Opinion
E064221
08-08-2017
THE PEOPLE, Plaintiff and Respondent, v. DANIEL CORTEZ BERNAL, Defendant and Appellant.
Ron Boyer, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Elizabeth M. Kuchar, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FVI1101078) OPINION APPEAL from the Superior Court of San Bernardino County. Debra Harris, Judge. Affirmed in part; reversed in part. Ron Boyer, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Elizabeth M. Kuchar, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Daniel Cortez Bernal molested his three young nieces from 1991 until 2009. He was convicted of numerous sex offenses and evading a peace officer. Defendant makes the following claims on appeal:
1. The record regarding the Miranda warnings given to defendant was insufficient to establish that he made an informed and voluntary decision to waive his rights.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
2. He received ineffective assistance of counsel by his counsel (a) not adequately questioning the interviewing officer during the Evidence Code section 402 hearing and not objecting when the officer testified at trial that defendant made a statement about not wanting to talk to the officers; and (b) by not raising the claim that his confession was coerced.
3. Insufficient evidence was presented to support his conviction of violating Vehicle Code section 2800.2.
4. The prosecutor diminished the reasonable doubt standard in his argument to the jury.
5. Cumulative errors warrant reversal.
6. Two of the counts must be stayed pursuant to Penal Code section 654.
We agree defendant's conviction for violating Vehicle Code section 2800.2 must be reversed. We otherwise affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
Defendant was convicted of the following counts involving the victim, G.A.: (A) two counts of aggravated sexual assault of a child, oral copulation (June 18, 2002—June 17, 2007 [count 1] & June 18, 2007—June 17, 2009 [count 2]; Pen. Code, § 269, subd. (a)(4)); and (B) seven counts of a lewd act upon a child (June 18, 2002—June 17, 2003 [count 3], June 18, 2003—June 18, 2004 [count 4], June 18, 2004—June 17, 2005 [count 5] & June 18, 2005—June 17, 2006 [count 6]; June 18, 2006—June 17, 2007 [count 7], June 18, 2007—June 18, 2008 [count 8] & June 18, 2008—June 17, 2009 [count 9]; § 288, subd. (a)). Additional allegations on counts 3 through 9 that defendant committed lewd acts against more than one victim were found true (§ 667.61, subd. (b)(e)(4)).
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant was convicted of one count of continuous sexual abuse against the victim, V.S., between January 28, 1998, and January 27, 2005, in Orange County (§ 288.5, subd. (a); count 10). The multiple victims allegation was found true for this count (§ 667.61, subd. (b)(e)(4)). He was also found guilty of committing a lewd act upon a child, L.B., between October 28, 1991, and October 28, 1996, (§ 288, subd. (a); count 11).
Finally, defendant was found guilty of evading a peace officer (Veh. Code, § 2800.2, subd. (a); count 12).
For counts 1 through 10, defendant was sentenced to consecutive terms of 15 years to life. On count 11, the trial court imposed the upper term of eight years. Defendant was sentenced to a consecutive term of eight months on count 12. He received a determinate sentence of eight years eight months, plus an indeterminate term of 150 years to life.
B. FACTUAL HISTORY
1. L.B.
L.B. was born in October 1986; she was 28 years old at the time of trial. She lived in Orange County on October 28, 1991, when she was five years old, until October 28, 1995, when she was nine. Defendant was her uncle.
When L.B. was six or seven years old, she and defendant were sitting in a vehicle in front of defendant's house in Santa Ana. Defendant told L.B. that she was getting older and that he needed to check and see how her breasts were growing. He put his hands under her shirt and rubbed her breasts. He told her not to tell anyone but that it was okay for him to do it since he was her uncle. This happened for a few minutes and then she got out of the car. She did not say anything because she was worried about her aunt. She told the police what had happened to her once she found out about G.A., who was her cousin.
2. V.S.
V.S. was born in January 1992; she was 23 years old at the time of trial. Defendant was her uncle. When she was six or seven years old, she was living with her parents. V.S. saw defendant all the time because defendant's wife, V.S.'s aunt, was like a mother to her. V.S. would stay with defendant and her aunt in Garden Grove during the week while V.S.'s mom was at work.
During a party when she was seven or eight years old, defendant took her into the backyard and touched her breasts. He also touched her on her vagina over her clothes. On several occasions, she walked into his bedroom and he was watching pornography. He asked her to watch it with him. Some of the time he would have his penis exposed and he would ask her to touch it. He grabbed her hand and made her touch it. She estimated this occurred more than 20 times.
Defendant also on several occasions grabbed her hand and made her rub her vagina. Sometimes it was over her clothes and on other occasions it would be on her skin. She estimated that between the time she was six years old until she was 13 some kind of touching occurred three or four times each week. She did not want to do these things but felt that she had to do them. Defendant also inserted his fingers in her vagina on several occasions. These touchings stopped when she was 13 years old. She was certain about the date because she had a boyfriend.
Defendant also kissed her and would put his tongue in her mouth. He would give her candy if she would kiss him. Defendant never had sex with her or put his mouth on her vagina. V.S. never told her mom what defendant was doing to her. When she found out that defendant had been arrested, she called L.B., her sister, and told L.B. what he had done to her. Defendant repeatedly told her not to tell anyone. She estimated he touched her more than 50 times.
3. G.A.
G.A. was born in June 1995; defendant was her uncle. She was essentially raised by defendant and her aunt, who she called mom. They lived in Garden Grove when she was seven years old. She slept in the living room on the couch.
The first time she recalled defendant doing anything to her, she was asleep on the couch. She woke up to him holding her legs and touching her everywhere with his tongue. He touched his tongue to her vagina. She tried to get him off of her but he was too strong. She told him to stop but he refused. He told her he was preparing her for when she had a boyfriend.
G.A. recalled that he did this at least one time each year until they moved from Garden Grove when she was 12 years old. Each time she told him she did not want to do this and would kick him or push him. On one occasion, while they lived in Garden Grove when she walked into his room he turned the television on to pornography. Defendant pulled down his pants and told G.A. to touch his penis. He grabbed her hand and forced her to touch his penis. He pinned her to the bed and tried to kiss her. G.A. stated prior to the trial that defendant was uncircumcised but she could not recall what his penis looked like at trial.
