Opinion
C039861.
7-29-2003
THE PEOPLE, Plaintiff and Respondent, v. IRVIN JAMES PARNELL, Defendant and Appellant.
Based on the horrendous nature of the sexual offenses defendant Irvin James Parnell, a recidivist, committed against his 15-year-old victim in 1996 and his 25-year-old victim in 1998, the trial court sentenced him under both the "one strike" (Pen. Code, § 667.61, subds. (a)-(i)) and "three strikes" ( §§ 667, subds. (b)-(i), 1170.12) laws. He alleges a multitude of sentencing errors, focused primarily on the courts application of the one strike and three strikes laws. The thrust of the challenge to his sentence has been resolved by the Supreme Court in People v. Mancebo (2002) 27 Cal.4th 735 (Mancebo) and People v. Acosta (2002) 29 Cal.4th 105 (Acosta). Under those authorities, we must affirm. Nor is there any merit to his contention that he did not waive his right to testify or to his asserted instructional error.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTS
N.F. testified that she was walking home from school on October 28, 1996, when defendant jumped out of a red BMW, grabbed her hair, covered her mouth, and shoved her into the passenger seat. She saw a knife lying on the drivers seat. One of the seat covers was torn, the windows were tinted, and a Tupac Shakur tape was playing. Defendant called her a bitch, a prostitute, and a tramp and threatened to kill her if she kept crying. With his knife at her temple, he told her he would cut or stab her if she did not do what he wanted. They drove around for some time.
Defendant parked behind a Mervyns department store and, holding her at knifepoint, ordered her to disrobe. He ripped off her underwear, touched her vagina and breasts, and put his finger inside her vagina. He put a liquid that caused a burning sensation on her vagina and her rectum "so that nobody could find evidence." He raped her five or six times, slapping her intermittently. He also put his penis into her rectum. Eventually, he got out of the car to urinate but would not allow her to do the same. After he got back inside the car, he took her money and ransacked her backpack. She saw an opportunity to escape and ran for help. Her testimony was corroborated in large part by defendants girlfriend, a medical examination, the confiscated BMW, and DNA evidence.
D.F., a prostitute, testified that she got into a car with defendant on April 19, 1998, to have sex with him for $ 100. Her recollection of the events was somewhat impaired because she had been using crack cocaine and had been awake for six or seven days. Defendant parked the car in an industrial area, held a box cutter blade to her throat, and threatened to cut her from her temple to her chin. She did not attempt to get out of the car because defendant told her the passenger door would not open from the inside.
Defendant grabbed the back of her neck and made her suck his penis as he held the blade to her neck. She bit his penis and he hit her hard enough to dislocate her jaw. He forced her to orally copulate him several times and she bit him several more times. While she was orally copulating him, he cut off her long ponytail with the knife, threw her hair out the window, and put his finger in her vagina and in her rectum. He cut off the buttons on her shirt and cut off her brassier. He attempted to have sexual intercourse with her but was unable to maintain an erection, so he forced another act of oral copulation. He then had sexual intercourse with her again. Adding the satanic to the horror, he forced her to sign a blank piece of paper selling her soul to the devil; he urinated on her cut-off hair.
Defendant then drove for about 10 or 15 minutes to a second location. En route, he threw all of her clothes out the window and struck her in the jaw again. At the second location, he made her suck his penis again, attempted to put his penis in her vagina, made her orally copulate him again, and finally ejaculated during another act of sexual intercourse. He cut her leg and feet with the box cutter and made her lie on the pavement. Telling her it was time to meet the devil, he put the spout of a gas can in her vagina and poured gasoline on her. He tried to set her on fire but his lighter would not light.
D. then sought her revenge. Seeing a car approaching, she kicked defendants penis. A gun fell from his waistband. D. picked up the gun, cocked it, and, after determining it was not loaded, threw it. Defendant began running toward his car, and D. gave chase. He jumped into his car and she dove on top of the vehicle, holding onto a roof rack and screaming that he was a "limp dick bastard." She put her fist through the side window and started choking him. He swerved across the road and slammed on the brakes to avoid hitting an oncoming truck. D. screamed for help and was assisted by passersby and taken to the hospital.
