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Filed 5/29/02
NOT TO BE PUBLISHED

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 This opinion has not been certified for
publication or ordered published for purposes of rule 977.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
THIRD APPELLATE DISTRICT
(Shasta)
----

THE PEOPLE,
C032839

Plaintiff and Respondent,
(Super.Ct.No. 98F5894)

v.

TIMOTHY BRIAN STOWELL,

Defendant and Appellant.

Defendant Timothy Brian Stowell was convicted by a jury of
digitally penetrating and committing a lewd act upon a four-
year-old female acquaintance in violation of Penal Code sections
289, subdivision (j), and 288, subdivision (a), respectively.1

On appeal, defendant asserts that the trial court erred in
(1) refusing to instruct the jury with CALJIC No. 4.30 on his

1 Unless designated otherwise, all further statutory references
are to the Penal Code.
1

defense that he was sleepwalking and was therefore unconscious
at the time of the crimes; (2) instructing the jury pursuant to
CALJIC No. 4.21 that it "should" (rather than "must") consider
evidence of defendant's intoxication in deciding whether he
possessed the requisite criminal intent; (3) instructing the
jury with CALJIC No. 2.03 concerning a consciousness of guilt;
(4) instructing the jury with CALJIC No. 2.62 regarding the
inferences to be drawn from defendant's failure to explain or
deny evidence against him; (5) instructing the jury with CALJIC
No. 17.41.1 because it improperly infringed on the jurors'
privacy and constituted an impermissible anti-nullification
instruction; and (6) ordering defendant to undergo HIV testing.
He also contends that the cumulative prejudice arising from
these errors compels reversal.

As none of these contentions has merit, we shall affirm the
judgment.
FACTS AND PROCEDURAL BACKGROUND

Defendant and LeaAnn Thompson, his girlfriend, lived
together. The victim, Taylor, is the daughter of Tracie H., a
friend of defendant's girlfriend. At the time of these events,
defendant was 38 years old, and the victim, Taylor, was four.

On Saturday, July 25, 1998, Tracie and her daughter Taylor
went with defendant and Thompson on a day trip from Redding to
Bruney Falls. Over the course of the day and before returning
home to Redding, they hiked to the falls, picnicked, waded and
2

swam, visited a cabin belonging to defendant's family, and went
sightseeing in defendant's truck. The adults bought and drank
beer throughout the day.

After the four returned to the apartment shared by Thompson
and defendant, they agreed that Tracie and her daughter would
spend the night at the apartment. Tracie and her daughter were
to sleep in the bedroom, while Thompson and defendant slept in
the living room. After dinner and more beer, Tracie finally
retired and got into the bed with Taylor, who was already
asleep.

Tracie testified at trial that she was awakened by Taylor's
"rustling" in the bed around 2:30 a.m., and told her to settle
down. As Taylor seemed to settle down, Tracie heard someone say
the words, "tight little pussy." Suddenly fully awake and
listening, Tracie heard Taylor say, "Don't, Tim. Quit it." She
asked, "Taylor, what is he doing to you?" Taylor responded,
"He's got his finger in my pee-pee." Tracie scooped Taylor out
of the bed and fled to the living room, where she saw Thompson
asleep.

Leaving Taylor on the couch, Tracie returned to the bedroom
to retrieve her purse, and saw defendant, wrapped in a blanket,
in the bedroom doorway. Defendant told Tracie: "I'm so
sorry[,] I'm so sorry" and "I didn't know" or "I didn't know it
was her." Tracie responded, "You probably thought it was
LeaAnn."
3

When she arrived home around 3:00 a.m., Tracie examined her
daughter. Taylor's genitals seemed a little red, and she said
it hurt to go to the bathroom. Tracie contacted the police and
took Taylor to a local emergency room for evaluation.
The
following
Monday, Tracie spoke to Redding Police
Investigator Tracy Hall. Investigator Hall arranged for Taylor
to be examined by Dr. Vovakes.

Investigator Hall first interviewed defendant on July 29.2
Defendant stated that he had no recollection of getting into the
bed with Taylor or of touching her: "[T]he last thing I
remember is drinking my beer and watching television. And the
next thing I remember is Trac[ie] yelling and I said, `[O]h
shit, where am I.' . . . I do not remember doing anything, I
honestly don't think I did do anything." Defendant explained
that he only apologized to Tracie because "I was in the bed that
she was sleeping in. My bed. And then when she got up and
left, went out the door . . . I apologized to her a second time.
I honestly just thought that I was just in the wrong place."

On August 12, police again interviewed defendant.3 This
time, he said, "[T]he first thing I remember is Taylor pulling
away from me . . . . I'm positive in my heart that it was

2 This interview was recorded by audiotape, and played for the
jury at trial.
3 A videotape of defendant's August 12 interview with police was
also played for the jury.
4

Taylor. . . . My hand was on her belly, I think, because when
I, when she pulled away from me my hand dropped off her belly."
Although at one point, defendant suggested that he believed
himself to have been touching his girlfriend, Thompson, not
Taylor, he later admitted that touching Taylor's vagina "felt
different" from touching Thompson's, and that he "first knew it
was Taylor . . . when she had said something. She said
something like, uh, ouwie [sic], or something like that . . .
when I had my finger in her." He also said that he had been
aware that his finger was inside her vagina up to the first
knuckle.

Defendant was arrested and charged in count 1 with
committing a lewd act upon Taylor (� 288, subd. (a)) and in
count 2 with digitally penetrating her (� 289, subd. (j)).

At trial, Dr. Vovakes, a pediatrician with special training
in child abuse, testified that when he examined Taylor on July
28, her examination was "normal," but that a normal examination
was consistent with Taylor's claim that she had been touched by
a finger.