When G.A. was 12 years old, the entire family moved to Hesperia. She had her own room in Hesperia and defendant would come into her room. On one occasion, while she was trying to go to sleep at the Hesperia home, defendant came into the room and pressed his penis against her butt while they had their clothes on. On another occasion, he came into her room while everyone else was asleep and pulled down her underwear. He licked her vagina. She tried to get him to stop but he held down her legs. This occurred while she was 12 and 13 years old. This happened between one and five times. He also would come in her room and touch her vagina and breasts with his hands.
One time defendant was on top of her tickling her and touching her breasts and defendant's son walked in the room. Defendant stopped and jumped up. Defendant would ask G.A. to put on his wife's lingerie. When she was 12 or 13 years old and living in Hesperia, she was watching television. He took off her top and bra and started licking her breasts. Defendant told G.A. not to tell her aunt because she would get mad at G.A. She never told anyone because she was scared. G.A. explained that since she had accused defendant, her aunt no longer would speak to her.
At this point, G.A. broke down and started crying on the stand.
When G.A. was 15 years old, she finally told one of her friends what happened. She agreed to call defendant with the police present. There was no more sexual touching of her vagina with defendant's mouth after she was 13 years old but he made inappropriate comments to her. She testified on direct that she never saw him ejaculate but she had stated prior to trial that he had. She denied that she, V.S. and L.B. talked together about lying in court.
Rita Kitterle Russ was an office manager at the Summit Leadership Academy. It was a high school in Hesperia for students interested in joining the military. On May 9, 2011, G.A. was attending the school. G.A. told her that her uncle had been molesting her and that she was afraid for her siblings who were also in the house. G.A. was crying.
4. INTERVIEW AND PRETEXT CALL
On May 10, 2011, San Bernardino County Sheriff's Deputy Vanessa Lopez was asked to translate a pretext phone call between G.A. and defendant. She assisted Sergeant Gerald Davenport. Deputy Lopez was fluent in Spanish. She identified defendant in court as the person who G.A. called. G.A. told defendant that she was not feeling good and referenced him touching her. She told him she did not want him to do it anymore. Defendant asked her what she was talking about. She responded that he had touched her and he began to apologize. Defendant asked where she was and she said at school. He pleaded for her forgiveness. He said "that wasn't right" and that he had "problems." Defendant told her he asked for forgiveness when he was at church. Defendant asked G.A. several times not to say anything. She asked him, "How could you do that to me? I was a little girl." He said, "I'm sorry. I was wrong." She also asked him "Why me?" He responded, "I have problems."
In May 2011, Deputy Lopez's last name was Duardo.
Defendant was born on January 3, 1959.
Defendant asked G.A. why she was bringing up the molestation at that time. She did not respond. Defendant told her several times to forgive him and that he would not do it again. G.A. told defendant that she wanted to tell her mom. He told her no and that G.A.'s mom was ill so this would upset her. He also promised he would not do it again. Defendant told her to go home from school and that they would talk at home. Defendant kept asking her whether she was with someone but she denied it.
Defendant also told her that he knew what he did was wrong. Defendant accused her of recording the conversation but she insisted she was not. G.A. asked defendant if she could get pregnant from what he did to her and he got angry. He said, "What are you talking about? You can't get pregnant like that. I only used my hand when I did it." She told him she just wanted to make sure. Defendant repeated that he only used his hand. The conversation ended and then she called defendant back. Defendant asked where she was and she told him walking in Hesperia. He told her he would meet her there.
After the pretext phone call, Sergeant Davenport assisted in the apprehension of defendant. He and Deputy Hardin drove behind defendant, who was driving in a brown SUV. Deputy Hardin activated his red and blue lights and siren. Deputy Hardin was driving a marked patrol car, which was a white patrol vehicle with sheriff's stars on the front doors of the vehicle. Defendant accelerated and began traveling at a high rate of speed. Sergeant Davenport was driving an unmarked police vehicle that had red lights flashing in the front.
California Highway Patrol officers joined in the chase of defendant. They also had red and blue lights flashing. Defendant was brought back to the station by Deputy Hardin.
Sergeant Davenport told defendant that they were going to be interviewing him and asked him if that was okay. Defendant responded "yeah." Defendant told them that he had problems and had intended to jump off the overpass onto the freeway at the end of the pursuit. Defendant admitted seeing the lights and sirens and did not know why he ran.
Deputy Lopez participated in the interview of defendant. She translated for Sergeant Davenport. Defendant was brought into the interview room in handcuffs, they were removed and then Sergeant Davenport tried to talk to defendant in English. Defendant seemed to understand Sergeant Davenport but Deputy Lopez read defendant his Miranda rights in Spanish. Deputy Lopez advised defendant he had the right to remain silent, that anything he said could be used against him in court, and if he could not afford any attorney, one would be appointed to him for free. Defendant made a non-verbal gesture. She asked him, "Yes?" He responded "si."
Defendant said he was G.A.'s uncle but had raised her since she was a small girl. Initially, he denied doing anything to G.A. He then said he brushed up against her breasts with his arm one time and his son witnessed him do that. He initially denied putting his mouth on G.A.'s vagina. Sergeant Davenport then told defendant he was listening in on the pretext phone call between him and G.A. and asked why defendant would ask for forgiveness if he had done nothing. Defendant said that G.A. was lying that he put his mouth or fingers on her vagina.
The room had recording equipment and Sergeant Davenport additionally put his digital handheld recorder on the table. Defendant asked him to turn off the recorder. Sergeant Davenport took out the batteries. Defendant seemed relieved and more relaxed. Defendant asked what would happen if he told the truth. Detective Davenport told him that he would feel better but there were no guarantees. Deputy Lopez sensed that defendant was uncomfortable talking in front of her because she was a woman. She turned away so she was not facing him. Thereafter, defendant admitted he put his mouth on G.A.'s vagina. He claimed it was only one time and it was a mistake.
Defendant claimed they were on the couch in the living room of their house on Clove Street in Hesperia. He did not know why he did it. He also admitted kissing G.A. and asking her to wear his wife's lingerie. He did not recall anything happening when they lived in Garden Grove. He said he was sorry and regretted what he had done. He said it was a mistake.
Defendant presented no evidence.
DISCUSSION
A. SUFFICIENT EVIDENCE OF MIRANDA WARNINGS
Defendant claims that the record was insufficient to meet the People's burden of establishing that defendant made an informed and voluntary waiver of his Miranda rights.
