THE PEOPLE, Plaintiff and Respondent, v. MICHAEL LLOYD CAMPBELL, Defendant and Appellant, 87 Cal. App. 3d 678

Opinion ALARCON, J. Appellant has appealed from a judgment of conviction for violations of

section 288a, subdivision (

c) of the Penal Code (four counts),

section 288a, subdivision (

d) of the Penal Code (four counts) and

section 288a, subdivision (

e) of the Penal Code (four counts). Appellant was also charged with having previously committed three felonies. Each prior felony allegation was admitted by appellant prior to trial. Factual Background The evidence presented in a light most favorable to the prosecution is as follows: Nineteen-year-old R. P. was confined in the Ventura County jail on October 3, 1977, at 4 a.m. on a burglary charge. He was placed in the dayroom of tank 3 as the cells were locked at that time. He met a man, Wayne or John Robinson, after he was awakened for breakfast. At approximately 6:30 a.m. Robinson asked R. P. to masturbate him.

R. P. refused and told him he was “not like that.” Robinson then assaulted R. P. and forced him to commit acts of oral copulation and masturbation. Everyone else in the cell was asleep at the time of these events. R. P. did not call out for help because Robinson told him that if he did he would be dead. Later that day R. P. met appellant and told him “about Robinson.” Appellant told R. P. he would make sure nothing like that happened again. On October 4, 1977, R. P. went to court. He told no one of these acts because he had been threatened that he would get “his butt kicked” if he did.

On the second or third night he was in custody, he called his father and told him about the forced acts of oral copulation and masturbation. R. P. told his father he could not tell the authorities because he would be assaulted even if he moved to another tank. On October 7, around 6:30 in the evening, Robinson told appellant that if he wanted R. P. to do it, he would make R. P. do it. Robinson told R. P. he would get his butt kicked if he did not orally copulate appellant. R. P. was forced to masturbate and orally copulate appellant while Robinson sat on a nearby bunk as a lookout.

Robinson and appellant then changed places and R. P. performed the same acts with Robinson. Thereafter, R. P. performed acts of oral copulation and masturbation on both Robinson and appellant every day until October 21. On two or three occasions Robinson committed

an act of sodomy upon R. P. R. P. did not want to do any of these acts. He did them because he was afraid of Robinson and appellant. Robinson used force on him several times and threatened to kill him if he told anyone what had occurred with him and appellant. Appellant would threaten to get Robinson if he refused. On one occasion appellant choked him. Some time after the initial act Robinson and appellant asked R. P. to move into cell 3 with them. R. P. did so because he was told if he did not do so they were going to move him. There were other inmates in cell 3.

Some of them were present on October 20, including a person named Robbs and someone named Jim, when he was forced to commit perverted acts. Anthony Prince testified that he never saw appellant commit any sex act with R. P., but did observe Robinson sodomize him. Prince was also asked to “stand point” on two or three occasions by Robinson or appellant when one or both of them were in cell 3 with R. P. Appellant told Prince that if he did not keep his mouth shut he would put out the word that somebody should get him. Appellant also told Prince to testify that he never saw appellant or John do anything.

Appellant testified in his defense and denied committing any of the acts charged against him. Several inmates, including Albert Robbs, who were in tank 3, cell 3 in October 1977 with R. P., Robinson, and appellant, testified that they never saw any sex acts occur. Other witnesses testified they had observed R. P. engage in sodomy and oral copulation prior to October 1977. Doctor Francis Dawson testified that he examined R. P. on October 21, 1977. He found no indication of trauma in the area around the anus. Dr. Dawson was not able to determine whether R. P. did or did not engage in

an act of sodomy as the passive partner. Dr. Dawson testified that one would expect to find signs of forceful entry if

an act of sodomy occurred. No such signs were found on R. P. Issues on Appeal Appellant seeks reversal on the following grounds:

(1) The evidence was insufficient as a matter of law in that the testimony of R. P. was inherently improbable.

(2) There was no substantial evidence that appellant compelled R. P. to engage in oral copulation by force, violence, menace or threats of great bodily injury.

(3) It was error to give CALJIC instruction No. 2.62.

(4) It was error to give CALJIC instruction No. 2.71.

(5) It was error to admit evidence of each of appellant’s prior convictions when proof of one was sufficient to attack his credibility. Discussion I The evidence presented through the testimony of R. P. was not inherently improbable. Without question, there were conflicts in his testimony, and a number of witnesses contradicted him. However, we are bound by the determination of the jury as to credibility. The fact is R. P. was believed by the jury. Appellant and his witnesses were not. The acts described by R. P. were physically possible.

Even if the jury believed, after having considered testimony of the witnesses presented by the defense, that many portions of R. P.’s testimony were deliberate falsehoods, it was free to conclude that those portions of his testimony concerning appellant were true. (See People v. Thornton (1974) 11 Cal.3d 738, 754-755 [114 Cal.Rptr. 467, 523 P.2d 267].) II Appellant contends that there was no substantial evidence that he compelled the participation of R. P. in

an act of oral copulation by force, violence, duress, menace, or threat of great bodily harm. The evidence shows that on October 7, R. P. was threatened with great bodily injuiy by Robinson in the presence of appellant if he did not commit acts of sexual perversion. On other occasions appellant threatened to get Robinson if R. P. refused to perform sex acts. The evidence also shows that appellant choked R. P.. This evidence was sufficient to establish that appellant personally used force against R.

P. and that he used Robinson as an instrumentality of duress and menace, as well as the agent he would use to commit great bodily injury, if R. P. did not participate in acts of oral copulation. Finally, the evidence was sufficient to show that appellant aided and abetted Robinson in menacing R. P. and in threatening great bodily injury in order to compel participation in acts of oral copulation. III Appellant contends that it was error for the trial court to give CALJIC instruction No. 2.62. We agree.

