Opinion
G054718
12-18-2018
THE PEOPLE, Plaintiff and Respondent, v. SERGIO SANDOVAL GUZMAN, Defendant and Appellant.
Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, A. Natasha Cortina and Kristen Kinnaird Chenelia, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15CF0050) OPINION Appeal from a judgment of the Superior Court of Orange County, Lance P. Jensen, Judge. Affirmed. Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, A. Natasha Cortina and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
After a jury could not reach a verdict and the trial court declared a mistrial, the jury in a retrial convicted Sergio Sandoval Guzman of two counts of orally copulating a minor (Pen. Code, § 288a, subd. (b)(1); all further unlabeled statutory references are to the Penal Code unless noted) and one count of committing a lewd act on a child (§ 288, subd. (c)(1)). The trial court sentenced Guzman to a total term of three years and four months in prison. He contends the court erred in failing to dismiss a juror for bias and dishonesty, and he argues the court erred by instructing the jury it could consider other charged sexual offenses, if proven true, as propensity evidence. As we explain, the latter challenge is without merit under binding precedent from our Supreme Court. The evidence also supports the trial court's discretionary decision not to dismiss the juror. We therefore affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Guzman befriended two teenage boys at different times, K.C. and G.S., insinuating to both that he was a medical doctor and inducing them to perform sexual acts when they worked for him at his medicinal shop.
When K.C. was 16 years old and looking for work, Guzman hired him for his business selling supplements that included sexual stimulants. Within a week, K.C. had to move out of his half-brother's home and he accepted Guzman's offer to live at his shop in Santa Ana, which included a kitchen and a backroom, with K.C.'s compensation consisting of room and board.
K.C. believed Guzman was a doctor based on certificates displayed in his office and statements Guzman made. When Guzman learned K.C. was uncircumcised, he told him a particular lotion was necessary for his penis to prevent infection, and Guzman applied the lotion himself.
Guzman began masturbating K.C. until K.C. ejaculated, including during business hours when he would draw the curtains in the office and lock the front door. Such incidents occurred at least 10 times. Guzman also orally copulated K.C. on one occasion. He warned K.C. he would have to move out if K.C. rejected these advances. K.C. refused Guzman's request to touch Guzman's penis. K.C. testified that Guzman took pictures of him during the masturbation sessions, and a forensic investigator recovered at least one naked photo of K.C. on Guzman's cell phone.
In October 2014, K.C.'s half-brother had a fight with his father and moved into Guzman's office with K.C. Guzman stopped abusing K.C. initially, but resumed after the brother found a job and was therefore periodically absent from the office. K.C. did not report the abuse because Guzman threatened to leave him homeless if he told anyone. K.C. had nowhere else to go because his parents lived in Mexico and he feared living in foster care.
The abuse came to light after Yolanda Navarro mediated a dispute between K.C.'s brother and someone named Luis in her market across the street from Guzman's office. K.C. and his brother frequented the market. In the course of assembling Luis, K.C., his brother, and another individual to discuss the dispute, Navarro learned K.C. and his brother lived with Guzman and invited them to reside with her, which they accepted. The next day, K.C. told Navarro about Guzman's inappropriate touching, and several days later K.C. called the police.
In reporting the abuse, K.C. told the officers Guzman had spoken of a person named "J." K.C. testified that when he and Guzman were nude on a sofa, Guzman tried to penetrate him, and when K.C. pushed away, Guzman claimed "J." used to let him touch him that way. Investigating officers learned "J." was a nickname for G.S. and found a picture of him in Guzman's office, but initially could not locate the boy. In a follow-up visit when she accompanied K.C. to the police station, Navarro provided an approximate address for G.S. and the officers were able to find him.
G.S. testified that in 2013, at the age of 15, he began working at Guzman's office selling medicinal pills after school and on Saturdays. He believed Guzman was a doctor, and when Guzman told him young men's sperm aided in treating hair loss and wrinkles, he complied with Guzman's request to provide a sample for Guzman's use. At first, G.S. went alone to the back room in the office to ejaculate into a cup, but then Guzman began making excuses to be there, which progressed to Guzman also masturbating alongside G.S. This occurred more than three times and Guzman touched G.S. each time while he masturbated, but G.S. refused Guzman's requests to reciprocate. Guzman applied ointment to G.S.'s penis to treat pimples that Guzman told him were abnormal. Guzman also told G.S. he should apply a peroxide solution to his penis, and at least twice Guzman applied the solution with his mouth. When Guzman attempted to orally copulate G.S. on other occasions, G.S. declined by moving his body away.
