PEOPLE v. GAMMAGE

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Court of Appeal, Second District, Division 7, California.

The PEOPLE, Plaintiff and Respondent, v. Johnnie Vincent GAMMAGE and Michael Dujuan Goldsmith, Defendants and Appellants.

No. B034213.

Decided: November 14, 1990

Norman W. DeCarteret, Sherman Oaks, under appointment by Court of Appeal (California Appellate Project), Horikawa, Ono & Yamamoto and Thomas T. Ono, Los Angeles, under appointment by Court of Appeal (California Appellate Project), for defendants and appellants. John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Edward T. Fogel, Jr., Sr. Asst. Atty. Gen., Donald E. deNicola, Supervising Deputy Atty. Gen., and Susan D. Martynec, Deputy Atty. Gen., for plaintiff and respondent.

Convicted of sexual offenses, appellants claim errors involving sentencing, instructions, evidentiary rulings, verdict forms, and inherently improbable victim testimony require reversal.   We find no error and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In consolidated informations appellants 1 were charged with oral copulation by acting in concert with force (Pen.Code,2 § 288a, subd. (d);  count 1), sodomy by acting in concert with force (§ 286, subd. (d);  count 2), and two counts of forcible rape, acting in concert (§§ 261, subd. (2), 264.1, 1192.7, subd. (c)(3);  counts 3 and 4).

A jury convicted both appellants of count 3, forcible rape, acting in concert, and appellant Goldsmith of oral copulation with a person under 18 years (§ 288a, subd. (b)(1)), a lesser included offense to count 1.   Appellants were acquitted of the other charges.

Appellant Goldsmith was sentenced to a 7 year 8 month state prison term (a 7–year mid-term sentence on count 3, and 8 months consecutive on count 1).   Appellant Gammage was sentenced to a 9–year state prison term.

All of the events and offenses occurred during one morning and involved one victim.

In summary:  on July 20, 1987, 16–year–old Jamise W. arrived at Dorsey High summer school around 8:00 a.m. but instead of going to class rode with friends to appellant Gammage's apartment.   During the following three or four hours, according to the victim, she was sexually assaulted by appellants and other young men.3  Around 12:15 p.m. the victim, naked from the waist up, fled the apartment and ran for help to a woman across the street.   The police were promptly called, the victim taken to a hospital, and appellants soon arrested.

Other facts, as they relate to claimed errors, will be later discussed.

CONTENTIONS

Appellant Gammage contends:

1. The victim's testimony was inherently improbable.4

2. The court erred in imposing a high term of 9 years.

3. The court erred in excluding evidence.

Appellant Goldsmith contends:

4. The court erred in giving CALJIC No. 10.21.

5. The court erred in not providing a separate not guilty verdict form for the lesser included count 1 offense.

6. The court erred in giving modified CALJIC No. 17.10.

DISCUSSION

1. Appellant Gammage contends the victim's testimony was inherently improbable.

 “Although an appellate court will not uphold a judgment or verdict based upon evidence inherently improbable, testimony which merely discloses unusual circumstances does not come within that category.  [Citation.]   To warrant the rejection of the statements given by a witness who has been believed by the [trier of fact], there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions.  [Citations.]   Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.  [Citation.]”  (People v. Barnes (1986) 42 Cal.3d 284, 306, 228 Cal.Rptr. 228, 721 P.2d 110.   Internal quotation marks omitted.)

Against this standard we consider each basis for appellant's contention.

First, appellant argues that because the victim told the police and others that she was kidnapped, an admitted falsity, the entirety of her account should be disbelieved.

But the victim was repeatedly questioned by all three defense counsel [see fn. 2] about this false statement, all three argued it to the jury, the court instructed the jury they may consider such prior inconsistent statements (CALJIC No. 2.20 (1980 Rev.) yet the jury chose, as was their right, to believe the victim.)

The jury no doubt considered that the victim retracted her kidnapping allegation within three days and also considered her reason for initially making it:  “Because I was ashamed that it would happen․   If I would have said that I went on my own, people would have said it was my fault and they would have said cruel things about me.”