CALJIC instruction No. 2.62 provides as follows: “It is a constitutional right of a defendant in a criminal trial that he may not be compelled to testify. Thus the decision as to whether he should testify is left to the defendant, acting with the advice and assistance of his attorney. In this case defendant has elected to and has testified as to certain facts.

If you find that he failed to explain or deny any evidence or facts against him which he can reasonably be expected to deny or explain because of facts within his knowledge, you may take that failure into consideration as tending to indicate the truth of such evidence and as indicating that among the inferences that may be reasonably drawn therefrom those unfavorable to the defendant are the more probable.

In this connection, however, it should be noted that if a defendant does not have the knowledge that he would need to deny or to explain evidence against him, it would be unreasonable to draw an inference unfavorable to him because of his failure to deny or explain such evidence.

The failure of a defendant to deny or explain evidence against him does not create a presumption of guilt or by itself warrant an inference of guilt, nor does it relieve the prosecution of its burden of proving every essential element of the crime and the guilt of the defendant beyond a reasonable doubt.” The Attorney General has failed to point to any evidence presented by the prosecution which appellant failed to explain or deny. In fact, the Attorney General concedes that appellant made “general and specific denials” concerning the evidence presented by the prosecution.

Appellant denied that he had ever had any sexual relations with R. P., nor did he see anyone else do so. He also denied choking R. P. Appellant testified that he did not threaten Prince but instead told him to tell the truth and not stand on the Fifth Amendment. CALJIC No. 2.62 should not be given unless the trial court first determines that the defendant has failed to explain or deny any incriminating testimony.

However, the erroneous giving of this instruction is not, in itself, prejudicial unless the eifect of the court’s admonition is to tell the juiy that they may infer guilt from silence as to the charges filed against the defendant. (People v. Tealer (1975) 48 Cal.App.3d 598, 604-607 [122 Cal.Rptr. 144].) In the matter before us, appellant was not silent as to the charges against him. Each crime charged against him was categorically denied. The jury was told that the instruction was applicable only if they found that the defendant failed to explain or deny any evidence or facts against him.

The jury was also instructed to “disregard any instruction which applies to a state of facts which you determine does not exist.” (CALJIC No. 17.31.) The jury is presumed to have followed the court’s instruction. (People v. Seiterle (1963) 59 Cal.2d 703, 711 [31 Cal.Rptr. 67, 381 P.2d 947].) It should also be noted that the prosecutor did not make any comment which implied that the defendant had failed to explain or deny any evidence presented by the prosecution.

We fail to see how the jury could have been misled into believing that appellant had failed to explain or deny evidence introduced by the prosecution in view of the fact that appellant’s denial of any criminal conduct was corroborated by the other inmates present in the same cell with R. P. Under these circumstances the trial court’s error in giving CALJIC No. 2.62 was harmless. (People v. Richardson (1978) 83 Cal.App.3d 853, 865 [148 Cal.Rptr. 120].) IV Appellant contends that it was error for the court to give CALJIC instruction No. 2.71.

In his opening brief appellant’s counsel states: “It is apparent that the court gave CALJIC 2.71 because appellant acknowledged that he told Tony Prince to tell the truth when he testified and to take the Fifth Amendment whenever he did not understand something or if the district attorney confused him. It is submitted that this evidence clearly does not qualify as an admission. The aforementioned statement has nothing whatsoever to do with appellant’s guilt. It must be considered a statement with a neutral meaning.” In the quoted language above counsel refers to appellant’s testimony on cross-examination.

By selecting this portion of the evidence counsel for appellant has picked a vulnerable strawman and vanquished him with unassailable logic. However, the record also reflects that appellant had a conversation with Prince after trial had commenced in which appellant told him that if he did not keep his mouth shut he was going “to put a kite out” on him. In jail parlance “to put a kite out” means to ask others to get someone. Appellant also stated that Prince should testify that he never saw appellant or Robinson do anything and that R. P. “was full of bull.” During the testimony of R.

P., evidence was introduced of statements made by appellant during the commission of the various crimes charged against him. The trial court was required to give CALJIC No. 2.71 under these circumstances because of the dangers which are inherent whenever a witness is permitted to testify as to the oral statements of an accused. (See People v. Ramirez (1974) 40 Cal.App.3d 347, 352-353 [114 Cal.Rptr. 916].) V Appellant concludes that the trial court committed prejudicial error in admitting evidence of three prior felony convictions.

Trial counsel attempted unsuccessfully to suppress evidence of two prior convictions and to limit the prosecutor to proof of a prior burglary conviction. We know of no authority which would restrict the impeachment of a defendant as suggested by appellant. Each of the prior felonies come with the limitations imposed by People v. Beagle (1972) 6 Cal.3d 441, 452 [99 Cal.Rptr. 313, 492 P.2d 1], Each prior conviction had a strong probative value for impeachment purposes and each was highly relevant on the issue of honesty and truthfulness. The order of the court denying appellant’s motion was error free.

Appellant’s request that the court take judicial notice of the reporter’s transcript of the proceedings concerning the disposition of the criminal proceedings involving Wayne Robinson is denied. The judgment is affirmed. Kingsley, Acting P. J., concurred.

CALJIC No. 2.71 provides as follows: “A statement made by a defendant other than at his trial may be an admission. [H] An admission is a statement by a defendant, which by itself is not sufficient to warrant an inference of guilt, but which tends to prove guilt when considered with the rest of the evidence. [H] You are the exclusive judges as to whether an admission was made by the defendant and if the statement is true in whole or in part. If you should find that such statement is entirely untrue, you must reject it.

If you find it is true in part, you may consider that part which you find to be true. [H] Evidence of an oral admission of the defendant ought to be viewed with caution.”