D.s testimony, like N.s, was corroborated by another girlfriend of defendants, a medical examination, eyewitness testimony, and DNA evidence.
Defendant did not testify. His defense as to the counts involving N. was alibi and mistaken identity. As to D., he told the police she was a disgruntled prostitute who insisted on cleaning herself with a bottle of windshield washer fluid and who, at some point, broke the cars window. The occupants of a van, according to defendant, knew D., stopped and robbed defendant, and then stole his car.
DISCUSSION
I
A. The Sentence
The trial court sentenced defendant to an aggregate term of 164 years to life to run consecutively to a determinate term of 361 years eight months, for a total term of life with a minimum imprisonment of 525 years eight months. Defendant and the Attorney General provide comprehensive charts depicting the complex sentencing on 20 counts, enhancements, prior offenses, and triggering circumstances. Because defendants challenge relates primarily to only three counts and the accompanying enhancements, we need not repeat the details provided in these charts. The relevant calculation follows.
At issue here is the sentence defendant received for counts two, eight, and thirteen. Defendant committed forcible oral copulation ( § 288a, subd. (c); count two) and forcible rape (§ 261, subd. (a)(2); count eight) against D. and used a box cutter blade in the commission of those crimes. He also had a prior felony conviction for rape. For each of these counts, the court sentenced him to 25 years to life ( § 667.61, subd. (a)) and doubled the minimum term to 50 years to life for the prior felony conviction ( § 1170.12). Each count was enhanced by 10 years for his personal use of a deadly weapon during the commission of the sex crimes. ( § 12022.3, subd. (a).)
Similarly, defendant forcibly raped N. and used a knife in the commission of that crime. ( § 261, subd. (a)(2); count thirteen.) For this offense, the court also sentenced him to 25 years to life ( § 667.61, subd. (a)), doubled to 50 years to life for the prior serious felony conviction ( § 1170.12) and enhanced by 10 years for the use of a knife ( § 12022.3, subd. (a)).
B. Narrowing the Issues on Appeal
Defendant makes a comprehensive assault on the terms imposed under the one strike and three strikes laws. He first challenges the indeterminate term of life imprisonment with a minimum of 25 years imposed under section 667.61, subdivision (a). Multiple circumstances identified in subdivisions (d) and (e) of section 667.61 allow the court to impose a minimum 25-year term under subdivision (a). The court utilized four different circumstances — subdivisions (d)(1), (d)(2), (e)(1), and (e)(4) — to justify the subdivision (a) term, and defendant diligently rebukes all four. Because a single subdivision (d) circumstance is sufficient to impose the subdivision (a) term, we need only analyze the validity of the subdivision (d)(1) circumstance.
The section 667.61, subdivision (d)(1) circumstance is a prior conviction of an offense specified in section 667.61, subdivision (c). The trial court found defendant had been previously convicted of forcible rape, an offense listed in subdivision (c).
C. Section 667.61, Subdivision (d)(1): The Prior Offense
1. Pleading
Section 667.61, subdivision (i) requires: "For the penalties provided in this section to apply, the existence of any fact required under subdivision (d) or (e) shall be alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact." Defendant asserts that the prior offense was not properly pled under subdivision (i). We disagree.
The second amended information states in relevant part: "It is further alleged that the offenses alleged in Counts Two, Three, Four, Five, Six, Seven, Eight, Nine, Ten and Thirteen through Seventeen and Nineteen that the offense [sic] were committed under circumstances that bring them within the meaning of Penal Code section 667.61(a)-(i), specifically 667.61(d)(1), (d)(2), (e)(1), and (e)(4)." Defendant insists the mere reference to section 667.61, subdivision (d)(1) did not give him adequate notice that he risked sentencing under the one strike law. He claims the vagueness of the allegation was exacerbated by the allegation containing the prior offense, which referred to sections 667, subdivision (a); 667, subdivisions (b)-(i); and 1170.12, but not to section 667.61, subdivision (d)(1). He relies on Mancebo, supra, 27 Cal.4th 735. He misreads Mancebo.
