Opinion
E051912 Super.Ct.No. RIF146568
11-17-2011
THE PEOPLE, Plaintiff and Respondent, v. EVODIO ALVA GIL, Defendant and Appellant.
Donna L. Harris, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Garrett Beaumont and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of Riverside County. Larrie R. Brainard, Judge. (Retired judge of the San Diego Super. Ct., assigned by the Chief Justice pursuant to art. VI, § 6, of the Cal. Const.) Affirmed with directions.
Donna L. Harris, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Garrett Beaumont and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Evodio Alva Gil appeals following a jury trial. He contends his conviction must be reversed because the trial court erroneously and prejudicially failed to instruct the jury. In addition, defendant argues the trial court imposed a penalty assessment in violation of the ex post facto laws.
FACTUAL AND PROCEDURAL HISTORY
Defendant was charged with sodomy by force on a child under the age of 14 (count 1—Pen. Code, §§ 269, subd. (a)(3), 286); lewd act on a child under the age of 14 (count 2—§ 288, subd. (a)); and corporal punishment and injury of a 16-year old child (count 3—§ 273d, subd. (a)).
All further statutory references are to the Penal Code unless otherwise indicated.
Testimony at trial indicated the victim's mother was romantically involved with defendant; they lived together for many years, along with her three children from a prior relationship, as well as the three children they had together. Defendant and the victim essentially had a father-daughter relationship, since the victim's mother met defendant when she was only two months pregnant. Mother's oldest daughter, M., did not live with the family until she was 15 years old. The victim shared a bedroom with her older sister, M., and her younger sister, Karen. Karen and the victim slept in the only bed, and M. slept on the floor.
At trial, the victim described herself as the "rebel child," who did not get along very well with defendant. While she was growing up, defendant was "[v]ery strict." She was afraid of defendant because he would "smack" her and yell at her. When asked how many times defendant hit her, the victim replied, "It was often." According to the victim, she "was in trouble all the time." She said she and her brother, who was also not defendant's natural child, got in trouble more often than the other children. The victim also saw defendant physically abuse her mother, and Mother admitted a police report had been filed once because defendant slapped her.
When the victim was in sixth grade or middle school, she recalled two brief sexual encounters with defendant. When the first encounter occurred, she was naked in the shower with her sister Karen, and they were looking at their bodies. Defendant walked in on them and was upset at what they were doing. He told Karen to step out. He then locked the door, put the victim against the sink, unzipped his pants, and put his penis in her anus. She did not recall whether this hurt and could not say whether his penis was erect. She does not think he ejaculated during the incident. When it was over he told the victim not to tell her mother, and if she did tell, he would tell her mother what she and Karen had been doing in the shower. Karen's testimony was consistent with the victim's description of this incident, but Karen, of course, did not know what happened after defendant told her to leave the bathroom. She believes she just went back to her room when she left. Karen also testified that some time after the incident, the victim was upset and told her she had been raped by defendant.
Later the same evening, defendant came into the girls' bedroom. The victim and Karen were both in bed. The victim was awake, but she did not know if Karen was awake. She was wearing a red nightgown. Defendant lifted the covers, got into the bed behind her, pulled her nightgown up, and pushed her underwear down to her knees. He then began to touch her buttocks. She stayed still until he got up and stepped out. She did not tell anyone at the time about either incident because she did not want to get in trouble. Karen did not recall defendant coming into the bedroom that night.
A third incident took place in October of 2008 when the victim was about 16 years old and a junior in high school. The victim was in the girls' bedroom with two of her sisters, Karen and Gabriela. At this time, Gabriela was three years old. The victim took something away from Gabriela. Gabriela started screaming and crying and ran to her parents' bedroom. Defendant came upstairs to ask what happened. The victim "spoke back" by saying she "didn't do anything." Defendant said she was lying and hit her on the face. It hurt, and she fell to the floor. Defendant then pushed her with his foot. After he left the room, she went to the bathroom and discovered she had a red mark underneath her eye. She took a photograph of the injury, which was shown to the jury.
Karen's testimony about this third incident was consistent with the victim's description of what occurred. Karen said defendant slapped the victim once on the face. Karen said this was the first time she saw defendant hit the victim, but the victim generally got in trouble more often than she did while they were growing up together.
On direct examination, the victim admitted she sometimes lied about things to get out of trouble, and had forged her mother's signature on notes to be excused from school. She also admitted she lied to her mother about her boyfriend's age, because he was an adult; the record suggests she may also have lied to police about her boyfriend's age. On cross-examination, defense counsel elicited testimony from the victim suggesting she had a motive to lie about defendant, because he was very strict and she could not do some of the things her friends were allowed to do, such as attend parties. The defense also presented several witnesses to impeach the victim's credibility.