When G.S. resisted or protested against Guzman's actions, Guzman told him he would start a rumor that G.S. was having a sexual relationship with an adult woman named Doña Maria who lived in G.S.'s home. Guzman followed through on the threat after G.S. stopped working for him in May 2014, ending the sexual contact. Guzman telephoned G.S.'s mother to disclose G.S.'s alleged affair, which led to a social worker's visit to interview G.S. to investigate Doña Maria's asserted actions, which G.S. denied. He did not reveal Guzman's abuse. During this time, G.S.'s family received strange telephone calls with abrupt hang-ups, which they attributed to Guzman. Guzman requested that G.S.'s mother evict Doña Maria so he could move in instead.
Investigators extracted numerous photographs that had been deleted from Guzman's phone, including naked pictures of G.S. and K.C. that were identified at trial or for investigators before trial.
Guzman's defense was that he formerly had worked for Navarro at her market, fell in December 2014, injured himself, and was embroiled in litigation with her, causing her to induce the boys to make false claims against him. Forensic analysis revealed that the naked pictures of K.C. and G.S. on Guzman's phone predated his fall at Navarro's market.
DISCUSSION
1. The Trial Court Did Not Err in Declining to Dismiss a Juror
Guzman asserts the trial court erred by failing to dismiss a biased and dishonest juror. Guzman's challenge arose after a juror gave the bailiff a note on the first day of testimony, a Thursday. The note stated that during the afternoon break another juror "attempted to discuss morning testimony with me. I immediately turned my back to her. And she had said something to the effect of . . . 'I shouldn't have said that.'"
The trial court, with counsel present, discussed the note on the next court day, a Monday, with the juror who reported the exchange, Juror No. 7. The juror recounted what she believed was a "racist comment" made by another juror, Juror No. 3. Specifically, Juror No. 7 recounted that Juror No. 3 approached her while she was seated in the jury services area and asked whether she felt "safe walking around here." The juror had "seen me [Juror No. 7] walking back from lunch," and Juror No. 7 interpreted the safety comment as racist because of, in Juror No. 7's rather oblique words, "the number of Vietnamese people." She did not specify how she drew the inference of racism. She did not state directly that Juror No. 3 commented on any ethnic group, but, in any event, the trial court reassured Juror No. 7 that the courthouse was in "a safe neighborhood" and that "Westminster P.D. is right across the way."
Juror No. 7 recounted further that Juror No. 3 proceeded to complain that the trial, her first, was "going very slowly," at which point Juror No. 7 pulled out her phone because the book she held "wasn't working" to dissuade Juror No. 3 from speaking to her. Then, as others began to depart the jury services area, Juror No. 7 also stood up to leave and Juror No. 3, who was beside her, "says something like 'that poor young man from this morning,'" apparently referring to one of the alleged victims who testified that day. When Juror No. 7 "totally ignored her and walked straight ahead," Juror No. 3 stated "very loudly, 'Oops, I shouldn't have said that.'"
After some clarifying questions, the trial court thanked Juror No. 7 for her note and directed her "not to talk to anybody else about our conversation." The court then separately interviewed Juror No. 3 with the attorneys present. Juror No. 3 recalled speaking with Juror No. 7 about "what might be th[e] way to go have lunch," but not about, in the court's words, "any of the testimony . . . earlier that day from the alleged victim." In response to the court's inquiries, nothing in her interaction with Juror No. 7 stood out to Juror No. 3, and the court thanked her while similarly reminding her "not to speak to anybody else about our conversation."
The trial court denied Guzman's request to dismiss Juror No. 3, explaining: "'The poor young man' comment, if it was said, I don't think indicates any type of bias or any type of particular comment that would indicate at this point that she has made up her mind one way or the other. I think the immediate reaction of, gee, I shouldn't have said that was an acknowledgement that at least she should not be talking about the case whatsoever." The court concluded the jurors' exchange about the neighborhood did not demonstrate whether "it was racist or not," and the court saw no need to "go there." Instead, the court explained that "at the first break" it would "elaborate a little bit more than just my standard admonishment." The court at the next break "stress[ed]" to the jurors "to again not talk about the case" until deliberations began and reminded them "not [to] make up [y]our mind about the verdict or any issue until after you've discussed the case with the other jurors during deliberations."