In Mancebo, the trial court substituted a multiple victim circumstance ( § 667.61, subd. (e)(5)) that had not been pled in the information for the expressly pleaded gun-use circumstance in order to satisfy the "minimum number of circumstances" requirement for one strike sentencing ( § 667.61, subd. (f)), thereby allowing the imposition of a gun-use enhancement. (Mancebo , supra, 27 Cal.4th at p. 740.) The Supreme Court held that "substitution of that unpleaded circumstance for the first time at sentencing as a basis for imposing the indeterminate terms violated the explicit pleading provisions of the One Strike Law." (Id. at p. 743.)
The Court further explained: "We do not here hold that the specific numerical subdivision of a qualifying One Strike circumstance under section 667.61, subdivision (e), necessarily must be pled. We simply find that the express pleading requirements of section 667.61, subdivisions (f) and (i), read together, require that an information afford a One Strike defendant fair notice of the qualifying statutory circumstance or circumstances that are being pled, proved, and invoked in support of One Strike sentencing. Adequate notice can be conveyed by a reference to the description of the qualifying circumstance (e.g., kidnapping, tying or binding, gun use) in conjunction with a reference to section 667.61 or, more specifically, 667.61, subdivision (e), or by reference to its specific numerical designation under subdivision (e), or some combination thereof." (Mancebo, supra, 27 Cal.4th at pp. 753-754.)
Defendant insists he did not receive fair notice the prior conviction might be used for one strike purposes in spite of the fact the information expressly stated that the offenses were committed under circumstances bringing them within the meaning of section 667.61, subdivisions (a)-(i) (the one strike law). He argues that the reference to the numerical sections of the one strike law did not provide specific factual information. Yet the Supreme Court in Mancebo explained that adequate notice can be provided in a variety of ways, including "by reference to its specific numerical designation." (Mancebo, supra, 27 Cal.4th at p. 754.)
In Mancebo, the multiple victim circumstance was not pleaded in the information and was not mentioned as a sentencing factor until after the trial. By contrast, in this case the information alleged that the offenses were committed under four different circumstances within the one strike law, and the prosecution raised the issue several times during trial. We will describe how and when the implications of the one strike law were discussed during the trial in our analysis of whether defendant validly waived his right to a jury trial on the prior offense. We conclude here that defendant was given fair notice that he was subject to sentencing under the one strike law by the inclusion of the numerical reference to the pertinent circumstances in the information. Those references satisfied the pleading requirements of section 667.61, subdivision (i). Moreover, we reject his notion that the failure to restate those references within the prior offense allegation somehow rendered the notice fatally defective. Here, unlike Mancebo, there was no bait and switch. The prosecution properly pleaded the circumstances giving rise to sentencing under section 667.61; defendant had notice of the implications during trial; and, following the jury verdicts, he was properly sentenced utilizing the one strike sentencing scheme.
2. Jury Waiver
Defendant makes a second attempt to undermine the use of the prior offense as a qualifying circumstance under section 667.61, subdivision (d)(1) by claiming he did not effectively waive his right to a jury trial regarding his prior conviction. He assembles a hodgepodge of record excerpts to cloud a clear waiver. The pertinent parts of the record reveal the following.
Before trial, defendant moved to bifurcate adjudication of his prior offense. There was a discussion whether defendant would admit the prior, have a jury trial, or have the court decide the issue. The prosecution pointed out that a jury usually decides the prior for one strike purposes. The court granted the motion to bifurcate, noting that the other issues would be resolved later.
During trial, the court expressed some confusion regarding whether defendant had waived a jury trial as to the prior offense. After some discussion, the court concluded the only issue that had been decided was bifurcation. Defendant had not yet entered a waiver.
