Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct.No. CC622069
Duffy, J.
Defendant Joshua Kenneth Bringazi, age 20 at the time of the offenses, was convicted of six counts relating to sex crimes occurring in mid-2005 involving a 15-year-old girl. A jury convicted defendant of three counts of unlawful sexual intercourse with a minor more than three years younger than defendant (Pen. Code, § 261.5, subd. (c)), one count of penetration of a minor by a foreign object (§ 289, subd. (h)), and two counts of inducing a minor to pose for photographs involving sexual conduct (§ 311.4, subd. (c); hereafter § 311.4(c)). The court sentenced defendant to a total prison term of five years and four months.
All further statutory references are to the Penal Code unless otherwise stated.
The appeal only concerns the two convictions under section 311.4(c). Defendant claims that the court erred by failing to give a unanimity instruction sua sponte with respect to the two section 311.4(c) offenses. He argues further that the count 5 conviction cannot stand because, as a matter of law, one of the three photographs introduced by the prosecution could not have served as a basis for a conviction under 311.4(c) and it is impossible to determine whether the jury verdict was based upon this improper showing. Lastly, defendant claims sentencing error, arguing that the court did not state a factual basis supported by the record for imposing a consecutive sentence for the count 5 conviction and that any failure of his trial attorney to object constituted ineffective assistance of counsel.
We conclude that the court did not err by failing to give a unanimity instruction with respect to the two counts of violating section 311.4(c). We hold further that one of the theories under which count 5 was submitted to the jury (one of the three photographs) constituted a legally inadequate theory; since it cannot be determined whether the guilty verdict was based upon that inadequate theory, the error is prejudicial. Accordingly, we will reverse and remand for the limited purpose of retrying defendant as to count 5.
FACTS
Jane Doe (Jane) was fifteen years old as of May 2005 and had just completed her freshman year of high school. Shortly before that time, Jane had broken up with her boyfriend and was “really devastated” and depressed. Soon thereafter, she posted a profile on the popular website, “MySpace.” (See http://www.myspace.com.) She included in her profile pictures of herself, a notation that she was 15 years of age, and the statement “Heal this broken heart,” referencing her recent breakup.
The victim was referred to at trial to protect her privacy by the pseudonym Jane Doe.
The website describes itself as follows: “MySpace is an online community that lets you meet your friends’ friends. [¶] Create a community on MySpace and you can share photos, journals and interests with your growing network of mutual friends! [¶] See who knows who, or how you are connected. Find out if you really are six people away from Kevin Bacon.” (http://www.myspace.com/index.cfm?fuseaction=misc.aboutus.)
After posting the profile, Jane was contacted on May 5, 2005, through MySpace by a person identifying himself as “Jacoby Vegas.” Jane identified defendant as the person who sent the message and whom she later met through MySpace. Defendant indicated on his MySpace profile that he was 20 years of age. Jane and defendant started communicating by instant messaging each other and by telephone.
Defendant made arrangements to meet with Jane one evening. He said he was having a party and that he would pick her and her friends up at Jane’s home. (She and her two friends were having a sleepover in the barn behind Jane’s house.) Defendant picked the girls up after midnight and drove them to his apartment. Before arriving, defendant told Jane and her friends to tell his roommates that they were 17 years old. Defendant’s two roommates were there but there was no party. After they got to his apartment, defendant (in front of the others) stuck his hand down Jane’s pants and put his fingers into her vagina. She immediately removed his hand.
Defendant served Jane beer and vodka; she had about 10 beers and four shots of vodka. Her friend, Julia, testified that Jane was clearly inebriated. Jane passed out in the living room, and when she awakened, she was in defendant’s bedroom. She had no pants or underwear on and defendant was on top of her “[r]aping [her].” She did not remember having removed her pants or underwear. Jane “told him to get off of [her] and [she] told him that this hurt, and he told [her she] would get used to it.” She started to cry and continued to tell defendant to stop, but he did not stop. He used his hands to pin Jane’s shoulders. After about five minutes, defendant ejaculated.
Jane was upset by the incident. She did not report it to her parents or to the police at the time. But she did tell Julia about it the day after it had happened.
On cross-examination, Jane testified that she did not tell Julia about having had sex with defendant until after the second incident in defendant’s bedroom (discussed, post). But Julia corroborated Jane’s testimony that she had told her about the first incident in defendant’s bedroom the day after it had happened. Julia testified that Jane had been upset because “she had [had] sex with the defendant and she [ha]dn’t want[ed] to.”
Jane and defendant continued to communicate with each other by telephone and instant message. She would talk to him about the breakup with her ex-boyfriend. She explained that “it’s weird to say—[she] trusted him and he was like a shoulder to cry on and he seemed like a really nice person . . . .” She agreed to meet him a second time after she said that “[she] didn’t want to do anything, and he said that [they] wouldn’t and that [they] were just friends and [she] believed him.”
