Opinion
D058356
01-23-2012
THE PEOPLE, Plaintiff and Respondent, v. GEORGE DAVID ROSADO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. SCE294040)
APPEAL from a judgment of the Superior Court of San Diego County, John M. Thompson, Judge. Affirmed in part and reversed in part.
A jury convicted George Rosado of seven counts of committing lewd acts on two of his daughters (G. & M.) and his niece I. (Niece), all of whom were under the age of 14 (Pen. Code, § 288, subd. (a)). The jury found true that Rosado had committed an offense described in section 667.61, subdivision (c), against multiple victims (§ 667.61, subds. (b), (c), (e)). As to three of the counts, the jury additionally found that Rosado had substantial sexual conduct with a child under 14 years of age (G. & M.; § 1203.066, subd. (a)(8)).
All further statutory references are to the Penal Code.
The jury also convicted Rosado of two counts of forcible lewd acts upon his older daughter (A.) that occurred while she was under 14 years of age, between 1994 and 1995. (§ 288, subd. (b)(l).) Regarding those two counts, it was alleged and found by the jury that they fell within the tolling provisions of section 803, subdivision (f), because Rosado had had "substantial sexual conduct" with that child within the meaning of section
1203.066, subdivision (b), and there was independent corroborating evidence as required by the statute. The jury also determined as to A. that he had committed such an offense against multiple victims (§ 667.61, subds. (b), (c), (e)). The trial court sentenced Rosado to a total prison term of 24 years plus 45 years to life.
The specific forcible lewd conduct toward A. that was alleged against Rosado was (1) "to wit, hand to vagina" and (2) "to wit, mouth to vagina."
On appeal, Rosado contends that as to count 1 only (forcible lewd act upon A., "hand to vagina"), the trial court erred in allowing an extension of the relevant limitations period for bringing these charges. (§ 803, subd. (f) (hereafter § 803(f)). Rosado argues that the conduct charged did not amount to "substantial sexual conduct" within the incorporated statutory definitions, as would be necessary for purposes of tolling. (§§ 803(f)(1), (2); 1203.066, subd. (b); People v. Lamb (1999) 76 Cal.App.4th 664, 677-682 (Lamb).) He accordingly argues his motion to dismiss count 1 should have been granted, or that it was error to allow the jury to be instructed on and to decide that limitations issue. (People v. Lopez (1997) 52 Cal.App.4th 233, 249-252 (Lopez).) As will be explained, there was no error in these respects, and count 1 is not time-barred.
As further argued by Rosado, however, a unanimity instruction should have been given under the relevant circumstances, because the record shows multiple acts were described in testimony that could have supported more than one discrete crime as to an individual victim. (People v. Russo (2001) 25 Cal.4th 1124, 1132 (Russo).) In the charges, the prosecutor elected a specific "to wit" act for each count regarding A. and other victims, including Niece, and the evidence was presented and argued accordingly. However, during deliberations, the jury sent several questions to the judge, demonstrating they had some confusion about reaching agreements on the facts regarding certain counts, apparently dealing with A. and Niece. The court then permitted the prosecutor to abandon the election, denied a defense request for a unanimity instruction, and allowed the jury to convict as to "any lewd act." (CALCRIM Nos. 3500, 3501; People v. Jones (1990) 51 Cal.3d 294 (Jones).)
We agree with Rosado that the trial court erred in the manner these jury questions were answered and in its giving of instructions. This error was harmful, and the convictions on counts 1 and 8 must be reversed. The balance of the judgment of conviction is not effectively challenged and it is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
Rosado does not directly challenge the sufficiency of the evidence to support his convictions or the true findings on multiple victims. Instead, he makes technical arguments about the applicability of the statutory limitations period for count 1, regarding A. (now an adult), and about jury unanimity principles that were violated during trial with respect to counts 1 and 8 (about A. and Niece). We will set forth the transactional facts in detail as to A. and Niece, and only generally describe the charges and evidence regarding G. and M., which is most relevant here as corroborating evidence for the limitations issues about the current charges. (§ 803(f)(2)(C).) Under Evidence Code section 1108, the court also admitted the testimony of another female relative (J.) about Rosado's molestation of her when she was younger.
In jury instructions, the court read CALCRIM No. 1191, that A.'s and J.'s evidence of uncharged offenses was admitted for a limited purpose, to decide whether or not Rosado was the person who committed the offenses in this case, with the required intent or plan. The applicability of that theory is not challenged here.
