Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 08WF0352 Lance Jensen, Judge.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
RYLAARSDAM, ACTING P. J.
A jury convicted defendant Jesus Ramirez of two counts of committing lewd and lascivious acts (Pen. Code, § 288, subd. (a)) and one count of having had substantial sexual contact with the victim (Pen. Code, § 1203.066, subd. (a)(8)). The court sentenced defendant to a total of eight years in prison.
Defendant contends the court erred in denying his motion to suppress because his admission was obtained in violation of his rights under Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694] (Miranda). He also challenges two jury instructions given by the court, CALCRIM No. 207 and CALCRIM No. 3502. Finding no reversible error, we affirm.
Given the issues raised, we need not recite the facts that led up to defendant’s arrest and conviction and shall include the facts relevant to each of his contentions in our discussion of the issues.
DISCUSSION
1. Violation of Miranda Rights
Prior to interviewing him, Deputy Sheriff Luis R. De Anda advised defendant of his Miranda rights, including his right “not to say anything, ” which defendant said he understood, and that “[a]nything you say now may be used against you in [c]ourt....” When asked if he understood the latter, defendant responded, “If, if I give a false... false testimony or false... how?” De Anda replied, “Anything you say now may be used against you” and the following colloquy took place:
“[Defendant] Or in favor?
“[De Anda]: Or in favor.
“[Defendant]: Okay.
“[De Anda]: In, in court.
“[Defendant]: Fine, yes.
“[De Anda]: You do understand that part?
“[Defendant]: What I’m going to say is... huh... the truth, right?
“[De Anda]: That’s what we want. So, do you understand that?
“[Defendant]: Yes.”
Subsequently, defendant admitted there had been sexual contact between he and the victim.
Before trial, defendant moved to exclude his statements on the ground the Miranda warnings were defective because, among other things, he was told what he said could be used in his favor and thus his waiver was not voluntary. The trial court denied the motion, finding defendant had received proper Miranda warnings and that his “or in favor” terminology and De Anda’s response did not improperly expand on his right to remain silent or induce him to talk. It concluded defendant had “knowingly, intelligently, and voluntarily waived his Miranda rights.”
Defendant challenges this ruling, contending he “was misled into believing his statements would be used in his favor to exonerate him... [and] a valid Miranda waiver required [him] to be advised, and understand, that he was in the presence of an adversary who would use his statements against him in a court of law to prove his guilt.” The argument lacks merit.
“On appeal, we review independently a trial court’s ruling on a motion to suppress a statement under Miranda. [Citation.] In doing so, however, ‘we accept the trial court’s resolution of disputed facts and inferences, and its evaluations of credibility, if supported by substantial evidence.’ [Citation.]” (People v. Guerra (2006) 37 Cal.4th 1067, 1092-1093.) The warnings need not be given in any particular form and “[t]he essential inquiry is simply whether the warnings reasonably ‘“[c]onvey to [a suspect] his [or her] rights as required by Miranda.’” [Citation.]” (People v. Wash (1993) 6 Cal.4th 215, 236-237; see also California v. Prysock (1981) 453 U.S. 355, 359 [101 S.Ct. 2806, 69 L.Ed.2d 696] [“no talismanic incantation... required”].)
The warning here “touched all of the bases required by Miranda, ” including “that anything [defendant] said could be used against him in court....” (Duckworth v. Eagan (1989) 492 U.S. 195, 203 [109 S.Ct. 2875, 106 L.Ed.2d 166].) Defendant acknowledges De Anda advised him of that twice but contends their exchange showed he “did not understand that his statements would be used against him....” We disagree. After the second time De Anda told defendant that anything he said could be used against him, defendant asked, “Or in favor?” That implies he both understood De Anda’s warning and wanted to know if his statements could also be used to his benefit either for leniency or to clear him.
Defendant maintains “[t]he ambiguous nature of [his] acknowledgement regarding how his statements could be used precludes a finding that he understood his statements would be used against [him]. [His] use of the phrase [sic], ‘or, ’ simply reflected his misunderstanding that his statements would be used to exonerate him.” The record shows otherwise. Later during the interview, defendant stated, “I, I could be taking a risk because like you said it might... come up against me later but sometimes it’s necessary to speak right.” He also acknowledged, “But I’m risking a lot by saying anything....” On review of the totality of the circumstances surrounding defendant’s interview and the warnings given in this case, we find no basis to disturb the court’s findings that defendant had voluntarily and intelligently waived his Miranda rights.