Defendant again picked up Jane and her two friends with whom she was having a sleepover at the barn behind her house. He again told them that there was going to be a party and took them to his apartment. There was no party. Defendant supplied Jane with alcohol again—she had around 10 beers. Julia testified that Jane was clearly intoxicated. Jane wasn’t feeling well and defendant said that she could sleep in his bed. She lay down with her clothes on. When she awakened, “[i]t was just like the first time.” She had her pants and underwear off and defendant was on top of her having intercourse with her. Jane was yelling and crying and was telling defendant to get off of her. Julia walked into the room and told defendant to get off of Jane or she would call Jane’s brothers. Defendant told Julia that it was none of her business and instructed her to go away. Julia left and defendant continued to have intercourse with Jane until he ejaculated.
At some point that evening, Jane realized that defendant was taking pictures of her. Using his camera, he instructed Jane how to pose in different ways. They were “sexual pose[s].” She was under the influence of alcohol when he took the photographs, and she had not wanted defendant to take them. Jane identified three photographs that defendant took on this occasion (exhibits 7 through 9); defendant took over 10 photographs but the three identified at trial were ones that defendant sent to Jane by e-mail—with the subject line, “hey sexy”—several days after the second incident.
Defendant continued to contact Jane after the second incident. In one contact through MySpace, defendant said that he found Jane’s thong and that “ps . . . u were AMAZING.” She understood the message in a sexual way, that it “[p]robably [meant] that he had an amazing time raping [her].”
About two weeks after the second incident, Jane was stranded at a friend’s house. She called defendant as a last resort and he took her home. When they got to the barn at the house, defendant “said that [she] owed him because he [had given her] a ride and he wanted [her] to give him a blow job or sex, and . . . eventually the next thing [she] kn[e]w . . . he was having sex with [her].” She told him to stop and this time he complied.
Defendant kept trying to contact Jane after the third incident; she attempted to distance herself from him. On June 13, 2005, Jane planned a get together with her friends before she left for Europe with her parents. She needed a ride to see her friends; when defendant called, she made it clear that she did not want him touching her. After he picked her up, defendant stole a bottle of rum from a market and they picked up Jane’s two friends. After going to a spot in the Saratoga hills and having drunk the alcohol, defendant took Jane’s friends home. She was intoxicated from the alcohol defendant gave her.
Defendant then took her to a park and attempted to get physical with her. Jane resisted and defendant got angry. Defendant started taking pictures of Jane with his camera. The photos were at first “normal”; then defendant started having Jane pose for them. He took over 10 photographs. (Four photographs, exhibits 12 through 15, were introduced into evidence at trial.) When he asked her to take off her underwear for one of the photos, Jane refused.
Both while Jane was in Europe and after she returned, defendant continued to contact her. She told him that she didn’t want anything to do with him. Jane continued to keep the matter from her parents, although her friends encouraged her to report defendant’s conduct. Eventually, in January 2006, Jane told her parents and they contacted the Sheriff’s Department.
During the investigation, Detective Liza Aguirre of the Santa Clara County Sheriff’s Office executed a search warrant for defendant’s residence. As a result, she seized defendant’s computer. Detective Aguirre had a forensic computer criminalist examine the computer. He determined that there were at least 100 photographs of Jane—some casual shots and others of a sexual nature—on the hard drive of defendant’s computer. Included among those photographs were those identified during Jane’s testimony (exhibits 7 through 9, and 12 through 15).
PROCEDURAL BACKGROUND
Defendant was charged by information filed on July 7, 2006, with six counts, namely, three counts of unlawful sexual intercourse with a minor more than three years younger than defendant (§ 261.5, subd. (c); counts 1 through 3); one count of penetration of a minor by a foreign object (§ 289, subd. (h); count 4); and two counts of inducing a minor to pose for photographs involving sexual conduct (§ 311.4(c); counts 5 and 6). All of the acts were alleged to have occurred between May 1, 2005, and August 31, 2005. The information was later amended to allege that the offenses charged as counts 5 and 6 occurred on May 13, 2005, and June 13, 2005, respectively.
The trial commenced on September 27, 2006, and testimony was presented in one day. After deliberations of approximately two and one-half hours, the jury returned verdicts finding defendant guilty on all six counts. On January 18, 2007, the court sentenced defendant on count 1 to the midterm of two years and imposed consecutive sentences of one-third of the midterm, namely, eight months, as to each of the remaining counts (counts 2 through 6) for a total prison term of five years and four months. Defendant filed a timely notice of appeal.
DISCUSSION
I. Issues On Appeal
Defendant makes the following contentions on appeal:
1. The court was required to give an instruction sua sponte that, in order to return verdicts of guilty as to counts 5 and 6, the jury was required to decide by unanimous vote which of the particular photographs introduced with respect to those crimes supported the respective guilty verdicts.