Second, appellant contrasts the victim's statement to Officer Bobo that she was forced to orally copulate eight young men with her trial testimony that it was only appellant Goldsmith she orally copulated.

In assessing this discrepancy the jury was entitled to consider the surrounding circumstances:  the victim had just been beaten and sexually assaulted by as many as six men, she was “almost hysterical,” she had been unconscious for an unknown period of time, and even three days later “she was suffering from [an] extreme degree of emotional trauma.”

Third, appellant asserts the victim should be disbelieved because she made no effort to leave the apartment.   The evidence does not support appellant's argument.   Only two witnesses testified to the events in the apartment, appellant Goldsmith and the victim.   Even appellant Goldsmith described how one young man, Craig, pushed the victim against the wall, struck her in the face, demanded she orally copulate him, and later pulled her back into the apartment when she tried to leave.   He also described her unavailing cries for help, her tears, and that he told Detective Campbell she was “screaming real loud.”

The victim testified to unremitting assaults by multiple men who struck and kicked her, sexually assaulted her, put a pillow over her face, and threatened her with a knife.   She lost consciousness for perhaps two hours and when, around 12:15 p.m., she was able to escape, she did so.   An independent witness to whom the victim ran for help, Kim Stanley, described her as “upset,” “crying,” and naked from the waist up.

Fourth, appellant argues the victim should be disbelieved because there were three other young women in the apartment and there was no evidence they were harmed.   This argument impermissibly relies on nonevidence and disputed evidence.   The victim testified she went to the apartment with two female school acquaintances, Yolanda and Coco, and did not see them leave.   She saw no other female in the apartment.   Appellant Goldsmith testified another female, Shannon, was also present but soon left.   He also did not see Yolanda or Coco leave.   The only female to testify was the victim.   There was no explanation why Yolanda, Coco, or Shannon—if indeed she was present at all—were not called as witnesses.

Thus, there is little or no evidence that other young women were or were not sexually assaulted.   Of course, even if they were not assaulted the victim may have been.

Fifth, appellant finds the absence of semen incompatible with the victim's testimony.   But the victim testified to seeing some of the young men wearing condoms and the emergency room doctor who examined her found part of a condom in her vagina.

There was nothing impossible or inherently improbable about the victim's testimony.   To the contrary, it was corroborated by the following:  her immediate report;  her half-naked hysterical condition;  her request that the police be called;  her torn shirt which appellant Gammage brought to her after she had fled his apartment;  her bruised lip which Officer Bobo testified looked “as if she had been punched”;  her physical condition, according to the emergency room doctor, being consistent with her account (including a vaginal laceration, redness over her left knee, a scratch between her eyebrows, pain in her left breast and midback);  her bra being found by Officer Bobo on the hallway floor of appellant's apartment;  appellant Goldsmith's testimony that others beat the victim and prevented her from leaving, that the victim called for help, loudly screamed, and was crying;  and appellant's spontaneous station house admission to his friends that “This is it for me.   I am gone.   I am going to do some time for this.”

2. Appellant Gammage contends the court erred in imposing a high term of 9 years.

Section 1170, subdivision (b) prescribes that when a statute, such as the subject one, “specifies three possible terms, the court shall order imposition of the middle term, unless there are circumstances in aggravation․”

In imposing the high, rather than the middle, term one of the circumstances in aggravation relied upon by the trial court was that “The defendant ․ occupied a position of leadership or dominance of other participants in its commission.”  (Cal.Rules of Court, rule 421(a)(5).)

Appellant argues that this reliance is based upon crimes the jury found he did not commit, counts 1, 2, and 4.

