People v. Cuellar

Opinion

EPSTEIN, P. J. Alvaro Cuellar was charged and convicted of a violation of Penal Code section 288.5, subdivision (a) (lewd and lascivious acts with a child under 14 with whom the defendant resided; the “continuous sexual child molester” statute). He presents two contentions on appeal: that the trial court erroneously denied his request to self-represent at trial, and that the pattern instruction for the offense, CALCRIM No. 1120, is infirm because it negates one of the elements of the crime. In the nonpublished portion of the opinion we conclude the trial court was within its discretion in denying the request for self-representation because it came too late in the proceedings. In the published portion of the opinion we conclude that while the pattern instruction is problematic, any deficiencies it may have were harmless in this case in light of the overwhelming evidence of defendant’s guilt. We suggest a modification of the instruction to obviate the problematic aspect. We shall affirm the conviction.

FACTUAL AND PROCEDURAL SUMMARY*

DISCUSSION

I*

II

As pertinent here, the statute under which defendant was charged, Penal Code section 288.5, subdivision (a), applies to a person residing at the [1070]same place as a child under 14, or who has recurring access to that child, who over a period of at least three months engages in “substantial sexual conduct” with the child. The quoted phrase means three or more acts of “lewd or lascivious conduct” defined as an act committed on the child “with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child.” (Pen. Code, § 288, subd. (a).)

The applicable instruction, CALCRIM No. 1120, is among the Judicial Council of California Criminal Jury Instructions. As given, it reads as follows:

“The defendant is charged in Count One with continuous sexual abuse of a child under the age of 14 years in violation of Penal Code section 288.5(a).

“To prove that the defendant is guilty of this crime, the People must prove that:

“1. The defendant lived in the same home with a minor child;