The record does not demonstrate prejudgment bias or dishonesty requiring Juror No. 3's dismissal as Guzman claims. Guzman asserts Juror No. 3's statement expressing sympathy for one of the victims ("that poor young man from this morning") demonstrated she prejudged the case, and he claims she feigned an inability to recall the comment, thereby disqualifying herself as a juror because she lied to the court. Guzman also vaguely suggests Juror No. 3 had to be aware Juror No. 7 discussed her concerns with the court, which necessarily poisoned the jury deliberations with awkwardness, requiring Juror No. 3's dismissal. None of these claims warrant reversal.
"An accused has a constitutional right to a trial by an impartial jury. [Citations.] An impartial jury is one in which no member has been improperly influenced [citations] and every member is '"capable and willing to decide the case solely on the evidence before it."'" (In re Hamilton (1999) 20 Cal.4th 273, 293-294.) The trial court may discharge a juror at any time if good cause exists to find that the juror is unable to perform his or her duty. (§ 1089.)
"'Before an appellate court will find error in failing to excuse a seated juror, the juror's inability to perform a juror's functions must be shown by the record to be a "demonstrable reality." The court will not presume bias, and will uphold the trial court's exercise of discretion on whether a seated juror should be discharged for good cause under section 1089 if supported by substantial evidence.'" (People v. Jablonski (2006) 37 Cal.4th 774, 807.) The presence of a biased juror constitutes structural error, which requires a new trial regardless of prejudice. (Estrada v. Scribner (9th Cir. 2008) 512 F.3d 1227, 1240.) "'[A] trial court has broad discretion to remove a juror for cause, [but] it should exercise that discretion with great care.'" (People v. Fuiava (2012) 53 Cal.4th 622, 710.) The appellant bears the burden of demonstrating juror partiality. (In re Lucas (2004) 33 Cal.4th 682, 696-697.)
"Jurors are prohibited by law from discussing the case until all the evidence has been presented, the trial court instructs the jury, and the jury has retired to deliberate." (People v. Wilson (2008) 44 Cal.4th 758, 838 (Wilson); see § 1122, subd. (a).) After its colloquies with Juror Nos. 7 and 3, the trial court reminded the jury as a whole that its pretrial admonition not to discuss the case with anyone "includ[ed] the other jurors." Similar to the Supreme Court's conclusion in Wilson, the trial court here could conclude that an exchange between jurors that constituted a technical violation of this injunction did not require dismissal of Juror No. 3.
In Wilson, the high court observed the record there showed "[t]he only evidence Juror No. 5 had prejudged the issue of penalty came from Juror No. 1, who informed the court that during a break in the guilt phase proceedings, between the testimony of [two early witnesses], Juror No. 5 told him: 'The whole thing is a problem with authority, and this is what happens when you have no authority figure.'" (Wilson, supra, 44 Cal.4th at p. 836.) The Supreme Court further recounted: "According to Juror No. 1, Juror No. 5 made such comments on one or two occasions. Juror No. 1 said he thought nothing of the comments until the jury began deliberating penalty, that he did not respond to the comments, did not know if other jurors had overheard them, and did not know if Juror No. 5 made the same comment to other jurors. He recalled the comments when Juror No. 5 repeated them during the penalty phase deliberations." (Ibid.) In the penalty phase deliberations, other jurors in Wilson similarly recalled Juror No. 5 commenting on "the absence in defendant's life of a role model and a traditional father/son relationship," and one juror initially believed, but then retracted the conclusion, that "Juror No. 5 had made up his mind at the outset of the penalty phase deliberations" that "'it didn't matter what [defendant] had done or who he was; that he could not [vote for] the death penalty if he came from a bad family.'" (Id. at p. 837.)
The trial court in Wilson seized on these juror exchanges to make a credibility determination in favor of Juror No. 1 that Juror No. 5 made the "authority figure" comment to him. (Wilson, supra, 44 Cal.4th at p. 838.) The Wilson trial court then concluded bias required Juror No. 5's dismissal on grounds that '"by attempting to communicate with [Juror No. 1] after the first guilt phase witness, . . . I find that he began to reveal his fundamental biases and prejudices, because I find that he made unfounded assumptions about the defendant and authority figures when at that time he had absolutely no evidence of such."' (Ibid.)