 Appellant is mistaken.   The court did not state or imply appellant was guilty of any other crime.   Rather, based upon the evidence, the court characterized appellant's role both in the crime he committed, forcible rape while acting in concert with others, and in crimes other persons committed.   The court stated:  “․ Mr. Gammage here could have stopped the whole thing․  [¶]  It was at his house․  [¶]  I never got the feeling that he was not in control there at all․”

The evidence supports the court's remarks.   According to the victim everything began when appellant Gammage and another person called her into the hallway and then pulled her into the bathroom.   Everything ended when appellant Gammage roused the victim and told her his mother was coming home.   In the interim, according to appellant Goldsmith, “Craig” and “Kevin” frightened off “Jay” when he came to the victim's aid but appellant Gammage, the biggest person present, alone pushed both “Craig” and “Kevin” off the victim.

 Appellant's second objection to the court's “leader” characterization is that it is speculative, an objection, as we have indicated, that is ill founded.

In addition to the “leadership” aggravating circumstance, the court specified two others:  appellant was on probation when he committed the crime (Cal.Rules of Court, rule 421(b)(4)) and appellant's prior performance on probation was unsatisfactory.  (Id., rule 421(b)(5).)   Any of the three aggravating circumstances justified imposition of the upper term.  (People v. Piceno (1987) 195 Cal.App.3d 1353, 1360, 241 Cal.Rptr. 391;  People v. Castellano (1983) 140 Cal.App.3d 608, 615, 189 Cal.Rptr. 692.)

 Finally, appellant claims there were two circumstances in mitigation not considered by the court, viz., he was a minor, slightly younger than the victim and he was on probation for only “minor matters.”   Neither factor is specified as a mitigating circumstance in California Rules of Court, rule 423 and the court, having read and considered the probation report, was aware of both.

3. Appellant Gammage contends the court erred in excluding evidence.

 During cross-examination of the victim, trial counsel for appellant asked her why officials had caused her school transfer.   A relevancy objection was sustained followed by this at bar colloquy:

“[Appellant's trial counsel]:  Mr. Gammage's mother has told me that this girl was expelled from Birmingham High School and that is why I am inquiring into that area.  [¶]  I don't have an offer of proof that I can establish that at this point because she just told me this today.  [¶]  That is why I was seeing if I can get voluntarily from her as to what the reasons were she's no longer at Birmingham.

“THE COURT:  What if she was expelled?

“[Appellant's trial counsel]:  Well, the mother has indicated to me that she was expelled from Birmingham for having sexual activity on the campus.

“THE COURT:  What if she did have?   What has that got to do with whether or not we are not going to go into her sexual history.

“[Appellant's trial counsel]:  I'm not trying to go into her sexual history.

“THE COURT:  That is exactly what you are doing, [ ]

“[Appellant's trial counsel]:  I am not attempting to go into her sexual history.

“THE COURT:  Sustained.”

No relevancy was suggested by appellant's trial counsel.   Since he twice disclaimed any intent to inquire into the victim's “sexual history” no other relevant purpose is apparent.   Appellate counsel for appellant suggests that a false sexual accusation by the victim at Birmingham High School would have been relevant.   Trial counsel made no such claim.   Appellate counsel, still relying on an entirely speculative “false accusation” theory, argues the prohibited question bore on the victim's credibility.   No such suggestion was made by trial counsel nor was any effort made either to comply with Evidence Code section 7825 or renew the line of questioning.

The trial court properly sustained the relevancy objection.

4. Appellant Goldsmith contends the court erred in giving CALJIC No. 10.21.

Appellant Goldsmith does not claim that the two jury instructions in question, CALJIC Nos. 10.21 and 2.27, separately considered, are inaccurate statements of the law.   What he does claim is that together the instructions improperly imply different credibility standards for the testimony of the victim and accused.   The first instruction, as given by the court, reads:  “Testimony as to any particular fact which you believe given by one witness is sufficient for the proof of that fact.   However, before finding any fact [required to be established by the prosecution] to be proved solely by the testimony of such a single witness, you should carefully review all the testimony upon which the proof of such fact depends.”  (CALJIC No. 2.27 (1986 Rev.)