2. The count 5 conviction must be reversed because one of the photographs on which it was potentially based was insufficient as a matter of law to support a guilty verdict of violating section 311.4(c).
3. The court erred in its imposition of a consecutive sentence for the count 5 conviction because the sole reason it enunciated for imposing such sentence was not supported by the record.
II. Whether Court Was Required to Give Unanimity Instruction
A. Contentions of the Parties
As noted above, the prosecution introduced three photographs and four photographs, respectively, in support of count 5 and count 6; both of those counts charged defendant with inducing a minor to pose for photographs involving sexual conduct in violation of section 311.4(c). Defendant contends that therefore “it was either incumbent upon [the prosecutor] to specify the particular photograph that served as the basis for each charge or, absent that, for the trial court to instruct the jury that it must unanimously decide which photograph qualifies as the criminal act underlying each charge.” The prosecution here did not specify the photographs it contended supported the violations of section 311.4(c), and the trial court’s failure to give a unanimity instruction “constituted prejudicial error because, without such an instruction, it was at least reasonably probable that the jury did not make a unanimous decision as to which specific two acts constituted the crimes charged in counts 5 and 6.”
The Attorney General responds that no unanimity instruction was required for counts 5 and 6. He asserts that because the multiple photographs taken “were so closely connected in time and purpose so as to constitute a continuous course of conduct,” the court was not compelled to give a unanimity instruction sua sponte. The Attorney General argues further that section 311.4 contemplates punishment for a continuous course of conduct and that therefore there was no need for a unanimity instruction. He contends further that even if the court erred, the error was harmless.
B. Applicable Law
1. Unanimity rule
The “either-or” unanimity rule has been summarized as follows: “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.] Because jury unanimity is a constitutionally based concept, ‘. . . the defendant is entitled to a verdict in which all 12 jurors concur, beyond a reasonable doubt, as to each count charged.’ [Citation.] From this constitutional origin, the principle has emerged that if the prosecution shows several acts, each of which could constitute a separate offense, a unanimity instruction is required. [Citations.]” (People v. Melhado (1998) 60 Cal.App.4th 1529, 1534.) “The requirement of unanimity as to the criminal act is intended to eliminate the danger the defendant will be convicted even though there is no single offense all the jurors agree the defendant committed.” (People v. Zavala (2005) 130 Cal.App.4th 758, 768.)
Thus, for example, in People v. Castaneda (1997) 55 Cal.App.4th 1067, 1069-1070, the defendant was charged with one count of possession of heroin after the police arrested him at his home, and found separate quantities of heroin behind a television and on his person. At trial, the defendant claimed the former quantity of heroin belonged to his son and the latter quantity was planted by the police. (Id. at p. 1070.) The appellate court reversed based on the trial court’s failure to give a unanimity instruction, because the evidence presented two different sets of facts under which the jury could have found the defendant guilty of the single charge. (Ibid.) The court reasoned: “As it was, some jurors could have found Castaneda guilty of possession based on the heroin found in his pocket, but had a reasonable doubt as to whether he possessed the heroin found on the television; while others could have thought the heroin in his pocket was planted (or otherwise had a reasonable doubt as to whether he knowingly possessed it) and based their guilty verdict on the heroin found on the television. Thus, all the jurors could have found Castaneda guilty of possession of a controlled substance without unanimously agreeing upon which act constituted the offense. This constitutes a violation of the right to a unanimous verdict in criminal cases. [Citation.] Of course it is possible that all 12 jurors agreed Castaneda possessed the heroin on the television, or the heroin in his pocket, or both. However, there is no way of knowing this; therefore, reversal is required.” (Id. at p. 1071.)
Similarly, in People v. Laport (1987) 189 Cal.App.3d 281, 282, the defendant was convicted of a single count of grand theft from her employer, an art gallery, where two separate and distinct acts—writing unauthorized checks and taking paintings—could have supported the conviction. The court reversed because of the absence of a unanimity instruction, holding: “Failure to give CALJIC 17.01 here creates a conundrum. Jurors one through six, for example, may have found Laport guilty of theft for writing checks to herself, but jurors seven through twelve may have found her not guilty of this offense. On the other hand, jurors one through six may have found Laport not guilty of the offense of stealing the paintings, but jurors seven through twelve may have found her guilty of that offense. Twelve jurors would have found her guilty of the general crime of theft but they would not have agreed upon which act constituted that theft. Therefore, the judgment must be reversed.” (Id. at pp. 283-284; see also People v. Melhado, supra, 60 Cal.App.4th at p. 1536 [reversible error for failure to give unanimity instruction where two separate acts at two different times could have been basis for conviction of one count of making terrorist threat]; People v. Wesley (1986) 177 Cal.App.3d 397, 400-401 [unanimity instruction required where one count of narcotics possession charged and separate acts—cocaine in home and heroin on the defendant’s person—could have supported conviction].)