Defendant also testified at trial. He did not deny
digitally penetrating Taylor, but instead testified, "I don't
know whether I did or not. It's a good possibility. A very
good possibility." However, he stated that he did not know how
he came to be in bed with Taylor, and denied that he ever
recalled having touched her. He specifically denied that he
ever remembered putting his finger in her vagina. He explained
5

that he admitted doing so during his interview with police only
because "the police officers had told me that I had done it."
In fact, he testified, the last thing he recalled about the
evening of July 25 was watching a movie on television, and the
"next thing [he] remember[ed was] waking up to Trac[ie] yelling
`what the hell is going on?'" Defendant also recanted both his
prior statement to police that Taylor had said "owie" when he
had his finger in her vagina, and his suggestion in the August
12 interview that he had any awareness that it felt "different"
from Thompson's vagina.
Defendant's
chief
defense
was voluntary intoxication.
Defense counsel argued in closing that had defendant not been
drunk, he would not have attempted to sexually molest Taylor
"with [her] mother sleeping right next to the girl." Defendant
also testified at one point that he had walked in his sleep on
several occasions.

Testimony concerning how much beer was consumed over the
course of the group's July 25 outing varied widely. Tracie
testified that the adults had purchased more than 30 beers that
day, and that she had consumed approximately 10 or 12 beers.
She also testified that defendant was neither stumbling nor
slurring his words when the group returned to defendant's
apartment in the evening and that defendant seemed "fine" later,
just before she went to bed.

In contrast, defendant testified that he had consumed about
30 beers. And Thompson testified that she drank between 18 and
6

20, and that the adults purchased nearly twice as much beer that
day as Tracie had estimated.

The jury found defendant guilty on both counts, and he
received a prison sentence of six years.
DISCUSSION

On appeal, defendant raises various claims of instructional
error and one claim of sentencing error.
I. It Was Not Error to Refuse to Instruct with CALJIC No. 4.30

The trial court refused defendant's request that the jury
be instructed with CALJIC No. 4.30.

That instruction states in pertinent part: "A person who
while unconscious commits what would otherwise be a criminal
act, is not guilty of a crime. [�] This rule of law applies to
persons who are not conscious of acting but who perform acts
while asleep or while suffering from a delirium of . . . the
involuntary consumption of intoxicating liquor, or any similar
cause. [�] Unconsciousness does not require that a person be
incapable of movement. [�] Evidence has been received which
may tend to show that the defendant was unconscious at the time
and place of the commission of the alleged crime for which [he]
[she] is here on trial. If, after a consideration of all the
evidence, you have a reasonable doubt that the defendant was
conscious at the time the alleged crime was committed, he must
be found not guilty."
7

At trial, defense counsel had argued that CALJIC No. 4.30
was proper because "with the testimony that [defendant] . . .
ha[d] a propensity to sleepwalk," the jury should decide whether
his actions "occurred as a result of sleepwalking or occurred as
a result of voluntary intoxication."4

Rejecting defendant's sleepwalking defense as "an alternate
theory to the voluntary intoxication" defense, the trial court
opined: "[T]he alleged act of digital penetration, in my
judgment, is not an act for which there is any evidentiary
support that can occur without an awareness and without volition
because it involves identifying the anatomy of another human
being, getting feedback in your nervous system as to what it is
you are doing by touch . . . and then . . . locating a
particular, discreet region which is not readily accessible and
then having done that, exercising some level of manual dexterity
in accomplishing the penetration. [�] Those acts, in my
judgment, are not acts which can be accomplished as a matter of
law absent some awareness, absent some volition. . . . [�] I
don't see that the evidence supports, other than in an entirely
conjectural or speculative way, the proposition that a person
who is unconscious can accomplish an act of digital penetration.

4 Thus, the Attorney General is incorrect in asserting that
"[t]here was no assertion [by defendant] to the court that CALJIC
No. 4.30 should be given for any reason other than the fact of
[defendant's] voluntary intoxication." Indeed, the trial court
expressly recognized that the defendant had timely raised his
request for the instruction based on sleepwalking.
8

There's been no scientific evidence that supports that. And,
indeed . . . you have not offered any."

Defendant asserts on appeal that "[t]he trial court
committed prejudicial error in denying [defendant's] request
that the jury be instructed in the language of CALJIC No. 4.30
. . . in light of the defense testimony that [defendant]
suffered from the mental disorder of sleepwalking." He notes
that he "specifically testified that he [had] suffered from
sleep disorders that included sleep walking [sic]" and that
"Ms. Thompson confirmed this testimony."

"`"It is settled that in criminal cases, even in the
absence of a request, the trial court must instruct on the
general principles of law relevant to the issues raised by the
evidence. [Citations.] The general principles of law governing
the case are those principles closely and openly connected with
the facts before the court, and which are necessary for the
jury's understanding of the case." [Citation.]'" (People v.
Breverman (1998) 19 Cal.4th 142, 154.)

However, "`[a] trial court need give a requested
instruction concerning a defense only if there is substantial
evidence to support the defense.' [Citation.]" (In re
Christian S. (1994) 7 Cal.4th 768, 783, original italics;
accord, People v. Marshall (1997) 15 Cal.4th 1, 39.) "As [the
Supreme Court] ha[s] stressed . . . , `unsupported theories
9

should not be presented to the jury.'" (People v. Marshall,
supra, 15 Cal.4th at p. 40.)5

We agree that "[u]nconsciousness, when not voluntarily
induced [citation] is a complete defense to a criminal charge
[citation]." (Sedeno, supra, 10 Cal.3d at p. 717.)