The second instruction, which followed 25 intervening instructions, reads:  “It is not essential to a conviction of a charge of [rape] that the testimony of the witness with whom sexual intercourse is alleged to have been committed be corroborated by other evidence.”  (CALJIC No. 10.21 (1970 Rev.)

 Appellant argues that CALJIC 2.27 with its admonitory “you should carefully review” standard applies generally to all witnesses and therefore applied to him, while CALJIC 10.21, without such a stringent standard, specifically applies to the victim.   Therefore, he asserts, the jury was prejudicially instructed to review his testimony more strictly than the victim's.

As we shall explain, appellant—in reliance upon several Court of Appeal decisions—has misread CALJIC 2.27.

People v. Rincon–Pineda (1975) 14 Cal.3d 864, 123 Cal.Rptr. 119, 538 P.2d 247 disapproved certain sexual assault cautionary instructions and made other instructions mandatory.   As to one such instruction the court stated, “A new instruction incorporating the deleted sentence 6 should be given in every criminal case in which no corroborating evidence is required and should read substantially as follows:  ‘Testimony which you believe given by one witness is sufficient for the proof of any fact.   However, before finding any fact to be proved solely by the testimony of such a single witness, you should carefully review all of the testimony upon which proof of such fact depends.’ ”  (Id. at p. 885, 123 Cal.Rptr. 119, 538 P.2d 247.)

The CALJIC committee promptly and faithfully implemented this directive by creating CALJIC 2.27, a verbatim quotation of the Rincon–Pineda suggested language and included it in its 1976 pocket part.   It read:  “Testimony which you believe given by one witness is sufficient for the proof of any fact.   However, before finding any fact to be proved solely by the testimony of such a single witness, you should carefully review all the testimony upon which the proof of such fact depends.” 7

The accompanying use note read:  “This instruction should be given sua sponte in every criminal case in which no corroborating evidence is required and the proof of any fact depends on the testimony of a single witness.  People v. Rincon–Pineda, 14 Cal.3d 864, 123 Cal.Rptr. 119, 538 P.2d 247.

“Do not give this instruction if corroboration is required, such as in Penal Code, § 1103a (perjury);  § 1108 (abortion or enticement for prostitution);  § 1111 (testimony of accomplice);  and § 653f (solicitation to commit felony).”

One year later, in its 1977 revision, the CALJIC committee, for unstated reasons, revised the instruction by inserting bracketed language.   In this revised form it read:  “Testimony which you believe given by one witness is sufficient for the proof of any fact.   However, before finding any fact [required to be established by the prosecution] to be proved solely by the testimony of such a single witness, you should carefully review all the testimony upon which the proof of such fact depends.”  (CALJIC No. 2.27 (4th ed. 1979).)

The 1977 revision use note retained the two 1976 paragraphs and added this third:  “Delete the bracketed clause only as to testimony by a single witness of defenses as to which the defendant has the burden of proof.”

No explanation was given or authority cited for this bifurcating amendment and accompanying use note.

In People v. McIntyre (1981) 115 Cal.App.3d 899, 176 Cal.Rptr. 3, the first post Rincon–Pineda case to consider CALJIC 10.21 and 2.27, the defendant contended that giving both instructions “unduly emphasized there was no corroboration needed” for the victim's testimony.  (Id. at p. 906, 176 Cal.Rptr. 3.)8  McIntyre rejected this claim, approved the tandem instructions, identical to those in the instant case, and portentously stated:

“It is apparent CALJIC No. 2.27 refers to reliability of all witnesses' testimony in proving a fact.   CALJIC No. 10.21, on the other hand, deals with the need (or lack of it) for corroboration of the victim's testimony in the act constituting the crime of rape.”  (Id. at p. 907, 176 Cal.Rptr. 3.)  (Emphasis added.)