2. Continuous course of conduct exception to unanimity rule
There is a “continuous course of conduct” exception to the requirement of giving a unanimity instruction where there is evidence of more than one unlawful act supporting a conviction of a single charged offense. This exception has been explained as follows: “The continuous course of conduct exception arises in two contexts. [Citations.] ‘The first is when the acts are so closely connected that they form part of one and the same transaction, and thus one offense. [Citation.] The second is when . . . the statute contemplates a continuous course of conduct of a series of acts over a period of time. [Citation.]’ [Citation.]” (People v. Jenkins (1994) 29 Cal.App.4th 287, 299.) As to the first context, the exception applies “ ‘ “where the acts testified to are so closely related in time and place that the jurors reasonably must either accept or reject the victim’s testimony in toto.” [Citation.]’ [Citation.]” (Ibid.) As to the second context for the exception, it has been explained that “[t]here is a fundamental difference between a continuous crime spree and continuous conduct resulting in one specific offense. The continuous conduct exception only really applies, if at all, to those types of offenses where the statute defining the crime may be interpreted as applying, on occasion, to an offense which may be continuous in nature such as failure to provide, child abuse, contributing to the delinquency of a minor, driving under the influence and the like [citations]. Insofar as cases cited herein might be read as holding that multiple sex offenses constitute a continuous course of conduct or a single act, we disagree. Multiple sex acts cannot be held to be continuous conduct on a theory of there being but one act of sexual abuse.” (People v. Madden (1981) 116 Cal.App.3d 212, 218, fn. omitted.)
The Supreme Court has explained the exception by contrasting cases in which the evidence supports a finding of the occurrence of multiple crimes (where only a single offense is charged) with those in which the evidence shows that only one crime occurred but that there are multiple theories supporting the conviction. “In a criminal case, a jury verdict must be unanimous. [Citations.] . . . Additionally, the jury must agree unanimously the defendant is guilty of a specific crime. [Citation.] 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. [Citations.] [¶] . . . [¶] 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. [Citation.] The crime of burglary provides a good illustration of the difference between discrete crimes, which require a unanimity instruction, and theories of the case, which do not. Burglary requires an entry with a specified intent. [Citation.] If the evidence showed two different entries with burglarious intent, for example, one of a house on Elm Street on Tuesday and another of a house on Maple Street on Wednesday, the jury would have to unanimously find the defendant guilty of at least one of those acts. If, however, the evidence showed a single entry, but possible uncertainty as to the exact burglarious intent, that uncertainty would involve only the theory of the case and not require the unanimity instruction. [Citation.]” (People v. Russo (2001) 25 Cal.4th 1124, 1132-1133.)
Thus for example, in People v. Jenkins, supra, 29 Cal.App.4th 287, the court held that the trial court did not err by failing to give a unanimity instruction in connection with two charged counts of torture involving the defendant’s cohabiting girlfriend. It held that the continuous course of conduct exception applied in light of the fact that the beatings and abuse took place over a period of six months, and because there were two particular events two weeks apart in which the defendant beat the victim by a number of different methods. (Id. at p. 300.) The court concluded that “ ‘[t]he actus reus of such a crime is a series of acts occurring over a substantial period of time, generally on the same victim and generally resulting in cumulative injury.’ [Citation.] Additionally, . . . [t]he acts were closely related in time and place.” (Ibid.) Other occasions in which courts have applied the continuous course of conduct exception include those where the charge was continuous sexual abuse of a child that consisted of a violation of a statute (§ 288.5) “intended to create a course-of-conduct offense” (People v. Whitham (1995) 38 Cal.App.4th 1282, 1295); child abuse (§ 273, subd. (a)) occurring through a continuous course of conduct over a period of several months (People v. Napoles (2002) 104 Cal.App.4th 108, 116-117); elder abuse (§ 368, subd. (b)(1)) based upon evidence of a continuous course of conduct involving “wrongful acts [that] were successive, compounding, and interrelated” (People v. Rae (2002) 102 Cal.App.4th 116, 123); and using an altered, stolen, or counterfeit access card (§§ 484g, subd. (a), 487), where the evidence showed that the defendant made two attempts to use the card at the same location within about one hour of each other, there was no separate defense for the two acts, and the jury could not have construed the evidence to find the defendant guilty based upon one act but not the other (People v. Percelle (2005) 126 Cal.App.4th 164, 182).
