Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. GA070636, Jacqueline H. Nguyen, Judge.
Brett Harding Duxbury, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
MANELLA, J.
Appellant Danny Young challenges the constitutionality of CALJIC No. 2.20.1, which guides a jury in evaluating the testimony of a child witness. We conclude his challenge lacks merit. We affirm his conviction on three counts of oral copulation, one count of sodomy, and two counts of lewd acts with a child.
PROCEDURAL BACKGROUND
In a seven-count amended information, Danny Lee Young (defendant) was charged with four counts of oral copulation (Pen. Code, § 288.7, subd. (b)), one count of sodomy (Pen. Code, § 288.7, subd. (a)), and two counts of lewd acts with a child under 14 (Pen. Code, § 288, subd. (a)). Defendant’s stepdaughter, K., was the victim of each count. Two prior convictions within the meaning of the Three Strikes law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and Penal Code section 667.5, subdivision (b) were alleged.
The jury acquitted defendant of one count of oral copulation and convicted him of the remaining counts. Defendant admitted suffering two prior felony convictions. The court sentenced defendant to an aggregate term of 250 years to life, consisting of three terms of 45 years to life for oral copulation, each with a 10-year enhancement for the prior prison terms and one term of 75 years to life for sodomy, also with a 10-year enhancement for the prior prison terms. Pursuant to Penal Code section 654, the court stayed sentence on the two counts of lewd acts with a child.
FACTUAL BACKGROUND
1. Counts 1 (oral copulation) and 6 (lewd act with a child) --August 13, 2007 Incident at Medical Clinic
On August 13, 2007, when K. was nine years old, defendant asked her to orally copulate him. At the time, they were inside a Suburban parked outside a medical clinic. According to K., after defendant told her to get in the front passenger seat where defendant was sitting, he pulled down his pants and his undershorts. Defendant tied a shirt over K.’s eyes and ordered her to orally copulate him. K. complied, and defendant ejaculated into her mouth.
Iris Pavon, a patient in the medical clinic, saw the Suburban from an examining room. Pavon witnessed a young girl orally copulating a large man. Pavon called Ana Ruth Mena, a nurse at the clinic, who in turn informed Maria Maldonado, a physician’s assistant. Both Mena and Maldonado saw a young girl orally copulating a man who was sitting in the passenger seat of the Suburban. Maldonado wrote down the license plate number, which matched a Suburban owned by defendant’s wife or girlfriend, F.J.
Defendant testified that on August 13, 2007, he weighed approximately 375 pounds.
The pants K. was wearing August 13, 2007 tested positive for defendant’s semen, matching defendant’s DNA profile at a frequency of one in 962 quintillion. DNA matching K.’s profile, most likely from her saliva, was found on defendant boxer shorts (at a frequency of one in 2.3 million) and T-shirt (at a frequency of one in 1.7 million).
2. Count 2 (oral copulation) -- Living Room Incident
One day when K. was in the second grade and living with her grandparents, she became ill and left school early to go home. When she arrived at her grandparents’ house, defendant was on a couch in the living room. Defendant asked K. to orally copulate him, and she did.
3. Counts 3 (sodomy) and 7 (lewd act with a child) -- Bathroom Incident
Immediately after defendant asked K. to orally copulate him in the living room (as charged in count 2), he told her to go into the bathroom. K. went into the bathroom, and defendant followed her and sodomized her. Dr. Janet Suzanne Arnold-Clark examined K. and found several indications that K. had been sodomized, including (1) a bruise in her anus, (2) lacerations in her anus, (3) prominent blood vessels in her anus; and (4) the dilation of her anus.
4. Count 4 (oral copulation) -- Bathroom Incident
Once when K. was on the toilet, defendant entered the bathroom at K.’s grandparents’ house. Defendant turned off the light. He pulled down his pants and told K. to orally copulate him. She did.
5. Count 5 (oral copulation) -- White Truck Incident
At trial, K. testified that defendant never asked her to orally copulate him while they were inside a white truck. During the preliminary hearing, K. had testified that defendant had asked her to orally copulate him when they were inside a white truck.
