Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 05CF4063 David A. Hoffer, Judge.
Nancy L. Tetreault, 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 Stacy Tyler, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
ARONSON, J.
A jury convicted Gamalier Rivera of 10 counts of committing a forcible lewd act upon a child under the age of 14 (Pen. Code, § 288, subd. (b)(1)) and one count of dissuading a witness from reporting the sexual misconduct (§ 136.1, subd. (b)(1)). The jury also found enhancement allegations of substantial sexual conduct with a child under the age of 14 to be true for all 10 counts of lewd conduct. (§ 1203.066, subd. (a)(8).) The trial court sentenced Rivera to 34 years and four months in prison.
All further statutory references are to the Penal Code unless otherwise stated.
Rivera contends the unanimity instruction the trial court provided the jury was flawed. As we explain, the trial court’s instruction informed the jurors a guilty verdict required they unanimously agree that Rivera’s acts constituted forcible lewd conduct with the victim on two particular occasions in each calendar year, over five years. The instruction thus protected Rivera’s right to a unanimous jury verdict on his alleged offenses, and there is no merit to Rivera’s challenge. Even assuming an instruction specially tailored to the credibility contest inherent in child molestation cases should have been given, the instruction’s absence was harmless error.
As we explain, we also reject: (1) Rivera’s challenge to the sufficiency of the evidence to support his convictions, (2) his assertion the admission of uncharged sex offenses with the victim’s minor cousin violated his constitutional rights of due process and equal protection, and (3) his argument the trial court abused its discretion by admitting sexual propensity evidence. We therefore affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
The victim, T.N., was four years old when her mother, T.L., began dating Rivera. T.N. considered Rivera her stepfather, though he and her mother never married. The couple cohabited and their sexual union produced two more daughters. After her second child with Rivera, T.L. stopped having intercourse with him because she suffered from lupus, which made sex painful. Rivera, however, continued to press her to engage in intercourse, to the point where she spent many nights at her mother’s home next door to avoid him. According to T.L., she and Rivera fought frequently about sex. One time, he pounded on her mother’s door in a rage, demanding that she return home to have sex with him. When T.N. was six or seven years old, the family had moved into a condominium in Santa Ana. There, Rivera began molesting her.
T.N. consistently described the first time Rivera abused her. He brought her to his bedroom to watch a videocassette he described as an “action” movie, which proved to be a pornographic film. T.N. did not want to watch, but Rivera ordered her to stay. He had beaten her many times in the past and she was scared. He inserted his penis in her vagina and her anus, just like on the video. It hurt “[a] lot.” Rivera also made her touch his penis. He warned her she would “get in trouble” if she disclosed the abuse. From that day forward, Rivera raped and sodomized T.N. roughly once a week, from the time she was seven in second grade until she reported the abuse when she was 11, in sixth grade. T.N. could not estimate the number of incidents of abuse, except that it was weekly and seemed to be “all the time.”
Besides subjecting T.N. to intercourse and sodomy, Rivera sometimes orally copulated her or forced her to orally copulate him. The assaults took place in Rivera’s bedroom, in the shower, and in the living room when her mother and sisters were elsewhere. Rivera was the children’s primary caretaker. On one occasion, T.N.’s mother returned home to find Rivera in the shower with T.N. She chastised Rivera that he was too old to be showering T.N. After relatives and friends expressed concern about the attention Rivera paid to T.N., her mother confronted her about whether he had touched her inappropriately, but she denied it because she was scared. T.N.’s mother told her she would be angry with T.N. if she found out she were lying, which made T.N. more fearful of telling the truth. T.N. tried to resist Rivera’s advances by kicking and pushing him off, but he easily overpowered her. He beat her by hand and with a belt, shoes, hangers, and a stick to make her acquiesce.
In sixth grade, T.N. disclosed Rivera’s abuse to Melissa, her classmate, and Melissa accompanied T.N. to the principal’s office, where she revealed Rivera had touched her “private parts.” The principal summoned the police and child protective services.
While T.N. described Rivera’s abuse in an interview with an investigator from the Orange County Child Abuse Services Team (CAST), Rivera came to school to pick her up, only to be met by a police officer. Apprised of T.N.’s accusations, Rivera protested to the officer that he could not have raped T.N. because he was impotent. He claimed he had been unable to have sex for more than a year. He gave no explanation for his claimed impotency. The officer suggested the physical exam T.N. would receive from a CAST physician would reveal whether T.N. had had sexual intercourse. Sometime after the exam, but before Rivera learned of its results, he wrote a letter to T.N. and had a classmate deliver it to her.