A. Background
At the time these offenses came to light in June 2009, Rosado was living with his second wife, R., and their three children. These charges involved their daughters M. and G., ages 14 and 13 at the time of trial (although no charges were brought as to their other daughter K., 11 years old). Niece, cousin of M., G. and K., sometimes visited the family through 2007, when she was nine or ten.
In broad outline, the evidence showed that G. was in sixth grade when she told a counselor at her middle school that Rosado had been touching her private parts in a sexual manner, for a number of years. Authorities from the sheriff's office and social workers investigated, and G. told them that Rosado had been touching her that way since she was about five years old. M. was interviewed and said that while she was sleeping some time ago, Rosado had touched her private parts, but he had not done so recently. G. and her siblings were placed in foster care.
Previously, Rosado was married to E., the mother of A. (born in 1981) and her older sister K. Rosado discussed the dependency proceedings for the girls and the family situation with his older daughter K., who became concerned at his admissions that he had touched his younger daughters in certain sexual ways but had gotten them to retract some of their claims about him. K. called her sister A., and they discussed how Rosado had done similar things to A. when she was a child.
On August 7, 2009, A. called the social worker who was handling Rosado's case in dependency court, because she was concerned for the safety of Rosado's younger girls. A. told the social worker and the supervisor that Rosado had sexually abused her as a child for about 10 years starting when she was four or five years old (approximately 1985-1986). A. then told the sheriff's detective about it, and both she and K. called and came in on August 11 to be interviewed.
The criminal complaint was filed September 9, 2009, originally including 11 counts. The amended information contained nine counts (two as to A., four as to G., one as to M., and two as to Niece.).
B. Pretrial and Trial Proceedings: A.
Before the jury was selected, both parties brought motions in limine regarding the admissibility of prior uncharged lewd acts against young girls, to show Rosado's propensity to commit such acts. (Evid. Code, §§ 1101, 1108, 352.) The court allowed A. and another young adult female relative of Rosado (J.) to testify about his sexual molestation of them when they were younger. A. also testified about the 1994-1995 incident charged in counts 1 and 2.
Rosado brought a motion to dismiss the two counts regarding alleged molestation of A. in 1994-1995, arguing the criminal complaint filed on September 9, 2009 was outside the relevant statutory periods. (§§ 800, 803(f).) Rosado contended the specific conduct toward A. that was alleged against him in count 1 ("to wit, hand to vagina") did not constitute "masturbation" or other "substantial sexual conduct," within the meaning of section 1203.066, subdivision (b), so as to extend the time for prosecution as provided for in section 803(f)(2)(B).
The trial court denied Rosado's motion to dismiss these counts. Later, the trial court denied his motion for acquittal on counts 1 and 2, on the same basis. (§ 1118.1.)
In A.'s testimony at trial, she described how Rosado habitually approached her at night, from the time she was about five, to touch her private parts. She objected and from the time she was 11 until 13, he stopped doing so. Another incident occurred when she was 13 years old, almost 14 years old, when Rosado was working at his desk in his bedroom. She walked into the room and somehow ended up on the bed. A. testified that (1) he got on top of her, (2) was kissing and touching her, then (3) pulled one of her breasts out from under her shirt and (4) kissed it. She told him to stop and tried to push him away, but he used his body weight to keep A. from getting up, and moved her clothes around. Next (5), he pulled down her pants, (6) used his hands to touch and fondle her vaginal area, and (7) then put his mouth on her vagina for a few minutes. A. was then able to get up and leave the room. A few months later, her mother took the children and separated from Rosado.
A. did not have much contact with Rosado after age 13, except when she was about 20 and loaned him money, and they had a disagreement when he did not repay it.
C. Trial Proceedings: Niece
G. and M. testified, as did Niece, who was age 13 at the time of trial. A few years before, when she was about nine or ten, she, her father and brother were visiting Rosado's family home over Christmas evening. Wearing sweat pants and a t-shirt, she went to sleep in the bedroom that G. and M. shared, lying in the bed with G., who was sleeping next to the wall. Niece was asleep next to the edge of the bed, when she woke up to find that her sweat pants had been pulled down and she felt Rosado lying behind her, rubbing his "private part" against her, skin to skin. Niece got out of bed, pulled her pants up, walked out of the room to find her brother, and told him that Rosado had touched her sexually. They did not tell any adults, she never visited there again, and it never happened again.
In count 8 as to Niece, "pulling on pants" was the "to wit" act listed. "Penis to buttocks" was the "to wit" act listed in count 9.