1. ADDITIONAL FACTUAL BACKGROUND
On July 23, 2013, defendant's counsel filed a "Written Objection to Statements at Preliminary Hearing and Motion to Suppress Post Arrest Statements for Failure to Reasonably Convey Miranda Warning in Spanish." (All caps & boldface omitted.) Defendant's counsel argued that the Spanish translation of the Miranda warnings did not reasonably convey the Miranda waiver. Defense counsel represented that the translation was as follows: "'"I WILL READ YOU YOUR MIRANDA RIGHTS [¶] YOU HAVE THE RIGHT TO REMAIN SILENT [¶] YOU HAVE THE RIGHT TO HAVE . . . . [¶] EVERYTHING YOU SAY CAN AND WILL BE AGAINST YOU IN COURT [¶] YOU HAVE A RIGHT TO AN ATTORNEY DURING WHAT WE ARE [¶] TALKING ABOUT WITH THE QUESTIONS [¶] IF YOU CANNOT HAVE AN ATTORNEY—THE COURT WILL GIVE YOU [¶] ONE FOR FREE."'" Thereafter, defendant waived his rights. Defendant's counsel argued that the Spanish translation conveyed the message of a right to an attorney only during questioning and does not state defendant is entitled to one if he cannot afford one, only that "one is free." The matter was not heard at the preliminary hearing because the motion was not filed timely.
Sergeant Davenport was called to testify prior to trial at an Evidence Code section 402 hearing (402 Hearing). He explained that defendant was handcuffed and transported to the Hesperia sheriff's station. Sergeant Davenport and Deputy Lopez interviewed defendant together. Defendant spoke only Spanish and Sergeant Davenport did not speak Spanish; Deputy Lopez spoke Spanish.
Defendant was taken into an interview room. His handcuffs were removed. Sergeant Davenport tried to speak with defendant in English but defendant did not understand. Sergeant Davenport directed Deputy Lopez to give defendant his Miranda rights in Spanish. Sergeant Davenport observed Deputy Lopez take out a card and read it to defendant in Spanish. Sergeant Davenport recalled that defendant said yes that he knew his rights. Defendant was then interviewed and the interview was recorded both by a small digital recorder and also with equipment in the room.
The video was not shown to the trial court and was not introduced at trial.
At one point during the interview, defendant agreed he would continue to speak with them if Sergeant Davenport turned off the digital recorder. Sergeant Davenport took out the batteries but the in-room equipment was still recording the interview. Once Sergeant Davenport took out the batteries, defendant made admissions to him.
Deputy Lopez also testified at the 402 Hearing and was asked, "You read those rights to him in Spanish, right?" She responded, "Yes." She was then asked, "And did you ask him in Spanish if he—do you have a copy of that card with you?" She responded, "No." Deputy Lopez was handed the standard Miranda card in English by the prosecutor.
Deputy Lopez explained she advised defendant of his right to remain silent, that anything he said could be used against him in court, he had a right to an attorney before and after questioning and if he could not afford one, one would be appointed to him by the court free of charge. Deputy Lopez asked defendant if he understood the rights. Defendant responded "Si."
Deputy Lopez was almost sure defendant said "Si" right after the rights were read and did not recall prompting him by saying "Si" first. She was asked what Spanish word she used for "free." She responded, "I didn't say the word free. I probably said you could be provided one without paying for it, similar to that." She indicated that the word "free" does not translate exactly. Deputy Lopez indicated that she would have to listen to the video in order to recall exactly the words that she said to defendant. Further, Deputy Lopez indicated that at the time she gave the Miranda warnings, there was no language on the standard card that required an express waiver advisement.
Deputy Lopez testified that defendant understood her translation. Deputy Lopez admitted that the Miranda waiver in English did not translate exactly in Spanish. However, she did read all of the rights. She adamantly stated that the words she used for free of charge had the same meaning in Spanish as in English. She was asked, "Can you say for certain that you accurately translated the Spanish language version of the Miranda warnings?" She responded "Yes."
Defendant's counsel argued that the Miranda warnings were defective. Deputy Lopez could not recall the exact words that she used. She used an English card. There was a higher duty to warn a person who did not speak English. Moreover, Sergeant Davenport started the interview by saying that he was going to ask defendant some questions, which implied that defendant did not have an option to remain silent. Also, there was no clear evidence that defendant said "si" first after being read his rights; Deputy Lopez said yes and defendant responded. Defendant's counsel also argued that the People were not showing the video interview to the trial court at the Evidence Code section 402 hearing to confirm what happened during the interview. Defense counsel argued, "But I think at this point without knowing what advisal was given [defendant], they haven't shown sufficient Miranda warning." That information was not before the court.
The prosecutor responded that Deputy Lopez testified she was fluent in Spanish, that she had the Miranda card in English in her hand, and she translated exactly from Spanish to English. The trial court found, "[D]eputy Lopez did say that she was aware that the word free did not—using that literal translation would not communicate the need, free of cost versus free, I'm available, are you free for lunch or your lunch will be free. You know, I understand that distinction. [¶] Combined with the fact that she was aware of the protections of Miranda, she did know that, she testified early on, I probably said something else that would convey the meaning of no cost to you, it would not cost you anything. And those were her words. She wasn't led into that. [¶] And I'm going to find that the statements made were given under Miranda."
Defense counsel also stated he was raising the objection under the federal Constitution. Additionally, he argued that Deputy Lopez did not give a second advisal asking defendant to expressly waive his rights and agree to talk to them. The prosecutor argued that there was an implied waiver by defendant being asked a question about the case and him answering. Defense counsel responded there was no implied waiver because Sergeant Davenport told defendant that he was going to be asked questions. Defense counsel again argued, "And I think without reviewing the video the Court can't really make a determination how it was because the detectives did not here just say I don't remember. And the burden is on testimony to establish that it's admissible."
The trial court said "It is, and I believe the question could have been—or the statement could have been along the lines or was along the lines, I'm going to ask you some questions. Okay. Not, you're gonna answer these questions. That would, I agree, would be very egregious and would require a closer review. [¶] And you federalized your objections and you've made your record." The trial court ruled that the warnings were adequate.