People v. Jamison (1984) 150 Cal.App.3d 1167, 198 Cal.Rptr. 407, authored by the same District Four Justice who wrote McIntyre, agreed with its former decision and quoted with approval the excerpt we have quoted.9

In still another District Four opinion the interplay of CALJIC 10.21 and 2.27 was considered.  (People v. Pringle (1986) 177 Cal.App.3d 785, 223 Cal.Rptr. 214.)   Here, however, 10.21 was given but 2.27 omitted.   The defendant argued that failure to give 2.27 in conjunction with 10.21 unduly focused attention on the victim's testimony and incorrectly implied that defense testimony required corroboration.   In holding it error to omit 2.27 Pringle commented, “However, even where CALJIC No. 2.27 is given, when combined with CALJIC No. 10.21, the implication arises that the prosecuting witness testimony does not require corroboration but the testimony of other witnesses referred to in CALJIC No. 2.27 must be viewed with caution:  in other words, the erroneous implication that witnesses other than the prosecuting witness need be viewed with caution.”  (Id. at p. 790, 223 Cal.Rptr. 214.)

Thus, without explanation or acknowledgement of conflict, Pringle construes the “you should carefully review ” admonition of 2.27 as referring not to all witnesses, as McIntyre did, but rather to all witnesses “other than the prosecuting witness.”

In People v. Adams (1986) 186 Cal.App.3d 75, 230 Cal.Rptr. 588, as in Pringle, the trial court gave 10.21 but omitted 2.27.   Unlike Pringle, the defendant here argued that it is error to give 10.21 whether or not 2.27 is given.   In holding it error, but not prejudicial, to omit 2.27 the court disagreed with McIntyre and Jamison that 10.21 may properly be given with 2.27.   It stated, “We conclude the better practice is to eliminate CALJIC No. 10.21 even when accompanied by CALJIC No. 2.27 to avoid the prejudicial inference that a rape victim's testimony, covered specifically in CALJIC No. 10.21, may be accepted without careful review, whereas the defendant's testimony, covered generally in CALJIC No. 2.27, must be more scrupulously examined for credibility.”  (Id. at p. 80, 230 Cal.Rptr. 588.)  (Emphasis added.)

A close reading of this complex Adams' sentence discloses that Adams agrees with McIntyre and Jamison that 2.27's cautionary admonition applies to both victim and defendant, if not all witnesses.

People v. Blassingill (1988) 199 Cal.App.3d 1413, 245 Cal.Rptr. 599, although disagreeing with Adams that 10.21 should not be given with 2.27 (relying upon People v. Akey (1912) 163 Cal. 54, 124 P. 718 and its approval of instructional language similar to 10.21) did not disagree with Adams' conclusion that 2.27's cautionary admonition applies to both victim and defendant, if not to all witnesses.10

To summarize, according to all five decisions CALJIC 2.27's “you should carefully review” admonition applies to a defendant-witness, according to two decisions (McIntyre and Jamison ) it applies to all witnesses, according to two other decisions (Adams and Blassingill ) it applies, at least, to a victim and defendant-witness, and according to one decision (Pringle ), it applies to all witnesses except the victim (when both 2.27 and 10.21 are given).

We disagree with all five decisions.

The admonitory “you should carefully review” language, unchanged in CALJIC 2.27 since the 1977 revision,11 does not apply to a defendant-witness, nor to any defense witness.   For convenience, we again set out the instruction:  “Testimony which you believe given by one witness is sufficient proof of any fact.   However, before finding any fact [required to be established by the prosecution] to be proved solely by the testimony of such a single witness, you should carefully review all the testimony upon which the proof of such fact depends.”  (CALJIC No. 2.27 (1977 Revision).)

By its terms, awkwardly but certainly, the second sentence has the following meaning.   The prosecution is required to prove certain facts;  if the prosecution has tried to prove such a fact by one witness then;  the jury should carefully review all pertinent testimony of that witness.

Thus, contrary to appellant's reading of 2.27 and also contrary to its construction by McIntyre, Jamison, Pringle, Adams, and Blassingill, the admonition (“you should carefully review”) applies only to certain prosecution witnesses and does not apply to a defendant-witness nor to any defense witness.12

Thus appellant's contention the jury was instructed (by 2.27) to view his testimony more strictly than the victim's is mistaken.

