happy. F. did not remember a lot of her testimony from Allen’s trial because she made it up. When Martin asked F. about her testimony at Allen’s trial, such as Allen rubbing his penis on her, F. indicated that it did not happen. She felt “really bad” about her testimony because it was a lie and it caused Allen to be in prison for a long time for something he did not do. Martin testified that F. “seemed quite sincere” during this interview on July 25, 2006.
During defendant’s first telephone conversation with Martin in June 2006, defendant told Martin that F. had run away from her grandmother’s and that she was staying at a friend’s. Defendant did not disclose that F. was living with him at the time. Martin wanted F.’s “living situation to be legal” and was also concerned that if she went back to her grandmother’s, she would “perjure herself again on an innocent client.” By the time of Martin’s second visit with F. in July 2006, Martin knew that F. was not living with a friend and was staying at defendant’s house. Martin also knew that F. could not stay with her mother. Martin had several conversations with defendant about F.’s living situation. He also had several conversations with F.’s maternal grandparents and tried to convince them to take in F. According to Martin, F. stated that she wanted to live with an aunt and never told him that she wanted to live with her mother.
In August 2006, within one week after Martin’s second visit, mother, F., and F.’s half-brother, S., left defendant’s house and stayed with various people in another city.
F. then stayed briefly with her maternal grandparents. Although her maternal grandparents were nice to her, F. ran away because she wanted to be with mother. F. stayed with mother until the police returned F. to grandmother’s home.
In November 2006, F. ran away from grandmother’s again, and this time she went with mother to Georgia.
In December 2006, Martin filed a habeas petition on behalf of Allen. The declaration that F. had signed in June 2006 was filed in connection with the habeas proceedings.
In August 2007, after mother went to California and left F. in Georgia, F. returned to grandmother’s home.
During the period of time after F. moved out of defendant’s house and while she was in Georgia, F. received telephone calls from defendant. He would tell her that Martin, Allen’s lawyer, called or “stuff like that.” Defendant wanted her to testify in Allen’s case about the same things that she had told Martin. F. told defendant that she was “nervous about lying” and that she “didn’t want to.” When asked what defendant said in response, F. testified: “he said that if I do it, then that will be good; but if I don’t do it -- he also believes me and stuff -- but I feel bad because he talked about my [half-brother] not having a dad.” F. “kind of” felt like defendant was “guilting” her into testifying.
When F. returned to grandmother’s home in August 2007, she continued to receive telephone calls from defendant. Defendant told F. that the court date was coming up soon and wanted to know whether she was going to court and what she was going to do.
At defendant’s trial, the parties stipulated that “Allen’s appeal was denied by the Sixth District Court of Appeal” on August 28, 2007.
On August 28, 2007, the same appellate court issued an order to show cause regarding Allen’s habeas petition. At defendant’s trial, Allen’s attorney, Martin, explained that after an order to show cause is issued, the matter is returned to superior court for a hearing and F. would have to testify at such a hearing. Martin had several conversations with defendant about whether F. would show up in court for the hearing and what she would testify to if she did appear. Martin believed that if F. was living at grandmother’s, she would not testify favorably for Allen.
In approximately August 2007, F. talked to Sam Liccardo, who was the prosecutor at Allen’s trial. Liccardo testified that F. told him that she had been staying with her mother and a male relative of Allen. Her mother and the male had persuaded her to recant her testimony and to say that she made it all up. One of them had arranged for an attorney to take her statement. As to why F. “went along with the persuasion of her mom” and the male, Liccardo believed it was “related to her desire to be with her mom.” F. had been told by mother that F. could not stay with her unless she told “the authorities that this was all a lie.” F. also mentioned to Liccardo that her half-brother would not have a father “to grow up with” if she did not recant. F. indicated to Liccardo that she would have to testify and she did not want to lie in court.
At the time of defendant’s trial in June 2008, Liccardo had been a San Jose City Council member for approximately one and one-half years.
F. subsequently disclosed to grandmother that she had lied and had told a lawyer that Allen did not molest her. Grandmother testified that she never told F. to make up a molestation claim against Allen, and she never pressured F. into believing that she was molested by Allen. She also did not scare or threaten to hit F. unless she said she was molested by Allen. Further, when F. disclosed to grandmother that she had been molested, grandmother did not tell F. that “this is what black men do to white girls.”
After Liccardo, the former prosecutor, talked to F., he called the district attorney’s office and explained the circumstances. On October 2, 2007, F. was interviewed by Christina Gunter, a criminal investigator for the district attorney’s office. Gunter testified that during this interview, F. stated that she had testified truthfully in Allen’s trial and that the contents of the declaration she signed with Martin were false. F. also described what defendant said to convince her to recant with Martin and how defendant would coach and suggest things to her regarding what she could say to Martin.
Gunter had F. talk to defendant by telephone. The conversation was recorded and took place over two calls. The recorded calls were played for the jury at trial, and the jury received transcripts of the calls.