During Deputy Lopez's trial testimony, she stated—when asked if defendant said yes when she inquired if he understood her—"Yes. He wasn't vocal. He didn't say the word 'yes' so I asked him, 'Yes?' and he said, 'Yes.'" Defendant's counsel objected, raising a Miranda violation based on conflicting testimony given at the 402 Hearing. At a sidebar conference, defense counsel argued it was clear that Deputy Lopez first said yes and then defendant responded yes. It was clear she was prompting defendant to say yes. Defense counsel asked the trial court to reconsider its prior ruling. The trial court responded, "Whether or not the Miranda warnings were conveyed to him that he had the right to an attorney at no cost to him—free to him, there was no specific challenge that he did not or that he did invoke his Miranda rights. You didn't raise that particular issue." Defense counsel responded that his argument was that they did not Mirandize him properly. The trial court stated it had found that he was properly Mirandized.
The trial court took a recess and addressed the issue again. Defense counsel argued that Deputy Lopez had changed her testimony from the 402 Hearing and was now admitting that she said yes first and then defendant responded yes. Further, Deputy Lopez at the 402 Hearing and in court was stating she read defendant the rights using the English card but had also admitted at the 402 Hearing that the translation was not exactly the same. Given the inconsistencies in the testimony, and not asking defendant whether with those rights in mind he wanted to speak with them, and that he was a Spanish speaker, under the totality of the circumstances, that he did not validly waive his Miranda rights.
The trial court asked defense counsel if he wanted to take Deputy Lopez on voir dire and he declined stating nothing would be helpful to change the trial court's mind. The trial court stated it had heard nothing to change its mind.
When the trial recommenced, Deputy Lopez stated she had to explain some of the questions again to defendant. She was asked if there was a problem with her translation. She responded, "It was the defendant that was not ready to speak. The defendant was extremely hesitant—his demeanor, his position. He did not want to talk with us. He wasn't comfortable and it took a long time before he felt comfortable." She was asked, "So you feel, clearly, he did not want to talk to you?" She responded that defendant was not comfortable with the "entire thing." When asked again if defendant did not want to talk to her and Sergeant Davenport, she responded, "He didn't want to be truthful. He didn't want to talk to us. He didn't want to tell us the truth." She explained that when she turned away from him, he was more comfortable and started to talk more.
During Sergeant Davenport's testimony, he stated defendant did not admit any wrongdoing until the digital recorder was turned off, he asked defendant if they would find DNA evidence, and defendant was told that G.A. had identified his penis. Sergeant Davenport told defendant that if he was honest with them he would not be viewed as a child predator. He could understand if defendant made a mistake.
Deputy Hardin was in the interview room for 40 percent of the interview. At the end of the interview, Sergeant Davenport told defendant it was time to be a man and that he should tell the truth. Defendant got agitated several times during the interview. Sergeant Davenport was asked what safeguards were put in place so that defendant would not give a false confession. He explained they read defendant his Miranda rights, they provided a Spanish interpreter, provided him with refreshments, offered him restroom breaks, during the middle of the interview Sergeant Davenport told defendant that he did not have to talk to them if he was not going to tell the truth, they turned off the digital recording, and had Deputy Lopez turn away from defendant.
2. ANALYSIS
Defendant claims the record does not adequately show that he was given his Miranda rights in order to be make an informed and voluntary decision to waive them, and there was no evidence of his express waiver of those rights.
"As a prophylactic safeguard to protect a suspect's Fifth Amendment privilege against self-incrimination, the United States Supreme Court, in Miranda, required law enforcement agencies to advise a suspect, before any custodial law enforcement questioning, that 'he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.'" (People v. Martinez (2010) 47 Cal.4th 911, 947.)
"Miranda holds that '[t]he defendant may waive effectuation' of the rights conveyed in the warnings 'provided the waiver is made voluntarily, knowingly and intelligently.' [Citation.] The inquiry has two distinct dimensions. [Citations.] First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the 'totality of the circumstances surrounding the interrogation' reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived." (Moran v. Burbine (1986) 475 U.S. 412, 421; People v. Combs (2004) 34 Cal.4th 821, 845.)
"[T]he Miranda warnings are 'prophylactic' [citation] and need not be presented in any particular formulation or 'talismanic incantation.'" (People v. Walsh (1993) 6 Cal.4th 215, 236.) "The essential inquiry is simply whether the warnings reasonably '"[c]onvey to [a suspect] his rights as required by Miranda."'" (Id. at pp. 236-237; citing Duckworth v. Egan (1989) 492 U.S. 195, 203 [same].)
"As the United States Supreme Court has observed, the prophylactic Miranda warnings are '"not themselves rights protected by the Constitution but [are] instead measures to insure that the right against compulsory self-incrimination [is] protected"' [citation], and the warnings therefore need not be given in the exact form described in that decision [citation]. Thus, a reviewing court need not examine a Miranda warning for accuracy as if construing a legal document, but rather simply must determine whether the warnings reasonably would convey to a suspect his or her rights as required by Miranda." (People v. Samayoa (1997) 15 Cal.4th 795, 830, citing to Duckworth v. Eagan, supra, 492 U.S. at p. 203.)
The People bear the burden of establishing, by a preponderance of the evidence, that the suspect's Miranda waiver was knowing and intelligent, and that his statement was voluntary and not obtained in violation of due process. (People v. Guerra (2006) 37 Cal.4th 1067, 1093, overruled on other grounds in People v. Rundle (2008) 43 Cal.4th 76; People v. Whitson (1998) 17 Cal.4th 229, 248 (Whitson).) On appeal, we assess whether, under the "'totality of circumstances'" surrounding the interrogation, a defendant in custody knowingly and voluntarily waived his or her Miranda rights in making statements to the police. (Moran v. Burbine, supra, 475 U.S. at p. 421; Whitson, at pp. 246, 248-249.)
Here, Deputy Lopez testified that she had a Miranda card in her possession, which was in English. She translated the rights into Spanish. She explained she advised defendant of his right to remain silent, that anything he said could be used against him in court, he had a right to an attorney before and after questioning and if he could not afford one, one would be appointed to him by the court free of charge. Deputy Lopez asked defendant if he understood the charges. Defendant responded "Si." Deputy Lopez then translated for Sergeant Davenport. Deputy Lopez was not certain of the exact words she used but she was certain the Spanish words she used were the same as the English words.
Defendant argues there was no evidence that Deputy Lopez was a certified interpreter or that she knew the technical aspects of the law. Defendant insists that the evidence was insufficient for the trial court to make a finding that the words used by Deputy Lopez clearly and accurately conveyed in Spanish defendant's constitutional rights.