After Niece learned that Rosado had been charged with touching G., she told G. what Rosado had done to her. Niece observed that G. seemed shocked. Niece was interviewed during the investigation. At first, Niece told the detective and the interviewing social worker that she was standing next to a hall closet when Rosado grabbed her on the behind for about 30 seconds. A forensic interview was scheduled and on its second day, she wrote down for that interviewing social worker that Rosado had pulled her pants down in bed and put his private part against her.
D. Defense Case
Rosado testified in his defense, denying that he ever touched the girls in a sexual manner (A., Niece, G., M. and the other relative J.), and thus he mainly challenged their credibility. On cross-examination, Rosado explained that Niece was lying, because he had thrown her family out of his house. He stated A. was lying because of her feelings that he had abandoned his first family. He did not know why G. or J. would lie about him.
Rosado's wife R. testified that he would not molest the children, and A. was lying. G. had told R. at least five times that she had lied about Rosado molesting her. M. testified that G. admitted to her she had lied about Rosado molesting her, although earlier, M. said G. was telling the truth. M. and K. denied that they were molested.
E. Jury Instructions and Questions; Verdict
The matter was argued and sent to the jury. The jury instructions submitted factual issues regarding the statute of limitations defense to the prosecution of the 1994-1995 counts. (§ 803(f).) Ultimately, the jury found, under a preponderance of the evidence standard, that counts 1 and 2 were prosecuted within the applicable statute of limitations. (We will describe in more detail the instructions given and denied regarding unanimity issues in pt. III, post.)
During deliberations, the jury requested and received a read-back of testimony from Niece and from her brother. Next, the jury sent out a question to the judge, asking, "Do we focus on the lewd act or on the to wit specification (i.e.: mouth to vagina, penis to buttock). Is the to wit for clarification or must we find the to wit?" The court asked for the views of counsel, suggesting that different small groups of jurors could have believed that different types of acts had been committed on A., which would present a unanimity problem. The prosecutor responded, "In no way do I think that they have to all agree on the to wit. The to wit is not part of the crime. I didn't even have to, as the prosecutor, put a to wit in any of them." "[R]egardless of which one we think it is, all of them, or each one of us still believes a lewd act was committed. That's all that needs to be proven. The to wit is only there as a roadmap for them. In no way do I as a prosecutor need to prove that and do they need to find a to wit. It's not necessary, if they all agree that a lewd act was committed."
Defense counsel unsuccessfully objected that the charging documents and the verdict forms included the to wit examples, so that the jury should now be given CALCRIM No. 3501. He contended that otherwise, the jury might erroneously focus on different times that acts (of touching) were committed, and might not agree on the relevant acts as specified.
The court overruled the defense objection and answered the jury's question in writing, "You must determine whether the Prosecution has presented proof beyond a reasonable doubt as to whether the Defendant committed any act that constitutes a lewd act within the meaning of the instructions."
Next, the jury sent out another question to the judge, asking, "If we have come to a unanimous decision of most/a majority, but are stuck on one/two, can we move forward on the settled matters, and unresolved count hangs, or does the entire count process hang?" The court and counsel discussed how the jury was evidently not yet deadlocked on counts 1 or 2, for example, and the court answered the question from the jury as follows: "Each charge is a separate and distinct count [and] the court can accept verdicts on any and/or all counts. As to counts on which you have reached a decision please complete the appropriate verdict form. If you are unable to reach a decision as to other counts, report your disagreement to the court."
Shortly thereafter, the jury returned its verdicts finding Rosado guilty on all counts. His sentence was a prison term of 24 years plus 45 years to life. He timely appealed.
DISCUSSION
Rosado first challenges his conviction on count 1 on the theory that there was an insufficient basis in fact or law to extend the statute of limitations for prosecution under section 803(f). In part I, post, we address the issue of any such time bar, because a determination of timeliness is a necessary preliminary to Rosado's next argument, concerning a harmful failure to assure jury unanimity on counts 1 and 8 (pt. II, post).
Section 803(f)(1) provides in part: "Notwithstanding any other limitation of time described in this chapter, a criminal complaint may be filed within one year of the date of a report to a California law enforcement agency by a person of any age alleging that he or she, while under the age of 18 years, was the victim of a crime described in Section . . . 288." This proceeding was duly filed a month after the report. In section 803(f)(2), certain statutory criteria are set forth for pursuing such a delayed prosecution, as will be further discussed in part 1B, post.