During the first call, defendant stated to F. that he had been told that Allen would get a new trial if F. went to court and indicated that what she said was true. He had also been assured that neither F. nor her grandmother would get in trouble. Defendant told F. that whatever she decides, he would “go for it” because he loves her. However, he wanted her to “understand” that she had a half-brother who had no father right now. He asked F. how her half-brother, when he got older, would feel about his father being in jail for 15 years. Defendant stated: “He needs a father.” Defendant also told F. that if Allen got out, he would “talk” to Allen and tell him that “he needs help.” Defendant told F. that she also should tell Allen that he needs help, that he “did that to” her, and that she “only got [him] off” because she wanted to see her half-brother with his father. Defendant stated that Allen had been “in there four years now” and asked F. whether she knew that Allen had been in “three fights already.” When F. referred to what Allen “did” to her and stated that she did not want to lie about her grandmother “and everything,” defendant responded that he would not dispute what she said had occurred. He reiterated that Allen had “been there four years now” and reminded F. that when he previously asked her whether “15 years is what [Allen] deserves,” she had responded “no.” Defendant eventually ended the first call after telling F. he would call her right back.
During the second call, defendant suggested that F. could say that she had lied about Allen and that she had put the blame on her grandmother for various reasons even though her grandmother “really didn’t have too much to do with it.” When F. asked defendant whether he believed that Allen “really did that” to her, he responded, “Yes.” Defendant explained that his daughter, C., had indicated that something had happened between her (C.) and Allen. C. believed that Allen’s behavior was due to drinking and/or sleepwalking. Although C. did not like what Allen had done to her, she believed that Allen needed help and did not deserve to go to jail.
Defendant told F. “to decide what it is [she] want[s] to do.” He told her that he was “not gonna... not love [her] for whatever choices [she] make[s].” He stated that it “boils down to, does he deserve 15 years... for that?” He then asked whether Allen “deserve[s] 15 years... or his life possibly taken in jail[.]”
Defendant later asked F. whether Allen made “one mistake” with her. F. clarified that it occurred “several times.” Defendant suggested that she had made mistakes, too, such as running away and smoking cigarettes, but she was still a “good person.” He stated that no one is perfect, people make bad choices, and “we have to ask ourselves” whether “they deserve what has happened to them, or do they need help?” He indicated that the decisions that F. made may have hurt her grandmother, but she did not deserve to be “locked up” and it did not change the fact that she was a “good girl.” Defendant also suggested that society was quick to lock up people when they did not deserve it and just needed help. Defendant acknowledged that he was angry at Allen for what Allen had done to C. and to F., but he also believed that Allen was a good and generous person, that he needed “help for his problem,” and that he did not deserve to be locked up for 15 years.
F. asked defendant whether it was “the right thing” for her to lie to the attorney at his house. She could have simply told the attorney that Allen did not deserve 15 years. She asked defendant, “do you think it was right for me to lie?” Defendant answered “no,” but also told her that “the D.A.s lie, the judges lie, the police lie,” that “[s]ometimes you have to do what you have to do,” and that it may “have to be a lie in order to make something happen.” He asked F. whether she would lie if it would prevent something from happening to S., her half-brother. F. acknowledged that she would but contended “that’s a different case, though.” Defendant responded that sometimes you “need to lie.” F. indicated that she was talking about a specific situation. Defendant told her that she had to “weigh it out.” As defendant began discussing the specific situation involving F. and Allen, F. ended the call.
F. testified that defendant’s statement during the telephone call, that he wanted F. to understand that her half-brother had no father right now, was the type of thing that he would say to her before she signed the declaration for the attorney, Martin.
In October or December 2007, defendant told Martin that he thought a conversation had been taped. Martin eventually received copies of the taped calls between F. and defendant. Martin testified that “[t]he elements on the tapes came as a surprise” to him and that the taped calls “killed” Allen’s case. Allen eventually abandoned the habeas petition. According to Martin, F. was at grandmother’s at the time. Martin testified that he never had any information that defendant induced F. to make false statements to him, and that he never would have filed the habeas petition if he had any “legitimate suspicions” in that regard.
Carl Lewis, a senior criminal investigator with the district attorney’s office, testified as an expert about child sexual abuse accommodation syndrome (CSAAS). Lewis explained that CSAAS “describes how children can present or appear in ways that are unexpected by adults when there’s an allegation of child sexual abuse.” Lewis stated that CSAAS is not a diagnostic tool and is only “intended to... remind us... to look at the whole picture without making a judgment based on our preconceived ideas of what we think the child sexual abuse victim would... look or act like.”
According to Lewis, CSAAS has five basic categories, although not all five may be present in every case of child sexual abuse. First, secrecy reflects the fact that the sexual abuse usually occurs when the offender is “somehow isolated with the child,” and the offender may reinforce the sense of secrecy either verbally or nonverbally. Second, helplessness arises from children’s dependence on adults. Third, entrapment refers to the burden of keeping the secret or enduring additional abuse by someone who is in a position of authority or who already has a relationship with the child, and accommodation reflects the fact children will “try to find a way to put up with that condition and go about their lives being children.” Fourth, the child’s disclosure of the offense is usually delayed, the child might be conflicted about making the disclosure, and when the disclosure is finally made, “it’s often done in a way that makes [the child] seem unbelievable.” Fifth, a child may retract an earlier disclosure due to the “great deal of chaos brought into the child’s life” as a result of the involvement of child protective services, law enforcement, the medical field, and the criminal justice system.
