People v. McGee CA3

Filed 1/17/23 P. v. McGee CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C095184

Plaintiff and Respondent, (Super. Ct. No. 19FE022000)

v.

HAWTHORNE MCGEE,

Defendant and Appellant.

A jury found defendant Hawthorne McGee guilty of two counts of rape (Pen. Code, § 261, subd. (a)(2)) and one count of forcible oral copulation (Pen. Code, § 288a, subd. (c)(2)). The jury also found true the following allegations: (1) relative to one rape charge, the victim was 14 years old at the time of the offense, and (2) there were multiple victims. The trial court sentenced him to an indeterminate term of 45 years to life in state prison. On appeal, defendant contends the trial court erred by instructing the jury with CALCRIM Nos. 1190 and 1191B. These instructions, he argues, lessened the prosecution’s burden and thus deprived him of his rights to due process and a fair trial. Identical claims have already been rejected by our Supreme Court. We are bound by

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those decisions. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 (Auto Equity Sales, Inc.).) We will affirm the judgment.

DISCUSSION

A. CALCRIM No. 1190

At trial, the court instructed the jury with both CALCRIM Nos. 301 and 1190. CALCRIM No. 301 instructed: “The testimony of only one witness can prove any fact. Before you conclude that the testimony of one witness proves a fact, you should carefully review all the evidence.” And, CALCRIM No. 1190 instructed: “Conviction of a sexual assault crime may be based on the testimony of a complaining witness alone.” Defendant argues that CALCRIM No. 1190, in combination with CALCRIM No. 301, “dilutes the prosecution’s burden of proof beyond a reasonable doubt [and] this Court should find it violated his right to due process under the federal constitution. [Citations.]” Nevertheless, defendant also acknowledges the California Supreme Court has already rejected this argument in People v. Gammage (1992) 2 Cal.4th 693, 700-702, and we are bound by that decision. (Auto Equity Sales, Inc., supra, 57 Cal.2d at p. 455.) Defendant raises this contention in the hopes we will voice disagreement with Gammage. We decline to voice disagreement with our Supreme Court’s holding on this issue. We further accept defendant’s concession that we are bound by Gammage, and we thus reject his contention.