But there was no substantial evidence to support a defense
of unconsciousness by reason of sleepwalking in this case, and
unconsciousness caused by voluntary intoxication is governed by
another code section.6 The only evidence concerning defendant's
sleepwalking was the following:

5 Despite some ambiguous language in People v. Sedeno (1974)
10 Cal.3d 703, 716 (Sedeno), overruled on other grounds in People
v. Breverman, supra, 19 Cal.4th at page 149, that "the duty to
give instructions, sua sponte, on particular defenses . . .
arises only if it appears that the defendant is relying on such a
defense, or if there is substantial evidence supportive of such a
defense and the defense is not inconsistent with the defendant's
theory of the case" -- thereby implying that there might be a
duty to give an instruction for a defense for which there is no
substantial evidence if the defendant is relying on it -- the
California Supreme Court has subsequently made clear that an
instruction requested by a defendant need only be given "if it is
supported by substantial evidence, that is, evidence sufficient
to deserve jury consideration." (People v. Marshall, supra,
15 Cal.4th at p. 39.) Defendant does not argue otherwise. Nor
could the very brief references to sleepwalking in the testimony
at the trial -- which was never mentioned in opening or closing
arguments -- qualify as a defense upon which defendant was
"relying." (Cf. People v. Elize (1999) 71 Cal.App.4th 605, 611
["It is not clear what the Supreme Court meant in stating that a
defendant is `relying' on a defense . . ."].)
6 Unconsciousness caused by voluntary intoxication is governed by
section 22, not section 26, which latter section governs other
acts for which the defendant is unconscious, like sleepwalking.
(� 22, subd. (b).) Defendant agrees that "[w]here the defense
reliance is solely on unconsciousness due to voluntary
(Continued.)
10

"Q. Do you walk in your sleep?

"A. [By defendant] Yes, I do.

"Q. How often?

"A. Not frequently. But there are several occasions."

And defendant's girlfriend testified that defendant "had a
lot of problems sleeping. He would toss and turn. He would
walk in his sleep and talk in his sleep." She responded "Yes,
sir" to the question whether "this [would] happen often." But
we do not know whether "this" referred to tossing and turning,
talking in his sleep, sleepwalking, or all three.

It should nonetheless be evident that the testimony that
the defendant had walked in his sleep on "several occasions" is
not in any way linked with defendant's actions on the night of
the molestation. Defendant did not testify that he thought that
he was sleepwalking on that night, and he did not describe his
prior sleepwalking experiences so that a trier of fact could
infer that those episodes were similar to his claimed lack of
consciousness on the night of the molestation. Nor did he
mention the possibility that he was sleepwalking in his
interviews with police. And there was no expert testimony about
whether a sleepwalker could engage in the digital penetration

intoxication, the basis of the defense is section 22 rather than
section 26 . . . ." Section 22 has been incorporated into CALJIC
Nos. 4.20, 4.21, and 4.22. Here, the jury was properly
instructed with CALJIC No. 4.21 in light of the evidence that
defendant was voluntarily intoxicated with alcohol at the time of
the alleged molestation.
11

and lewd conduct charged against the defendant. The mere fact
that defendant had walked in his sleep on "several occasions"
was simply not substantial evidence, in and of itself, upon
which a sleepwalking defense on a particular day against a
particular charge could be based.

A court need not instruct "whenever any evidence, no matter
how weak, is presented to support an instruction." (People v.
Barton (1995) 12 Cal.4th 186, 195, fn. 4.) "Substantial
evidence," in the context of determining whether certain
evidence warrants a requested instruction, is defined as
evidence which is sufficient to deserve consideration by the
jury, that is, evidence from which a reasonable jury can
conclude that the particular facts underlying the instruction
exist. (People v. Lemus (1988) 203 Cal.App.3d 470, 477.)

Moreover, we agree with the trial court that the acts
charged -- digital penetration and lewd touching of a four-year-
old's genitals while she was clothed and sleeping -- necessarily
required sophisticated manual manipulation and dexterity. The
evidence was simply not sufficient to justify an instruction of
unconsciousness based on sleepwalking where there was no
evidence to support the highly improbable conclusion that
defendant digitally penetrated a clothed four-year-old while
sleepwalking. (See People v. Lemus, supra, 203 Cal.App.3d at p.
477.)

In view of the foregoing, we conclude that the trial court
did not err in refusing to instruct with CALJIC No. 4.30.
12

Defendant cites a study by the American Psychiatric
Association for the proposition that there have been cases of
"`unlocking doors and even operating machinery . . . '" while
sleepwalking. (Diagnostic and Statistical Manual of Mental
Health (4th ed. 1994) � 307.46, pp. 587-588.) This does not,
however, further his claim that he could perform digital
penetration on a four-year-old under her clothes while he was
sleepwalking. Further, our function on appeal is limited to a
consideration of the evidence contained in the record of the
trial proceedings and not on new materials that defendant
introduces on appeal. (People v. Merriam (1967) 66 Cal.2d 390,
396-397 ["It is elementary that the function of an appellate
court, in reviewing a trial court judgment on direct appeal, is
limited to a consideration of matters contained in the record of
trial proceedings, and that `Matters not presented by the record
cannot be considered on the suggestion of counsel in the
briefs'"], disapproved on another point in People v. Rincon-
Pineda (1975) 14 Cal.3d 864, 882; People By and Through Dept. of
Public Works v. Keligian (1960) 182 Cal.App.2d 771, 774 ["It is
improper to set forth in briefs facts, events, or other matters
not included in the record on appeal"].)

Citing the California Supreme Court's decision in People v.
Wilson (1967) 66 Cal.2d 749, 760-763, defendant also argues that
his testimony that he could not remember what had occurred
before he awoke warranted such an instruction. In People v.
Wilson, supra, the failure to give unconsciousness instructions
were deemed to be error where the defendant testified that he
13

could not remember shooting another man and his wife and "was
distraught and mentally exacerbated" by the events that
precipitated his actions. But that case did not involve
sleepwalking, and defendant's testimony in that case was
consistent with the story first told police (66 Cal.2d at
p. 762), unlike here where sleepwalking was never mentioned.
The chief difference between this case and People v. Wilson,
however, is that there simply is no evidence in this case that
defendant was engaged in sleepwalking on the night in question,
while there was evidence of unconsciousness on the date in
question in People v. Wilson.