The Miranda warnings did not have to be given in the exact form as on the Miranda card; the warnings only needed to reasonably convey to a defendant his rights as required by Miranda. (People v. Samayoa, supra, 15 Cal.4th at p. 830.) Deputy Lopez was fluent in Spanish and used the English card as her guide. There was no evidence that defendant questioned defendant's rights or asked for clarification. The trial court could properly believe Deputy Lopez that she adequately conveyed defendant's rights as required by Miranda. (Whitson, supra, 17 Cal.4th at p. 248 ["'we accept the trial court's resolution of disputed facts and inferences, and its evaluation of credibility, if supported by substantial evidence'"].)
Defendant additionally argues that there was no evidence that he expressly waived his right to remain silent or his right to have an attorney present during questioning because Deputy Lopez testified that she specifically avoided asking him whether he wished to waive those rights and there was no express waiver.
Under California law and decisions of the United States Supreme Court, "[A]n express waiver is not required where a defendant's actions make clear that a waiver is intended." (Whitson, supra, 17 Cal.4th at p. 250.)
Even where a defendant has limited skills in English he may knowingly, intelligently, and voluntarily waive his Miranda rights, provided the totality of the circumstances indicates that he understood those rights when he waived them. (People v. Salcido (2008) 44 Cal.4th 93, 127-128.)
Here, Deputy Lopez initially testified at the 402 Hearing that defendant responded "si" after she read him his rights. During her trial testimony, she indicated she may have first said "si" in order to get a verbal response from him, and he responded "si." Thereafter, defendant agreed to talk to Sergeant Davenport. Although Deputy Lopez testified that defendant did not want to talk and was uncomfortable, when taken in context, it was clear he was uncomfortable talking about the subject matter and especially in front of a woman. The record supports that although defendant was not advised that he had to make an express waiver—because such warning was not on the Miranda cards at the time of his arrest—the record supports defendant's waiver of his rights.
Defendant further complains that there was no evidence as to defendant's intelligence; whether he had any prior experience with the judicial system; there was little or no evidence defendant actually understood his rights; his emotional state at the time interfered with his ability to understand his rights; the interview was coercive because there were two or three deputies in the room with defendant; Sergeant Davenport used deceptive interrogating methods and told defendant he was going to be asked questions; and the fact that defendant wanted Sergeant Davenport to turn off the recording device—this was evidence defendant did not understand his rights against self-incrimination.
Initially, a request to have tape recording devices turned off does not automatically support that the waiver was not voluntary. (See People v. Samayoa, supra, 15 Cal.4th at pp. 828-831.) Moreover, there was no indication that defendant was emotionally distraught or had poor intelligence. Finally, "Voluntariness does not turn on any one fact, no matter how apparently significant, but rather on the 'totality of [the] circumstances.'" (People v. Neal (2003) 31 Cal.4th 63, 79.) Here, the totality of the circumstances support that defendant voluntarily waived his Miranda rights.
3. PREJUDICE
Even if we were to assume that defendant's statement was obtained in violation of Miranda, the admission in this case was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)
Here, the testimony of all three witnesses was compelling. L.B. vividly described the one incident where defendant rubbed her breasts. She did not come forward until she became aware that G.A. was also molested by defendant, because she was worried about her aunt. V.S. also testified to years of sexual abuse at the hands of defendant. This included him watching pornography and making her touch his penis, putting his hand on her vagina and kissing her. She told no one because defendant told her not tell anyone. Finally, G.A. presented testimony similar to V.S., that defendant would touch her vagina, make her touch his penis while watching pornography, and he tried to kiss her. The testimonies of the three women were compelling.
Further, in the pretext phone call, defendant admitted to committing sexual offenses against G.A. Defendant repeatedly apologized to G.A. and said he asked for forgiveness from the church. This was strong corroborating evidence that defendant committed these sexual offenses.
Finally, the jury was instructed on how it should view defendant's pretrial statements. It was advised to decide whether the defendant made such statements. It was told, "If you decide that the defendant made such statements, consider the statements, along with all the other evidence in reaching your verdict." It was further admonished, "The defendant may not be convicted of any crime based on his out-of-court statements alone. You may only rely on the defendant's out-of-court statements to convict him if you conclude that other evidence shows that the charged crime or a lesser included offense was committed." It was again advised, "You may not convict the defendant unless the People have prove[n] his guilt beyond a reasonable doubt."
Defendant points to the prosecutor emphasizing defendant's statements in closing argument. The prosecutor in his argument stated it came down to whether the jury believed the three victims. The prosecutor referred to defendant's own words during the pretext call that he was sorry and that he wanted G.A. to forgive him. The prosecutor also referred to defendant's pretrial statement as it contradicted the pretext call and G.A.'s testimony. The prosecutor later referred to the pretext phone call. "Armed with these damning admissions on the pretext call, which itself is overwhelming proof of guilt, Detective Davenport decided to arrest the defendant." The prosecutor stated that defendant's admission to child molestation in his statement was corroborated by G.A.'s testimony.
The prosecutor did not solely focus on defendant's post-arrest statement in his closing argument. The prosecutor emphasized that the three victims provided truthful testimony, and focused on defendant's statements during the pretext phone call.
Although certainly a defendant's statement can be strong evidence of guilt, in this case, equally damaging evidence supported defendant's guilt. The admission of defendant's statement was harmless beyond a reasonable doubt.
B. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant claims that he received ineffective assistance of counsel because (1) his attorney failed to adequately question Sergeant Davenport and Deputy Lopez during the pretrial hearing on the Miranda motion, to elicit that defendant had not wished to speak with them and failed to raise the issue when it came up during trial; and (2) failed to object to the admission of his post-arrest statement because it was improperly coerced.
We need not address the merits of these claims. "To establish ineffective assistance of counsel, a defendant must show that (1) counsel's representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient performance was prejudicial, i.e., there is a reasonable probability that, but for counsel's failings, the result would have been more favorable to the defendant. [Citation.] 'A reasonable probability is a probability sufficient to undermine confidence in the outcome.' (Strickland v. Washington (1984) 466 U.S. 668, 694[].)" (People v. Scott (1997) 15 Cal.4th 1188, 1211-1212.) As set forth extensively ante, even if defendant's statement was improperly admitted, it was not prejudicial. As such, defendant cannot show ineffective assistance of counsel.
C. VECHICLE CODE SECTION 2800.2
Defendant contends that the evidence is insufficient to support his conviction of violating Vehicle Code section 2800.2, evading a peace officer, because the People failed to prove the arresting officer wore a distinctive uniform, which was an element of the crime.