Before closing argument, the court expressly stated that defendant needed to decide whether he was going to waive his right to a jury trial on the prior when argument ended. Defendants lawyer responded, "I have spoken to Mr. Parnell. He is willing to waive jury trial on the issue of the prior convictions; is that correct, Mr. Parnell?" Defendant stated, "Yes, sir." The court thereafter gave defendant a full advisement of his rights and the implications of waiving his right to a trial by jury. The court concluded: "Having those facts in mind, do you waive your right to jury trial with the understanding that the Court will consider and make a determination whether the prior conviction is true or false in the instance that one or more felony counts are held against you?" Defendant spoke privately to his lawyer. The court then stated: "The record should reflect he has had a moment to chat with his attorney about it. Do you want to waive your right to jury trial with regard to the alleged prior?" Defendant responded, "Yes, sir."
The record thus reveals that defendant received a complete admonishment of his right to a jury, consulted with his lawyer, and expressly waived his right. We find that his waiver was knowing, intelligent, and voluntary under the totality of the circumstances in which it was given. (People v. Collins (2001) 26 Cal.4th 297, 304-305.) Although defendant does not argue that he was unaware of the consequences of waiving a jury, he seems to imply that he was not fully aware of the sentencing implications under the one strike law when a prior offense is used as a qualifying circumstance. Hence, he maintains the waiver was not knowing and intelligent.
As recorded above, the record belies his argument. The mere fact that the court expressed some earlier confusion as to whether defendant had waived a jury trial on the prior offense is irrelevant to his later express waiver on the record. Equally irrelevant is the fact that he was without counsel earlier in the trial. Clearly, at the time he waived his right he was represented by counsel, he was fully advised by the court, and he consulted with counsel immediately before waiving. His waiver was express and effective.
In sum, the trial court correctly calculated defendants term of imprisonment by using his prior felony conviction as a qualifying circumstance under section 667.61, subdivision (d)(1). Because only one circumstance is necessary to trigger the 25-year minimum term set forth in subdivision (a) of section 667.61, we need not consider the alleged defects in the circumstances under subdivisions (d)(2), (e)(1), or (e)(4), including defendants contention that his separate sentences for kidnapping (counts one and twelve) were precluded by section 667.61, subdivision (f). Nevertheless, defendant contends that the court could not use the prior offense as a qualifying circumstance under the one strike law and then use the same offense to double the minimum term under the three strikes law. The California Supreme Court disagrees.
D.People v. Acosta
In his reply brief, defendant points out that the Supreme Court filed Acosta, supra, 29 Cal.4th 105 on the same day he filed his opening brief. Acosta dealt a fatal blow to at least two of his sentencing arguments: the cumulative use of the one strike and three strikes laws and the double use of the prior offense as a qualifying circumstance and as an enhancement.
In Acosta, the Supreme Court held that the three strikes law applies notwithstanding a defendants eligibility for sentencing under the one strike law. The Court explained, "The Legislature specified that the sentencing provisions of the Three Strikes law `shall be applied in every case where a defendant has a qualifying prior felony conviction, `notwithstanding any other law. ( § 667, subd. (f)(1).) This language indicates the intent to preclude, absent amendment of the Three Strikes law, a subsequent Legislature from rendering the Three Strikes laws sentencing provisions inapplicable to a particular felony conviction, either in every case involving that particular felony or under specified circumstances." (Acosta, supra, 29 Cal.4th at p. 121.) The language used in the one strike law supports the utilization of both laws when applicable. Subdivision (f) of section 667.61 "contemplates, and indeed requires, that in some cases, a defendant eligible for sentencing under the One Strike law will receive the punishment authorized under any other law. [Citation omitted.] Of course, the Three Strikes law is one such law." (Acosta, supra, 29 Cal.4th at p. 122.) The court concluded that the one strike law establishes a floor, that is, a minimum term, "but does not require sentencing under the statute to the exclusion of any other sentencing provisions, or preclude imposing a total sentence that is greater than the term of the One Strike law when other factors warrant greater punishment." (Id. at p. 124.)