As the Supreme Court explained, however, while perhaps these "solitary and fleeting comments to a fellow juror, made during a break early in the guilt phase portion of the trial, were a technical violation of both section 1122 and the court's admonition to the jury not to discuss the case," they were nonetheless "trivial" and did not warrant dismissal. (Wilson, supra, 44 Cal.4th at pp. 839-840.) Dismissal was too harsh a remedy because the comments consisted of "one, possibly two sentences, spoken in rhetorical fashion and not in an obvious attempt to persuade anyone. Juror No. 1 averred that he did not respond, and none of the other jurors reported hearing the comments." (Ibid.)
The same is true here. The trial court reasonably could conclude that Juror No. 3's brief comment expressing sympathy for an alleged victim as a "poor young man" did not require dismissal. One may have sympathy while exercising analytic precision, and nothing suggests a lone comment early in the proceedings indicated the juror would fail to apply the reasonable doubt standard or other legal concepts once instructed in their elements. It was for the trial court to evaluate the jurors' tone of voice, intent, confidence, and demeanor (People v. Stewart (2004) 33 Cal.4th 425, 451), and on that basis the court could view Juror No. 3's statements as a misplaced bid at friendliness with Juror No. 5—which she likely would not repeat—rather than indicia of bias or dishonesty. It rested within the court's sound discretion to address the matter with a reminder rather than an abrupt, draconian dismissal that itself might chill jury relations and deliberation.
Nothing supports Guzman's speculative contention that the trial court's intervention and admonition interfered with the jurors' deliberations. To the contrary, the court has broad discretion to investigate and consider removing a juror in the midst of trial (People v. Millwee (1998) 18 Cal.4th 96, 142, fn. 19), and the court must instruct the jury on the applicable principles governing their service. (§ 1122; Cal. Rules of Court, Rule 2.1035; see Bench Note following CALCRIM No. 101 ["court has a sua sponte duty to instruct the jurors on how they must conduct themselves during trial"].) The record does not suggest any of the jurors were unable to follow the court's reminder not to discuss or prejudge the case. The circumstances here are nothing like in Grobeson v. City of Los Angeles (2010) 190 Cal.App.4th 778, 784, where a juror's statements that '"I made up my mind already. I'm not going to listen to the rest of the stupid argument,'" required the juror's dismissal.
In sum, substantial evidence supports the trial court's implicit determination that Juror No. 3 was still able to serve impartially as a juror, and no inability on her part to deliberate fairly appears as a demonstrable reality in the record. (People v. Holloway (2004) 33 Cal.4th 96, 126.) Because the record does not reflect a substantial likelihood the juror was influenced by bias against Guzman, we cannot conclude that Guzman was denied his Sixth Amendment right to an impartial jury. (Ibid.) Consequently, the court's failure to discharge the juror was not an abuse of discretion.
2. No Instructional Error Under Supreme Court Precedent
Guzman contends the trial court erred by instructing the jury it could consider charged sexual offenses as propensity evidence that he committed other charged sexual offenses. He acknowledges that Evidence Code section 1108 provides that when "the defendant is accused of a sexual offense," evidence of "another sexual offense or offenses" may be admitted and that if the jury concludes by a preponderance of the evidence that the defendant committed one or more of the other offenses, the jury may also conclude, as provided in CALCRIM No. 1191, "that the defendant was disposed or inclined to commit sexual offenses." Based on this propensity, in combination with other evidence, the jury may further conclude the defendant "was likely to commit and did commit" the charged sexual offenses. (People v. Reliford (2003) 29 Cal.4th 1007, 1012); CALCRIM No. 1191.) But Guzman contends the trial court here failed to engage in the Evidence Code section 352 analysis that safeguards propensity evidence against a due process violation lowering the prosecution's burden of proof or otherwise interfering with the presumption of innocence. (People v. Falsetta (1999) 21 Cal.4th 903, 916-917.)
After the trial, CALCRIM No. 1191 was divided into subparts A and B to refer, respectively, to uncharged and charged sex offenses. We refer to the version of CALCRIM No. 1191 in effect at the trial date.
Unlabeled statutory references in this subpart of the opinion are to the Evidence Code.