6. Other Evidence
Defendant testified in his defense and denied both that he asked K. to orally copulate him and that he sodomized her. Defendant admitted that he had suffered two prior felony robbery convictions. F.J., K.’s mother and defendant’s girlfriend or wife, testified that K. never complained defendant had behaved inappropriately. According to F.J., on August 13, 2007, K. was upset because the family had not gone to McDonald’s. During cross-examination, K. stated that she had lied about everything and merely repeated what the police had told her to say, but on redirect K. reaffirmed her direct testimony, acknowledging that she had lied during cross-examination.
DISCUSSION
Defendant’s sole challenge on appeal is to the constitutionality of CALJIC No. 2.20.1. That instruction guides a jury in evaluating the testimony of a witness who is 10 years of age or younger. (People v. Gutierrez (2009) 45 Cal.4th 789, 815-816.) The instruction is required by Penal Code section 1127f, which “adopted the modern view regarding the credibility of child witnesses....” (People v. Jones (1990) 51 Cal.3d 294, 315; see also People v. Dennis (1998) 17 Cal.4th 468, 527, fn. 12 [CALJIC No. 2.20.1 incorporates instruction mandated by Pen. Code, § 1127f].) CALJIC No. 2.20.1 provides: “In evaluating the testimony of a child [ten years of age or younger] you should consider all of the factors surrounding the child’s testimony, including the age of the child and any evidence regarding the child’s level of cognitive development. A child, because of age and level of cognitive development, may perform differently than an adult as a witness, but that does not mean that a child is any more or less believable than an adult. You should not discount or distrust the testimony of a child solely because he or she is a child. [¶] ‘Cognitive’ means the child’s ability to perceive, to understand, to remember, and to communicate any matter about which the child has knowledge.”
Penal Code section 1127f provides: “In any criminal trial or proceeding in which a child 10 years of age or younger testifies as a witness, upon the request of a party, the court shall instruct the jury, as follows: [¶] In evaluating the testimony of a child you should consider all of the factors surrounding the child’s testimony, including the age of the child and any evidence regarding the child’s level of cognitive development. Although, because of age and level of cognitive development, a child may perform differently as a witness from an adult, that does not mean that a child is any more or less credible a witness than an adult. You should not discount or distrust the testimony of a child solely because he or she is a child.”
K. was 10 years old at the time of trial. The jury was instructed with CALJIC No. 2.20.1. For the first time on appeal, defendant challenges CALJIC No. 2.20.1, arguing that it violated his rights to due process and equal protection. In the context of discussing due process, he also claims that his right to a jury trial was violated because the jury was deprived of the opportunity to evaluate K.’s credibility. According to defendant, a rational juror would likely interpret the instruction to enhance the credibility of the child witness.
At the outset, we note that we may consider the propriety of an instruction affecting defendant’s substantial rights, even in the absence of an objection. (People v. McCoy (2005) 133 Cal.App.4th 974, 978.) Doing so here, we join with other courts that have considered and rejected defendant’s arguments. (See id. at p. 980; People v. Gilbert (1992) 5 Cal.App.4th 1372, 1393; People v. Jones (1992) 10 Cal.App.4th 1566, 1573; People v. Harlan (1990) 222 Cal.App.3d 439, 455-456 (Harlan).) In Harlan, the court concluded that CALJIC No. 2.20.1 “does not instruct the jury that it may not consider a child’s age and cognitive ability in deciding his/her credibility as a witness.” (Id. at p. 455.) Nor, the court held, does the instruction usurp the province of the jury to determine credibility, but instead “simply requires jurors not to find child witnesses unreliable solely because of their age.” (Id. at p. 456.) In People v. Jones, supra, 10 Cal.App.4th at page 1573, the court reached the same result, explaining: “It is difficult for us to fathom how jurors could understand that ‘perform’ as used in the second sentence of CALJIC No. 2.20.1 advises them to consider the words of a child witness ‘to ring true[r]’ than the words of an adult witness.” “The second sentence of CALJIC No. 2.20.1... does not instruct the jury that because a child ‘performs’ differently on the witness stand, he or she for that reason alone is more credible than a nonchild witness.” (Ibid.) More recently, People v. Gilbert, supra, 5 Cal.App.4th at page 1393 and People v. McCoy, supra, 133 Cal.App.4th at page 980, both reaffirmed the holdings of Harlan and Jones. On habeas corpus review, the Ninth Circuit concluded that Harlan, Jones, and Gilbert provided a “reasoned explanation that CALJIC 2.20.1 merely prevents disregard of a child’s testimony, but does not amplify the testimony....” (Brodit v. Cambra (9th Cir. 2003) 350 F.3d 985, 990.)