The Defense Case
Defendant was 46 years old at the time of his trial in June 2008. Defendant testified that his father used to be married to Allen’s mother, so Allen is an “ex-stepbrother.” He considers Allen to be his brother.
Defendant testified that Allen’s wife, who is F.’s mother, called him in June 2006, to say that F. had been beat up and had run away from home. F. and mother subsequently lived with defendant until mid August 2006, although F. and mother were “in and out” as they sometimes stayed with other friends. Defendant thought F. needed to go to a shelter because F. led him to believe that her grandmother and father were “very abusive” towards her.
Defendant testified that prior to F. and mother moving in, mother called him and mentioned that F. wanted to talk to him. Within two days after they began staying with him in June 2006, mother again stated that F. had something to talk about with him. At this point, F. told defendant that Allen did not touch or molest her.
Defendant did not attend Allen’s trial. He only knew what happened to F. based on what F. told him. At some point, F. told him that mother and Allen were lying in bed when Allen got up, “was going to the bathroom or something like that,” and F. looked over and saw Allen’s “thing hanging out of his pants.” F. told him that before Allen “got up,... it felt like he was rubbing her.” Defendant did not believe that Allen “deserve[d] fifteen years for that.” Defendant testified that his discussion with F. did not lead him to believe that F. had been molested. F. never told him that Allen’s penis was pressed against her mouth.
Allen had previously written a letter to defendant with the name of his attorney and a phone number. Defendant called Allen’s appellate attorney, Martin, on June 30, 2006. That day, F. had told defendant that she wanted to “right a wrong.” When defendant called Martin, he told him that he had some information that might help Allen’s appeal. Defendant and Martin talked a second time by telephone and then Martin talked to F. Martin later came to defendant’s house to interview F.
Defendant testified that at the time, he did not know that F. signed a declaration dated June 30, 2006. He denied telling F. to make the statements in the declaration that Allen never molested her, that she testified the way she did because of pressure from her grandmother, that Allen was innocent, that the charges against Allen were false, and that she was very ashamed of what she had done. Defendant testified that he did not promise her anything if she signed it, he did not threaten her if she did not sign it, and he did not persuade her in any way.
Martin returned to defendant’s house on July 25, 2006, to interview F. Defendant testified that he was “[r]oaming around the house” but did not listen to the interview, which took place in the kitchen. He testified that he did not tell F. what to say during the interview, did not promise her anything if she testified or was interviewed, and did not threaten or influence her in any way. According to defendant, two days after the interview, F. told him “that she felt good and that she was happy that she... finally got the truth out.”
After F. and mother moved out of defendant’s house, defendant and F. remained in contact by telephone. Defendant would “check and see how she was doing” and let her know the status of Allen’s case. F. told defendant that she “did not want to go through the whole court thing, the trial situation, because she had been through it before, and... she was afraid.” F. was scared she might get in “trouble” because “she had changed her story.” She thought she was committing perjury and did not know what the district attorney or “somebody was going to do to her.” Defendant told her that he would “get in touch with some lawyers... and ask questions for her.” Defendant explained that he was “basically the go-between between her,” Martin, and “whoever else.”
At some point, defendant “could tell that [F.] had been kind of swaying.” F. had been saying that “she had lied on her grandmother” and “she wanted to figure out a way of not getting her grandmother in trouble.” According to defendant, F “was asking [him] for help.”
On October 2, 2007, when defendant spoke with F. by telephone, he did not know the calls were being recorded. Defendant explained that because F. kept “fluctuating” and “flipping,” his approach with her during the conversation was to tell her how he felt and to try to “get her to tell [him] what the truth was.” He also tried to “act like [he] was still on her side” and “flush the truth out of her.” Some of what he said to her “was partially true” and “[s]ome of it was made up.” He “was playing cat and mouse” with her “because she had been also playing it” with him. In this regard, defendant explained that based on his experience with F., she “would lie, play games or switch her story” and he “felt like she was trying to do the same thing” in this situation.
During the recorded conversation, F. asked defendant whether he believed that Allen “really did that to” her, and defendant responded, “Yes.” At trial, defendant explained that he believed Allen had a sleeping disorder. He knew Allen “wasn’t a bad person” and “wasn’t somebody who did things on purpose.” Defendant further testified: “I’ve seen [Allen] walk to a basket after drinking, after whatever he did, he would walk over to the clothes hamper and use the bathroom in the clothes hamper, I seen him do that. And then go from wherever he was sleeping at and then go lay down somewhere else and go to sleep.”
During the recorded conversation, defendant told F. that “ ‘sometimes you need to lie.’ ” When asked at trial how he felt “during that conversation,” defendant explained that he was “very frustrated.” “[I]t got to the point” where he “sort of” felt like he was “done with this whole thing,” because he had “a lot of emotions going on....” He further stated that he had “done time,” and when he “went to jail,” he felt that he was “put in there unfairly.” He subsequently testified that it was a “very emotional subject” for him because he had “been done incorrect.” Defendant testified that his prior convictions occurred approximately 10 to 20 years ago and involved sales of rock cocaine, grand theft, and a misdemeanor relating to possession of a cloned cell phone. Defendant stated that his “experience with the system color[ed] his view of those involved in the justice system of Santa Clara County.” In talking about his past with F., defendant testified that his point with F. was that everyone makes mistakes, “we’re all not perfect,” “we can change,” and that society is quick to lock people up instead of looking for programs to help them.