Defendant objects to the multiple use of the prior offense. Like Acosta, he insists that the triggering circumstance is "used up." The Supreme Court explained, however, that the one strike and three strikes laws satisfied different objectives. "Because the Three Strikes law and the One Strike law serve separate objectives, ignoring one of these statutes where a defendant meets the criteria of both would defeat one of the Legislatures objectives. The `unambiguous purpose of the Three Strikes law `is to provide greater punishment for recidivists. [Citation.] [Citation.] The purpose of the One Strike law is to provide life sentences for aggravated sex offenders, even if they do not have prior convictions." (Acosta , supra, 29 Cal.4th at p. 127.) Thus, under Acosta, the trial court properly determined the basic sentence under the one strike law and doubled it as a "second strike" under the three strikes law.
The trial court also used the prior conviction to impose a five-year enhancement under section 667, subdivision (a). Defendant argues that the multiple use of the prior conviction violates section 667.61, subdivision (f), which provides in relevant part: "If only the minimum number of circumstances . . . have been pled and proved, that circumstance or those circumstances shall be used as the basis for imposing the term provided in subdivision (a) or (b) rather than being used to impose the punishment authorized under any other law . . . . However, if any additional circumstance or circumstances specified in subdivision (d) or (e) have been pled and proved, the minimum number of circumstances shall be used as the basis for imposing the term provided in subdivision (a), and any other additional circumstance or circumstances shall be used to impose any punishment or enhancement authorized under any other law."
The Supreme Court held that utilization of the prior offense as a triggering circumstance under the one strike law and to enhance the sentence does not violate subdivision (f) of section 667.61. ". . . Acostas indeterminate life sentence is not being imposed under both the One Strike law and the Three Strikes law; it is being imposed only under the Three Strikes law, with the minimum term of that indeterminate term set by reference to the One Strike law. Thus, the trial courts calculation does not, in contravention of subdivision (f) of the One Strike law ( § 667.61, subd. (f)), use a single triggering circumstance to impose punishment under both the One Strike law and another penalty provision." (Acosta, supra, 29 Cal.4th at p. 130.) The court further explained that the multiple use of the prior offense harmonized the one strike and three strikes laws by following the "statutory command that qualifying defendants be sentenced according to the terms of the Three Strikes law `in every case and `notwithstanding any other law." (Id. at pp. 131-132.)
Defendant appears to concede that if the validity of the prior offense is upheld, then under Acosta we need not consider his argument that the trial court should specify which of the triggering circumstances it used under the one strike law. We agree that Acosta renders the issue moot. Nor do we think it would be appropriate for us to "encourage the trial courts to be more specific," as defendant suggests, as a matter of policy. We serve the public most judiciously by restraining our opinions to the issues presented in the case before us.
E. Section 667.61, Subdivision (g): The Single Occasion Limitation
Section 667.61, subdivision (g) provides in pertinent part: "The term specified . . . shall be imposed on the defendant once for any offense or offenses committed against a single victim during a single occasion." The Legislature, however, failed to define the phrase "single occasion." In People v. Jones (2001) 25 Cal.4th 98 (Jones), the California Supreme Court concluded that "for the purposes of Penal Code section 667.61, subdivision (g), sex offenses occurred on a `single occasion if they were committed in close temporal and spatial proximity." (Jones, supra, 25 Cal.4th at p. 107.) The court reduced the three consecutive life terms to a single life term in Jones because the sequence of sexual assaults "occurred during an uninterrupted time frame and in a single location." (Ibid.)
The trial court imposed an indeterminate life term for one count of forcible oral copulation against D.F. and for one count of forcible rape. Defendant urges us to stay one of the life terms because, he asserts, the sexual assaults occurred on a single occasion within the meaning of section 667.61, subdivision (g). The evidence supports the trial courts ruling.