Finally, any error here was harmless beyond a reasonable
doubt (see People v. Flood (1998) 18 Cal.4th 470, 499)7 because
the jury could not possibly have credited any claim that
defendant was unconscious by virtue of sleepwalking and still
have found that he had the requisite intent to commit the
crimes. To find defendant guilty of lewd conduct under count 1,
the jury had to find that defendant touched the victim "with
specific intent to arouse, appeal to, or gratify the lust,
passions, or sexual desires" of defendant or Taylor. (CALJIC
No. 10.41.) To find defendant guilty of count 2 of penetrating
Taylor with a foreign object, the jurors had to find that "the
act was done with the purpose and specific intent to cause

7 The cases cited by defendant for the proposition that the
failure to instruct on unconsciousness requires automatic
reversal all predate the California Supreme Court's decision in
People v. Flood.
14

sexual arousal or gratification." (CALJIC No. 10.50) The jury
was further instructed that it could not find defendant guilty
of the charged crimes unless it found that he had acted with the
intent that is an element of each charged offense, and
instructed that "if the evidence as to any specific intent
permits two reasonable interpretations, one of which points to
the existence of the specific intent and the other to its
absence, [the jury] must adopt that interpretation which points
to its absence."

In light of the foregoing instructions, had the jury
credited defendant's suggestion that he was unconscious, whether
by sleepwalking or otherwise, when he digitally penetrated
Taylor, these instructions would have required it to acquit him
of those charges, because he would not have had the requisite
specific intent to cause sexual arousal. By returning guilty
verdicts on the counts for lewd and lascivious conduct and
digital penetration, the jury necessarily found defendant was
not unconscious.
Accordingly,
there
was no substantial evidence to support
the giving of CALJIC No. 4.30. And even if the court erred in
not giving the instruction, the court's refusal to so instruct
the jury was harmless error.8

8 The absence of a specific unconsciousness instruction did not,
as defendant argues, leave the "jury with an unwarranted all or
nothing choice." Had the jurors been persuaded that defendant
was too intoxicated to form the requisite criminal intent, they
(Continued.)
15

II. The Court Did Not Err in Instructing Pursuant to
CALJIC No. 4.21
At
defendant's
request, the trial court instructed the jury
on the effect of voluntary intoxication pursuant to CALJIC
No. 4.21, as follows in relevant part:

"In the crime charged in Count I, a necessary element is
the existence in the mind of the defendant of the specific
intent to arouse, appeal to, or gratify the lust, passions, or
sexual desires of the defendant or the child. [�] In the crime
charged in Count 2, a necessary element is the existence in the
mind of the defendant of the specific intent to cause sexual
arousal or gratification. [�] If the evidence shows that the
defendant was intoxicated at the time of the alleged crime, you
can -- you should consider that fact in deciding whether the
defendant had the required specific intent. If from all the
evidence you have a reasonable doubt whether the defendant
formed that specific intent, you must find that he did not have
the specific intent."

On appeal, defendant challenges the wording of the form
instruction that he requested, contending that "[b]y using the
term `should' instead of `must,' CALJIC No. 4.21 effectively
informed the jury that while the trial court recommended it
consider the defense evidence, it was not obligated to do so."

were instructed that they could find him guilty of the lesser
included offense of battery.
16

In short, defendant claims "the instruction was defective in
that it informed the jury that consideration of voluntary
intoxication is permissive rather than mandatory" and "the jury
should have been instructed that it `must' consider evidence of
voluntary intoxication." He concludes that this instruction
"denied [defendant] his constitutional right to have the jury to
consider the defense evidence and theory in this case."

We consider the argument frivolous. "Should" is used "to
express duty, obligation, necessity, propriety, or expediency."
(Webster's Third New Internat. Dict. (1986) p. 2104.) In the
context here, it was used to express obligation.
Moreover,
where
an
instruction is purportedly ambiguous and
therefore subject to an erroneous interpretation, the test is
whether there is a reasonable likelihood that the jury
misunderstood and misapplied the challenged instruction.
(People v. Avena (1996) 13 Cal.4th 394, 417; see Boyde v.
California (1990) 494 U.S. 370, 380 [108 L.Ed.2d 316, 329].)
The instruction here provided in the challenged portion: "If
the evidence shows that the defendant was intoxicated at the
time of the alleged crime, . . . you should consider that fact
in deciding whether defendant had the required specific intent."
We do not find that the instruction could have been understood
to mean that consideration of voluntary intoxication was
permissive if the evidence showed that defendant was
intoxicated.
17

Finally and separately, by requesting this particular
instruction, defendant waived his right to challenge it. (See
People v. Wader (1993) 5 Cal.4th 610, 657-658; People v. Hardy
(1992) 2 Cal.4th 86, 152; People v. Hernandez (1988) 47 Cal.3d
315, 353.) "We may review the validity of an instruction
initially requested by the defense where counsel's actions in
seeking or not objecting to the instruction constitutes simply
neglect or mistake. [Citations.] The trial court does have a
duty to correctly instruct the jury on principles of law
relevant to issues raised by the evidence in a criminal case.
We have recognized, however, that defendant may not be entitled
to challenge a requested instruction where the record clearly
reflects that counsel had a deliberate tactical purpose in
requesting it." (Ibid.)
Defendant
suggests
that the "doctrine of invited error does
not apply here" because any deliberate tactical reason for the
instruction "must be articulated on the record." But more
recent California Supreme Court authority has retreated from the
requirement that a defendant must "expressly" articulate his
tactical reason for requesting the challenged instruction; the
court has found "invited error" where the defense's tactical
strategy can be inferred from the record. (E.g., People v.
Duncan (1991) 53 Cal.3d 955, 969-970; People v. Cooper (1991)
53 Cal.3d 771, 827; People v. Whitt (1990) 51 Cal.3d 620, 641.)