Guzman further acknowledges that our Supreme Court found no error when the trial court in People v. Villatoro (2012) 54 Cal.4th 1152 (Villatoro) modified CALCRIM No. 1191 to apply expressly to other charged sexual offenses, not just to uncharged crimes. The Villatoro majority determined that the propensity inference authorized under section 1108 "necessarily extends to evidence of both charged and uncharged sex offenses." (Villatoro, at p. 1162.) Guzman argues the trial court's slightly different modification here of CALCRIM No. 1191 distinguishes Villatoro. As we explain, the record does not support Guzman's section 352 claim or his attempt to distinguish Villatoro.
The trial court modified CALCRIM No. 1191 to apply to charged offenses and to increase the standard of proof from a preponderance of the evidence to beyond a reasonable doubt. We set out the instruction in its original form in the margin below and the court's modified version as follows: "The People presented evidence that the defendant may have committed the charged offenses. These offenses are defined for you elsewhere in these instructions. The People must prove each of the charged offenses beyond a reasonable doubt. [¶] If you decide that the defendant committed any one of the charged offenses, you may, but are not required to, conclude 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 any of the other charged offenses. [¶] If you conclude that the defendant committed any one or more of the charged offenses, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of any of the other charged offenses. The People must still prove each element of every charge beyond a reasonable doubt."
The standard version of CALCRIM No. 1191 addressed uncharged crimes and reads: "The People presented evidence that the defendant committed the crime[s] of __________ that (was/were) not charged in this case. (This/These) crime[s] (is/are) defined for you in these instructions. [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged offense[s]. Proof by a preponderance of the evidence is a different burden of proof from proof 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 the evidence entirely. [¶] If you decide that the defendant committed the uncharged offense[s], you may, but are not required to, conclude 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] __________, as charged here. If you conclude that the defendant committed the uncharged offense[s], that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of__________. The People must still prove (the/each) (charge/ [and] allegation) beyond a reasonable doubt." --------
The high court in Villatoro found a similarly modified version of CALCRIM No. 1191 constitutional because it "clearly told the jury that all offenses must be proven beyond a reasonable doubt, even those used to draw an inference of propensity" to commit other sexual offenses. (Villatoro, supra, 54 Cal.4th at p. 1168.) The court therefore concluded "there was no risk the jury would apply an impermissibly low standard of proof." (Ibid.)
The trial court in Villatoro had engaged in no express analysis to determine under section 352 that the probative value of the propensity evidence outweighed the danger of undue prejudice or juror confusion. The Supreme Court recognized that because the alleged sex crimes were properly tried together, "evidence of the charged offenses may not be excludable under section 352," but held that the trial court still could conduct a weighing process regarding whether to "permit the jury to infer a defendant's propensity based on this evidence." (Villatoro, supra, 54 Cal.4th at p. 1163.) The Supreme Court found the trial court "implicitly conducted a section 352 analysis," as reflected in the lower court's conclusion that "all the requirements of the holding in Wilson, including a section 352 analysis, had been satisfied." (Villatoro, at p. 1168, citing People v. Wilson (2008) 166 Cal.App.4th 1034, 1052.)
Guzman faults the trial court for not conducting an express section 352 analysis, but the record demonstrates that the court, unlike the prosecutor, recognized the issue was broader than the mere admissibility of evidence of the other charged sex offenses. At trial, when defense counsel objected and requested that any instruction based on CALCRIM No. 1191 be omitted altogether, the prosecutor responded that because the probative value of the other sex offenses "is so immensely high" under a standard section 352 analysis in that "they are charged offenses," it would be "ridiculous" or pointless to "ask you [i.e., the court, to evaluate the evidence] for any prejudicial effect it would have."
In a pretrial hearing, however, the trial court expressly recognized defense counsel's argument that a traditional section 352 analysis did not suffice. The court stated it "shares your thoughts and concerns, Mr. Degrave, in regards to the 352 analysis because it doesn't fall within the classic alleged additional victims that are not charged . . . in the case." Nevertheless, the court concluded that it was "confident under the 352 analysis umbrella that the special [i.e., as modified above] instruction . . . that the court has used in previous trials will take care of any concerns raised in a 352 nature."
We interpret these remarks to mean the trial court recognized the issue was not whether to admit evidence of the other sex offenses, which the court could not exclude because joinder of those offenses was proper, but instead whether to instruct the jury that propensity was a permissible inference, as in Villatoro. In any event, the court's repeated reference to section 352 disposes of Guzman's specific claim that the court "did not weigh the prejudicial impact of the instruction." The "[section] 352 analysis" the court referred to consists of weighing probative value against prejudice; and therefore, like the Supreme Court in Villatoro, we are persuaded the trial court here implicitly assessed prejudice before allowing the jury to consider the issue of propensity.