Unlike the facts presented in Jones, defendant did not assault D. in a single location during an uninterrupted time frame. He subjected her to a series of sexual assaults in the car parked in an industrial area, but he stopped the assaults and drove the car to a more obscure location 10 or 15 minutes away. At the second location, defendant not only assaulted her but forced her to lie on the ground, poured gasoline on her, and tried to set her on fire. The break in time and change of location is sufficient evidence that the two counts were not committed on a single occasion within the meaning of section 667.61, subdivision (g).
F. Enhancements for the Use of a Knife
If, as we have found, the sex crimes were committed on different occasions, defendant suggests there is insufficient evidence to support the knife use enhancements as to each of the counts upon which the enhancement was imposed. Whether a defendant used a deadly weapon to commit a sex offense is for the trier of fact to decide. (People v. Masbruch (1996) 13 Cal.4th 1001, 1007, 920 P.2d 705.) There is ample evidence to support the jurys findings that defendant controlled both D. and N. throughout his brutal assaults by his initial display of a knife or blade and his intermittent threats to cut or kill them. "Where the victim is sufficiently frightened by the use of a weapon such that it becomes unnecessary to continually display the weapon during the course of the later crimes against that victim within a brief span of time, a use finding under section 12022.5 is proper." (People v. Turner (1983) 145 Cal. App. 3d 658, 685, 193 Cal. Rptr. 614.)
G. Section 667.6, Subdivision (c) Exception to Section 654 Bar to Multiple Punishment
Defendant asserts the trial court violated section 654s bar to multiple punishment by sentencing him to full consecutive terms for kidnapping for the purpose of committing a sex offense and for the sex offenses themselves. He is wrong. Section 667.6, subdivision (c) "creates an exception to section 654 so as to permit the imposition of consecutive full-term sentences for enumerated offenses constituting separate acts committed during an `indivisible or `single transaction." (People v. Hicks (1993) 6 Cal.4th 784, 787, 863 P.2d 714 (Hicks); People v. Andrus (1990) 226 Cal. App. 3d 73, 78-79, 276 Cal. Rptr. 30 (Andrus).)
In Hicks, the defendant committed burglary in order to commit several violent sex offenses. The Supreme Court held that he could be punished for both the separate act of burglary and be given full-term consecutive sentences pursuant to section 667.6, subdivision (c) for the violent sex crimes, "notwithstanding section 654s general proscription against multiple punishment for offenses committed during an indivisible course of conduct." (Hicks, supra, 6 Cal.4th at p. 797.) Defendant acknowledges Hicks but seems to suggest that it does not apply because kidnapping, unlike burglary, is ongoing. In other words, defendant implies that he was punished twice for the same act. Not so.
Andrus, supra, 226 Cal. App. 3d 73 involved the identical issue. The court concluded, ". . . Penal Code section 654 does not prevent punishing appellant for both kidnapping and the sex offenses, even though the kidnapping was for the purpose of committing the sex offenses." (Andrus, supra, 226 Cal. App. 3d at p. 79.) Hicks and Andrus are dispositive. Defendant was properly punished for kidnapping for the purpose of committing the sex offenses as well as for the sexual offenses themselves.
H. Reimposition of Sentence
Although the court pronounced the proper aggregate term of imprisonment, it later discovered it had failed to expressly impose enhancements on three counts despite its intention to do so. The court, therefore, recalled the sentence. The court also appointed new counsel for defendant. At the hearing 11 days later, the court informed defense counsel that it intended to reimpose the sentence originally imposed, but it would include the 10-year enhancements on three counts. Defense counsel inquired if the resentencing was merely to correct the technical error. The court answered affirmatively, to which defense counsel responded that he had no further comments. The court reimposed the sentence it initially had imposed and corrected its failure to impose the enhancements. The court imposed the upper term on each enhancement and stated reasons for imposing the upper term. Defendant insists the resentencing was illegal. We disagree.