Defendant argues that Harlan was wrongly decided because the court concluded that the term “perform” in the second sentence of CALJIC No. 2.20.1 applies only to “nonverbal action.” Assuming that “perform” requires a broader definition, that fact does not undermine the overall conclusion in Harlan that the instruction is constitutional. (People v. McCoy, supra, 133 Cal.App.4th at p. 980.) Contrary to defendant’s assertion, the term “perform” cannot reasonably be understood to enhance the credibility of the statements of the child witness. (People v. Jones, supra, 10 Cal.App.4th at p. 1573.)
We agree with the uniform authority that CALJIC No. 2.20.1 does not violate a defendant’s right to due process or a jury trial. It does not instruct the jury that the testimony of a child witness is more credible than that of other witnesses. To the contrary, it instructs the jury that a child is not any “more or less believable” than an adult. (CALJIC No. 2.20.1.) The instruction “does not remove the issue of credibility from the jury; in fact, it presupposes that the jury must make a determination of credibility, but only after considering all the factors related to a child’s testimony....” (People v. Jones, supra, 10 Cal.App.4th at p. 1574.) Defendant’s claim that a rational juror would likely interpret CALJIC No. 2.20.1 to find a child witness more credible finds no support in the text of the instruction or any reasonable interpretation of it.
We also reject defendant’s equal protection challenge. “By virtue of the equal protection clauses of the federal and California Constitutions, the state may not draw arbitrary distinctions, in the bestowal or denial of rights, as between persons or classes of persons. In this instance the only distinction involved is that between witnesses 10 years of age or younger and witnesses older than 10.” (People v. Gilbert, supra, 5 Cal.App.4th at p. 1394.) Penal Code section 1127f, upon which CALJIC No. 2.20.1 is based, is rationally related to setting guidelines for evaluating the credibility of a child witness. (See People v. Jones, supra, 51 Cal.3d at p. 315.) “[I]t is now well established that a child’s testimony cannot be deemed insubstantial merely because of his or her youth. Thus, ‘under present law, no distinction is made between the competence of young children and that of other witnesses [citations].’” (Ibid.) Defendant’s contention that a similar instruction should be given to describe his own testimony ignores defendant’s obvious self-interest, which “bears directly on his credibility.” (People v. Gilbert, supra, 5 Cal.App.4th at p. 1394.) In short, the trial court correctly instructed the jury with CALJIC No. 2.20.1.
Because we find the instruction proper, we need not consider defendant’s argument that he was prejudiced by the erroneous instruction.
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P. J., SUZUKAWA, J.
Defendant’s reliance on People v. Rincon-Pineda (1975) 14 Cal.3d 864, is misplaced. In that case, the California Supreme Court found inappropriate an instruction that jurors should view with caution the testimony of a rape victim. The Rincon-Pineda court made clear that its opinion should not “be construed as precluding the development of new instructions designed to enhance juries’ consideration of particular types of evidence, such as the testimony of a child of tender years.” (Id. at pp. 882-883, fn. 6.) Additionally, Rincon-Pineda is distinguishable because the instruction at issue in that case focused on the character of the crime, not the nature of the evidence as here. (Ibid.)