Next, Guzman argues the trial court's modified instruction was improper because it did not include the final sentence of the similar instruction in Villatoro. That final sentence stated: '"The People must still prove each element of every charge beyond a reasonable doubt and prove it beyond a reasonable doubt before you may consider one charge as proof of another charge."' (Villatoro, supra, 54 Cal.4th at p. 1167.)
Guzman contends that by failing to require the jury to find an offense proven "beyond a reasonable doubt before that offense could be considered as [evidence of a] propensity to commit another charged offense, the modified instruction interfered with the presumption of innocence." (Italics added.) According to Guzman, it was therefore "likely that the jury reasonably interpreted the instruction to mean that the defendant . . . no longer has a presumption of innocence once the jury has determined, under an undefined standard of proof, that he committed any one of the other charged sex offenses."
We are not persuaded. The standard of proof was not left "undefined," as Guzman asserts. The trial court's instruction twice told the jury that the beyond a reasonable doubt standard applied, mentioned no other standard of proof, and expressly stated in the first paragraph that the People "must prove each of the charged offenses beyond a reasonable doubt." (Italics added.)
Because the instruction began with the applicable standard and stated it applied to each offense, we see little danger the jury would, as Guzman suggests, leverage a preliminary finding—made under some unspecified lesser standard—that one offense occurred to reach the conclusion beyond a reasonable doubt that Guzman committed one or more of the other offenses. The absence of the word "before" in the instruction is not dispositive, despite Guzman's insistence. "'Jurors do not sit in solitary isolation booths parsing instructions for subtle shades of meaning in the same way that lawyers might.'" (People v. Williams (1995) 40 Cal.App.4th 446, 457.) Instead, we must presume the jury read the instructions as a whole and gave them a common sense interpretation. (Ibid.; People v. Dieguez (2001) 89 Cal.App.4th 266, 276.) Juror common sense would not support injecting a novel, unspecified standard into their deliberations when the instruction as a whole referred only to the reasonable doubt standard, and repeated it in both the first and third paragraphs.
The high court's observations in Villatoro apply equally here. As the Supreme Court explained, "Unlike the standard pattern instruction CALCRIM No. 1191, which refers to the use of uncharged offenses, the modified instruction did not provide that the charged offenses used to prove propensity must be proven by a preponderance of the evidence." (Villatoro, supra, 54 Cal.4th at pp. 1167-1168.) To the contrary, the trial court's direction that the reasonable doubt standard applied "even [to] those [offenses] used to draw an inference of propensity" meant "there was no risk the jury would apply an impermissibly low standard of proof." (Ibid.)
As the Supreme Court in Villatoro also observed, the trial court there (as here) "instructed the jury with CALCRIM No. 220, which defines the reasonable doubt standard and reiterates that the defendant is presumed innocent; it also explains that only proof beyond a reasonable doubt will overcome that presumption." (Villatoro, supra, 54 Cal.4th at p. 1168.) Consequently, the Supreme Court found the modified version of CALCRIM No. 1191 did not dilute the standard of proof or presumption of innocence. (Ibid.) We likewise find no likelihood the jury misunderstood or misapplied these concepts based on the trial court's modification here. Accordingly, Guzman's due process claim for misinstruction fails. (Sullivan v. Louisiana (1993) 508 U.S. 275, 281; Estelle v. McGuire (1991) 502 U.S. 62, 70.)
Guzman correctly observes that in finding the trial court did not err in modifying CALCRIM No. 1191 to apply to charged offenses, the Villatoro court chose "not [to] decide . . . whether courts should give such an instruction in the future." (Villatoro, supra, 54 Cal.4th at p. 1169.) Guzman also argues Villatoro should be reconsidered because the legislative intent behind section 1108 focused on admission of propensity evidence related to uncharged offenses, not concurrent charges. But as discussed, there is no meaningful basis on which to distinguish Villatoro; it is therefore binding precedent and these contentions are beyond our purview. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Any reconsideration or change in the law rests instead with the Supreme Court or the Legislature.
DISPOSITION
The judgment is affirmed.
GOETHALS, J. WE CONCUR: ARONSON, ACTING P. J. THOMPSON, J.