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Friday, December 02, 2005

P. v. Creamer

Filed 11/30/05 P. v. Creamer CA5


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS



California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA


FIFTH APPELLATE DISTRICT









THE PEOPLE,


Plaintiff and Respondent,


v.


STEPHEN CREAMER,


Defendant and Appellant.





F046937



(Super. Ct. No. MCR017041)




OPINION




THE COURT*


APPEAL from a judgment of the Superior Court of Madera County. Jennifer R.S. Detjen, Judge.


Paul V. Carroll, under appointment by the Court of Appeal, for Defendant and Appellant.


Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Stephen G. Herndon and Craig S. Meyers, Deputy Attorneys General, for Plaintiff and Respondent.



-ooOoo-


INTRODUCTION


On June 25, 2004, appellant Stephen Creamer, was found guilty after a jury trial of two counts of committing a lewd and lascivious act on a child under age 14 (Pen. Code, § 288, subd. (a), counts one & three) and exhibition of lewd material to a minor (Pen. Code, § 288.2, subd. (a), count two). The trial court sentenced Creamer to the midterm of six years on count three and to a consecutive term of two years on count one for a total prison term of eight years. The court imposed an eight-month term on count two to run concurrent with Creamer’s sentence. The court granted applicable custody credits and imposed a restitution fine.


On appeal, Creamer contends the trial court improperly instructed the jury on the effect of voluntary intoxication. Creamer also contends the trial court erred in denying the jury’s request for the reading back of defense counsel’s closing argument.


FACTS


Creamer lived with Kim and her two daughters. The victims, M. and R., routinely had sleepovers with Kim’s daughters. When the incidents occurred, M. was age 10 and R. was 8 years old.


On November 11, 2003, Creamer was in his residence. Kim’s daughters were having a sleepover with M., R., and another girl. While M. was playing Monopoly, Creamer touched her buttock. After M. went to sleep, she awoke to find Creamer on top of her. M. was on her stomach. Creamer was moving up and down on her. M. could feel Creamer’s penis touching her buttocks. M. felt sick. She thought she was dreaming and fell asleep.


When M. awoke, she was alone with Creamer in his bedroom. The other children were in the other bedroom. M., who was sure she went to sleep wearing underwear, was not wearing her underwear when she woke up.


R. testified that Creamer was her best friend’s stepfather. Some time during the evening when she slept over, Creamer placed a movie into the VCR. R. saw two naked women touching a man’s penis. Later that evening, R. was in Creamer’s room lying on her back in his bed. Creamer placed his penis inside R.’s vagina. Creamer removed his penis and R. saw something white come out of his penis. The next day R. told Creamer’s ex-wife what Creamer had done the previous evening.


Ruth Taylor, a pediatric nurse practitioner, examined R. on November 18, 2003. R. told Taylor someone had placed his penis into her vagina and it hurt “the worst ever.” Because R. was abused more than 72 hours earlier, Taylor conducted a sexual abuse examination rather than an “evidential examination.” Taylor concluded R.’s physical conditions were normal. Taylor was not surprised because most children she has examined for sexual abuse have normal findings.


Madera Police Officer Thomas Burns executed a search warrant based on an alleged sexual assault. Burns found adult pornographic magazines and movies as well as homemade Polaroid photographs. Burns viewed the videotapes to make sure there were no children. One commercially produced videotape was cued to a scene where two women were orally copulating a man.


Creamer testified he had served in the United States Army and was involved in combat in Bosnia. Creamer retired from the Army on October 1, 1998. Creamer was taking prescription medication, Diazepam, for a “borderline” Post Traumatic Stress Disorder. Creamer explained that he takes a triple dose at night which causes him to go to sleep immediately. The medication causes Creamer to ignore things happening around him. The evening of M. and R.’s sleepover, Creamer took his medication. Creamer went to sleep between 6:00 p.m. and 8:00 p.m. He did not remember anything that happened that evening. Creamer denied ever molesting any child and denied molesting M. He denied having sex with R. or showing her a pornographic videotape.


INTOXICATION INSTRUCTIONS


Creamer contends the trial court erred in admonishing the jury with CALJIC No. 4.21.1 because the instruction does not accurately state the law because it fails to “clearly inform the jury that voluntary intoxication can negate specific intent.” According to Creamer, CALJIC No. 4.21.1 only implies that voluntary intoxication may negate specific intent.[1]


Respondent replies that CALJIC No. 4.21.1 was requested by Creamer. According to respondent, any modification to CALJIC No. 4.21.1 would be a pinpoint instruction. Creamer’s failure to request a pinpoint instruction constitutes a waiver of the issue on appeal. Respondent further argues that Creamer’s argument fails on its merits.


The failure to object to an instruction and to request an alternative instruction generally precludes the defendant from raising the alleged instructional error on appeal. (People v. Hart (1999) 20 Cal.4th 546, 622.) The failure by the appellant to request clarification or amplification constitutes a waiver of the issue on appeal. (People v. Arias (1996) 13 Cal.4th 92, 171.) Where the defendant believes an instruction is unclear, he or she has the obligation to request clarification from the trial court. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1192.)


Respondent accurately points out that according to the notes on the instruction at page 86 of the clerk’s transcript, it was Creamer who requested CALJIC No. 4.21.1. Creamer replies that his challenge is to the legal correctness of the instruction. We disagree. Creamer’s contention is that the instruction fails to expressly state that voluntary intoxication can negate specific intent. The instruction, in relevant part says, “If the evidence shows that the defendant was intoxicated at the time of the alleged crime, you should consider that fact in deciding whether or not that the defendant had the specific intent or mental state.”