The jury viewed the videotape of the CAST interview, and Rivera cross-examined both the investigator and T.N. at trial concerning the interview.
The letter stated, in pertinent part: “Forgive me for everything. I’m very sorry. Please don’t send me to jail for life. Change your story. Tell them you lied. If you don’t change your story, the family will never be together. I’m not mad at you. I love you very much. I’m sorry. Tell them you lied because I didn’t let you go out with your friend. Tell them you have [sic] sex with a boy last year and you don’t know where he is now. If you love me a little, don’t send me to jail. Call me. I promise everything is going to change. I love you very much. After you read this, break it [sic], throw it away. I love you very much. If I go to jail, you are not going to see me anymore. Let’s go to Disney.” T.N. testified that Rivera’s adult son contacted her at home, offering that “if I want anything, just tell him, he’d... give it to me to just — to let my stepdad go.”
The results of T.N.’s physical exam by a CAST pediatrician showed “no injuries or anything in regards to her genital or hymen area, ” which the doctor explained was typical because of the body’s elasticity and rapid healing capacity in the genital region. A small, superficial tear in T.N.’s anus was consistent with anal intercourse, but nondeterminative, resulting in a “nonspecific finding.”
T.N.’s 11-year-old cousin, J.N., testified that when she was seven or eight years old, she was watching television in Rivera’s bed with T.N. and her whole family, including her mom, also on the bed. After everyone fell asleep, Rivera put one of his legs over J.N.’s body, rubbed his body against her backside, and touched her in a “bad” way “in the wrong spots, ” including her “waist” and “under [her] chest.” Rivera stopped and J.N. told no one about the incident because she was scared.
Rivera testified at trial. He denied having any sexual contact with T.N., which he claimed was impossible due to his impotence. He explained on cross-examination that he was able to conceive children with T.L. only through her assistance in “grabbing [his] penis and helping to put it in there.” His impotence was no obstacle to sex with T.L. once a week in this manner. Rivera had no recollection of telling the officer at T.N.’s school he had not had sex for more than a year because of his impotence. He denied pressuring T.L. for sex, claiming that, at age 60, he had a low sex drive. He explained that when he met T.L., “I t[old] her... I’m not planning to have a lot of sex because I’m old.” He denied T.L.’s accounts of his sexual advances, explaining he sought her next door at her mother’s with the invitation: “‘Honey, come home.’” Rivera testified he instructed T.N. to “break [his letter to her and] throw it away” because that is how he closed all his correspondence. He also testified he did not know the police were monitoring a cell phone conversation he suddenly terminated with T.N. in 2005, but rather he hung up to avoid violating the hands-free mobile telephone law. The prosecutor pointed out the law did not take effect until 2008.
Rivera attributed T.N.’s accusations to his strict parenting style and jealousy that her mother spent more time with him than her. He claimed T.N. was a difficult child who was sometimes “a little good, ” but changed for the worse when she met Melissa. He also blamed J.N. for her influence on T.N., recounting an occasion in which the two young girls, according to Rivera, waited for T.N.’s mother to fall asleep and then disappeared for three days. He denied touching either T.N. or J.N. sexually on any occasion.
II
DISCUSSION
A. The Trial Court Adequately Instructed the Jury Concerning Unanimity
Rivera aims his principal appellate challenge at the trial court’s unanimity instruction. California law provides that the jury verdict in a criminal case must be unanimous. (People v. Russo (2001) 25 Cal.4th 1124, 1132; see Cal. Const., art. I, § 16.) Instructing the jury on the unanimity requirement “‘is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed.’” (Russo, at p. 1132.) Put another way, the instruction “‘is designed in part to prevent the jury from amalgamating evidence of multiple offenses, no one of which has been proved beyond a reasonable doubt, in order to conclude beyond a reasonable doubt that a defendant must have done something sufficient to convict on one count.’” (Ibid.)
Here, the trial court instructed the jury on the necessity of a unanimous verdict, as follows: “You must not find the defendant guilty of [a] forcible lewd act on a child under 14 in counts one through ten or the lesser crimes of lewd act on a child under 14 and battery unless you all agree that the People have proved specifically that the defendant committed those offenses on the first and last occasions in the charged years.”