During the recorded conversation, defendant told F. that his daughter had said that something happened to her and that Allen sleepwalks when he drinks. At trial, defendant explained that his daughter had told him that Allen had been drinking and, while they were asleep, Allen was “pumping on her” with his clothes on. Defendant understood his daughter to be saying that Allen was “dry-humping” her. When his daughter said Allen’s name, he appeared “startled, like he woke up or something, and he said, oh, sorry. And he walked over and went back where he was originally sleeping and lay down and went to sleep.” Defendant testified that Allen had done the “same thing” to him when he was younger.
Defendant acknowledged that he told F. during the recorded conversation that she could go to court and lie under oath. He explained at trial that he was speaking about F.’s grandmother, and he needed to help F., who had told him many times that she did not want to get her grandmother in trouble and she was scared to go to court. Defendant testified that if he had known he was being taped, he would have told F. to tell the truth. He testified that prior to being taped, he had told F. many times that “she needed to tell the truth.” He denied telling F. “on June 30th or July 25th to sign anything and lie.”
In the recorded conversation, defendant referred to F.’s half-brother being without a father. At trial, defendant explained that he previously made similar comments to F. in the context of telling her what would happen if she “did not tell the truth and go to court” for Allen.
Defendant told F. during the recorded conversation that he was “pissed the fuck off at [Allen] for doing that to [his] daughter” and “pissed the fuck off at [Allen] for doing it to” F. At trial, defendant denied believing at the time that Allen had rubbed his penis on F. Defendant understood that F. and Allen were in the same bed at the time. Defendant stated, however, that his own daughter could “charge [him] for the same thing right now because [he lies] next to [his] daughter in bed,” “cuddle[s] up with [his] daughter,” he’s “a man,” and “it hangs.” Defendant subsequently stated that he was “pissed off” at Allen because Allen “needs some help,” and he did not know whether Allen needed jail time.
In the recorded conversation, shortly after F. asked whether it was alright to lie to the attorney, defendant told F. that the district attorneys, judges, and police lie. At trial, defendant explained that he had been feeling “frustrated” and “disgusted” with “the way... the system is” and his response at the time was just his opinion. He testified that he “wasn’t trying to force [F.] into doing anything.”
Several of F.’s maternal relatives testified at defendant’s trial. F.’s maternal grandfather testified that F. had lived with him in September 2006. She had previously run away from grandmother’s house and had been “on the run” for several months. He had heard that F. had been living with defendant. F.’s maternal grandfather was told by Allen’s attorney, Martin, that F. did not want to go home because she was being abused. Martin asked whether he would take F. in, and he agreed. F. stayed at her maternal grandfather’s house for six hours before running away. After F. had been at his house for approximately three hours, she told him that she was sorry she lied about Allen. When asked why, F. stated that grandmother promised to take her and a friend to Mexico if she lied. F. also stated that grandmother did not like black people. F. stated that she only said Allen molested her because grandmother told her to.
F.’s maternal grandfather also testified about comments by other family members regarding what happened between F. and Allen, or relating to Allen’s case. F.’s mother, who is one of his daughters, told him that she did not believe F. His other daughter, F.’s maternal aunt, told him three or four times that F. said she was lying.
F.’s maternal grandfather believed F. was a liar. For example, she lied to him about having grandmother’s permission to leave when she actually ran away. She also lied about not making phone calls at his house. F.’s maternal grandfather referred to her conduct as “kid’s lies.”
F.’s maternal aunt testified that F. called her several times after Allen’s trial. F. told her that grandmother would get mad if F. called her, so F. called her “secretly.” F. stated that “she was sorry that [Allen] never did that, but her grandma was telling her that she had to say that he did that to her.” F. explained that Allen had picked her up and his pants fell down, but grandmother told her that she “had to say... his penis was in [her] face.” F. stated that grandmother wanted her to say this because grandmother “was mad at her mom for leaving her father and... being with a nigger and that niggers usually do that to white girls.” F.’s maternal aunt testified that F. ran away from her maternal grandfather’s house because she wanted to be with her boyfriend. F.’s maternal aunt called the police and F. was returned to grandmother’s.
F.’s cousin, who is a few years older than F., is the daughter of F.’s maternal aunt. F.’s cousin testified that F. stated that grandmother used to beat her and “left a welt from a belt on her butt.” During Allen’s trial, F. stayed with grandmother. According to F.’s cousin, F. stated that Allen “didn’t do it” and that if F.’s maternal aunt and cousin took her home with them during Allen’s trial, she would testify that he “didn’t do it.”
