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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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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,

Plaintiff and Respondent,

v.

HAWTHORNE MCGEE,

Defendant and Appellant.

C095184

(Super. Ct. No. 19FE022000)

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.

B. CALCRIM No. 1191B

The trial court instructed the jury pertaining to evidence of charged sex offenses as 

follows: “The People presented evidence that the defendant committed the crimes of 

rape and oral copulation by force [as] charged in Counts 1, 2, and 3. If the People have 

proved beyond a reasonable doubt that the defendant committed one or more of these 

crimes, you may, but are not required to, conclude from that evidence that the defendant 

was disposed or inclined to commit sexual offenses and, based on that decision, also 
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conclude that the defendant was likely to commit the other sex offenses charged in this 

case.”

“If you find that the defendant committed one or more of these crimes, that 

conclusion is only one factor to consider along with all the other evidence. It is not 

sufficient by itself to prove that the defendant is guilty of another crime. The People 

must still prove each charge and allegation beyond a reasonable doubt.” 

Defendant contends this instruction violated his right to due process under the 

federal Constitution. He, however, acknowledges his claim was rejected by our Supreme 

Court in People v. Villatoro (2012) 54 Cal.4th 1152, and we are bound by that decision 

(Auto Equity Sales, Inc., supra, 57 Cal.2d at p. 455). Defendant raises this contention to 

preserve his federal claim and to preserve the issue for his hoped-for reconsideration by 

the Supreme Court of its holding in Villatoro. We accept defendant’s concession that we 

are bound by Villatoro, and reject this contention.

DISPOSITION

The judgment is affirmed. 

 

HULL, J.

We concur:

 

ROBIE, Acting P. J.

 

MAURO, J.