3. Section 311.4, subdivision (c)
Section 311.4(c) provides in part as follows: “Every person who, with knowledge that a person is a minor under the age of 18 years, or who, while in possession of any facts on the basis of which he or she should reasonably know that the person is a minor under the age of 18 years, knowingly promotes, employs, uses, persuades, induces, or coerces a minor under the age of 18 years, . . . to engage in . . . either posing or modeling alone or with others for purposes of preparing any representation of information, data, or image, including, but not limited to, any . . . photograph . . . involving, sexual conduct by a minor under the age of 18 years alone or with other persons or animals, is guilty of a felony. It is not necessary to prove commercial purposes in order to establish a violation of this subdivision.”
The term “sexual conduct” is defined as meaning “any of the following, whether actual or simulated: sexual intercourse, oral copulation, anal intercourse, anal oral copulation, masturbation, bestiality, sexual sadism, sexual masochism, penetration of the vagina or rectum by any object in a lewd or lascivious manner, exhibition of the genitals or pubic or rectal area for the purpose of sexual stimulation of the viewer, any lewd or lascivious sexual act as defined in Section 288, or excretory functions performed in a lewd or lascivious manner, whether or not any of the above conduct is performed alone or between members of the same or opposite sex or between humans and animals. An act is simulated when it gives the appearance of being sexual conduct.” (§ 311.4, subd. (d)(1).)
The statute has been held constitutional. (People v. Spurlock (2003) 114 Cal.App.4th 1122, 1132-1133; People v. Cantrell (1992) 7 Cal.App.4th 523, 542.) And appellate courts have rejected challenges based upon the trial court’s refusal to provide the jury with definitions of ordinary terms relevant to its consideration of whether there has been a violation of section 311.4. (See, e.g., People v. Spurlock, supra, at pp. 1130-1131 [court not required to define “exhibition of the genitals” or “for the purpose of sexual stimulation of the viewer,” as those phrases are used in § 311.4, subd. (d)(1)]; People v. Cantrell, supra, at pp. 543-545 [rejecting argument that court should have defined “rectal area” as used in § 311.4, subd. (d)(1)].)
Further, the First District Court of Appeal has noted that a sufficiency-of the-evidence challenge to a conviction under section 311.4(c) should be evaluated by inquiring “whether a reasonable jury could determine, ‘based on the overall content of the visual depiction and the context of the child’s conduct, taking into account the child’s age’ [citation], that the photograph depicts an exhibition of the genitals for the purpose of sexual stimulation of the viewer.” (People v. Spurlock, supra, 114 Cal.App.4th at p. 1133.) In addition, the Spurlock court rejected the defendant’s argument that the subject photos were not proscribed by section 311.4 because they did not show unclothed genitals. The court held that while not “all partially clothed displays would violate sections 311.3 and 311.4 . . . the fact that [the child’s] genitals were partially clothed does not automatically insulate [the defendant] from the reach of the statute.” (People v. Spurlock, supra, at pp. 1128-1129; see also People v. Kongs (1994) 30 Cal.App.4th 1741, 1753 [disagreeing with the defendant’s “assertion that sexual conduct has to be nude to be lewd”].)
C. Whether Court Was Required to Give Unanimity Instruction
Some aspects of this case support defendant’s contention that the continuous course of conduct exception is inapplicable here. For instance, we do not view the statute here, section 311.4, as proscribing a course of conduct; thus, it is unlike the crime of continuous sexual abuse of a child (§ 288.5), where the exception applies because the statute was intended to proscribe a course of conduct. (People v. Whitham, supra, 38 Cal.App.4th at p. 1295.) Likewise, the nature of the offenses charged here is not similar to those in which courts have typically applied the continuous course of conduct exception. A violation of section 311.4(c) is unlike the “failure to provide, child abuse, contributing to the delinquency of a minor, driving under the influence . . .” (People v. Madden, supra, 116 Cal.App.3d at p. 218), elder abuse (People v. Rae, supra, 102 Cal.App.4th at p. 123), or torture (People v. Jenkins, supra, 29 Cal.App.4th at p. 300).
But other facts suggest that it would be appropriate to apply the exception here. One factor mentioned in some of the cases applying the continuous course of conduct exception is the absence of distinct arguments made by the defendant concerning the multiple acts that potentially furnished the basis for the conviction. (See, e.g., People v. Carrera (1989) 49 Cal.3d 291, 312 [the “[d]efendant did not proffer different defenses as to the allegedly different acts”]; People v. Percelle, supra, 126 Cal.App.4th at p. 182 [the “[d]efendant did not proffer a separate defense to the two acts”].) In this instance, defense counsel did not cross-examine Jane at all about the taking of the photos. And in his argument to the jury, as it concerned the section 311.4(c) counts, he made no attempt to distinguish between any of the individual photo exhibits that were the bases of those charges. Moreover, defense counsel made no separate argument as between counts 5 and 6. His sole argument to the jury was that none of the photos introduced “crossed the line” in depicting sexual conduct proscribed by the statute.