F.’s cousin testified that after Allen’s trial, she had conversations with F. about Allen, and specifically about whether Allen molested her. On one occasion, when F. “messaged” her over the internet, she asked F. “why did she do it.” F. responded that her grandmother “made her.” F.’s cousin stated, “so it’s not true,” and F. replied, “no, it’s not true.” F.’s cousin understood F. to be saying that Allen “didn’t do it.” During a telephone conversation, F.’s cousin asked F. whether she “wish[ed she] never did that to” Allen. F. responded, “yeah, I wish I’d never did but I can’t do nothing about it now.” F.’s cousin further testified that F. told her “plenty of times it wasn’t true.” F.’s cousin interpreted this to mean that Allen did not molest her. F.’s cousin testified that her mother, F.’s maternal aunt, believed that Allen did not molest F.
The daughter of the ex-boyfriend of F.’s maternal aunt testified that she asked F. sometime after Allen’s trial whether Allen had touched her “in any way he shouldn’t ha[ve].” F. said “no.” When asked why she would lie, F. giggled and changed the subject.
The Verdict and Sentencing
On June 27, 2008, the jury found defendant guilty of subornation of perjury by declaration. On September 26, 2008, the trial court denied probation and sentenced defendant to the midterm of three years. Defendant was granted a total of 147 days of custody credits. The court made a general order of restitution and ordered defendant to pay various fines and fees.
Defendant filed a timely notice of appeal on October 8, 2008.
III. DISCUSSION
Trial Counsel’s Failure to Request a Limiting Instruction
In the jury’s presence, the prosecutor requested judicial notice of, and defense counsel stipulated to, Allen’s “conviction” on December 2005, for two counts of lewd and lascivious acts on F., a minor under the age of 14. The trial court stated it would “accept that and find judicial notice on that.” The court then stated to the jury: “Folks, all that really means is instead of having to call additional witnesses to confirm the fact there was, in fact, a conviction in this case, both attorneys agree to that. As far you’re concerned, just accept the fact there was a conviction for those two charges as proven conclusively.”
On appeal, defendant contends that his trial counsel rendered ineffective assistance by failing to request a limiting instruction for the jury to consider Allen’s conviction “only to the extent it provided a motive for [defendant] to cajole [F.] into recanting and not as proof in and of itself that [F.] was molested.” Defendant observes that one of the elements of the crime of subornation of perjury is “that the person who is the target of the defendant’s persuasion did in fact provide false information and thus committed perjury.” Defendant argues that “[a]lthough the parties stipulated that the jury in Brian Allen’s trial found him guilty of molesting [F.], the jury in [defendant’s] trial should not have been permitted to consider that fact as evidence that [F.] was in fact molested and thus lied when she signed the declaration.” Defendant maintains that collateral estoppel did not apply in this case and “due process forbids a jury from using a prior adjudication as proof that an essential element of the current charged offense has been satisfied....” Defendant argues that the jury could not be expected to know this, and that “common sense suggests that a jury would likely be influenced by what a jury in another case determined.” Defendant asserts: “Since the Brian Allen case directly concerned the molestation while this case concerned subornation of perjury, the jurors in the Brian Allen case presumably were privy to much more detail surrounding the alleged molestation itself. As a result, it is likely the jurors in [defendant’s] trial would be influenced, if not completely deferential to their determination that [F.] was in fact molested. An instruction from the court, however, would have ensured that this did not happen.”
“In order to establish a claim of ineffective assistance of counsel, defendant bears the burden of demonstrating, first, that counsel’s performance was deficient because it ‘fell below an objective standard of reasonableness [¶]... under prevailing professional norms.’ [Citations.] Unless a defendant establishes the contrary, we shall presume that ‘counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy.’ [Citation.] If the record ‘sheds no light on why counsel acted or failed to act in the manner challenged,’ an appellate claim of ineffective assistance of counsel must be rejected ‘unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.’ [Citations.] If a defendant meets the burden of establishing that counsel’s performance was deficient, he or she also must show that counsel’s deficiencies resulted in prejudice, that is, a ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ [Citation.]” (People v. Ledesma (2006) 39 Cal.4th 641, 745-746 (Ledesma).)
In this case, a satisfactory explanation may exist for defense counsel’s failure to request a limiting instruction that Allen’s conviction was not “proof in and of itself that [F.] was molested.” Counsel may have reasonably determined that the trial court’s instructions to the jury regarding subornation of perjury were sufficient. Before evidence was offered at trial and after the close of evidence, the trial court instructed the jury that to find defendant guilty of subornation of perjury, it had to determine, among other things, whether F. knew that certain statements in her June 30, 2006 declaration were false. The court’s instruction to the jury during trial, to accept as conclusively proven the fact that Allen had a “conviction” (italics added) for two counts of lewd acts on F., did not establish whether F.’s testimony during Allen’s trial was true and that her subsequent statements in the June 30, 2006 declaration, which essentially recanted her testimony from Allen’s trial, were false. Defense counsel may well have determined that it was better to keep references to the conviction in Allen’s case to a minimum, and instead attempt to focus the jury on F.’s conduct and interactions with various individuals after Allen’s trial, which, according to the defense, showed that F. was not credible and that she had lied about being molested by Allen.