The record here supports the conclusion that defendant's
request of CALJIC No. 4.21 was deliberate and conscious.
18

Defense counsel, of course, needed the instruction in order to
argue that defendant's voluntary intoxication negated any
finding that he possessed the requisite criminal intent, and
indeed, he argued vigorously that defendant should be acquitted
of the molestation charges based on evidence of his
intoxication. The best way to get this instruction was to
request the CALJIC form instruction, which uses the word,
"should." Thus, we find that requesting a CALJIC instruction
for purposes of defendant's principal defense was a deliberate
and tactical decision for which defendant may not now claim
error.
III. The Failure to "Modify" CALJIC No. 2.03 Was Not Error

Over defendant's objection, the trial court instructed the
jury with CALJIC No. 2.03 as follows: "If you find that before
this trial the defendant made a willfully false or deliberately
misleading statement concerning the crimes for which he is now
being tried, you may consider that statement as a circumstance
tending to prove a consciousness of guilt. However, that
conduct is not sufficient by itself to prove guilt, and its
weight and significance, if any, are matters for you to decide."

Defendant makes a number of claims regarding this
instruction. First, he contends that this instruction "is
premised on and only reasonable where the false statement is
made to mislead authorities and avoid suspicion," but that the
instruction "fails to set out this prerequisite finding for the
19

jury . . . to insure that the inference of consciousness of
guilt is valid."

We disagree. The instruction requires that the jury find
that "defendant made a willfully false or deliberately
misleading statement concerning the crimes for which he is now
being tried" before considering the statement as a circumstance
tending to show a consciousness of guilt. The instruction
therefore removed from the jury's consideration any innocent
misrepresentation or mistake. (See People v. Amador (1970)
8 Cal.App.3d 788, 792.) Thus, the jury had to find the premise
-- a willfully false statement -- before considering the
conclusion -- a circumstance tending to prove a consciousness of
guilt.

Indeed, the instruction has been consistently upheld when
it is supported by the evidence. (People v. Arias (1996) 13
Cal.4th 92, 141.) "`The giving of CALJIC No. 2.03 is justified
when there exists evidence that the defendant prefabricated a
story to explain his conduct. . . .' [Citation.]" (People v.
Williams (1995) 33 Cal.App.4th 467, 478, quoting People v.
Edwards (1992) 8 Cal.App.4th 1092, 1103-1104.) In this case,
defendant's statements to police contained a sufficient number
of inconsistencies to suggest willfully false statements, which
justified the giving of this instruction. For instance, he
claimed not to recall anything during his first interview with
the police, but then at his second interview, he said that he
remembered Taylor pulling away from him and that he had his hand
20

on her belly. He also remembered how she felt to him, how far
he had digitally penetrated, and what she said.
Defendant
next
contends that the instruction is incomplete
and that "CALJIC No. 2.03 should contain specific language that
the jury disregard statements not related to the charged
offense."

But CALJIC No. 2.03 expressly refers to a "willfully false
or deliberately misleading statement [made by defendant]
concerning the crime for which defendant is now being tried."
(Italics added.) There is no need for the instruction to state
that to which the instruction does not refer -- namely, that the
instruction does not apply if the willfully false or
deliberately misleading statement is unrelated to the charged
offense. Such reasoning would require virtually every
instruction that contains a qualification to state that it does
not apply when the qualification does not apply -- thereby
doubling the length of already lengthy instructions for purposes
of stating what should be obvious.

Finally, relying on United States v. Littlefield (1st Cir.
1988) 840 F.2d 143, 149, the defendant contends that the
consciousness of guilt instruction should be given only when the
statement involves a matter collateral to the facts establishing
guilt or is so incredible that its very implausibility suggests
that it was created to conceal guilt.
21

The
Littlefield court reached this conclusion after noting
that an instruction such as CALJIC No. 2.03 "should not be given
when . . . the jury could find the exculpatory statement at
issue to be false only if it already believed evidence directly
establishing the defendant's guilt." (840 F.2d at p. 149.) The
court reasoned in part: "It is the direct evidence of
appellant's guilt . . . that allows the jury to draw an
inference of consciousness of guilt from the appellant's
[exculpatory] statement. In effect, the jurors were told that
once they found guilt, they could find consciousness of guilt,
which in turn is probative of guilt. This is both circular and
confusing." (Ibid.)

In this case, the jury did not need to decide that
defendant was guilty to determine that his statements to the
police were false because his statements during the two police
interviews as to what he remembered were in conflict.

And even assuming that the instruction is circular and
confusing for the reasons explained in Littlefield, it is
nonetheless harmless. If the jury found false defendant's
denials of consciously and willfully digitally penetrating
Taylor, an instruction on consciousness of guilt was, at worst,
unnecessary. "To instruct the jury that it could use the
statement of consciousness of guilt on the part of [defendant]
probably adds little to the analysis, since the same evidence
which would lead the jury to conclude that the statement was a
prefabrication would lead the jury to conclude that [defendant]
22

was guilty of the crime charged. In that light the instruction
was redundant, but not prejudicial." (People v. McFarland
(1980) 108 Cal.App.3d 211, 217; see also United States v.
Littlefield, supra, 840 F.2d at p. 150.) Defendant has not
shown how he was prejudiced in this action by the instruction.
IV. CALJIC No. 2.62 Was Not Given in Error

The jury was also instructed the jury, over defendant's
objection, with CALJIC No. 2.62 as follows:

"In this case, the defendant has testified to certain
matters. If you find that the defendant failed to explain or
deny evidence against him introduced by the prosecution 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 this evidence
and as indicating that among the inferences that may reasonably
be drawn therefrom, those unfavorable to the defendant are the
more probable. The failure of a defendant to deny or explain
evidence against him does not 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. If a defendant does
not have the knowledge that he would need to deny or explain
evidence against him, it would be unreasonable to draw an
inference unfavorable to him because of his failure to deny or
explain this evidence."
23

Defendant argues that "[t]he instruction was not supported
by this record." Citing People v. Saddler (1979) 24 Cal.3d 671,
681, he argues that "there must exist some type of prosecution
evidence which a defendant fails to explain or deny on the
record, before a trial court can give the instruction."