I
STATUTE OF LIMITATIONS ISSUE
A. Introduction
Rosado acknowledges that section 803(f) is a constitutionally permissible extension of the limitations period for counts based on the 1994-1995 events regarding A. (People v. Superior Court (2004) 116 Cal.App.4th 1192, 1195-1197.) He also does not dispute that based on A.'s 1981 year of birth, section 803(f)(1) could properly be considered for such an extension (e.g., instead of § 801.1, subd. (a) or other potentially applicable limitations rules). Moreover, Rosado does not appear to dispute that under section 803(f)(2)(C), there was ample corroborating evidence at trial (from J. and the younger girls) for the counts regarding A. Further, Rosado does not dispute that the trial court had the authority to send the limitations issues to the jury, even though the matter could have been handled otherwise. (Lopez, supra, 52 Cal.App.4th at pp. 245-248.)
Thus, we accept that some of the statutory criteria for extending the normal time period for this prosecution were satisfied here, as to count 1. We next address his proposed application of the statutory terms in section 803(f)(2)(B) as to these facts, as allowing an extension of the limitations period for certain sexual offenses only where the crime involved "substantial sexual conduct," but excluding "masturbation that is not mutual." Thus, like other courts before us, we must parse the statutory terms for "substantiality." (Lamb, supra, 76 Cal.App.4th 664, 666.)
B. Definition of "Substantial Sexual Conduct"
Section 803(f)(2) allows an extension of the time for prosecution on charges involving "substantial sexual conduct" with a minor, if certain preconditions are met. One such condition is that the evidence supports the "substantial sexual conduct" definition of section 1203.066, subject to an exclusion. That is, section 1203.066, subdivision (b), defines "substantial sexual conduct" to mean "penetration of the vagina or rectum of either the victim or the offender by the penis of the other or by any foreign object, oral copulation, or masturbation of either the victim or the offender." (Italics added.) But under section 803(f)(2)(B), there is no allowable extension of the time for prosecution on a charge of "masturbation that is not mutual." (§ 803(f)(2)(B), formerly designated as § 803, subd. (g); Lamb, supra, 76 Cal.App.4th at pp. 677-682.)
Rosado argues that section 803(f) is inapplicable to the prosecution of count 1 regarding A. because it did not involve "substantial sexual conduct" within the meaning of that incorporated definition in section 1203.066, subdivision (b). In People v. Terry (2005) 127 Cal.App.4th 750, 770, the court addressed the scope of that statutory definition, in the same manner as did the court in Lamb, supra, 76 Cal.App.4th 664, with attention to the exclusion from section 803(f)(2)(B) coverage of "masturbation that is not mutual." Section 1203.066 "does not impose any specific requirements as to the form, manner, or nature of any act of masturbation." (Terry, supra, at p. 772.) The underlying reasoning is that "[m]asturbation is not a specific criminal offense. The touching of a minor's genitals may be an offense under section 288, which makes 'any touching' of an underage child accomplished with the requisite intent a crime [citation]. '[T]he form, manner, or nature of the offending [lewd or lascivious] act is not otherwise restricted.' " (Terry, supra, at p. 773.)
Both Terry and Lamb, supra, 76 Cal.App.4th 664, concluded from the legislative history and purpose of section 803(f)(2)(B) that the exception stated "refers to a defendant's self-masturbation in the presence of the victim. [Lamb] held that the defendant's 'acts in masturbating the victim fall within the definition of mutual masturbation set forth in section 803, subdivision [f], and thus qualify for the extended statute of limitations described in that section. [Citation.]' We agree with the Lamb analysis." (Terry, supra, 127 Cal.App.4th 750, 771.) We further agree with these views set forth in Terry:
"[A]n interpretation of the term 'masturbation' more restrictive than the touching of genitals in violation of section 288, subdivision (a), would be contrary to the legislative purpose of [former] section 803(g), which is to prevent child molesters from escaping prosecution because their crimes come to the attention of law
enforcement only when the victims come forward as adults. [Citation.]" (Terry, supra, 127 Cal.App.4th 750, 772.)
C. Analysis
A. testified that, among other things, Rosado used his hands to forcibly touch and fondle her vaginal area. As part of the supporting allegations against Rosado, the jury was asked to decide on the nature of this conduct concerning A., for purposes of resolving factual issues presented by his statute of limitations defense. In relevant part, the instruction that was given defined "substantial sexual conduct" as meaning oral copulation or masturbation of either the child or the perpetrator, and masturbation was defined as the touching of another person's genitals. This instruction specified that penetration is not required.