Even if we were to determine that defense counsel’s decision not to seek a limiting instruction was not a reasonable tactical decision, we would find no prejudice. First, as we have explained, the jury was instructed that it had to make a determination as to whether F. knew that certain statements in her June 30, 2006 declaration were false. None of the instructions to the jury suggested that by virtue of Allen’s conviction, it must be concluded that F. testified truthfully at Allen’s trial about being molested and that her subsequent June 30, 2006 declaration recanting her testimony in Allen’s case was therefore knowingly false. Second, much of the evidence at defendant’s trial was directed at F.’s credibility and whether she had been molested by Allen, and the jury had the opportunity to evaluate F.’s credibility. Third, both the prosecutor and defense counsel emphasized in argument that F.’s credibility concerning whether Allen molested her was one of the key issues in the case, and they summarized the evidence presented at defendant’s trial in support of their positions.
In view of the court’s instructions to the jury, the evidence presented at trial, and the arguments presented by the prosecutor and by defense counsel, we find it unlikely that the jury simply relied on Allen’s prior conviction as the basis for determining whether F. had been molested and whether her statements to the contrary in the June 30, 2006 declaration were false. The jury in defendant’s case had the opportunity to evaluate F.’s credibility firsthand, as well as the credibility of the attorney Martin, who testified that F. seemed sincere when recanting her prior trial testimony, and the credibility of the defense witnesses who said that F. had admitted to lying about Allen’s conduct. If, after listening to all the evidence presented in defendant’s case, the jury found F. lacking in credibility as to what happened between her and Allen, we find it unlikely that the jury would have nevertheless been “influenced, if not completely deferential” to the determination in Allen’s case that F. “was in fact molested” by him, as argued by defendant on appeal.
We also reject defendant’s suggestion that the prosecutor’s comments that Allen “had his day in court” and was “tried and convicted” implied to the jury in defendant’s case that the “Allen jury’s verdict should be deemed conclusive as to the truth of the molestation accusations” or that it “had the effect of reinforcing” “any tendency on the part of the jurors in [defendant’s] case to give unnecessary weight to their predecessor jurors in” Allen’s case. The context in which the prosecutor made these statements, combined with the prosecutor’s other statements during argument, clearly conveyed to the jury that it had to evaluate F.’s credibility and, based on the testimony and other evidence presented in defendant’s case, it could conclude that F. was credible and had been molested.
Accordingly, we find that there is no reasonable probability that a result more favorable to defendant would have occurred but for counsel’s failure to request a limiting instruction regarding Allen’s conviction.
Prosecutor’s References to F. as “Victim”
On April 22, 2008, defendant filed a pretrial motion seeking to preclude the prosecution from referring to F. as “ ‘the victim.’ ” Defendant asserted that whether F. was a victim in the case against Allen depended on whether her testimony at Allen’s trial was truthful. In the case against defendant for subornation of perjury, defendant argued that F. was not a victim and was “a mere witness for the prosecution.” Defendant asserted that “[r]eferring to... a person as the victim violates the presumption of innocence afforded a defendant in a criminal case, particularly where such witness has recanted trial testimony.”
On June 17, 2008, the trial court ruled that in view of Allen’s conviction, F. could be referred to as a victim with regard to Allen’s case. The court stated to defense counsel: “Whether [F.] told the truth or not, I imagine you can argue, because a jury decided that the evidence was such that they were convinced beyond a reasonable doubt that Mr. Allen did it.” The court pointed out that there is a jury instruction that explains that statements made by counsel are not evidence. With respect to defendant’s case, the court determined that F. was not a victim and that she should be referred to as a witness.
On appeal, defendant observes that the prosecutor referred to F. as a “victim” of molestation three times during opening statement. Defendant argues that the trial court “effectively lessened the prosecutor’s burden of proof when it allowed the prosecution to refer to [F.] in this manner.” He contends that whether F. was molested by Allen was a disputed factual issue. Defendant asserts that the term “victim” presupposes that a crime has occurred, that F. necessarily had been molested by Allen, that her declaration to the contrary was false, and that one of the elements of subornation of perjury was thereby satisfied. Defendant argues that the court’s ruling infringed on his right to due process and trial by jury, and his conviction should be reversed unless the error is shown to be harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).) Even if the matter is one of state law, defendant contends that it is reasonably probable that the result would have been different if the court had precluded the prosecution from referring to F. as a victim. (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)
In People v. Williams (1860) 17 Cal. 142 (Williams), in a prosecution for murder, the trial court referred to the deceased person as a “ ‘victim’ ” when instructing the jury. (Id. at p. 146.) The California Supreme Court cautioned against use of that word: “The word victim, in the connection in which it appears, is an unguarded expression, calculated, though doubtless unintentionally, to create prejudice against the accused. It seems to assume that the deceased was wrongfully killed, when the very issue was as to the character of the killing. We are not disposed to criticise language very closely in order to reverse a judgment of this sort, but it is apparent that in a case of conflicting proofs, even an equivocal expression coming from the Judge, may be fatal to the prisoner. When the deceased is referred to as ‘a victim,’ the impression is naturally created that some unlawful power or dominion had been exerted over his person. And it was nearly equivalent, in effect, to an expression characterizing the defendant as a criminal. The Court should not, directly or indirectly, assume the guilt of the accused, nor employ equivocal phrases which may leave such an impression.” (Id. at p. 147.)