In reviewing a challenge of the sufficiency of the evidence, "[We] consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt." (People v. Mincey (1992) 2 Cal.4th 408, 432, fn. omitted.)
"[Vehicle Code] [s]ection 2800.2 makes it a crime for a motorist to flee from, or attempt to elude, a pursuing peace officer's vehicle in 'violation of Section 2800.1' and 'in a willful or wanton disregard for the safety of persons or property.' Under [Vehicle Code] section 2800.1, a person who operates a motor vehicle 'with the intent to evade, willfully flees or otherwise attempts to elude a pursuing peace officer's motor vehicle, is guilty of a misdemeanor . . . if all of the following conditions exist: [¶] (1) The peace officer's motor vehicle is exhibiting at least one lighted red lamp visible from the front and the person either sees or reasonably should have seen the lamp. [¶] (2) The peace officer's motor vehicle is sounding a siren as may be reasonably necessary. [¶] (3) The peace officer's motor vehicle is distinctively marked. [¶] (4) The peace officer's motor vehicle is operated by a peace officer . . . wearing a distinctive uniform.' . . . Thus, the statute requires four distinct elements, each of which must be present: (1) a red light, (2) a siren, (3) a distinctively marked vehicle, and (4) a peace officer in a distinctive uniform." (People v. Hudson (2006) 38 Cal.4th 1002, 1007-1008, italics omitted.)
"For purposes of [Vehicle Code] section 2800.2, "a law enforcement officer's "distinctive uniform" is the clothing prescribed for or adopted by a law enforcement agency which serves to identify or distinguish members of its force.' [Citation.] 'The statute does not require that the uniform be of any particular level of formality or that it be complete.' [Citation.] Nor does the statute require that the person eluding capture actually see that the police officer is wearing a distinctive uniform." (People v. Byrd (2016) 1 Cal.App.5th 1219, 1223.)
In People v. Byrd, supra, 1 Cal.App.5th 1219, the testimony at trial included that the defendant was being chased by officers in a patrol unit and they were in a distinctively marked police vehicle. However, there was no evidence that the officers were wearing a distinctive uniform. (Id. at p. 1224.) The court rejected that the People could rely on the officers being on patrol in a marked car "as a substitute for proof satisfying the distinctive uniform requirement." (Ibid.) It concluded, "[B]ecause the prosecutor neglected to ask a single, simple question to elicit evidence of the officers' attire and there is no evidence otherwise in the record that the officers were wearing distinctive uniforms, defendant's conviction cannot stand." (Id. at p. 1225.)
We agree with defendant that there was no evidence presented as to the uniforms worn by Sergeant Davenport, Deputy Hardin or the pursuing California Highway Patrol officers. As such, there was insufficient evidence presented to support this element of violating Vehicle Code section 2800.2. As such, we reverse defendant's conviction.
D. DIMINISHED PROOF
Defendant contends, relying mostly on evidence not properly considered by this court, that the prosecutor during his closing argument diminished the standard of proof.
1. ADDITIONAL FACTUAL BACKGROUND
During his rebuttal argument, the prosecutor argued, "Defense attorney talked about proof beyond a reasonable doubt. Well, that's proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is possible is open to some possible or imaginary doubt. [¶] Reasonable doubt comes into play . . . only if you have a doubt." Defense counsel objected, "Objection. Misstates reasonable doubt. Lowers the burden. That slide right there is objectionable. Reasonable doubt always comes into play." The trial court responded, "What the attorneys say in closing argument is not the law. I've instructed you on the law. You're instructed to follow my definition of reasonable doubt as provided to you in the jury instruction."
It is unclear which slide in the Power Point is being referred to by counsel. The Power Point presentation has been included in the record and it appears it would have been the slides on reasonable doubt at the end of the presentation. One of the slides stated verbatim the reasonable doubt instruction. Another slide asked the question, "Only if you have a doubt, then examine: is this doubt reasonable considering ALL the evidence, or is it just a possible doubt? We don't have to prove it beyond a possible doubt." The next slide stated, "If you find yourself thinking: 'I know he's guilty, but I don't like . . . .' [¶] STOP YOURSELF RIGHT THERE [¶] If you 'know' he's guilty, then you have no doubts. Vote guilty. [¶] If you 'know' he's guilty, there are no 'buts.'"
The prosecutor then argued, "In other words, if you have no doubt that he did it, absolutely certain that he did it, reasonable doubt is not a problem for you. You vote guilty. [¶] If you have a doubt, examine, well, is this doubt reasonable considering all the evidence or is it just a possible doubt? We don't have a verdict burden beyond all possible doubt. The example I sometimes give, can I be an NBA basketball player. Well, when I was in high school I was kind of a good player, but I'm a lot older and fatter, and so it is possible, though? Well, what if I got drafted and at the last minute Golden State Warriors hired me to play one game?" Defense counsel again argued that this was lowering the burden of proof. The trial court responded, "I've instructed you on the definition of reasonable doubt. You're instructed to follow that definition." Defense counsel then objected that it was an improper hypothetical, which was overruled.
Thereafter, the prosecutor argued, without objection, "Let's say I get hired by the Warriors, and the first time I get the ball I throw it from half court, goes in. Next time I get the ball, same thing happened. Ten shots in a row, same thing happens. Now it's not likely that that could happen, but it's possible, but it's not reasonable to believe it. [¶] The same way is true, is it reasonable to believe the defendant didn't do it? No, it's not. That's not a reasonable interpretation. [¶] Some people say, well, this is one of the most aggravating things, well, I know he did it but we just need more evidence. If you can say I know he's guilty, stop yourself right there. If you know he's guilty, then you have no doubts, vote guilty. If you know he's guilty, there are no[ buts]."
Prior to this argument, the jury was given the standard reasonable doubt instruction. It was instructed that defendant was presumed innocent and that the People were required to prove the defendant's guilt beyond a reasonable doubt. It was advised, "Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. It was further advised, "Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty."
It was additionally advised, "You must follow the law as I explain it to you, even if you disagree with it. If you believe that the attorneys' comments on the law convict with my instructions, you must follow my instructions." It was further advised, "Nothing that the attorneys say is evidence. In their opening statements and closing arguments, the attorneys discuss the case, but their remarks are not evidence."