Rosado asserts the extended statute of limitations of section 803(f) does not apply because his specified conduct toward A. (count 1, "hand to vagina") did not involve sufficiently serious or substantial conduct, because any such touching fell short of penetration. However, that argument fails, because penetration is only one of the three categories covered by section 1203.066, subdivision (b) (and another, oral copulation, is not relevant to count 1). Of the other definitional category that is relevant to this charge, section 1203.066, subdivision (b) specifies that "substantial sexual conduct" includes "masturbation of either the victim or the offender."
As explained in Lamb, no extension of the statutory period of section 803(f) is allowed for bringing charges of "masturbation that is not mutual" (i.e., any masturbation by the offender of himself in the victim's presence). (Lamb, supra, 76 Cal.App.4th 664, 677-682.) Here, count 1 charged the offender's contact with the genitalia of the female victim, with his hand. Under the analysis set forth above, this touching qualifies as "substantial sexual conduct," as lewd conduct under section 288, subdivisions (a) or (b), and the charged conduct in count 1 was not excluded from coverage according to the allowable extensions of the statutory period. (Terry, supra, 127 Cal.App.4th 750, 772.) Rosado may not rely upon that statutory definition to claim that the limitations issue should have been decided in his favor as a matter of law. Accordingly, the instruction given was not erroneous, the evidence supported the jury's finding that the count 1 offense included substantial sexual conduct, and its prosecution was not time-barred.
II
JURY UNANIMITY PRINCIPLES
A. Introduction and Background
Despite our conclusion that count 1 was timely filed, we next examine the trial proceedings for compliance with the rules regarding jury unanimity, specifically as to counts 1 and 8. Rosado contends the trial court erred in failing to give his requested unanimity instruction, because under the evidence presented on counts 1 and 8, the jury could have disagreed as to which of several acts or different factual options could have supported a single charge. He argues the prosecution made an election on all counts (except M.) to specify a "to wit" act among the incidents, but unexpectedly abandoned the election, and the court's instructions failed to provide the jury with adequate guidance about the issue.
The jury unanimity requirement ensures that for a conviction, the defendant is found guilty of the specific crime of which adequate notice has been given, in the charges and trial proceedings. (Russo, supra, 25 Cal.4th 1124, 1132; see Sheppard v. Rees (9th Cir. 1990) 909 F.2d 1234, 1237-1238 (Sheppard).) "Therefore, cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act." (Russo, supra, at p. 1132.) "On the other hand, where the evidence shows only a single discrete crime but leaves room for disagreement as to exactly how that crime was committed or what the defendant's precise role was, the jury need not unanimously agree on the basis or, as the cases often put it, the 'theory' whereby the defendant is guilty." (Ibid.)
"This requirement of unanimity as to the criminal act '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.' [Citation.]" (Russo, supra, 25 Cal.4th 1124, 1132.) These guidelines apply:
"[U]nanimity as to exactly how the crime was committed is not required. Thus, the unanimity instruction is appropriate 'when conviction on a single count could be based on two or more discrete criminal events,' but not 'where multiple theories or acts may form the basis of a guilty verdict on one discrete criminal event.' [Citation.] In deciding whether to give the instruction, the trial court must ask whether (1) there is a risk the jury may divide on two discrete crimes and not agree on any particular crime, or (2) the evidence merely presents the possibility the jury may divide, or be uncertain, as to the exact way the defendant is guilty of a single
discrete crime. In the first situation, but not the second, it should give the unanimity instruction." (Id. at p. 1135.)
B. Facts: Instructions Given and Jury Questions
To apply these principles, we look to the record (particularly the challenged counts 1 & 8), for any indication of significant risk the jury might have divided on "two discrete crimes and not agree[d] on any particular crime." (Russo, supra, 25 Cal.4th at p. 1135.)During closing argument, the prosecutor explained how the sets of charges were organized by victim, and outlined the three basic elements to the lewd act charges (plus force, regarding A.). These three elements were touching the body of the child, with the requisite sexualized intent, and the age of the child. (§ 288, subds. (a), (b).) According to the prosecutor, touching the body could have been as simple as rubbing the top of the child's head, and the requisite intent was an additional element to be proved.
Opening argument was not transcribed.
In the instructions given, the lewd act crime was defined in terms of its elements, set forth above. The instructions also included CALCRIM No. 3515, that the jury must decide each count separately, and No. 3550 (all 12 jurors must agree to the decision).