The failure to pronounce sentence on an enhancement may be corrected at any time where it amounts to an unauthorized sentence. (See People v. Acosta (1996) 48 Cal.App.4th 411, 428, fn. 8; People v. Price (1986) 184 Cal. App. 3d 1405, 229 Cal. Rptr. 550.) Consequently, if, as the trial court stated, it had erred by failing to pronounce sentence on the enhancements, it could correct the error at any time. This is precisely what the court did by recalling the sentence and pronouncing sentence on the enhancements. The aggregate term at resentencing was no greater than the original sentence. Section 1170, subdivision (d) does not require the court to expressly reiterate what it had previously said at some length. The court simply added the enhancements and reimposed the entire sentence. There was no error.
II
Defendant certainly had the constitutional right to testify in his own defense. (People v. Jackson (1991) 1 Cal.App.4th 697, 702-704.) Defendant asserts the trial court coerced him not to testify. Again, the record belies his claim.
Defendant flip-flopped several times on his desire to testify. His lawyer admonished him that testifying would constitute "legal suicide." Initially, he ceded to his lawyers advice. The court stressed to defendant that the decision whether or not to testify was for him to make personally. After a brief recess, defendant changed his mind and asserted his right to testify. The court thereafter granted his lawyers request for two days to prepare.
The following day, defense counsel asked the court to bar the prosecution from questioning defendant about the attack on N. The court granted the request. Later the same day, the court asked defendant if he still intended to testify because his decision would affect the jury instructions. Defendant reasserted his right to testify.
The next day, however, he changed his mind again "on advice of my counsel." The court advised him that this was his last chance to make a decision as to whether or not to testify. The court reminded defendant that it was his own decision to make "but one which you should obviously consider your attorneys recommendations." Defendant, based on the advice of counsel, declined to testify.
Defendant contends the courts suggestion to consider his lawyers advice amounted to a judicial recommendation against testifying and, given the gravity of the charges against him, was coercive. The argument is meritless. The court carefully admonished defendant that he had the right to testify and that he personally needed to make the decision whether or not to invoke his constitutional right. The court allowed him to change his mind several times, gave defense counsel additional time to prepare, limited the scope of his cross-examination, and assured that he understood the sanctity of his right to testify. There is simply no evidence in this record that the court coerced him not to testify. The wise suggestion to heed the advice of counsel does not constitute a judicial recommendation not to testify, nor did it unduly pressure defendant to forego his constitutional right. Defendant entered a valid waiver and cannot be heard to complain on appeal, despite his subsequent misgivings during the posttrial motions.
III
Standardized instructions on propensity evidence admissible under section 1108 of the Evidence Code have gone through several permutations. Defendant challenges the constitutionality of the 2001 version of CALJIC No. 2.50.01, claiming the instruction dilutes the prosecutions burden of proof. In reply, he concedes the Supreme Court rejected the same challenge to the 1999 version in People v. Reliford (2003) 29 Cal.4th 1007 (Reliford ), yet he continues to preserve the federal questions.
In his opening brief, defendant cites a number of federal cases in support of the fundamental principle that due process requires the state to prove every element of the charged offense beyond a reasonable doubt. (See, e.g., Re Winship (1970) 397 U.S. 358, 364 [25 L. Ed. 2d 368, 375, 90 S. Ct. 1068]; Sandstrom v. Montana (1979) 442 U.S. 510, 524 [61 L. Ed. 2d 39, 51, 99 S. Ct. 2450].) For all the reasons articulated by our Supreme Court in Reliford, we conclude the propensity instructions do not impermissibly dilute the standard of proof. (Reliford, supra, 29 Cal.4th at pp. 1012-1016.) It seems as abundantly clear to us as it does to the Supreme Court "that the instruction adequately confines the weight and significance of uncharged offenses with constitutional bounds by warning . . . that the uncharged offense is `not sufficient by itself to prove beyond a reasonable doubt that [defendant] committed the charged crime." (Id. at p. 1014.) The instructions do not violate a defendants right to due process under either the state or federal Constitutions.
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P.J., KOLKEY, J.