It is true that "`[i]t is an elementary principle of law
that before a jury can be instructed that it may draw a
particular inference, evidence must appear in the record which,
if believed by the jury, will support the suggested inference
[citation].'" (People v. Saddler, supra, 24 Cal.3d at p. 681.)

But there was substantial evidence to support the
instruction. Looking at the big picture, defendant had no
explanation of how he ended up in bed with Taylor and got his
hand under her clothes, first finding and then penetrating her
vagina. The instruction was therefore proper in instructing
that if defendant failed to explain or deny evidence against
him, the jury could take that failure into consideration as
indicating the truth of this evidence. Looking at the case from
a more detailed level, defendant also failed to deny or explain
other evidence against him that he could reasonably have been
expected to explain. Although he had recalled for police
several details of the molestation -- including that his finger
was inside Taylor's vagina up to his first knuckle, that his
penetration gave him a different sensation than that he had
experienced with Thompson, and that he had heard Taylor say
"owie" when his finger was inside her -- defendant denied at
24

trial any recall of these details and attempted to explain his
previous admissions as the result of the police having told him
that he "had done it." But a suggestion that he "had done it"
would not put the defendant in the position of recalling a sound
that Taylor had made or how his penetration of the victim felt.
The instruction was supported by sufficient evidence here of
defendant's failure at trial to explain (or deny) evidence
against him.
"The
instruction,
if justified by the evidence, does not
violate a defendant's privilege against self-incrimination, deny
him the presumption of innocence, nor violate due process.
[Citation.] When a defendant testifies but fails to deny or
explain inculpatory evidence or gives a `bizarre or implausible'
explanation, the instruction is proper. [Citations.] `[T]he
applicability of CALJIC No. 2.62 is peculiarly dependent on the
particular facts of the case.' [Citation.]" (People v. Sanchez
(1994) 24 Cal.App.4th 1012, 1029-1030, original italics; see
People v. Belmontes (1988) 45 Cal.3d 744, 784; People v. Mask
(1986) 188 Cal.App.3d 450, 455; People v. Roehler (1985)
167 Cal.App.3d 353, 393.) In People v. Sanchez, supra,
24 Cal.App.4th at pages 1029-1030, for instance, the Court of
Appeal found that the failure to recall inculpatory events, such
as tying the victim's wrists and elbows or strangling the
victim, warranted the giving of CALJIC No. 2.62. So, too, was
it proper to give the instruction here where defendant could not
recall how he ended up in a bed molesting a four-year-old and
25

where he could not recall at trial matters that he had admitted
earlier to police.
Defendant
also
argues that "the instruction was improper
because it constituted a pinpoint instruction for the
prosecution." But this argument was rejected by the very case
defendant cites, People v. Saddler, supra, 24 Cal.3d at pages
680-681: "Defendant also argues that the challenged instruction
should never be given because it impermissibly singles out a
defendant's testimony and unduly focuses upon it. The same
argument was rejected in People v. Mayberry [(1975)] 15 Cal.3d
143, 161. We noted there that the instruction was consistent
with Evidence Code section 413 which permits the drawing of
inferences from any party's failure to explain or deny evidence
against him. Since the only testifying `party' in a criminal
case is the defendant, the code section can have reference only
to him."

Finally, even assuming that this instruction should not
have been given here, any error was not prejudicial. If the
jury believed defendant's claim of unconsciousness, CALJIC No.
2.62 instructed it that "[i]f 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 . . . ." And if the jury disbelieved that he
was unconscious, it would have found him guilty, regardless of
this instruction.
26

Moreover, the instruction cautioned the jury that "[t]he
failure of a defendant to deny or explain evidence against him
does not 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." Thus, the instruction fully protected
defendant by making clear that the prosecution had to
nonetheless prove each element of its case. "CALJIC No. 2.62
does not direct the jury to draw an adverse inference. It
applies only if the jury finds that the defendant failed to
explain or deny evidence. It contains other portions favorable
to the defense (suggesting when it would be unreasonable to draw
the inference; and cautioning that the failure to deny or
explain evidence does not create a presumption of guilt, or by
itself warrant an inference of guilt, nor relieve the
prosecution of the burden of proving every essential element of
the crime beyond a reasonable doubt)." (People v. Ballard
(1991) 1 Cal.App.4th 752, 756-757.) Furthermore, jurors were
even instructed to disregard any instruction which applied to a
state of facts it determined did not exist.

Looking at the instructions given as a whole (People v.
Laws (1993) 12 Cal.App.4th 786, 796), even if the instruction
had been given in error, it could not possibly have prejudiced
defendant.
27

V. Instructing the Jury with CALJIC No. 17.41.1 Was Not
Prejudicial
Defendant
next
contends that the trial court erred
prejudicially in instructing the jury, over his objection, with
CALJIC No. 17.41.1 (1998 New).

That instruction states: "The integrity of a trial
requires that jurors, at all times during their deliberations,
conduct themselves as required by these instructions.
Accordingly, should it occur that any juror refuses to
deliberate or expresses an intention to disregard the law or to
decide the case based on penalty or punishment, or any other
improper basis, it is the obligation of the other jurors to
immediately advise the Court of the situation."