In argument, the prosecutor emphasized that only one incident was charged as to A. (the final incident) and one incident as to Niece (the Christmas Eve incident), although each such incident gave rise to two counts. With respect to the types of touching in the counts about A., the prosecutor explained that the "to wit" language, (1) hand to vagina or (2) mouth to vagina, was intended to make it easier for the jury to know exactly what types of conduct all were talking about, as to the individual victim. The prosecutor discussed how A. had reported that Rosado used both (1) his hand and (2) his mouth to touch her vagina, using force to hold her down, and these acts were characterized as "substantial" sexual conduct.
As to Niece, there were two separate acts charged from one incident, "to wit" (8) pulling on the pants and (9) touching penis to buttocks (although neither count was charged as "substantial" sexual conduct).
As further explanation to the jury, the prosecutor said (with respect to the charges involving G.), that hundreds of counts over the years could have been charged, but the "to wit" language was intended to simplify the type of touching charged, and to show that "substantial" sexual conduct clearly happened more than one time. In contrast, regarding the more general charges involving M., the prosecutor said there was no "to wit" or identifying language used, because M. had only disclosed that Rosado had touched her in her "private parts," and the prosecutor said those elements to be proven did not include the "to wit" language: "It's just something that makes it easier for you to figure out what type of conduct we are talking about, because of the type of disclosure that [M.] gave."
As described above, during deliberations, the jury heard a requested read-back of testimony from Niece and from her brother. It then questioned the judge, "Do we focus on the lewd act or on the to wit specification (i.e.: mouth to vagina [count 2], penis to buttock [count 9]). Is the to wit for clarification or must we find the to wit?" This suggests different jurors could have believed that different types of lewd acts had been committed (or not committed) upon A. or upon Niece, and they were confused by the to wit specification.
After argument by the prosecutor, defense counsel objected that the charging documents and the verdict forms included the to wit examples, and he requested that the jury should now be given CALCRIM No. 3501. The court overruled the defense objection and request and answered the jury's question in writing, "You must determine whether the Prosecution has presented proof beyond a reasonable doubt as to whether the Defendant committed any act that constitutes a lewd act within the meaning of the instructions."
CALCRIM No. 3501 provides a model instruction: "The defendant is charged with [] 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 the acts alleged to have occurred during this time period [and have proved that the defendant committed at least the number of offenses charged]."
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The jury's next question to the judge asked, "If we have come to a unanimous decision of most/a majority, but are stuck on 1/2, can we move forward on the settled matters, and unresolved count hangs, or does the entire count process hang?"
The court answered this question as follows: "Each charge is a separate and distinct count [and] the court can accept verdicts on any and/or all counts. As to counts on which you have reached a decision please complete the appropriate verdict form. If you are unable to reach a decision as to other counts, report your disagreement to the court." Guilty verdicts on all counts were promptly returned.
C. Arguments on Appeal
Rosado acknowledges that the criminal information did not have to specify particular acts, and the commission of a lewd act could have been generally pled. (§§ 951, 952.) However, since the prosecutor had elected specific acts to illustrate all of the counts (except for count 7, as to M.), and had argued them to the jury specifically, Rosado contends the trial court erred when it allowed the prosecutor to withdraw that election, and when it told the jury it only had to decide "whether the defendant committed any act that constitutes a lewd act within the meaning of the instructions."
Rosado relies on authorities such as People v. Melhado (1998) 60 Cal.App.4th 1529, 1534 (Melhado), stating: "When an accusatory pleading charges the defendant with a single criminal act, and the evidence presented at trial tends to show more than one such unlawful act, 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. [Citation.] The duty to instruct on unanimity when no election has been made rests upon the court sua sponte. [Citation.]" (See also Cal. Const., art. I, § 16; Jones, supra, 51 Cal.3d 294, 321.)
Rosado thus contends different jurors might have erroneously focused on different acts of touching either A. or Niece, since the evidence included testimony about several such unlawful acts occurring during their respective incidents, and not every juror might have agreed that the relevant "to wit" acts occurred as specified. The trial court thus should have taken steps to correct their evident confusion by giving a unanimity instruction, and the failure to do so was either prejudicial instructional error, or structural error due to a lack of notice of the charges to be met. (Sheppard, supra, 909 F.2d at p. 1238 [no trial by ambush].)