Our analysis, however, does not end here.

 The instant trial court, like trial courts in thousands of other cases since 1977, gave the complete 2.27 instruction, bracketed phrase undeleted.

To include the bracketed phrase (“required to be established by the prosecution”) when giving the 2.27 instruction is to commit error.   This phrase, imported by CALJIC, absent from Rincon–Pineda (People v. Rincon–Pineda, supra, 14 Cal.3d 864, 885, 123 Cal.Rptr. 119, 538 P.2d 247), subverts the holding of Rincon–Pineda by covertly resurrecting the condemned “view with caution the testimony of a female victim” admonition.   (Id. at p. 871, 123 Cal.Rptr. 119, 538 P.2d 247.)   It flatly contradicts Rincon–Pineda's conclusion “that the requirement of a cautionary instruction in all such cases is a rule without a reason.”  (Id. at p. 882, 123 Cal.Rptr. 119, 538 P.2d 247.)   Further, it thwarts the mandate of Rincon–Pineda that there be a single standard of witness review (id. at p. 884–885, 123 Cal.Rptr. 119, 538 P.2d 247) not, as the bracketed phrase creates, a bifurcated one:  stringent for certain prosecution witnesses and nonstringent for all defense witnesses.

We urge the CALJIC committee to expeditiously correct CALJIC No. 2.27 and its use note.

Finally, we feel constrained to recommend that after 15 years it is time for the Supreme Court to reconsider the entire second sentence (bracketed phrase deleted) of 2.27, which it made mandatory in Rincon–Pineda, id. at p. 885, 123 Cal.Rptr. 119, 538 P.2d 247, viz., “However, before finding any fact to be proved solely by the testimony of such a single witness, you should carefully review all of the testimony upon which proof of such fact depends.”

Although in this unsubverted state the sentence equally applies to both prosecution and defense witnesses, it nevertheless creates an artificial, unnecessary, confusing, and potentially harmful bifurcated review standard.   By its patronizing terms it requires a “careful review” of some testimony but a non-“careful review” of other testimony.   The distinction is exclusively contingent upon the extraneous circumstance of a fact being proved by a single witness.   Thus, if the fact of identification is sought to be proved only by the testimony of a nun, raped by a man she's known for 20 years, the jury must “carefully review” her testimony.   But if two alcoholic acquaintances of the accused testify to his alibi, the jury should not “carefully review” their testimony.

Surely such a distinction is unjustified.   As CALJIC No. 2.20 prescribes, and as Rincon–Pineda itself implies (id. at p. 885, fn. 9, 123 Cal.Rptr. 119, 538 P.2d 247), all witnesses should be judged by the same standard.

5. Appellant Goldsmith contends the court erred in not providing a separate not guilty verdict form for the lesser included count 1 offense.

 Appellant Goldsmith, citing Stone v. Superior Court (1982) 31 Cal.3d 503, 183 Cal.Rptr. 647, 646 P.2d 809 and People v. Kurtzman (1988) 46 Cal.3d 322, 250 Cal.Rptr. 244, 758 P.2d 572, contends that the court in providing a single not guilty verdict form for both the charged offense in count 1, forcible oral copulation, and the lesser included offense, oral copulation with a minor, in effect, directed the jury to convict appellant of the included offense.

Stone and Kurtzman concern memorializing a jury's decision to acquit of a greater offense when they are undecided about lesser offenses.   That is not our issue.

The trial court instructed the jury that with respect to each of three counts there were three possible verdicts.   These possible verdicts were set forth in verdict forms.   Only one form per count should be signed.   With respect to each of these three counts two forms were guilty (one of the greater and one of the lesser included offense) and one not guilty.

It is clear not only from the unambiguous court instructions but from the jury's conduct that the jury correctly understood all their options.   They convicted appellant only of the lesser included offense in count 1, convicted him of the greater offense in count 3, and acquitted him of both the greater and lesser included offenses in count 4.

There was no error.