The jury found defendant not guilty on count 1, sodomy by force on a child under the age of 14. However, defendant was found guilty of count 2, lewd act on a child, and count 3, corporal punishment and injury of a 16-year-old child. The court granted defendant probation for a period of 60 months, subject to various terms and conditions, including 365 days in jail.
DISCUSSION
A. CALCRIM NO. 316
During discussions on jury instructions, defense counsel requested CALCRIM No. 316. Counsel's argument for the use of this instruction was based on all of the testimony about the victim's dishonest conduct. It was counsel's opinion the jury needed to be instructed they could only use the victim's dishonest conduct to judge her credibility as a witness. Without this instruction, defendant contends the jury may have used the victim's dishonest conduct for purposes other than her credibility. Defendant's theory is that all of the testimony about the victim's misconduct is what convinced the jury of his guilt on count 3, corporal injury to a child. From the testimony attacking the victim's credibility, defendant believes the jury may have speculated defendant's patience was so strained by this "rebel child" that he did punch and kick her. Defendant also believes his right to due process was violated, because the trial court refused to instruct the jury with CALCRIM No. 316.
To determine the credibility of a witness, a jury may consider "any matter that has any tendency in reason to prove or disprove the truthfulness of his [or her] testimony." (Evid. Code, § 780.) Thus, on the matter of credibility, the jury may consider the character of the witness "for honesty or veracity." (Evid. Code, § 780, subds. (e) & (h).) "The credibility of a witness may be attacked or supported by any party including the party calling him [or her]." (Evid. Code, § 785.) Thus, dishonest statements made by a witness are admissible to impeach the witness's credibility. (See, e.g., People v. Ayala (2000) 23 Cal.4th 225, 273-274.)
"When evidence is admissible . . . for one purpose and is inadmissible . . . for another purpose, the court upon request shall restrict the evidence to its proper scope and instruct the jury accordingly." (Evid. Code, § 355.) Generally, evidence of uncharged misconduct is inadmissible to prove a disposition to commit such conduct. (People v. Earle (2009) 172 Cal.App.4th 372, 396.) Essentially, CALCRIM No. 316 addresses this issue by limiting evidence of prior crimes or misconduct to issues of credibility.
CALCRIM No. 316 reads as follows: "If you find that a witness has committed a crime or other misconduct, you may consider that fact [only] in evaluating the credibility of the witness's testimony. The fact that a witness may have committed a crime or other misconduct does not necessarily destroy or impair a witness's credibility. It is up to you to decide the weight of that fact and whether that fact makes the witness less believable." (Italics added.) In other words, the purpose of CALCRIM No. 316 is to inform the jury how prior crimes or other misconduct evidence may be used. "Such evidence may be considered only in evaluating the witness's credibility." (People v. Anderson (2007) 152 Cal.App.4th 919, 940-941.)
At trial, defense counsel argued CALCRIM No. 316 should be given to the jury as an instruction, "because there was evidence admitted regarding the minor forging notes at school and being untruthful with law enforcement. And as a result, I feel there's evidence of other conduct that would reflect on the witness's credibility and that [CALCRIM No.] 316 should be given." The court denied the request, because it believed the issue of witness credibility was covered by the general instructions to the jury.
On the issue of witness credibility, the jury was instructed in part as follows: "You alone must judge the credibility or believability of the witnesses. In deciding whether testimony is true and accurate, you must use your common sense and experience. . . . [¶] In evaluating a witness's testimony, you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony. Among the factors that you may consider are: . . . did the witness admit to being untruthful; what is the witness's character for truthfulness; has the witness engaged in other conduct that reflects on his or her believability. . . . [¶] . . . [¶] . . . If you decide that a witness deliberately lied about something significant in this case, you should consider not believing anything that witness says. Or if you think the witness lied about some things but told the truth about others, you may simply accept the part that you think is true and ignore the rest."
As defendant contends, the jury instructions do not specifically advise the jury it could only consider the testimony about the victim's dishonest conduct on the issue of her credibility, and not as substantive evidence against defendant. However, based on our review of the instructions and the record as a whole, it is our view the jurors would have understood the purpose of the testimony about the victim's dishonest conduct. Thus, there was little, if any, danger that the jury would consider this evidence for an improper purpose. On the record before us, we can detect no basis from which to conclude the jury would have considered the evidence impeaching the victim's credibility for honesty in the manner defendant suggests. In addition, as the trial court indicated, this is not a case where there was a risk of unfair prejudice to defendant on the issue of guilt or innocence, based on his own testimony and admissions about dishonest conduct.