In response, the People claim that the prosecutor clearly argued specific acts with specific times for both counts 1 and 8, such that there was no reasonable likelihood of juror disagreement as to the particular acts revealed in the testimony. The People argue that at most, the evidence showed only a single incident, but giving rise to two discrete crimes, against A. and against Niece. Even though there was some room left for some disagreement as to how the crime was committed, at most, this was a choice of theory problem only, which should not require any unanimity instruction. (Russo, supra, 25 Cal.4th at p. 1132.)
The People support their claim that there was no error here, or at most harmless error, by citing to People v. Perry (1914) 25 Cal.App. 337, a case primarily dealing with amendment to conform to proof. The court in Perry determined that "the mere making of a correction in the description or in the name" (id. at p. 341), included in the criminal information did not impermissibly "have the effect of charging an offense different from that originally charged, or of inserting in the information any new or additional allegations of fact requiring the defendant to prepare for any further or different defense against the charge than that required of him before such amendment or correction was made." (Ibid.) Back in 1914, the problem in Perry was that the information charged defendant with illegally selling liquor in a dry or "no-license territory, to wit, Kimshew township, county of Butte." (Id. at p. 338.) Those allegations further (mistakenly) specified the location of Kimshew township (in the wrong supervisorial district), but were corrected during trial to specify the right district. The appellate court explained that such a specific geographical description was not an essential constituent of the crime, because the gist or gravamen of the crime was "the act of selling within the limits of no-license territory," such that "the mere matter of the description of the 'no-license' territory may be treated as surplusage." (Id. at pp. 340-341.) Such a correction did not prejudice the defendant through any lack of notice, and "did not change the nature of the charge against him." (Id. at p. 341.) However, Perry does not entirely answer the question presented to us, because the counts against Rosado were submitted to the jury by specifically identifying individual acts charged, which were not treated as "surplusage" to the overall lewd act charges.
D. Effect of Election/To Wit Language
A unanimity instruction would not be required if the evidence showed only a single crime, even if it might have been committed in several possible ways. (People v. Wolfe (2003) 114 Cal.App.4th 177, 185-186 (Wolfe).) As to the single incidents that involved A. or Niece, the prosecutor pled counts 1/2 and 8/9 by electing certain specified acts, and this was shown in the verdict forms given to the jury. Later, the jurors indicated confusion about making general or specific findings upon those acts, mentioning in their first note to the judge those counts, "(i.e.: mouth to vagina [count 2], penis to buttocks [count 9]).
This record shows a serious risk had developed that the jurors might have been divided about which one discrete count had been proven, or both, in light of each victim's testimony describing their incidents, both of which included several acts on Rosado's part. For example, regarding the "to wit" statement in count 1 (hand to vagina), several steps that occurred when A. was on the bed with Rosado might have qualified: he used his hands to move her clothes, touched and fondled her vaginal area, while using his body weight to keep her from getting up. On count 2, he continued to hold her down while putting his mouth on that same area for about five minutes, while moving her hands away from those spots.
On count 8 ("to wit" statement of pulling on pants), Niece testified about how she was asleep next to the edge of the bed, but woke up to find that her sweat pants had been pulled down and Rosado was lying behind her, rubbing the skin of his "private part" against her skin. In People v. Mickle (1991) 54 Cal.3d 140, 176-178, the court stated that the jury unanimity rule is intended to ensure that jurors agree upon a particular act, where evidence of more than one possible act constituting a charged criminal offense was presented. Specifically in a child molest case, the jury need not unanimously decide "the minute details of how a single, agreed-upon act was committed," i.e., whether the defendant forcibly undressed the child or compelled her to do so herself. (Id. at p. 178.) Nevertheless, this jury could have been confused about which particular act in the sequence that they needed to be in agreement on, as indicated by their questions.
In the court's answer to the first question, it told the jury the prosecution only had to prove beyond a reasonable doubt "whether the defendant committed any act that constitutes a lewd act within the meaning of the instructions." Apparently, this did not effectively assist them, since they next suggested that if they reached a unanimous decision on most counts, but remained "stuck on one/two, can we move forward on the settled matters, and unresolved count hangs, or does the entire count process hang?" The court reiterated that the charges represented separate and distinct counts, to be decided separately and reported to the court. This answer did not address whether the evidence about counts 1 and 2 still presented a problem for identifying the charged acts, or possibly the evidence about other counts.