The practical meaning of this sentence is that the jury can find the absence of specific intent if it finds the defendant’s mental state was affected by intoxication. This is obviously a factual issue for the jury to decide. The instruction goes on to explain that if the jury has a reasonable doubt whether the defendant had the required specific intent, it must find the defendant did not have that intent. The instruction authorizes the jury to negate specific intent depending on the facts of the particular case. Creamer’s argument amounts to a demand for clarification of a point already made in the given instructions. Creamer, however, did not ask for such clarification from the trial court and cannot raise the issue for the first time on appeal.


On the merits, Creamer’s argument also fails. The California Supreme Court has found no problem with the use of CALJIC No. 4.21.1.[2] (See People v. Saille (1991) 54 Cal.3d 1103, 1121.) Here, Creamer testified the medication he took for his borderline posttraumatic stress condition caused him to completely fall asleep the evening the events occurred. The challenged instruction gave the jury the opportunity to find Creamer did not act with the requisite specific intent due to his intoxication from the medication. The jury apparently rejected this testimony and defense. We find no instructional error in the court’s use of CALJIC No. 4.21.1.


READING BACK OF TRIAL COUNSEL’S CLOSING ARGUMENT


Creamer contends the trial court erred in denying the jury’s request for the reading back of his counsel’s closing argument to the jury. We do not find that the trial court abused its discretion.


During jury deliberations, there was a request to hear the reading back of M.’s testimony and defense counsel’s closing argument.[3] The court explained to the parties that it would permit the reading back of M.’s testimony, but it would not allow the reading back of counsel’s closing argument because it was not testimony. Defense counsel was concerned that if the jury had a question about the instructions, he wanted the court to point out which instructions were relevant to the jury’s question. Counsel otherwise agreed not to have his closing argument read back to the jury.[4]


Creamer argues the trial court misunderstood the law because the reading back of counsel’s closing argument is permitted. Respondent replies that the trial court did not indicate it lacked authority to allow the reading back of counsel’s argument. The court decided it was only going to allow the reading back of evidence from the case. We agree with respondent.[5]


Even where the trial court expressly indicates it lacks authority to order the reading back, however, the error has been found not to be prejudicial under a Watson standard of review.[6] The theory argued to the jury was not of such complexity that its repetition was necessary in order for the defendant to receive the full benefit of the adversarial process. Where the disputed issue is covered by the jury instructions, it is not reasonably probable that, had the trial court read back counsel’s summation, the jury would have reached a different verdict. (People v. Sims (1993) 5 Cal.4th 405, 452-453 [questioned on another ground in People v. Storm (2002) 28 Cal.4th 1007, 1031-1032].)


In the instant action, the intoxication theory argued to the jury was not of such complexity that its repetition was necessary for the defendant to receive the full benefit of the adversarial process. Though he argues to the contrary above, Creamer received complete jury instructions on the effects of voluntary intoxication, his primary defense at trial. Under these facts, it is not more reasonably probable that, had the trial court read back defense counsel’s closing argument, the jury would have reached a different verdict.


Having reached this conclusion, we reject Creamer’s final argument that trial counsel was ineffective for failing to object to the trial court’s decision not to read back his closing argument. To prevail on this point, Creamer also has to demonstrate prejudice. (People v. Maury (2003) 30 Cal.4th 342, 389.) As we observe above, he has not done so.


DISPOSITION


The judgment is affirmed.


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*Before Harris, Acting P.J., Cornell, J., and Dawson, J.


[1] The trial court read the jury the following version of CALJIC No. 4.21.1:


“It is the general rule that no act committed by a person while in the state of voluntary intoxication is less criminal by reason of that condition.


“Thus, in the crime of assault, which is lesser to the crime of ‘lewd act with [a] child,’ the fact that the defendant was voluntarily intoxicated is not a defense and does not relieve the defendant of the responsibility for the crime.


“However, there is an exception to this general rule, namely, where a specific intent or mental state is an essential element of the crime. In that event, you should consider the defendant’s voluntary intoxication in deciding whether the defendant possessed the [required] specific intent or mental state at the time of the commission of the alleged crime.


“Thus, in the crime of “lewd act with [a] child,” a necessary element is the existence in the mind of the defendant of a certain specific intent. In the crime of ‘harmful matter exhibited to a minor’ a necessary element is the existence in the mind of the defendant in a specific intent and mental state. The requisite specific intent or mental state is included in the definition of the crimes set forth elsewhere in these instructions.


“If the evidence shows that the defendant was intoxicated at the time of the alleged crime, you should consider that fact in deciding whether or not that the defendant had the required specific intent or mental state.


“If from all the evidence you have a reasonable doubt whether a defendant had the required specific intent or mental state, you must find the defendant did not have the specific intent or mental state.”


[2] This court has rejected the argument that CALJIC No. 4.21.1 is confusing and that it shifts the burden to the defendant to prove his or her innocence where there is an issue of voluntary intoxication. (People v. Aguirre (1995) 31 Cal.App.4th 391, 400-402.)


[3] The jury earlier asked for the reading back of Ruth Tyler, the nurse who examined R.


[4] Defense counsel’s argument to the jury was brief. Counsel argued that it was impossible for his client to form intent because he essentially passed out after taking his medication. Counsel argued there was no testimony from any witness contradicting his client’s testimony. Counsel argued his client was too intoxicated from his medication to form specific intent to commit the alleged offenses.


[5] The unsworn statements of counsel are not evidence. (In re Zeth S. (2003) 31 Cal.4th 396, 414.)


[6] People v. Watson (1956) 46 Cal.2d 818, 836.

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