Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07F06740
NICHOLSON , J.
A jury found defendant Carrington Russelle guilty of first degree residential burglary (Pen. Code, § 459; undesignated references are to this code), robbery (§ 211), oral copulation accomplished by force or fear (§ 288a, subd. (c)(2)), forcible rape (§ 261, subd. (a)(2)), and taking or driving a motor vehicle without the owner’s consent (Veh. Code, § 10851, subd. (a)). The court denied probation and sentenced defendant to an indeterminate sentence of 50 years to life in state prison, plus a consecutive determinate term of five years.
On appeal, defendant contends (1) there is insufficient evidence to support the conviction for oral copulation, (2) the jury was improperly instructed regarding the offense of oral copulation, and (3) imposition of the $20 crime prevention fine pursuant to section 1202.5 was error. The People correctly concede the $20 fine must be reduced to $10. We agree and modify the judgment. In all other respects, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In the predawn hours of June 24, 2007, M.T. was surprised by defendant, who had broken into her home and was standing in the doorway of the bedroom she shared with her boyfriend, J.R. Defendant yelled at her to get down on the ground and put her hands behind her head. She complied. Defendant went over to J.R., who was now awake and lying in bed, tied his wrists and ankles and put a blanket over his head, threatening to kill him if he moved. Defendant returned to M.T. and held a gun to her head, telling her not to move. He demanded money, jewelry, and drugs. M.T. directed him to $1,500 of cash in a drawer. She told defendant she did not have any jewelry or drugs. As defendant ransacked the house, he yelled at M.T. and J.R., telling them someone else was watching and they would be killed if they moved.
Defendant returned to the bedroom and pulled M.T. up off the floor. He took her over to the bed, told her to take J.R.’s underwear off and yelled at her to “suck his dick, bitch!” M.T. complied because defendant had a gun. Defendant watched, taunting them and telling M.T. she was not trying hard enough because J.R. did not have an erection. M.T. was not restrained at first, but then defendant became angry at her and tied her feet with computer cord. He told J.R., “I’m gonna get some of your girl cuz she looks kind of good.” Defendant then obtained some lubricant and applied it to M.T.’s vaginal area. He obtained a condom and then penetrated M.T. from behind while she continued to orally copulate J.R.
Next, defendant placed M.T. on the bed next to J.R. and tied her hands. He demanded their cell phones and car keys. Defendant became enraged after finding two sets of car keys. He threatened M.T. and J.R. with the gun and asked them which car he should take. They told him to take the more expensive of the two cars, a silver Chevrolet SSR. Defendant took $1,500 in cash, two cell phones (including one belonging to M.T. that was unique and not available for sale in the United States), the silver Chevrolet SSR, a Sony PlayStation, a portable DVD player, and a camera. He told them that when they called the police, they should “make sure you tell them that the 29th Street Crips did this.” Defendant asked about a tattoo on J.R.’s arm and told him that if J.R. had been a member of the Bloods or Crips, defendant would have had to “smoke you.” He told M.T. and J.R. not to move for 15 minutes because someone would be watching them. After defendant left, M.T. was able to free herself and cut the ties binding J.R., freeing him as well. They went to M.T.’s parents’ home and called the police. Neither M.T. nor J.R. were able to describe defendant’s face or his race, as he was wearing a bandana and a baseball cap pulled low over his face and gloves on his hands. However, they described him as being approximately five feet six inches tall, 150 to 160 pounds and approximately 21 or 22 years of age, wearing a hooded sweatshirt and baggy jeans.
Police in Sacramento were later notified that a silver Chevrolet SSR was being held in a California Highway Patrol impound lot in Oakland. M.T. identified the car as hers. Defendant’s palm print was found on the interior of the car.
Witness Shamissa Hamilton told police she had seen defendant driving the car the previous week, and identified him in a photograph. She testified at trial that, during the week of June 24, 2007, she had seen defendant in Oakland in possession of a Sony PlayStation and a portable DVD player.