Although this is not primarily a pleading case, the parties argue the applicability of certain colorful language about pleading in People v. Mabini (2001) 92 Cal.App.4th 654, 657-658 (Mabini). That case primarily deals with the corroboration requirement of section 803(f) (corroboration is not in dispute here). In Mabini, the trial court appropriately gave a narrow instruction naming only one corroborating victim, even though there were others who might have supplied corroboration. The appellate court observed that since the subject allegation specified only one such victim, as a "to wit" allegation, "the People had pleaded themselves into an unnecessary corner. Section 803, subdivision (g) [now (f)], does not require the prosecution to plead the identity of every witness it intends to call at trial to satisfy the corroboration requirement." (Mabini, supra, at p. 658; italics added.) Mabini does not assist us here, because this is not merely a matter of pleading or corroboration, but also an issue of prejudice throughout the trial proceedings, through changing the manner in which the case was argued and presented to the jury during their deliberations, but without adequately enforcing the unanimity requirement.
The prosecution's original approach clearly elected which of multiple acts were being relied on regarding A. and Niece, and communicated this to the jury. (Melhado, supra, 60 Cal.App.4th at p. 1539.) The jurors were informed "of their duty to render a unanimous decision as to a particular unlawful act." (Ibid.) However, based on the testimony presented of the sequences of events and the arguments about them, the record suggests some jurors could have reasonably relied on different "steps" in the sequences to convict Rosado of different "lewd acts." On this record, a unanimity instruction was required, and should have been given when requested by the defense.
This record does not present only a remote "possibility the jury may divide, or be uncertain, as to the exact way the defendant is guilty of a single discrete crime." (Russo, supra, 25 Cal.4th at p. 1135.) The giving of CALCRIM No. 3515, that the jury must decide each count separately, and CALCRIM No. 3550 (all 12 jurors must agree to the decision), did not solve the problem, because there was evidence of multiple acts that could have supported both count 1 and count 8. It was therefore incumbent on the court to provide jurors with a unanimity instruction.
E. Effect of Error: Harmful
We cannot conclude that the error in declining to give a unanimity instruction was harmless. In Wolfe, supra, 114 Cal.App.4th 177, 185-186, the court acknowledged a split of the authorities about the applicable standard of error for failure to give a unanimity instruction, under state law (People v. Watson (1956) 46 Cal.2d 818 [harmless]), or the federal constitutional standard (Chapman v. California (1967) 386 U.S. 18 [reasonable doubt]). The reasoning in Wolfe, supporting application of the federal constitutional standard, is persuasive:
" 'The applicability of the reasonable-doubt standard . . . has always been dependent on how a State defines the offense that is charged in any given case . . . .' [Citation.] Like the requirement of jury unanimity, the definition of a crime is a matter of state law (subject to federal constitutional limits). [Citation.] However, once state law has defined what constitutes a single instance of a crime—the unit of prosecution— the federal Constitution requires proof beyond a reasonable doubt that the defendant committed that crime." (Wolfe, supra, at p. 186, italics omitted.)
Under the Chapman harmless error standard, we ask " 'whether it can be determined, beyond a reasonable doubt, that the jury actually rested its verdict on evidence establishing the requisite [elements of the crime] independently of the force of the . . . misinstruction. [Citation.]' " (Wolfe, supra, 114 Cal.App.4th at p. 188.)
The evidence in this case was such that different members of the jury could have found Rosado guilty of a lewd act in counts 1 and 8 based on different actions taken toward the victims, during each single incident, but it is impossible to determine whether all of the jurors agreed as to the particular criminal act that formed the basis of those guilty verdicts. It is not dispositive that Rosado presented only a credibility defense as to all the victims, because even if the jury believed all or some of the victims over his account, the jurors were still not well enough "informed of their duty to render a unanimous decision as to a particular unlawful act." (Melhado, supra, 60 Cal.App.4th at p. 1539.) Rather, some of them might have agreed upon the "to wit" acts specified, while some of them found another type of lewd act occurred.
In light of the "to wit" pleading, the instructions given, the evidence presented, the prosecutor's arguments, and the questions from the jury while considering the matter, we cannot conclude beyond a reasonable doubt that the jury unanimously agreed as to what constituted the single lewd act as charged in counts 1 and 8. We therefore cannot conclude that the instructional error was harmless, and reversal is required on those counts alone. Because Rosado has not challenged the remaining counts, the judgment is affirmed in all other respects.
DISPOSITION
The judgment of convictions on counts 1 and 8 only is reversed, while the convictions on the other counts are affirmed, and the case is remanded.
HUFFMAN, J. WE CONCUR:
BENKE, Acting P. J.
O'ROURKE, J.