The trial court either misspoke or this is a typographical error. The written instruction stated "conflict." --------
2. ANALYSIS
"Advocates are given significant leeway in discussing the legal and factual merits of a case during argument. [Citation.] However, 'it is improper for the prosecutor to misstate the law generally [citation], and particularly to attempt to absolve the prosecution from its . . . obligation to overcome reasonable doubt on all elements.'" (People v. Centeno (2014) 60 Cal.4th 659, 666 (Centeno).)
"When attacking the prosecutor's remarks to the jury, the defendant must show that, '[i]n the context of the whole argument and the instructions' [citation], there was 'a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements.'" (Centeno, supra, 60 Cal.4th at p. 667.) "[W]e assess each claim of error on a case-by-case basis." (Ibid.)
A prosecutor cannot urge the jury to find the defendant guilty based on a "'reasonable' account of the evidence." (Centeno, supra, 60 Cal.4th at p. 673.)
In People v. Romero (2008) 44 Cal.4th 386, the court approved the prosecutor's argument that the jury must "'decide what is reasonable to believe versus unreasonable to believe' and to 'accept the reasonable and reject the unreasonable.'" (Id. at p. 416.) It concluded "[n]othing in [that] explanation lessened the prosecution's burden of proof. The prosecution must prove the case beyond a reasonable doubt, not beyond an unreasonable doubt." (Ibid.)
Here, the argument by the prosecutor was reasonably interpreted to advise the jury that it need not eliminate all possible doubt. Further, it advised the jury that if it thought defendant was guilty, and had no doubts, then it need look no further.
Moreover, the trial court repeatedly admonished the jury that in determining reasonable doubt, it must refer to the instructions. "When argument runs counter to instructions given a jury, we will ordinarily conclude that the jury followed the latter and disregarded the former, for '[w]e presume that jurors treat the court's instructions as a statement of the law by a judge, and the prosecutor's comments as words spoken by an advocate in an attempt to persuade.'" (People v. Osband (1996) 13 Cal.4th 622, 717.)
Here, the jury was instructed that the attorney's argument that conflicted with the instructions must be disregarded. Additionally, the trial court immediately—after defense counsel objected—admonished the jury that it was to refer to the instructions on reasonable doubt. There is no possibility that the jury misunderstood the concept of reasonable doubt in this case.
Defendant argues that the prosecutor's argument must be considered in the context that the closing arguments occurred during the NBA playoffs, in which the Golden State Warriors were participating. This evidence was not presented in the trial court. We will not consider it.
E. CUMULATIVE ERROR
Defendant contends that the cumulative errors in this case require reversal. "The concept of finding prejudice in cumulative effect, of course, is not new. Under the 'cumulative error' doctrine, errors that are individually harmless may nevertheless have a cumulative effect that is prejudicial." (In re Avena (1996) 12 Cal.4th 694, 772, fn. 32.) Here, we have reversed defendant's conviction pursuant to Vehicle Code section 2800.2 but that conviction was independent of the sex offenses. Since we have found none of defendant's claims of error meritorious and/or prejudicial, a cumulative error argument cannot be sustained.
Defendant contends that his sentence on counts 1 and 2 must be stayed because, based on the argument by the prosecutor, they were the same acts that constituted the offenses in counts 3 through 9. He asks that this court modify the sentence on appeal by staying his sentence on counts 1 and 2.
1. ADDITIONAL FACTUAL BACKGROUND
Counts 1 and 2 were charges of aggravated sexual assault of a child pursuant to section 269, subdivision (a)(4). Counts 3 through 9 were based on lewd and lascivious conduct pursuant to section 288, subdivision (a).
The jury was instructed with the charges in counts 1 through 9. The jury was then instructed, "The People have presented evidence of more than one act to prove that the defendant committed these offenses. You must not find the defendant guilty unless: [¶] 1. You all agree that the People prove[d] that the defendant committed at least one of these acts and you all agree on which act he committed for each offense; [¶] OR [¶] 2. You all agree that the People 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 offense charged."
During argument, the prosecutor stated, "Count 1, aggravated sexual assault of a child, oral copulation. I broke it down to the victims and time frames and how old the children were and where they were at the time. So Count 1 is basically forcible oral copulation of a child. That's for G.A. during the time that she was in Orange County, from age 7 to 11 during that period. [¶] Count 2, the same charge, aggravated sexual assault of a child. Again, that's the holding down where he's licking her vagina, thats for the period of age 12 to 13, when they lived in Hesperia, in San Bernardino County." The prosecutor also stated, "For Count 1, if you find the defendant at any time during that period, from age 7 to 11, if he did that just one time, he's guilty. She described hundreds of times. All you have to do is find him guilty one time because it's one guilty verdict for that entire time frame. So one single time if he forced her into oral sex, he's guilty. [¶] Same with Count 2. She described multiple times when she was 12 and 13 of the defendant forcing her into oral sex. If you find he did it just once, he's guilty."
The prosecutor also argued that the jury could find that counts 3 through 9, which charged defendant with lewd conduct against G.A. under section 288, subdivision (a), could be based on any of the touching, including oral copulation, grabbing G.A.'s breasts, kissing her and touching defendant's penis.
The prosecutor also argued "Now, bring up briefly the issue of multiple counts with the same act. [¶] Could you convict the defendant of aggravated sexual assault on a child and 288(a) based on the same set of acts even if one act is used as a basis of multiple counts? The answer is yes. All it requires is for each crime you have to have enough evidence for each element of that crime. It can be the same evidence used to convict him of a different charge. [¶] Separate it from the sex case, let's say somebody was charged with assault with a deadly weapon and a murder, okay, and it's the same act. Takes a gun and shoots somebody and kills him. You could find him guilty of the murder and you could find him guilty of assault with a deadly weapon. It's the same act. You don't have to worry about double punishment for the same act. The judge worries about that. [¶] You just find did he commit assault with a deadly weapon when he shot him? Yes. Did he commit murder when she [sic] shot him? Yes, you find him guilty of both counts. [¶] Now, for example, let's say you all agree the defendant orally copulated G.A. at least once during the time period alleged and you concluded it was done with force and he has sexual intent, which obviously he did, then you can convict him of Counts 1 and 2, the aggravated sexual assault on a child, and Counts 3 through 9 lewd act on a child."