The Williams court was concerned with the trial court’s use of the word “victim.” (Williams, supra, 17 Cal. at p. 147.) Defendant in this case, however, complains about the prosecutor’s use of that word.
This distinction was recognized in People v. Wolfe (1954) 42 Cal.2d 663 (Wolfe). In Wolfe, the defendants contended that the prosecutor committed prejudicial misconduct by referring to a defendant’s knife as having been left in the “ ‘victim’s back.’ ” (Id. at p. 666.) The defendants argued that it “assume[d] the guilt of the defendant” and relied on Williams, supra, 17 Cal. 142. (Wolfe, supra, 42 Cal.2d at p. 666.) The California Supreme Court determined that Williams was distinguishable. It explained that in the case before it, “the expression did not come from the judge, but from the prosecuting attorney without objection by defense counsel or motion to strike being made, and the jury was instructed that it was the sole judge of the value and effect of the evidence; that it could not convict a defendant upon mere suspicion; that the prosecution was ‘bound to establish the guilt of a defendant beyond a reasonable doubt, and unless the prosecution does so, then it is your duty to find the defendant not guilty.’ ” (Ibid.)
Similarly, in People v. Sanchez (1989) 208 Cal.App.3d 721 (Sanchez), the defendant argued that his counsel rendered ineffective assistance by failing to object to the prosecutor’s references to the complaining witness as the “ ‘victim.’ ” (Id. at p. 739.) The Court of Appeal determined that “[t]he scattered references to ‘victim’ made by the prosecutor, though possibly objectionable, did not deserve defense counsel’s interruption of the trial.” (Id. at p. 740.)
In this case, unlike in Wolfe and Sanchez, defendant objected, by way of a pretrial motion, to the prosecutor referring to F. as a victim. Assuming without deciding that the trial court’s ruling was erroneous insofar as it allowed the prosecutor to refer to F. as a victim in relation to Allen’s case, we believe that the error was harmless under any standard (see Chapman, supra, 386 U.S. at p. 24; Watson, supra, 46 Cal.2d at p. 836).
Before the prosecutor’s opening statement, the trial court informed the jury that an opening statement is “not evidence” and that there is a jury instruction that would tell them “that nothing that the attorneys say during this trial is evidence.”
Thereafter, during opening statement, the prosecutor made three references to F. as a “victim” of molestation. Those references were in relation to Allen who had been convicted of lewd acts on F. and against whom F. had testified about being molested. Subsequently, defense counsel in his opening statement distinguished between the case against Allen involving lewd conduct and the case against defendant involving a charge of subornation of perjury. Defense counsel also explained that F. had told others after Allen’s trial that she had not been molested by Allen and that F. had signed a declaration to that effect under penalty of perjury. Defense counsel told the jury that one of the “key questions” in the case was whether F. was “sincere” and they could “judge” for themselves whether she was or not. The parties’ opening statements thus indicated to the jury that any characterizations regarding whether F. had been molested simply reflected that party’s view of the evidence. After opening statements, the prosecutor and defense counsel primarily referred to F. by her first name.
Following the presentation of the evidence, the trial court instructed the jury that it “must decide what the facts are” and it “alone” decides “what happened, based only on the evidence that was presented in this trial”; the defendant is entitled to an acquittal unless the evidence received at trial proved his guilt beyond a reasonable doubt; “[n]othing that the attorneys say is evidence” and the attorneys’ remarks during “opening statements and closing arguments” “are not evidence”; and the jury “alone must judge the credibility or the believability of the witnesses.” We presume the jury followed the court’s instructions. (See, e.g., Ledesma, supra, 39 Cal.4th at p. 684.)
In view of the record in this case, we do not believe that the prosecutor’s references during opening statement to F. as a victim in relation to Allen persuaded the jury to apply a lower burden of proof with respect to the charge against defendant. The witnesses at defendant’s trial included F., who testified about Allen’s inappropriate conduct, as well as attorney Martin and several maternal relatives of F., who testified that F. admitted that Allen had not engaged in inappropriate conduct. We have no reason to believe that the jury, having observed these witnesses at defendant’s trial, felt compelled to ignore the court’s instructions and deferred to the findings or judgment of a different jury that resulted from a different trial. (See Ledesma, supra, 39 Cal.4th at p. 684.)
Jury Instruction Regarding Subornation of Perjury
Defendant contends that the trial court’s instruction to the jury regarding subornation of perjury omitted an “essential element[] of subornation of perjury – i.e. a corrupt agreement to testify falsely” and the error was prejudicial.
“ ‘ “It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.” [Citation.]’ ” (People v. Breverman (1998) 19 Cal.4th 142, 154.)
Section 127 provides that “[e]very person who willfully procures another person to commit perjury is guilty of subornation of perjury,...” “The elements of the... crime of subornation of perjury consist of: a corrupt agreement to testify falsely [citation]; proof that perjury has in fact been committed [citation]; the statements of the perjurer were material [citations]; and evidence that such statements were willfully made with knowledge as to the falsity thereof. [Citation.] Moreover, one who procures another to commit perjury must know that the perjurer’s statements are false. [Citations.]” (People v. Jones (1967) 254 Cal.App.2d 200, 217 (Jones), italics added.)