It does not appear the prosecutor specified at trial which of Rivera’s many alleged sexual acts with T.N. constituted a particularized basis for the 10 forcible lewd act counts against him. The information filed at the outset of the case stated merely that Rivera committed two acts of forcible lewd conduct against T.N., as Jane Doe, between the first and last days of the year, in each of the five years from 2001 through 2005. With its unanimity instruction, the trial court attempted to fill the gap left by the prosecutor by specifying a guilty verdict required juror agreement that Rivera committed forcible lewd acts with T.N. on two particular occasions each year, namely, “the first and last occasions” in each charged year. (See Judicial Council of Cal. Crim. Instns. CALCRIM No. 3502 [trial court may specify “date or other description of event relied on”]),
The instruction is not a model of clarity, however, because T.N.’s testimony did not lend itself to determining which particular incidents of abuse constituted the first and last occasions of abuse in each calendar year. The trial court may have concluded that because the case boiled down to a credibility contest between T.N. and Rivera, the jury — if it believed T.N.’s account and rejected Rivera’s blanket denial — would conclude all the abuse occurred, rather than none of it. Consequently, it follows that if the jury determined Rivera committed all the instances of abuse T.N. described, it also necessarily determined he committed the first and last incidents of each year, thereby satisfying the unanimity requirement for each count against him. We agree this scenario accurately describes what happened at trial, but we also agree with Rivera and the Attorney General there was a better jury instruction available than the one the trial court crafted.
In People v. Jones (1990) 51 Cal.3d 294 (Jones), the Supreme Court confronted the molestation scenario where the “‘true issue’” is credibility, i.e., “‘the jury either will believe the child’s testimony that the consistent, repetitive pattern of acts occurred or disbelieve it....’” (Id. at p. 322.) In such cases, omitting a unanimity instruction altogether (see, e.g., id. at p. 307; People v. Moore (1989) 211 Cal.App.3d 1400, 1415-1416) is harmless because “‘if the jury believes the defendant committed all the acts it necessarily believes he committed each specific act [citations].’” (Jones, at p. 322.) Stated differently: “Where the record [contains] no rational basis, by way of argument or evidence, for the jury to distinguish between the various acts, and the jury must have believed beyond a reasonable doubt that [the] defendant committed all acts if he committed any, the failure to give a unanimity instruction is harmless.” (People v. Thompson (1995) 36 Cal.App.4th 843, 853 (Thompson).)
In Jones, the Supreme Court suggested language that eventually became the basis for a specialized instruction in similar, future cases. (Jones, supra, 51 Cal.3d at p. 322; see CALCRIM No. 3501.) But the absence of such an instruction did not require reversal in Jones because it was manifest the jury resolved the core credibility question against the defendant. (Jones, at pp. 321-322.) So it is here.
CALCRIM No. 3501 provides: “The defendant is charged with ____ [in Count[s] ____ ] sometime during the period of ____ to ____. [¶] The People have presented evidence of more than one act to prove that the defendant committed (this/these) offense[s]. You must not find the defendant guilty unless: [¶] 1. You all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act (he/she) committed [for each offense]; [¶] OR [¶] 2. You all agree that the People have proved that the defendant committed all of the acts alleged to have occurred during this time period [and have proved that the defendant committed at least the number of offenses as charged].” (Brackets in original.)
Here, the nature of T.N.’s testimony was not conducive to identifying discrete instances of abuse during a particular hour on a particular day or in a particular month, but rather was such that the jury would believe Rivera committed all the acts if he committed any, or it would credit his testimony he committed none of the abuse. Accordingly, the case boiled down to a credibility contest between the victim and the defendant, rather than ascertaining a first or last occasion of abuse in a particular year, or determining whether a discrete, contested incident occurred, or otherwise distinguishing between alleged acts on the basis of evidence or argument. (Thompson, supra, 36 Cal.App.4th at p. 853.) The acts were not meaningfully distinguishable in a way that would help the jury determine whether a particular incident occurred because each type of act T.N. described (e.g., intercourse, sodomy, oral copulation) constituted a forcible lewd act with a child under age 14. Rivera did not attempt to take issue with any particular instance or category of conduct T.N. described, but instead denied he touched T.N. sexually on any occasion.
As in Jones, the jury’s verdict reflects it accepted, with ample basis, the victim’s credibility concerning the nearly constant abuse and rejected defendant’s 180-degree-opposite, blanket denial any abuse occurred. As noted in Jones, the omission of a unanimity instruction altogether would have been harmless error. Here, the trial court instructed the jury on the necessity of unanimity and, while it could have done so more clearly by simply providing the standard instruction for such cases, CALCRIM No. 3501, the failure to do so constitutes harmless error, as in Jones.