At sentencing, the prosecutor argued that counts 1 and 2 must be consecutive to everything because those were forcible sex crimes. The prosecutor agreed that counts 3 through 9 could be sentenced concurrent to counts 1 and 2. The trial court asked if counts 1, 2, and 3 through 9 all involved the same victim and the prosecutor responded yes. The trial court stated it intended to run all counts consecutively.
Defense counsel agreed that counts 1, 2 and 10 had to be imposed consecutively. He argued, "As to the other counts, the Court's consideration of whether or not they should be run concurrent or not, I think it's worth pointing out that I believe Count 1 has to run concurrent to one of Count 3, 4, 5, 6 or 7, and Count 2 has to run concurrent to either Count 8 or 9 based on Penal Code section 654." He further argued, "I know it's been awhile, but based on how the jury was instructed with these unanimity instructions and things like that, and based on how [the prosecutor] argued, you know, he kind of argued a diminishing, even if you don't find this, it would be—the same act would still be this." Defense counsel stated, "So while that raised his chances of achieving a conviction, I think it subjected some of the counts to 654, and so I think that Count 1 encompasses at least one of—we don't know, we're not privy to what the jury was thinking as far as, like, what particular act they—he committed as far as—we heard evidence of lots of things, and [it was] given the unanimity instruction." Defense counsel suggested that the sentences be run concurrent.
The trial court responded, "That is very interesting issue regarding 654 issue, so this case is going to go up on appeal and we'll hear about that." The prosecutor responded that if G.A. had testified about only one incident each year during the time period in counts 3 through 9, there would be a section 654 issue. However, "the testimony was quite clear, that this happened at least once a week, some sort of sexual touching occurred at least once a week for seven years, roughly. [¶] So the jury had abundant evidence in the record to find that the defendant was guilty of Counts 1 and 2, and also there were many, many incidents every year of sexual touching that could sustain a finding that Counts 3 through 9 were all separate incidents that had nothing to do with Counts 1 and 2."
The trial court then clarified that defendant's counsel was arguing that section 654 applied because of the argument by the prosecutor. Defense counsel noted, "We did hear allegations of multiple acts. But the jury was instructed that they all had to agree, a unanimous decision, as to which act. And then [the prosecutor] argued that all they had to do was agree on one." Defense counsel argued there was no way to know what the basis of the jury's decision was. The trial court proceeded to sentencing without further comment as to the basis of the consecutive sentencing.
2. ANALYSIS
When a defendant is charged with multiple sex offenses over a given period of time, a unanimity instruction is required if the evidence indicates the jurors might disagree as to the particular act or acts the defendant committed. (People v. Jones (1990) 51 Cal.3d 294, 321-322.) "In a case in which the evidence indicates the jurors might disagree as to the particular act defendant committed, the standard unanimity instruction should be given. [Citation.] But when there is no reasonable likelihood of juror disagreement as to particular acts, and the only question is whether or not the defendant in fact committed all of them, the jury should be given a modified unanimity instruction which, in addition to allowing a conviction if the jurors unanimously agree on specific acts, also allows a conviction if the jury unanimously agrees the defendant committed all the acts described by the victim." (Ibid.) "[B]ecause credibility is usually the 'true issue' in these cases, 'the jury either will believe the child's testimony that the consistent, repetitive pattern of acts occurred or disbelieve it. In either event, a defendant will have his unanimous jury verdict [citation] and the prosecution will have proven beyond a reasonable doubt that the defendant committed a specific act, for if the jury believes the defendant committed all the acts it necessarily believes he committed each specific act." (Ibid.)
Here, this case turned on whether the jury believed G.A. or not. The People presented evidence of numerous lewd and lascivious acts occurring multiple times each year, between 2002 and 2009. Defendant cross-examined G.A., V.S. and L.B. about them joining together to fabricate their stories. Here, the jury either "'believe[d] the [evidence] that the consistent, repetitive pattern of acts occurred or disbelieve[d] it.'" (People v. Jones, supra, 51 Cal.3d at p. 322.) Accordingly, to convict defendant as charged, the jury would have had to unanimously agree he committed all the acts alleged to have occurred, or took the several acts and agreed on each act that constituted that count. It is reasonable to assume the jury did not rely on the oral copulation for all of the acts as G.A., who was born in 1995, stated that the oral copulation stopped when she was 12 or 13 years old. She would have been 14 years old in 2008 and 2009.
The prosecutor's argument did not necessarily advise the jury that they had to decide the case based on one act. At one point the prosecutor advised the jurors that it only had to find defendant committed one act to find him guilty of all the counts. However, this was impossible as count 1 was alleged to have occurred between June 18, 2002, and June 17, 2007; while count 2 was alleged to have occurred between June 18, 2007, and June 17, 2009. At other points, the prosecutor referred to all of the acts that could have supported the section 288, subdivision (a) charges. As previously noted, the jury was specifically instructed that if the attorney's argument conflicted with the instructions, that it should rely on the instructions. We presume the jury followed the instructions, finding either that all of the acts were committed or narrowed the number of acts down to support each offense.
Here, the evidence established that defendant committed lewd acts against G.A. several times each week during the period of 2002 to 2009. Defendant denied that these acts occurred. The prosecutor argued to the jury that it came down to whether the jurors believed that G.A., V.S. and L.B. were lying. G.A.'s testimony was sufficient to support each of these acts, which included oral copulation, having her touch defendant's penis, touching her breasts and kissing her.
Moreover, the multiple punishment imposed here does not run afoul of section 654. "[M]ultiple sex acts committed on a single occasion can result in multiple statutory violations. Such offenses are generally 'divisible' from one another under section 654, and separate punishment is usually allowed." (People v. Scott (1994) 9 Cal.4th 331, 344, fn. 6.) Each lewd act committed by defendant was separate and distinct and not necessary to accomplish the other. In addition to the oral copulation for counts 1 and 2, defendant kissed G.A., had her touch his penis, and he touched her breasts on numerous occasions. These multiple acts could be sentenced separately.
Defendant further argues that judicial estoppel foreclosed the prosecutor from arguing at sentencing that section 654 did not apply to the counts. Here, as noted, there were multiple acts that could have supported the verdict, and looking at the totality of the prosecutor's argument, it was not entirely clear that it chose to have the jury decide the case based on one act.
DISPOSITION
We reverse defendant's conviction in count 12 for a violation of Vehicle Code section 2800.2. The trial court is directed to issue an amended abstract of judgment and to forward it to the appropriate prison authorities. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
Acting P. J. We concur: CODRINGTON
J. FIELDS
J.