In Jones, the trial court “defined subornation of perjury in the language of the statute (Pen. Code, § 127)” and also gave the following instruction: “ ‘The elements necessary to sustain a conviction for subornation of perjury are that the false testimony given by a witness suborned in a civil action was material to the issues contained in the civil action and that such witness was “procured” by the accused to so testify.’ [Citation.]” (Jones, supra, 254 Cal.App.2d at p. 217.) The court also gave several instructions regarding perjury. (Id. at p. 218.)
On appeal, the defendant argued that the trial court failed to adequately instruct the jury as to the necessary elements of subornation of perjury. Defendant asserted that the court should have given the following jury instruction: “ ‘[One] who procures another to commit perjury must know that the suborned person’s statements are false. Before a defendant can be convicted of subornation of perjury, direct and positive testimony must be presented establishing that there was an agreement or understanding between the witness and the party charged with the offense that the witness did swear falsely to material facts in the action.’ ” (Jones, supra, 254 Cal.App.2d at p. 218, italics added.)
The Court of Appeal agreed that the proposed instruction “was proper and should have been given.” (Jones, supra, 254 Cal.App.2d at p. 218.) It concluded, however, that the jury was adequately instructed. The court explained: “the jury was advised that the defendant had to procure false testimony willfully in order to be guilty. (Pen. Code, § 127.) The word ‘procure’ means ‘to persuade, induce, prevail upon, or cause.’ (Black’s Law Dictionary [4th ed.] p. 1373.) The court specifically defined the word ‘willfully’ as the making of a perjured statement with the consciousness that it was false and with the intent that it should be received as a statement of what was true. (CALJIC 767.) Boothe admitted during the course of defendant’s trial that he had given false testimony in the civil action and, from such testimony, the jury could have concluded that there was an agreement between defendant and Boothe whereby the defendant induced Boothe to commit perjury and, manifestly, the jury so found. We therefore find that the members of the jury were adequately instructed on the law defining the crime of subornation of perjury, and that the instructions given by the trial court were sufficient to apprise them as to each and all of the elements of the offense.” (Ibid.)
In this case, the trial court instructed the jury regarding the crime of subornation of perjury as follows: “California Penal Code section 127 states that every person who willfully procures another person to commit perjury is guilty of subornation of perjury. As used in this section, the word ‘procure’ means to persuade, to induce, to prevail upon or to cause.
“The crime of perjury by declaration is committed when;
“1. A person testifies, declares or certifies under penalty of perjury, under circumstances in which such testimony, declaration, or certification was permitted by law;
“2. When the person testified, declared, or certified, he or she willfully stated the information was true, even though he or she knew it was false;
“3. The information was material;
“4. The person knew that he or she was making the statement under penalty of perjury;
“5. When the person made the false statement, he or she intended to testify, declare, or certify falsely while under penalty of perjury. And,
“6. The person signed and delivered his or her declaration or certificate to someone else intending that it will be circulated or published as true.
“Someone commits an act willfully when he or she does it willingly or on purpose.
“Information is material if it is probable that the information would influence the outcome of the proceedings, but it does not need to actually have influenced the proceedings.
“... [B]ecause subornation of perjury is committed by someone who willfully procures perjury, it must be shown that the defendant knew that the testimony or declaration of the procured witness would be false.”
The trial court also instructed the jury pursuant to CALCRIM No. 251 as follows: “The crime charged in this case requires proof of the union or joint operation, of act, and wrongful mental state. [¶]... [¶] For you to find a person guilty of subornation of perjury, that person must not only intentionally commit the prohibited act, but must do so with a specific mental state. The act and the specific mental state required are explained in the instruction for the crime.”
In view of the instructions given in this case, we determine that the jury was sufficiently apprised as to the element of “a corrupt agreement to testify falsely.” (Jones, supra, 254 Cal.App.2d at p. 217.) As in Jones, the trial court in this case defined subornation of perjury in the language of the statute (§ 127) and advised the jury that a person is guilty of subornation of perjury if the person “willfully procures another to commit perjury.” The court also defined the terms “willfully” and “procure.” Further, at defendant’s trial, F. admitted that she had made false statements regarding Allen in her June 2006 declaration. From this testimony, “the jury could have concluded that there was an agreement between defendant and [F.] whereby the defendant induced [F.] to commit perjury and, manifestly, the jury so found.” (Jones, supra, 254 Cal.App.2d at p. 218.) We disagree with defendant that the jury’s verdict allows for the possibility that he “could have successfully persuaded [F.] to sign a false declaration without the two actually reaching a formal agreement to carry out such a plan.” The jury’s finding that defendant willfully procured F. to commit perjury, where it was instructed that procure means “to persuade, to induce, to prevail upon or to cause,” necessarily implies that the jury found a corrupt agreement between defendant and F. for F. to testify falsely.
IV. DISPOSITION
The abstract of judgment is ordered amended to state that defendant Demar Winston Cannon was convicted by jury, rather than by plea. As so modified, the judgment is affirmed. The clerk of the superior court shall modify the abstract of judgment as ordered herein and forward a copy of the modified abstract of judgment to the Department of Corrections and Rehabilitation.
WE CONCUR: MIHARA, J. MCADAMS, J.