Police went to defendant’s apartment in Sacramento. One of defendant’s roommates directed them to one of the cell phones taken from M.T. Another one of defendant’s roommates, Danielle Sullivan, testified that, at approximately 6:00 a.m. on June 24, 2007, defendant pounded on her bedroom door looking for one of their other roommates. Defendant was wearing a hooded sweatshirt and jeans. He told Sullivan he had stolen a car, and she told him to leave. Defendant pulled out a wad of cash and gave her $250 for rent he owed her. When defendant left, Sullivan looked out the window and saw defendant get into a silver Chevy truck and drive away.
Defendant was charged by amended information with first degree residential burglary (count one), first degree robbery (count two), oral copulation by force or fear (count three), forcible rape (count four) and taking and driving a motor vehicle without the owner’s consent (count five). It was alleged that, as to counts one and two, defendant used a deadly and dangerous weapon within the meaning of section 12022, subdivision (b)(1), and as to counts three and four, defendant used a deadly and dangerous weapon within the meaning of section 667.61, subdivision (e)(4), committed the offenses during the commission of a burglary within the meaning of section 667.61, subdivision (e)(2) and engaged in tying or binding the victims within the meaning of section 667.61, subdivision (e)(6).
Following trial, the jury returned guilty verdicts on all counts and found all of the special allegations true. The court sentenced defendant to an aggregate sentence of 50 years to life, plus five years in state prison, comprised as follows: an indeterminate term of 25 years to life for count three; a consecutive indeterminate term of 25 years to life for count four; four years for count two, plus one year for the firearm enhancement; four years for count one, plus one year for the firearm enhancement, stayed pursuant to section 654; and two years for count five, stayed pursuant to section 654. The court awarded presentence custody credit and imposed specified fees and fines, including a $20 crime prevention fine pursuant to section 1202.5.
Defendant filed a timely notice of appeal.
DISCUSSION
I
Culpability for Oral Copulation
Defendant contends the evidence was insufficient to support the conviction for oral copulation. Specifically, he argues that, because he “did not copulate his mouth with the sexual organ or anus of another, nor did he copulate his sexual organ or anus with the mouth of another,” he did not commit oral copulation as that offense was contemplated by the Legislature.
Section 288a, subdivision (c)(2), provides: “Any person who commits an act of oral copulation when the act is accomplished against the victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person shall be punished by imprisonment in the state prison for three, six, or eight years.” Defendant claims the clear language of that statute reflects the Legislature’s intent that “only persons who actually engage in oral copulation were intended to be punished” under that statute. In support of that claim, defendant cites People v. Culbertson (1985) 171 Cal.App.3d 508 (Culbertson).
In Culbertson, the defendant was convicted under section 288a, subdivision (c)(1) as an aider and abettor for making her seven-year-old daughter orally copulate defendant’s boyfriend. (Culbertson, supra, 171 Cal.App.3d at p. 511.) The evidence established the victim was nine years old at the time of trial and the defendant was 28 years old; however, there was no evidence presented regarding the age of defendant’s boyfriend. (Id. at p. 512.) Based on the absence of such evidence, defendant requested that the court reduce the offense to a violation of section 288a, subdivision (b)(1). The court denied the motion and defendant appealed. (Culbertson, supra, at p. 512.) Despite that the People’s sole theory of liability at trial was that defendant was an aider and abettor, the People argued on appeal that defendant was a direct participant in the offense. (Ibid.) Without disturbing the jury’s finding that defendant was criminally liable as a principal who “aided, promoted, encouraged, or instigated the commission of the crime” committed by her boyfriend (id. at pp. 512-513), the Court of Appeal found defendant was not an actual “participant” in the crime as that term was contemplated by the Legislature and, as such, the prosecutor’s failure to prove the age of defendant’s boyfriend, “the actual participant in the act of oral copulation,” rendered the evidence insufficient to sustain a conviction under section 288a, subdivision (c)(1). (Culbertson, supra, at p. 515.) The court reduced the conviction to the lesser offense of violating section 288a, subdivision (b)(1). (Culbertson, supra, at pp. 515-516.)