B. Substantial Evidence Supports the Jury’s Verdict
Rivera challenges the sufficiency of the evidence to support his conviction for multiple instances of committing a forcible lewd act upon a child. He asserts T.N.’s testimony was too generic to support the charges, leaving the jury unable to determine when or whether any particular incident occurred. But as our Supreme Court explained in Jones, “[E]ven generic testimony (e.g., an act of intercourse ‘once a month for three years’) outlines a series of specific, albeit undifferentiated, incidents each of which amounts to a separate offense, and each of which could support a separate criminal sanction.” (Jones, supra, 51 Cal.3d at p. 314, original italics.) The victim’s testimony will support a conviction for child sex offenses under section 288 where he or she describes (1) “the kind of act or acts committed with sufficient specificity... (e.g., lewd conduct, intercourse, oral copulation or sodomy)”; (2) “the number of acts committed with sufficient certainty to support each of the counts alleged in the information... (e.g., ‘twice a month’...)”; and (3) “the general time period in which these acts occurred (e.g., ‘the summer before my fourth grade’...).” (Jones, at p. 316, original italics.) T.N.’s testimony met each of these requirements: she testified, for instance, that Rivera sodomized and raped her weekly from the time he first showed her the pornographic movie in second grade to the time she reported the crime in sixth grade. This testimony was more than sufficient to support charges that Rivera committed a lewd act against T.N. at least twice a year between 2001 and 2005.
Rivera contends the evidence does not support the conclusion he committed each of the acts forcibly. But “force” is inherent not only in direct physical coercion, but also in duress, menace, or creating fear of imminent bodily injury. (§ 288, subd. (b)(1).) T.N. never wavered in describing Rivera’s use of coercion to perpetrate the acts. She “always” tried to resist him physically, but he overpowered her. Moreover, she described an atmosphere pervaded by fear, preventing meaningful resistance, in which Rivera beat her by hand and with a belt, shoes, hangers, and a stick to make her acquiesce. Specifically, she testified that when she resisted physically, he retaliated by beating her and forcing her to perform the sex acts. Rivera’s challenge to the sufficiency of the evidence is without merit.
C. Evidence Code Section 1108 Is Constitutional
Rivera contends the admission of propensity evidence concerning his uncharged sexual contact with J.N. violated his rights to due process and to equal protection. California courts have upheld the constitutionality of admitting evidence of prior sexual misconduct under Evidence Code section 1108 based on the essential safeguard Evidence Code section 352 provides against a fundamentally unfair trial. (People v. Falsetta (1999) 21 Cal.4th 903, 922; People v. Fitch (1997) 55 Cal.App.4th 172, 184.) We therefore reject Rivera’s facial challenge (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), which he raises merely to preserve for federal review.
Rivera’s as-applied challenge fares no better. All relevant evidence is admissible unless excluded under the federal or California Constitution or by statute. (Evid. Code, § 351; see also Cal. Const., art. I, § 28, subd. (d) (Prop. 8).) We review a trial court’s ruling under Evidence Code section 352 for abuse of discretion. (People v. Branch (2001) 91 Cal.App.4th 274, 282.) Under Evidence Code section 352, the trial court “in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” Evidence is substantially more prejudicial than probative if it poses an intolerable risk to the fairness of the proceedings or the reliability of the outcome. (People v. Guerra (2006) 37 Cal.4th 1067, 1114.)
Here, the trial court reasonably could conclude evidence showing Rivera molested another family member of the same age, in the same location, and during the same period he allegedly molested T.N. had probative value by establishing his propensity to transgress sexual boundaries with minor relatives in his care. The conduct was not unduly prejudicial in the sense it would add “‘very little’” to the jury’s deliberations or inflame the jury’s passions. (People v. Karis (1988) 46 Cal.3d 612, 638.) To the contrary, J.N.’s testimony paled in comparison to the acts T.N. described. As the trial court observed, “It’s not as though [T.N.] is saying she was touched and this other person is saying she was raped and sodomized. It’s the other way around.” And the evidence consumed virtually no time, consisting of a single witness describing a single incident. Consequently, we cannot say the trial court abused its discretion in admitting the evidence.
III
DISPOSITION
The judgment is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., IKOLA, J.