Defense counsel’s examination of Jane on the subject of the photographs (consisting of one-half page of the reporter’s transcript) involved his confirming that defendant “took a lot of photographs on different times of [her],” that she did not want to pose for defendant in the photographs, that she would not have done so had she been sober, and that she also did so because she was afraid of defendant.
And consideration of the context of the charged crimes suggests that the continuous course of conduct exception should be applied in this instance. (See People v. Spurlock, supra, 114 Cal.App.4th at p. 1133 [context of child’s conduct may be considered in determining whether photos constituted § 311.4 violation]; People v. Kongs, supra, 30 Cal.App.4th at p. 1753 [context under which photos were taken must be considered to determine whether § 311.4 violation occurred].) There was significant testimony from the victim about the circumstances under which the photos were taken. Jane repeatedly testified that defendant specifically directed how she should pose for each of the pictures, that he directed her into sexual poses, that she did not want the pictures taken, and that she allowed them because she was extremely inebriated on both occasions. The photographs introduced to support the count 5 conviction were taken the same evening that defendant had intercourse with Jane. And defendant sent these photographs to Jane over the internet along with the clearly sexual message describing her as “amazing.”
The three photographs from the first occasion (count 5) are certainly provocative. In each, Jane is on defendant’s bed in his bedroom in a T-shirt and “thong” underwear. Exhibit 7 shows her asleep, lying on her side with her buttocks fully exposed. Jane is lying on her back in exhibit 8. She is smiling, wearing the same thong, her legs are spread, and she has one hand on top of her crotch, possibly simulating masturbation. And exhibit 9 shows her leaning against a pillow on the bed with her buttocks exposed.
The four photographs from the second occasion (count 6) are similarly provocative. In exhibit 13, Jane is fully clothed (with her T-shirt rolled up to expose her stomach). But she is posed with one hand partially down her unzipped pants and under her panties (again possibly simulating masturbation). Exhibit 14 shows Jane in a T-shirt (but with her stomach exposed) and panties; her thumbs are around the straps of her panties (suggestive of her being in the process of removing them). And in exhibit 15, Jane is partially clothed, in a T-shirt with her pants down and her back to the camera but with her head facing it; she is wearing a thong and her buttocks are featured prominently.
Jane testified that defendant had sent her several photos, but that there were more photos that he took of her on both occasions than those ultimately introduced in court. Indeed, Detective Aguirre testified that over 100 photographsof Jane were recovered from the hard drive of defendant’s computer. And Jane testified that on the second occasion, he directed her to go further than she was willing to go for the photos—he asked her to remove her underwear.
In light of the above—i.e., the context in which the photographs were taken, the fact that the three photographs for count 5 were taken at the same time, the fact that the four photographs for count 6 were taken at the same time, and the fact that there were multiple photos for both count 5 and count 6 that a reasonable trier of fact could have clearly found as a basis for a violation of section 311.4 on each of the two occasions—we conclude that the continuous course of conduct exception applies here. Therefore, the trial court did not err by failing to give a unanimity instruction sua sponte to the jury.
III. Whether Count 5 Conviction Was Potentially Flawed
A. Contentions of the Parties
Defendant, by supplemental brief, argues that the count 5 conviction must be reversed for an additional reason beyond the court’s failure to give a unanimity instruction. One of the three photographs relied on by the prosecution (exhibit 7) was taken while Jane was unconscious. Since section 311.4(c) requires that the minor actively participate in the filming by “posing or modeling,” that photograph was “a legally inadequate theory of liability.” Therefore (defendant argues), since it cannot be determined whether the jury based its guilty verdict on count 5 on this photograph—and thus we cannot be assured that its verdict was based on a valid legal theory—the conviction must be reversed.
After defendant filed his opening brief, he filed a motion for leave to file a supplemental opening brief to address an additional issue, which motion was granted by this court.
The Attorney General, relying principally on People v. Hobbs (2007) 152 Cal.App.4th 1 (Hobbs), responds that section 311.4(c) does not require active participation by the minor victim. He argues further that, even if it were inappropriate to base a conviction under section 311.4(c) on exhibit 7, defendant suffered no prejudice; any infirmity was factual, and since there were alternative factual bases (exhibits 8 and 9) upon which a proper conviction could have been based, there was no reversible error.
The Attorney General does not argue that defendant forfeited this claim of error because he did not raise it below. Defendant did raise objections generally to the photographs in a pretrial motion to dismiss counts 5 and 6 pursuant to section 995. Included among his arguments was the assertion that there had been no determination by the court that any of the photographs serving as the basis for counts 5 and 6 constituted a “representation of information, data, or image . . . involving, sexual conduct by a minor” as required under section 311.4(c). We will not treat defendant’s appellate claim here as having been forfeited. (See People v. Hernandez (2003) 30 Cal.4th 835, 863 [appellate court may review issue on appeal where question of whether the defendant preserved it for review was “ ‘close and difficult’ ”; see also People v. Bruner (1995) 9 Cal.4th 1178, 1183, fn. 5.)