2. Instructional Error
Counts 2 and 3 charged defendant with committing lewd acts on a child under the age of 14 (fondling breast and digital penetration), the “last time” (capitalization omitted) between February 1 and February 22, 2008. Defendant argues his convictions on these counts must be reversed because the court erroneously instructed the jury with CALCRIM No. 207 over defense objections and gave a flawed unanimity instruction. No reversible error occurred.
The giving of the unanimity instruction, CALCRIM No. 3502, was unnecessary because the prosecutor elected the specific acts relied upon to establish the “last time” (capitalization omitted) charges in counts 2 and 3. (See People v. Melhado (1998) 60 Cal.App.4th 1529, 1534 [“either the prosecution must elect the specific act relied upon to prove the charge to the jury, or the court must instruct the jury that it must unanimously agree that the defendant committed the same specific criminal act”].) The election must be clearly communicated to the jury, directing the jurors’ minds to the particular acts on which the prosecution is relying to prove each charge. (Id. at p. 1536.) “The record must show that by virtue of the prosecutor’s statement, the jurors were informed of their duty to render a unanimous decision as to a particular unlawful act.” (Id. at p. 1539.)
Here, the prosecutor told the jury during closing argument that the victim had informed Deputy Shawn Schwitters that the last incident occurred on February 22, but could not remember the date at trial. “Deputy Schwitters testified that [the victim] told him 13 months ago that she could remember that the last incident was on February 22nd, 2008. And that the defendant was in his bedroom and that [the victim] was in the hallway at his door asking for a dollar to go to the store. That the defendant did not respond. That the defendant approached her, began groping her breasts. She slapped his hand away. He tried to place it under her shirt and touch her breast skin to skin. He got closer. He put his hand down the front of her pants and underneath her underwear. And before she could push his hand away, he was able to insert a finger into her vagina. [¶] Those are counts 2 and 3.”
The prosecutor noted that defendant had admitted having his hands inside the victim’s pants about 10 days before February 25, which was consistent with Schwitters’s testimony regarding when the victim’s mother had told him her daughter had said defendant had been touching her, i.e., for the last two weeks. She argued “[s]o you have all around the same time[]frame” and that these facts supported the allegation of the last incident as described by the victim to Schwitters.
The prosecutor’s closing argument explicitly articulated the only acts upon which counts 2 and 3 were based were those described by the victim to Schwitters upon being asked when defendant last molested her. By directing the jurors to that incident, the prosecution properly made an election as to which acts it was relying on and it was unnecessary to instruct the jury that it must agree unanimously that defendant committed the same specific criminal act. Given the prosecutor’s election, the unanimity instruction given by the court was superfluous. We thus reject defendant’s claims “[t]he jury could have determined the last acts were the alleged incidents on February 22 or the acts in the two weeks preceding February 24 for which [the victim] could not provide specific dates” and that the instruction permitted the jury to convict him even if they disagreed when the last acts occurred her.
But because the prosecutor made an election as to specific acts, the trial court erred in instructing the jury with CALCRIM No. 207 as follows: “It is alleged that the crime occurred... on or about or between February 1, 2008 and February 22, 2008. The People are not required to prove that the crime took place exactly on that day but only that it happened reasonably close to that day.” “‘Where a defendant is charged in a single count, and the evidence shows more than one criminal act of the kind alleged, it is error to give [an “on or about” instruction] because it does not require the jury to focus on a specific criminal act and to convict a defendant of that act beyond a reasonable doubt....’ [Citation.]” (People v. Gordon (1985) 165 Cal.App.3d 839, 857, disapproved on other grounds in People v. Lopez (1998) 19 Cal.4th 282, 292.) Additionally, the note to CALCRIM No. 207 states, “This instruction should not be given... when the evidence demonstrates that the offense was committed at a specific time and place and the defendant has presented a defense of alibi or lack of opportunity....” (Judicial Council of Cal., Crim. Jury Instns. (2008) Bench Notes to CALCRIM No. 207.)
Nevertheless, such error is harmless where there is no possibility of juror confusion because the prosecution focused on a specific date and place and the evidence of guilt was overwhelming. (People v. Seabourn (1992) 9 Cal.App.4th 187, 194.) Both of these circumstances are present here. Although there was evidence of other instances of molestation, the prosecutor in her closing argument elected to rely on the incident the victim told Schwitters had occurred on February 22 in front of defendant’s room. Further, the case against defendant was overwhelming in light of the victim’s and Schwitters’s testimony and defendant’s confession. Under these facts, “the error was harmless beyond a reasonable doubt. [Citations.]” (Ibid.; Chapman v. California (1967) 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705].)
DISPOSITION
The judgment is affirmed.
WE CONCUR: ARONSON, J., IKOLA, J.