Here, defendant properly concedes that one can be convicted of oral copulation pursuant to section 288a as an aider and abettor. (People v. Greenberg (1980) 111 Cal.App.3d 181, 185-187.) He further concedes, as he must, that “[a]ll persons concerned in the commission of a... felony..., whether they directly commit the act constituting the offense, or aid and abet in its commission,... are principals in any crime so committed.” (§ 31; People v. Marshall (1955) 132 Cal.App.2d 18, 19.) However, relying on Culbertson, defendant claims he is not guilty as a principal because he did not “participate” in any of the acts necessary to constitute the offense, and he is not guilty as an accomplice because there were no other actors involved in the crime. Defendant’s reliance on Culbertson is misplaced. The Culbertson court interpreted the “participates” language of section 288a, subdivision (c)(1), and determined that the age differential specified in that section refers to the ages of the two people who physically engage in the act of oral copulation, not the age of the aider and abettor. Here, defendant was convicted of violating section 288a, subdivision (c)(2). That subdivision does not use the “participates” language, so Culbertson is inapposite.
Defendant also relies on People v. Reed (1982) 135 Cal.App.3d 149, a case dealing with the issue of derivative liability within the context of a defendant’s admission to a firearm use enhancement (§ 12022.3, subd. (b)), even though use of the weapon was not personal, but by a coparticipant in the crime. Reed dealt with derivative liability of codefendants; this case does not. Reed is therefore also inapposite.
Defendant forced M.T. to orally copulate J.R. against her will. As such, he aided and abetted the commission of the crime, using M.T. as a so-called “innocent conduit” to perpetrate the act. For this, the jury found him guilty as a principal under section 288a, subdivision (c)(2). There is sufficient evidence in the record to support that conviction.
California has codified the “innocent conduit” theory of liability in section 31. (People v. Austin (1980) 111 Cal.App.3d 110, 114 (Austin) [“‘[At] common law one who caused a crime to be committed by an innocent agent was deemed guilty of the crime as a principal....’ [Citation.]... The common law rule is contained in... section 31.”].)
Defendant claims that even if there were sufficient evidence that he was an aider and abettor in the offense, his conviction cannot stand because he was not prosecuted as an aider and abettor; he was prosecuted as “the actual perpetrator of the crimes.” Again, defendant appears to confuse a “principal” with one who must actually “participate” in the crime. It has long been held that one who aids and abets, but does not actually “participate,” is indeed a “principal” in the crime: “‘[A] man may be convicted of being a principal in the rape of his wife if he aided and abetted its commission by another person, even though rape is defined as an act of sexual intercourse accomplished with a female not the wife of a perpetrator. [Citation.] A woman is guilty of statutory rape if she aids and abets the rape of her minor daughter. [Citation.] An adult may be guilty of statutory rape if he aids and abets another person to have sexual intercourse with a 16-year-old girl. [Citation.]’” (People v. Greenberg, supra, 111 Cal.App.3d at pp. 185-186, quoting from People v. Roberts (1972) 26 Cal.App.3d 385, 387-388.)
In Austin, supra, 111 Cal.App.3d 110, the defendant, having displayed an open pocket knife, compelled his eight-year-old victim to pull her own pants down and expose herself to him. (Id. at p. 112.) When he asked to touch her, she declined and left. (Ibid.) The trial court dismissed the charge of violating section 288 on the ground that no touching had occurred, and the district attorney appealed. (Austin, supra, at p. 112.) The Court of Appeal reversed, finding a violation of section 288 could be accomplished in any one of three ways: “Three persons who each have requisite specific section 288 intent may create independently the same significant harm to children. The first person himself could perform the lewd touching of a child. The second person could cause an innocent third person to do the same type of touching, and the third person could cause the child to do the same type of touching upon or with itself.” (Austin, supra, at p. 115, italics added.) The same rule applies here.
A violation of section 288, subdivision (b)(1), occurs when one “willfully and lewdly commits any lewd or lascivious act... upon or with the body... of a child who is under the age of 14 years” by use of force or fear of immediate bodily injury.
Defendant was prosecuted as a principal who committed the act of oral copulation through M.T., an “innocent conduit.” Having been found to have aided and abetted in the forced oral copulation of J.R. without his consent, defendant was found guilty as a principal. As previously discussed in this opinion, a “principal” is one who either directly commits the act constituting the offense or aids and abets in its commission. (§ 31; People v. Marshall, supra, 132 Cal.App.2d at p. 19.) There is no error on this record.