B. Discussion
1. Whether exhibit 7 was a proper basis for count 5
In order to violate section 311.4(c), a defendant must “knowingly promote[], employ[], use[], persuade[], induce[], or coerce[] a minor under the age of 18 years, . . . to engage in . . . posing or modeling . . . for purposes of preparing any representation of information, data, or image, including, but not limited to, any . . . photograph . . . involving, sexual conduct by a minor under the age of 18 years . . . .” The Supreme Court has explained that the a violation of section 311.4, subdivision (b) requires that “the defendant must: (1) knowingly have caused a child, (2) who is known or should be known to be a child, (3) to participate in the production of any representation of sexual conduct by a child, (4) for commercial purposes.” (People v. Cochran (2002) 28 Cal.4th 396, 401, italics added.) The court observed that section 311.4(c)—the statute involved here—“is substantially identical” to section 311.4, subdivision (b), except that section 311.4(c) does not require the defendant to have had a commercial purpose. (Ibid.)
Although the word “participate”—in the context of the minor’s involvement in the production of any representation of sexual conduct—does not appear in either subdivision (b) or (c) of section 311.4, it appears clear that the Cochran court’s use of that term derives from the language of the statute. Both subdivisions (b) and (c) of section 311.4 proscribe a defendant’s knowing “promot[ion], employ[ment], use[], persua[sion], induce[ment], or coerc[ion]” of a minor “to engage in . . . posing or modeling . . . .” (Italics added.) Both of the italicized terms are commonly understood as requiring some action on the part of the person posing or modeling. A person who poses is one who “assume[s] a posture or attitude usu. for artistic purposes.” (Merriam-Webster’s Collegiate Dict. (10th ed. 2001) p. 906.) Similarly, “model” means “to display by wearing, using, or posing with.” (Id. at p. 746.) Thus, “[p]osing and modeling both require that the subject intentionally assume a certain position. They also both require that the subject know—or at least contemplate the possibility—that he or she is being observed.” (Hobbs, supra, 152 Cal.App.4th at p. 10 (dis. opn. of Richli, J.).)
Defendant argues that because section 311.4(c) contemplates a certain degree of active participation by the minor, “[a] sleeping person cannot ‘engage’ in either posing or modeling.” Under the plain meaning of the statute, we agree with that conclusion.
The Attorney General argues, however, that under Hobbs, supra, 152 Cal.App.4th 1, the fact that Jane was sleeping at the time exhibit 7 was taken is of no moment because the statute does not require the minor’s active participation. In Hobbs, the defendant was convicted of 40 counts of violating section 311.4(c); the charges arose out of his having surreptitiously filmed members of a girls’ swim team in a locker room with a hidden camera. (Hobbs, supra, at pp. 3, 4.) Prior to the swim meet, the defendant had used caution tape and cones to cordon off areas of the locker room that were outside of camera range. (Id. at p. 4.) The majority in Hobbs rejected the defendant’s challenge that his actions as a matter of law did not constitute violations of section 311.4(c) because the girls were unaware of the filming and did not in any way pose or model for the defendant. It concluded that “using” a minor within the meaning of the statute does not require “person-to-person interaction between [the] defendant and the victim(s).” (Hobbs, supra, at pp. 5, 6, fn. omitted.) The majority held further that, because the defendant “posed the victims by herding them with the signs, cones and caution tape to a position most favorable to filming,” the girls necessarily were “posing or modeling.” (Id. at p. 8 & fn. 9.) The majority concluded that, notwithstanding the girls’ unawareness that they were being filmed, the defendant had nonetheless violated the statute because they intentionally assumed the positions in which they were filmed. (Ibid.)
We respectfully disagree with the reasoning of the Hobbs majority. “Posing or modeling” conveys a degree of participation beyond Jane’s role here of simply sleeping while defendant photographed her. And we reject the reasoning—extrapolated from the majority’s holding in Hobbs—that the fact that defendant may have “used” Jane by “posing” her while she was unconscious was sufficient to constitute a violation under section 311.4(c). We agree with Justice Richli, dissenting in Hobbs, who noted that section 311.4(c) “does not target the person who films the minor, as such; rather, it targets the person who causes the minor to participate. [¶] . . . [Thus,] the statute requires some interaction, albeit perhaps only indirectly, between the defendant and the minor; I simply cannot imagine how one could ‘use’ (much less ‘promote’) someone to do something without interacting with them somehow. The minor’s participation, however, must consist of engaging in either ‘posing’ or ‘modeling.’ By using these terms, the Legislature evidently intended to require that the minor’s participation be at least minimally knowing.” (Hobbs, supra, 152 Cal.App.4th at p. 11 (dis. opn. of Richli, J.).)