6. Appellant Goldsmith contends the court erred in giving modified CALJIC No. 17.10.

 Appellant Goldsmith requested and the court gave modified CALJIC No. 17.10:

“If the jury is not satisfied beyond a reasonable doubt that a defendant is guilty of an offense charged and it unanimously so finds, it may convict him of a lesser offense if the jury is convinced beyond a reasonable doubt that he is guilty of such lesser offense.

“The offense of oral copulation with a person who is under 18 years of age is a lesser offense to the offense of oral copulation by acting in concert with force, as charged in Count 1.

“The offense of rape is a lesser offense to the offense of forcible rape by acting in concert, as charged in Counts 3 and 4.”

Although appellant requested this instruction, he contends, as he may (§ 1259), that it is erroneous.

Appellant maintains that this instruction required the jury to first consider the greater offense in count 3 before they were permitted to consider the lesser included offense in count 3, in violation of People v. Kurtzman (1988) 46 Cal.3d 322, 250 Cal.Rptr. 244, 758 P.2d 572.   Appellant is mistaken.   The court was silent concerning how the jury should consider the greater and lesser count 3 offenses.   The court did, however, as Kurtzman requires, instruct the jury that before they may return a guilty verdict of the lesser offense they must acquit the defendant of the greater offense.   Thus, in accordance with Kurtzman, the jury was free to consider offenses in any order but to reach verdicts only in descending order.

By their varied verdicts of not guilty, guilty of a lesser offense, and guilty of the greater offense, the jury demonstrated their freedom to consider the charges as they saw fit.

There was no error.

DISPOSITION

The judgments are affirmed.

I concur in the judgment but write separately to disassociate myself from certain statements in the opinion, in particular the majority's request that the California Supreme Court reconsider People v. Rincon–Pineda (1975) 14 Cal.3d 864, 123 Cal.Rptr. 119, 538 P.2d 247 and for that court or the CALJIC Committee to revamp CALJIC 2.27.

The majority expresses displeasure with current CALJIC 2.27 which implements the Rincon–Pineda decision because, among other things, it seems to imply prosecution testimony should be evaluated by a stricter standard than defense testimony.   They apparently believe jurors would interpret this instruction to mean the testimony of prosecution witnesses is to be judged by a stricter standard than the testimony of defense witnesses at least as to those issues where the prosecution bears the burden of proof.  (Indeed this is the apparent basis on which the majority distinguishes a number of appellate cases which have disapproved the giving of CALJIC 2.27 and 10.21.)

To begin with, I am not absolutely convinced most jurors would take this message from CALJIC 2.27, although for reasons expressed below it would be better if they did.   In any event, however, I think this instruction if it retains the bracketed clause expresses a legally correct statement consistent with the presumption of innocence and the requirement the prosecution prove guilt beyond a reasonable doubt.

To illustrate why I consider the bracketed clause essential, consider a hypothetical case in which defendant's guilt hinges entirely on the testimony of two witnesses giving diametrically opposed versions of what happened.   One witness says the defendant did it;  the other says he didn't.   Are the two witnesses to be judged by the same standard of credibility?   Not if the prosecution is truly held to the standard of proof beyond a reasonable doubt.   Under that standard jurors would be duty bound to acquit even if they believed the prosecution's witness was somewhat more credible than the defense witness if they entertained a reasonable doubt the defense witness was telling the truth and the prosecution witness lying.

To reconstitute CALJIC 2.27 along the lines the majority suggests would at best confuse and at worst mislead the jury in its evaluation of prosecution and defense testimony.   The only way of avoiding the problems raised by giving the reconstituted instruction would be to give a further instruction highlighting that where the prosecution bears the burden of proof the testimony supporting the prosecution's position must be believed beyond a reasonable doubt and if that proof depends on a single witness that witness must be believed beyond a reasonable doubt.   This new instruction likewise would have to point out that where the burden of proof is on the prosecution and a single defense witness's testimony, if believed, would negate the prosecution's position then that single defense witness only needs to raise a reasonable doubt his version is credible.   If he does then the jury must acquit.