II
Jury Instructions
Defendant contends use of the modified version of CALCRIM No. 1015 to instruct the jury unconstitutionally lowered the prosecution’s burden of proof by removing the requirement that defendant be one of the participants in the act of oral copulation. We disagree.
As a preliminary matter, the People note that defendant never objected to the instruction as given. “The doctrine of invited error bars a defendant from challenging an instruction given by the trial court when the defendant has made a ‘conscious and deliberate tactical choice’ to ‘request’ the instruction.” (People v. Lucero (2000) 23 Cal.4th 692, 723, italics added.) The record does not establish defendant requested CALCRIM No. 1015 based on a conscious and deliberate tactical choice. The record reflects only that defendant did not object to the instruction, despite having objected to CALCRIM No. 357 (adoptive admission) and CALCRIM No. 372 (flight). However, defendant’s lack of objection does not preclude review of the issue on appeal because defendant had the right to correct instructions on the applicable burden of proof and courts may review instructional errors that affect “the substantial rights of the defendant.” (§ 1259; People v. Prieto (2003) 30 Cal.4th 226, 268; People v. Smithey (1999) 20 Cal.4th 936, 976, fn. 7.) We therefore review defendant’s contention and conclude it is without merit.
Defendant was charged with violating section 288a, subdivision (c)(2). The trial court instructed the jury with a modified version of CALCRIM No. 1015, the relevant portion of which is as follows: “The defendant is charged in Count Three with oral copulation by force in violation of Penal Code section 288a[, subdivision] (c)(2). [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant committed, through another person, an act of oral copulation with someone else; [¶] 2. The other person did not consent to the act; [¶] AND [¶] 3. The defendant accomplished the act by force, violence, duress, menace, or fear of immediate and unlawful bodily injury to someone.... [¶] Oral copulation is any contact, no matter how slight, between the mouth of one person and the sexual organ or anus of another person....” (Italics added and omitted.)
Defendant claims that oral copulation, as defined in section 288a, subdivision (c)(2) “requires that the person prosecuted be a participant in the act of oral copulation, or else an aider and abettor.” (Original italics.) He argues that modification of the instruction by insertion of the phrase “through another person” allowed the jury to find him guilty of the crime “even if the act was committed by someone else,” and lowered the prosecution’s burden of proof by “removing the requirement that [defendant] be one of the participants in the act.” We disagree.
“In reviewing a challenge to jury instructions, we must consider the instructions as a whole. [Citation.] We assume that the jurors are capable of understanding and correlating all the instructions which are given to them. [Citation.]” (People v. Fitzpatrick (1992) 2 Cal.App.4th 1285, 1294.)
First, we note that there is no prohibition on modifying a standard form jury instruction. Furthermore, we do not believe CALCRIM No. 1015, as given, lessened the prosecution’s burden of proof, as suggested by defendant. We believe any reasonable juror would understand that a defendant can be guilty of aiding and abetting the crime by forcing another, in this case an “innocent conduit,” to commit an act he would otherwise do himself; that is, defendant can commit the crime without actually “participating” directly in the physical act. The prosecution must still prove, beyond a reasonable doubt, that the “innocent conduit” committed an act of oral copulation with another person, that the other person did not consent to such act, and that the act was accomplished by force, violence, duress, menace, or fear of bodily injury.
Here, the jury was still required to find all of the elements of the actual act of oral copulation between M.T. and J.R., and was further required to find that defendant, by force and threat of violence, forced M.T. to commit the act on J.R. without his consent. The jury so found. We find no instructional error.
III
Crime Prevention Fine
Defendant contends, and the People concede, that the $20 crime prevention fine imposed by the trial court pursuant to section 1202.5 must be reduced to $10. We accept the People’s concession and direct the trial court to modify the judgment accordingly.
DISPOSITION
The judgment is modified to reduce the section 1202.5 crime prevention fine to $10. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and to forward a copy to the Department of Corrections and Rehabilitation.
We concur: BLEASE , Acting P. J., BUTZ , J.