Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FSB057322 Bryan Foster, Judge.
Lizabeth Weis, 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, Lilia E. Garcia, and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST, Acting P. J.
A jury convicted defendant and appellant Raymond Sanchez of one count of committing a lewd and lascivious act on a child under the age of 14 (Pen. Code, § 288, subd. (a)). A trial court sentenced him to the midterm of six years in state prison. On appeal, defendant contends that: 1) the court erred in failing to instruct the jury on unanimity; and 2) the court relied upon improper factors in denying him probation and imposing the midterm. We affirm.
All further statutory references will be to the Penal Code unless otherwise noted.
FACTUAL BACKGROUND
Prosecution Evidence
The victim, a minor, lived in a house with his mother (mother), her boyfriend, and three siblings. A couple of weeks after they moved into their house, defendant, who lived across the street, came over and introduced himself. Defendant subsequently came to their house approximately five or six more times during the following year. He would stay for approximately 15 minutes and talk with mother or the children. On one occasion, defendant took the victim to the county fair with some other children.
At the beginning of July 2006 when the victim was nine years old, defendant went over to the victim’s house while he was swimming in the pool in his backyard. Defendant asked the victim if he wanted to go to his house and watch a movie. The victim got out of the pool and went with defendant. When they got to defendant’s house, the victim followed him into defendant’s bedroom. Defendant closed and locked the door, and then turned on an all-male pornographic movie. Defendant pulled down his own pants and asked the victim to touch his penis. Defendant grabbed the victim’s hand and put it in his underpants. The victim felt defendant’s erect penis and took his hand out. Defendant then told the victim to pull down his pants. The victim did not do it, so defendant pulled the victim’s pants down. Defendant touched the victim’s penis and licked it. Defendant told the victim not to tell anybody.
After this incident, the victim started acting out. On one occasion, he grabbed the waist of mother’s cousin’s boyfriend, started “humping him, ” and said defendant’s name. When mother talked to the victim, he told her that defendant had touched him on his genitals. The victim said he did not tell mother sooner because he was afraid he would be in trouble. Mother called the police.
Officer Joseph Aguilar was dispatched to the victim’s home and interviewed him. The victim told the officer that defendant came over to the victim’s house while he was swimming and asked the victim to go to his house. The victim told the officer that he was dragged to defendant’s house, and that defendant took the victim into defendant’s bedroom, showed the victim a pornographic movie, pulled the victim’s pants down, rubbed his penis, and placed his mouth over the victim’s penis.
The police arrested and interviewed defendant. The interview was videotaped, and the videotape was played for the jury at trial. During the interview, defendant said he had been a big brother to the victim, he took the victim to the county fair, and that mother trusted him with the victim. Defendant said that on the day of the incident, mother asked him if she could borrow his video card; so defendant asked the victim if he wanted to come over to get the card. The victim went with him. When they got to his house, defendant told the victim he had to change. Defendant partially closed his bedroom door and started changing. He had his underwear on and realized he was having an erection, so he went into the bathroom. When he returned to the bedroom, the victim had turned on the pornographic videotape and was watching it. Defendant told the victim he should not be watching it and turned it off. During the interview, defendant told the officer, “It happened fast and quick, nobody pulled out penises, nobody rubbed on nobody, nobody did anything to nobody.” However, later in the interview, defendant said that the victim pulled down his pants, showed defendant his penis, and touched himself. Defendant said he told the victim to stop and pull his pants back up.
At trial, the parties stipulated that: 1) during a brief conversation with the prosecutor on October 7, 2008, the victim stated he did not remember if defendant licked his penis, since the incident occurred a long time ago; and 2) the victim never reviewed or received a copy of the police report.
ANALYSIS
I. The Trial Court Erred in Failing to Instruct the Jury on Unanimity, But
Any Error Was Harmless
Defendant argues that the trial court prejudicially erred in failing to instruct the jury on the requirement of unanimity. He asserts that the prosecution presented evidence of three distinct acts of lewd and lascivious conduct, and contends that the jurors could have disagreed about which act, if any, defendant committed. He points out that, in her closing argument, the prosecutor did not elect which of these acts was to be the basis for the charge. We agree that the court should have given a unanimity instruction but conclude that any error in failing to give the instruction was harmless.
CALCRIM No. 3500, the standard unanimity instruction, provides in pertinent part: “The People have presented evidence of more than one act to prove that the defendant committed this offense. You must not find the defendant guilty unless 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.”