I do not claim to be privy to the concerns which led the CALJIC Committee to add the bracketed language to 2.27, but I suspect it was something along the lines suggested above.   By including the bracketed language the committee avoided any implication defense witnesses have to prove anything except for those few issues to which the law assigns defendants the burden of proof.   Also this phrasing of the instruction avoids the implication jurors are to apply a standard other than the reasonable doubt standard in evaluating the testimony of defense witnesses.

Unless the California Supreme Court is prepared to reconsider the fundamental question whether the presumption of innocence and reasonable doubt standard continue to apply in California's criminal courts, it appears unwise for our high court to accept the majority's invitation to reconsider Rincon–Pineda or for anyone to accept its invitation to delete the bracketed language from CALJIC 2.27.

FOOTNOTES

1.   A third codefendant, Jay Edward Pettiford, was charged with counts 3 and 4.   He was acquitted.

FN2. Unless otherwise noted all statutory references are to the Penal Code..  FN2. Unless otherwise noted all statutory references are to the Penal Code.

3.   Juvenile proceedings were brought against at least two minors.

4.   Appellant's term is “fantastic.”

5.   The section provides:  “(a) In any prosecution under Section 261, 264.1, 286, 288, 288a, 288.5, or 289 of the Penal Code, or for assault with intent to commit, attempt to commit, or conspiracy to commit any crime defined in any of those sections, except where the crime is alleged to have occurred in a local detention facility, as defined in Section 6031.4, or in a state prison, as defined in Section 4504, if evidence of sexual conduct of the complaining witness is offered to attack the credibility of the complaining witness under Section 780, the following procedure shall be followed:“(1) A written motion shall be made by the defendant to the court and prosecutor stating that the defense has an offer of proof of the relevancy of evidence of the sexual conduct of the complaining witness proposed to be presented and its relevancy in attacking the credibility of the complaining witness.“(2) The written motion shall be accompanied by an affidavit in which the offer of proof shall be stated.“(3) If the court finds that the offer of proof is sufficient, the court shall order a hearing out of the presence of the jury, if any, and at such hearing allow the questioning of the complaining witness regarding the offer of proof made by the defendant.“(4) At the conclusion of the hearing, if the court finds that evidence proposed to be offered by the defendant regarding the sexual conduct of the complaining witness is relevant pursuant to Section 780, and is not inadmissible pursuant to Section 352 of this code, the court may make an order stating what evidence may be introduced by the defendant, and the nature of the questions to be permitted.   The defendant may then offer evidence pursuant to the order of the court.“(b) As used in this section, ‘complaining witness' means the alleged victim of the crime charged, the prosecution of which is subject to this section.”  (See also People v. Jordan (1983) 142 Cal.App.3d 628, 632, 191 Cal.Rptr. 218.)

6.   “Testimony which you believe given by one witness is sufficient for the proof of any fact.”

7.   The first sentence is in accord with Evidence Code section 411:  “Except where additional evidence is required by statute, the direct evidence of one witness who is entitled to full credit is sufficient for proof of any fact.”

8.   This is not the argument appellant Goldsmith makes nor the argument other appellants were to make.

9.   Jamison does not identify appellant's precise contention, stating only he “contends instruction in the language of CALJIC No. 10.21 was prejudicial error.”  (Id. 150 Cal.App.3d at p. 1172, 198 Cal.Rptr. 407.)

10.   Blassingill quotes the Adams passage we include infra.

11.   See CALJIC No. 2.27 (5th ed. 1988).

12.   People v. Rodriguez (1986) 42 Cal.3d 730, 772, 230 Cal.Rptr. 667, 726 P.2d 113 obliquely refers to part of our conclusion.Theoretically, of course, a fact the prosecution is required to prove may be proved only by a single defense witness, perhaps the defendant.   This is just one of many 2.27 complicating permutations.   None are involved in the instant nor reported cases and we do not digress to consider them.

FRED WOODS, Associate Justice.

LILLIE, P.J., concurs.