Assuming for the sake of argument that the trial court's instructions on this subject were inadequate, any error was harmless. Defendant contends the error is of constitutional magnitude, so any error must be evaluated under the standard set forth in Chapman v. California (1967) 386 U.S. 18. Under Chapman, a federal constitutional error is harmless if the reviewing court can conclude beyond a reasonable doubt that the error did not contribute to the verdict. (Id. at p. 24.) Without conceding there was any error, the People cite People v. Lomeli (1993) 19 Cal.App.4th 649, 656, disapproved on another grounds by People v. Hernandez (2004) 33 Cal.4th 1040, 1052, footnote 3, and contend the appropriate harmless error standard is People v. Watson (1956) 46 Cal.2d 818. According to the People, the purported error is one of state law only, so the Watson standard should apply. In People v. Odom (1969) 71 Cal.2d 709, 712, our Supreme Court applied the Chapman test to an error involving admission of prior, inconsistent, extrajudicial statements by a witness as substantive evidence of the truth of the matters asserted without a limiting instruction. Since we conclude the error is harmless even under the more stringent Chapman test, we need not decide which standard applies. (See, e.g., People v. Napoles (2002) 104 Cal.App.4th 108, 120.)
In our view, the record clearly shows the outcome of the case would have been the same even if the jury had been given a specific instruction limiting the testimony about the victim's dishonest conduct to the issue of her credibility. The evidence against defendant was strong and compelling despite the young victim's dishonest and rebellious conduct. The victim's testimony was corroborated by other evidence. For example, Karen saw defendant strike the victim, and the victim took pictures of the resulting injury to her face. These pictures were later provided to the police, and one was shown to the jury. Karen's testimony about the bathroom incident was also consistent with the victim's testimony even though she could not testify as to what happened between defendant and the victim in the bathroom after she left. However, Karen did testify the victim later said defendant had raped her.
Even if the trial court instructed the jury with CALCRIM No. 316, there was other evidence from which the jury might have concluded defendant was motivated and actually did strike the victim on the date in question, because he was generally frustrated with her behavior. The victim testified she and defendant had a strained relationship. For example, the victim said she was the "rebel child" and she and her brother were in trouble with defendant more often than the other children in the family. She recalled defendant striking her "often." The victim said she felt resentful toward defendant because he was strict and because she did not like how he treated her or mother. She also testified she had arguments with defendant, and he made her cry. Thus, on the record before us, we conclude beyond a reasonable doubt that the trial court's failure to give CALCRIM No. 316 did not in any way contribute to the jury's verdict.
B. DNA ASSESSMENTS
Defendant believes the court imposed DNA penalty assessments of $80 pursuant to Government Code sections 76104.6 and 76104.7. Assuming the court did impose DNA penalty assessments totaling $80, the parties agree this amount was imposed in violation of ex post facto laws and should be stricken. Defendant's conviction arose out of conduct that took place in 2002 or 2003. DNA penalty assessments became effective on November 3, 2004. (People v. Batman (2008) 159 Cal.App.4th 587, 589-594.) Based on the cited authorities, we agree with the parties that, if imposed, any DNA penalty assessments under Government Code sections 76104.6 and 76104.7 should be stricken.
The People contend the record is unclear and request a remand to the trial court to determine whether the DNA penalty assessments were in fact imposed. Defendant believes we can deduce from the record that the DNA penalty assessments actually were imposed. Therefore, defendant would have us simply strike $80 from the total imposed.
We agree with the People that the record is unclear. Neither the clerk's minutes nor the transcript of defendant's sentencing hearing mention DNA penalty assessments or Government Code sections 76104.6 and 76104.7. The minutes simply indicate defendant must pay a "fine of $712.00, including fine and penalty assessment." The probation report also does not recommend DNA penalty assessments or mention the Government Code sections. Thus, we can only speculate about the calculation used to reach $712, as there is nothing in the record to clearly indicate how this total was reached. Assuming there is an error, it is a clerical one. A court of appeal may order correction of clerical errors in a trial court's judgment, and a trial court can correct clerical errors at any time. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) As a result, we will remand the matter for the limited purpose of reconsidering the applicable fees, fines, and penalties and to make corrections if necessary.
DISPOSITION
The judgment is affirmed. The trial court is directed to review any and all fees, fines, and penalties, and to correct any and all clerical errors as necessary; and to amend its minute order so that any and all fees, fines, and penalties imposed are clearly delineated in the record with the corresponding statutory references. The trial court is further directed to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. (§§ 1213, 1216.)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur: HOLLENHORST
Acting P. J.
KING
J.