“In a criminal case, a jury verdict must be unanimous. [Citations.]” (People v. Russo (2001) 25 Cal.4th 1124, 1132.) The jury must also “agree unanimously the defendant is guilty of a specific crime. [Citation.]” (Ibid.) Thus, “‘[w]hen 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. [Citations.]’ [Citation.] Where no election is made, the court has a duty to instruct sua sponte on the unanimity requirement. [Citation.]” (People v. Curry (2007) 158 Cal.App.4th 766, 783 (Curry).) “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.]” (People v. Russo, supra, at p. 1132.)
Defendant was charged with a single count of committing a lewd and lascivious act on a child under the age of 14, in violation of section 288, subdivision (a). In order to prove that he was guilty, the prosecution essentially had to establish that: 1) defendant willfully touched any part of a child’s body either on the bare skin or through the clothing; or he willfully caused a child to touch his own body; 2) defendant committed the act with the intent of arousing, appealing to, or gratifying the lust or sexual desires of himself or the child; and 3) the child was under the age of 14 at the time. The prosecution presented evidence that defendant grabbed the victim’s hand and forced him to touch defendant’s penis, defendant touched the victim’s penis, and defendant put his mouth on the victim’s penis and licked it. The prosecutor did not specifically argue which act supported the charge. Instead, in her closing argument, she pointed to two of the acts, stating: “Defendant’s charged with one count-one single count. He willfully touched [the victim’s] body, bare skin or clothed. Now, [the victim] told us he touched him on his penis and he licked him on his penis. If you believe [the victim’s] testimony, and I submit to you there’s no reason not to, we have element one met.” Under these circumstances, an election by the prosecutor or a unanimity instruction would have been appropriate.
“The failure to provide a unanimity instruction is subject to the Chapman harmless error analysis on appeal. [Citations.] Under that standard the question is ‘“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.] [¶]... ‘Where the record provides 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 defendant committed all acts if he committed any, the failure to give a unanimity instruction is harmless. [Citation.] Where the record indicates the jury resolved the basic credibility dispute against the defendant and therefore would have convicted him of any of the various offenses shown by the evidence, the failure to give the unanimity instruction is harmless. [Citation.]’ [Citation.]” (Curry, supra, 158 Cal.App.4th at p. 783.)
“Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824] (Chapman).”
On the record before us, we conclude any error in failing to instruct on unanimity was harmless under the Chapman standard. Defendant did not testify in his own defense. Defense counsel argued that defendant consistently and steadfastly denied touching or even wanting to touch the victim. Defense counsel also argued that the victim’s testimony was inconsistent and that the victim lied. The verdict demonstrates that the jury decided the basic credibility issue against defendant and simply rejected his defense.
Under the Chapman standard of review, there was no prejudice because defendant would surely have been convicted. The jury obviously rejected his version of the encounter, and it believed that he committed all acts if he committed any. (See Curry, supra, 158 Cal.App.4th at p. 784.) Thus, the failure to give the unanimity instruction was harmless beyond a reasonable doubt.
II. The Court Properly Denied Defendant Probation and Sentenced Him
Defendant next contends the court relied upon improper factors in denying probation and imposing the midterm. He claims the court improperly relied upon his failure to accept responsibility or express remorse. He further argues there was insufficient evidence to support the court’s finding that the victim was particularly vulnerable and that defendant took advantage of a position of trust. We disagree.
“A denial or a grant of probation generally rests within the broad discretion of the trial court and will not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary or capricious manner. [Citations.]” (People v. Delson (1984) 161 Cal.App.3d 56, 62.)
A. Background
The court here indicated it had reviewed the probation report, the reports of two doctors, the relevant rules of court, and the Static-99 evaluation. The court also listened to oral argument by defense counsel, who asserted that defendant should be granted probation because he did not have a serious prior record, and because the current offense appeared to be a one-time incident. The prosecutor pointed out that the probation department was recommending a six-year sentence because of defendant’s failure to accept responsibility for the incident, which indicated he would be a danger to society. The prosecutor further pointed out that defendant blamed the victim for what had occurred. Defense counsel rebutted that he was not sure it was fair to say that just because defendant had not accepted responsibility, a six-year sentence was appropriate. The court agreed with defense counsel’s comment and added it thought everybody was sorry that something like this incident had occurred, but the reason people were sorry was important as to whether they were truly sorry.