The legality of this instruction is currently before the
California Supreme Court in, among other cases, People v.
Engelman (2000) 77 Cal.App.4th 1297, review granted April 26,
2000, S086462, and People v. Taylor (2000) 80 Cal.App.4th 804,
review granted August 23, 2000, S088909.
Accordingly,
we
shall assume, for sake of argument, that
the instruction will be found erroneous and consider whether it
was prejudicial.

Defendant argues that "[t]he giving of CALJIC No. 17.41.1
constituted a structural defect of the trial that compels
reversal of the conviction."
28

However,
in
People v. Molina (2000) 82 Cal.App.4th 1329,
1332, we concluded that any error in giving CALJIC No. 17.41.1
is not reversible per se, but is subject to harmless error
analysis. We concluded: "[E]ven assuming for the sake of
argument that the giving of CALJIC No. 17.41.1 constitutes
constitutional error, it is not `structural error' and does not
require reversal per se. All the instruction does is to require
jurors to inform the court of juror misconduct. It does not
`"affect[] the framework within which the trial proceeds,"' nor
does it `necessarily render a criminal trial fundamentally
unfair or an unreliable vehicle for determining guilt or
innocence.' [Citation.] We do not agree that the instruction
is likely to be coercive. Absent misconduct by the jury,
expressly identified in the instruction, the instruction is not
likely to enter into jury deliberations at all. In the vast
majority of cases, there is no jury misconduct. We do not see
how an instruction that is not likely to come into play in most
cases can constitute error requiring the reversal of every case
in which it is given. We think that such a result would be,
frankly, absurd." (82 Cal.App.4th at p. 1335.)

Even assuming that the more stringent harmless error
standard of Chapman v. California (1967) 386 U.S. 18, 24
[17 L.Ed.2d 705, 710-711] applies (see People v. Molina, supra,
82 Cal.App.4th at p. 1335), the instruction was not prejudicial
here.
29

Defendant
contends
that the first prong of the instruction
-- its requirement that jurors "conduct themselves as required
by these instructions" -- "improperly infringes on the power of
any juror or all of them to disregard the law in a given case
and deliver a verdict in accord with their consci[ence]." He
claims that "[t]he instruction constitute[s] an improper anti-
nullification instruction" and "[a]s such, it violate[s] the
jurors' rights to freedom of speech and association guaranteed
by the First Amendment . . . and sections one and two of Article
I of the California Constitution."

But no prejudice could have resulted from that part of the
instruction that asks the jury to conduct themselves in
accordance with the instructions or to advise the court if a
juror expresses an intention to disregard the law. For one
thing, the California Supreme Court, upon addressing the issue
of juror nullification, has recently reaffirmed "the basic rule
that jurors are required to determine the facts and render a
verdict in accordance with the court's instructions on the law."
(People v. Williams (2001) 25 Cal.4th 441, 463.) Accordingly,
even if the jury has the power to nullify, there can be no
prejudice from advising jurors to report that which they have no
right to engage in -- the refusal to render a verdict in
accordance with the court's instructions of law. Secondly, in
this case, there was no evidence that any juror had expressed an
intention to disregard the law. Nor was there anything
controversial about the nature of the law here -- a prohibition
against molestation of a four-year-old girl -- so as to
30

reasonably give rise to a desire to disregard the law.
Accordingly, nothing in the record indicates that the verdicts
were affected by that part of the instruction that asks the jury
to conduct themselves as required by the instructions.
Defendant
also
claims that "[t]he instruction improperly
compromised the private and necessarily uninhibited nature of
jury deliberations." He argues that "[t]he instruction . . .
chills th[e] essential free discussion in advance, by putting
jurors on notice that their every word may be reported to the
trial court by their fellow jurors in the event of even an
imagined impropriety. This is a prospect that will likely tempt
jurors, particularly `sensitive' ones, to forego their
independence of mind and conceal even legitimate concerns they
may have about the strength [o]f the state's case . . . ."
In
some
respects,
this is a clever argument, since it
excuses the absence of any evidence of prejudice by theorizing
that the instruction chilled the manifestation of the very
evidence that could prove the prejudice. But a further review
of the claim shows that there could be no prejudice. First,
defendant speculates that the instruction will "chill" free
discussion "by putting jurors on notice that their every word
may be reported . . . by their fellow jurors in the event of
even an imagined impropriety." But this is mere speculation,
based on the contradictory assumption that a warning against
deciding the case on an improper basis causes jurors not to
decide the case on a proper basis. In short, defendant
31

speculates that the jurors would misapply the instruction in
contravention of the settled principle that we presume that
jurors follow the instructions. (E.g., People v. McNear (1961)
190 Cal.App.2d 541, 547.)

Second, in this case, nothing in the record suggests that
the instruction thwarted or chilled the deliberations. The jury
completed its deliberations after five hours, finding defendant
guilty on both counts. During those deliberations, it asked for
a transcript of the tapes of defendant's interviews, suggesting
no reluctance to request further information. Further, prior to
the promulgation of this instruction, jurors were directed to
bring any question concerning deliberations to the court's
attention, but they brought none. (CALJIC No. 17.43 [directing
the jury that "[d]uring deliberations, any question or request
the jury may have should be addressed to the Court [on a form
that will be provided]"].) And defendant acknowledges that a
review of the case law amply demonstrates that jurors have
historically been quite willing "to report on any juror's
inability or unwillingness to deliberate in a proper manner,
even their own." Thus, the absence of any such reports from
jurors, and the reasonable time taken by the jury for
deliberations over a straightforward case, affords no basis to
believe that jury deliberations were chilled in some way.
VI. The Order to Undergo HIV Testing

In a supplemental brief, defendant contends that "[t]he
court erred in ordering [him] to undergo HIV testing under . . .
32

section 1202.1, because the offense of which he was convicted is
not listed under that code section absent a special finding."
(Emphasis omitted.)