The Static-99 is a 10-item actuarial assessment instrument created for use with adult male sexual offenders, which is designed to estimate the probability of sexual and violent recidivism. (See People v. Allen (2008) 44 Cal.4th 843, 852-853.)
The court then expressly stated its reasons for denying probation and for imposing the midterm. The court noted defendant’s history of interactions with minor children and was concerned with his apparent ongoing interest in young children. The court acknowledged that defendant had no known prior record of previous misconduct with children and considered that as a factor in mitigation. As for factors in aggravation, the court found that the victim was particularly vulnerable since he was a child, but noted that the offense dealt with an individual under the age of 14, and the victim here was nine years old. The court stressed there was “a world of difference in terms of maturity” between a nine year old and a 12 or 13 year old. The court noted that defendant took advantage of a position of trust or confidence. However, it added that it did not necessarily find that a factor in aggravation, since it was “a typical aspect” of this type of offense. The court denied probation and imposed the midterm.
B. The Court Properly Denied Probation and Imposed Sentence
Defendant argues that the trial court improperly considered his failure to accept responsibility and lack of remorse, in violation of his constitutional right to remain silent and maintain his innocence. We first note that “[w]hether a defendant is remorseful is a proper consideration with respect to probation.” (People v. Leung (1992) 5 Cal.App.4th 482, 507; see Cal. Rules of Court, rule 4.414(b)(7).) In any event, it does not appear that the court actually relied on this factor. The prosecutor argued that defendant presented a danger to society, since he accepted no responsibility for the crime and instead blamed the victim. Defense counsel responded that he was not sure there was “a good answer” with regard to accepting responsibility, since a defendant who did accept responsibility would not know how the examiner would rate that answer in terms of estimating his chances of recidivism. On the other hand, if a defendant did not accept responsibility, that response could also go against him, in terms of rating his chances of recidivism. The court responded by stating: “I tend to agree in terms of the acceptance of responsibility.” The court apparently agreed with defense counsel. The court then went on to state the factors it considered in determining whether or not defendant should be granted probation. Therefore, although the court did discuss the factor of the lack of remorse, it apparently did not actually rely upon it in denying probation or imposing sentence.
Defendant further contends the court erred in finding the victim particularly vulnerable, as a factor in aggravation. He argues that the court was prohibited from finding that the victim was particularly vulnerable based on his age, since age is already an element of the offense. California Rules of Court, rule 4.420, proscribes a trial court’s use of a fact that is an element of the crime “to impose a greater term.” This proscription does not apply here because the court in this case used the disputed factor in imposing the middle term, rather than the upper term. (Cal. Rules of Court, rule 4.420; see People v. Garcia (1983) 147 Cal.App.3d 1103, 1106.) We further note the court did not find the victim particularly vulnerable merely because he was a minor. The court stated the fact that the victim was particularly vulnerable “in that [he was] a minor child goes without saying in terms of this type of offense.” The court proceeded to explain: “However, I think it is important to look at it that this offense deals with an individual under the age of 14, with a 9-year-old, which is different than dealing with a 12- or 13-year-old. I think there’s a world of difference in terms of maturity.” In other words, the court considered the victim to be particularly vulnerable because of his young age within the given age range for the offense.
Defendant additionally claims the record does not support the court’s conclusion that he took advantage of a position of trust, since there was no evidence of a special relationship with the victim. However, the record shows that defendant intentionally ingratiated himself to mother and the victim by coming over and introducing himself when they first moved to the neighborhood. He subsequently came over to their house numerous times during the following year to talk to mother and the children. Defendant clearly fostered a relationship in which the victim trusted and had confidence in him, so much that the victim would go to the county fair with him and go to his house to watch a movie with him. Defendant himself stated he had been a big brother to the victim. These circumstances support the court’s finding that defendant committed his offense by exploiting the trust and confidence he had cultivated.
Finally, defendant claims his trial counsel was ineffective for failing to object to the court’s reasons for denying him probation and imposing the midterm. A defendant who claims ineffective assistance of counsel must establish that his counsel’s performance was deficient under an objective standard of professional competency, and that there is a reasonable probability that, but for counsel’s errors, a more favorable determination would have resulted. (People v. Holt (1997) 15 Cal.4th 619, 703.) If the defendant makes an insufficient showing on either one of these components, the claim fails. (Ibid.) As discussed above, the court’s reasons for denying probation and imposing sentence were proper. Accordingly, defendant’s ineffective assistance of counsel claim fails.
DISPOSITION
The judgment is affirmed.
We concur: RICHLI J., KING J.