Section 1202.1 provides in relevant part: "Notwithstanding
Sections 120975 and 120990 of the Health and Safety Code, the
court shall order every person who is convicted of . . . a
sexual offense listed in subdivision (e) . . . to submit to a
blood test for evidence of antibodies to the probable causative
agent of acquired immune deficiency syndrome (AIDS). . . . [�]
. . . [�] (e) For purposes of this section, `sexual offense'
includes any of the following: . . . (6) Lewd or lascivious
acts with a child in violation of Section 288, if the court
finds that there is probable cause to believe that blood, semen,
or any other bodily fluid capable of transmitting HIV has been
transferred from the defendant to the victim. For purposes of
this paragraph, the court shall note its finding on the court
docket and minute order if one is prepared." (� 1202.1, subds.
(a), (e).)

Defendant was convicted of a violation of section 288; the
only failing in the trial court's order is the omission of a
finding of probable cause to believe that a bodily fluid capable
of transmitting HIV was transferred to the victim.
But
defendant
failed to object to the court's failure to
make such a finding. Instead, he argues that the order was
unauthorized and thus that his objection was not waived by the
failure to object.
33

We disagree. In People v. Scott (1994) 9 Cal.4th 331, 353,
the California Supreme Court concluded: "[T]he waiver doctrine
should apply to claims involving the trial court's failure to
properly make or articulate its discretionary sentencing
choices. Included in this category are cases in which the
stated reasons allegedly do not apply to the particular case,
and cases in which the court purportedly erred because it . . .
failed to state any reasons or give a sufficient number of valid
reasons. [�] Our reasoning is practical and straightforward.
Although the court is required to impose sentence in a lawful
manner, counsel is charged with understanding, advocating, and
clarifying permissible sentencing choices at the hearing.
Routine defects in the court's statement of reasons are easily
prevented and corrected if called to the court's attention. As
in other waiver cases, we hope to reduce the number of errors
committed in the first instance and preserve the judicial
resources otherwise used to correct them."

In this case, as noted, defense counsel could have
objected, but did not object, to the trial court's failure to
state its finding of probable cause to believe that a bodily
fluid capable of transmitting HIV has been transferred to the
victim by defendant. By reason of defendant's failure to
object, this court cannot know the basis by which the trial
court concluded such probable cause existed, or whether it would
have declined to make such an order had it been required to do
so. In short, the defect in the court's order -- the failure to
state reasons -- could have easily been prevented and corrected
34

if called to the court's attention. Failure to object
constituted waiver.

It is true that the unauthorized sentence concept
"constitutes a narrow exception to the general requirement that
only those claims properly raised and preserved by the parties
are reviewable on appeal." (People v. Scott, supra, 9 Cal.4th
at p. 354.) "[A] sentence is generally `unauthorized' where it
could not lawfully be imposed under any circumstance in the
particular case. Appellate courts are willing to intervene in
the first instance because such error is `clear and correctable'
independent of any factual issues presented by the record at
sentencing." (Ibid.)
Thus,
in
People v. Smith (2001) 24 Cal.4th 849, 853, the
California Supreme Court concluded that the imposition of a
parole revocation fine (� 1202.45) in a different amount than
the amount of the restitution fine (� 1202.4) was an
unauthorized sentence because "[u]nder section 1202.45, a trial
court has no choice and must impose a parole revocation fine
equal to the restitution fine whenever the `sentence includes a
period of parole.'" (Original italics.) The court explained:
"Because the erroneous imposition of a parole revocation fine
presents a pure question of law with only one answer, any such
error is obvious and correctable without reference to any
factual issues in the record or remanding for further findings."
(Ibid., original italics.)
35

In contrast, in People v. Tillman (2000) 22 Cal.4th 300,
the California Supreme Court found waiver by reason of the
People's failure to object to the trial court's failure to state
a reason for its failure to impose a restitution fine under
section 1202.4 and a parole revocation fine under section
1202.45. Since a restitution fine must be imposed unless the
trial court finds compelling and extraordinary reasons for not
doing so and states them on the record, the Supreme Court
"implicitly recognized that the erroneous omission of a
restitution fine was not correctable without considering factual
issues presented by the record or remanding for additional
findings." (People v. Smith, supra, 24 Cal.4th at p. 853.)

In this case, whether the trial court could have ordered a
blood test depended upon factual issues in the record or
requires a remand for further findings. Since defendant claimed
to be unconscious during his molestation of Taylor -- and Taylor
was too young to know exactly what defendant was doing -- it is
open to interpretation what defendant actually did to Taylor.
On appeal, defendant does not argue that there was no evidence
from which a finding of probable cause could be made, thus
waiving any such contention on appeal. (E.g., MST Farms v. C.G.
1464 (1988) 204 Cal.App.3d 304, 306.) We cannot substitute for
the trial court in reconstructing what happened, which must be
based not only on the medical testimony but on the credibility
of the testimony as to what happened. This is precisely the
type of circumstance that required a timely objection, which
would have resulted in a finding that we could review on appeal.
36

Any error in making the order here cannot be corrected without
considering factual issues and reasonable inferences drawn from
the record. Thus, the error was not an unauthorized sentence
for which no objection is necessary to preserve. The claimed
error is waived.
VII. Defendant's Claim of Cumulative Error
Defendant
contends
that the cumulative effect of his claims
of error prejudicially affected his case. However, except for
his claim over the HIV testing (for which we found waiver) and
the giving of CALJIC No. 17.41.1 (for which we assumed error),
we affirmatively found no error. Accordingly, the cumulative
effect of any claimed error is limited to the effect of CALJIC
No. 17.41.1, which we found was harmless. Accordingly, this
claim necessarily fails.
DISPOSITION

The judgment is affirmed.

Kolkey , J.
We concur:

Blease , Acting P.J.

Morrison , J.
37