Moreover, even were we to accept the reasoning of the majority in Hobbs, we nonetheless would conclude that that case would not support a finding that a violation of section 311.4(c) was established through exhibit 7 here. In Hobbs, the majority noted that the girls in the locker room in fact knew that they were exposing themselves and therefore were active in the sense that they assumed those positions: “The dissent states that the victim must intentionally assume a certain position. [Citation.] The victims here did. There was no evidence that any of them were sleep walking or were so incapacitated that they did not realize that they were exposing themselves.” (Hobbs, supra, 152 Cal.App.4th at p. 8, fn. 9.) Here, of course, there was no evidence that Jane knew that she was exposing herself. To the contrary, the uncontroverted evidence was that she drank to excess the alcohol supplied by defendant, became unconscious, and defendant photographed her while she was asleep.
We therefore conclude that exhibit 7 did not provide a legal basis upon which the jury could have convicted defendant under section 311.4(c).
2. Prejudice
Defendant contends that the erroneous submission to the jury of exhibit 7 as a potential basis for conviction of violating section 311.4(c) in count 5 requires reversal as to that count. He claims that the error involved the submission of the case to the jury under “a legally inadequate theory,” under which reversal is compelled. The Attorney General argues that any error was a factual one and no prejudice resulted because the conviction was based upon alternative factual grounds (i.e., exhibits 8 and 9).
In People v. Guiton (1993) 4 Cal.4th 1116 (Guiton) the Supreme Court “distinguished between two types of cases involving insufficient evidence: (a) those in which ‘a particular theory of conviction . . . is contrary to law,’ or, phrased slightly differently, cases involving a ‘legally inadequate theory’; and (b) those in which the jury has merely been ‘left the option of relying upon a factually inadequate theory,’ or, also phrased slightly differently, cases in which there was an ‘insufficiency of proof.’ [Citation.]” (Id. at p. 1128, quoting Griffin v. United States (1991) 502 U.S. 46, 59 (Griffin).) The Guiton court further explained the distinction between a conviction based upon a legally inadequate theory and one based on a theory that was factually inadequate: “The Griffin court thus drew a distinction between a mistake about the law, which is subject to the rule generally requiring reversal, and a mistake concerning the weight or the factual import of the evidence, which does not require reversal when another valid basis for conviction exists. It then arrived at the crux of its opinion: ‘ . . . Jurors are not generally equipped to determine whether a particular theory of conviction submitted to them is contrary to law—whether, for example, the action in question is protected by the Constitution, is time barred, or fails to come within the statutory definition of the crime. When, therefore, jurors have been left the option of relying upon a legally inadequate theory, there is no reason to think that their own intelligence and expertise will save them from that error. Quite the opposite is true, however, when they have been left the option of relying upon a factually inadequate theory, since jurors are well equipped to analyze the evidence [citation].’ [Citation.]” (Guiton, supra, at p. 1125, quoting Griffin, supra, at p. 59.)
The distinction between the two types of error is important in determining whether the error is prejudicial. “[I]f the inadequacy of proof is purely factual, ‘reversal is not required whenever a valid ground for the verdict remains, absent an affirmative indication in the record that the verdict actually did rest on the inadequate ground.’ [Citation.] . . . [I]f the inadequacy is legal, the ‘rule requiring reversal applies, absent a basis in the record to find that the verdict was actually based on a valid ground.’ [Citations.]” (People v. Marshall (1997) 15 Cal.4th 1, 38, quoting Guiton, supra, 4 Cal.4th at p. 1129.)
Thus, for example, in People v. Green (1980) 27 Cal.3d 1, 62 (Green)—a case discussed at length by the Guiton court—the jury found true the special circumstance that the defendant committed a murder during his commission of a kidnapping. But that finding was potentially based upon three separate acts of asportation; two of the acts, the Supreme Court found, could not have constituted asportation (one because of improper argument and instruction and the other because the distance was insufficient). (Green, supra, at pp. 62-67.) Because it could not determine whether “the jury actually based its general verdict of guilt . . . on either of the [two] legally insufficient segments of [the victim’s asportation” (id. at p. 67), the Supreme Court reversed, holding: “In these circumstances the governing rule on appeal is both settled and clear: when the prosecution presents its case to the jury on alternate theories, some of which are legally correct and others legally incorrect, and the reviewing court cannot determine from the record on which theory the ensuing general verdict of guilt rested, the conviction cannot stand.” (Id. at p. 69.)
Green, supra, 27 Cal.3d 1 was overruled on another ground in People v. Hall (1986) 41 Cal.3d 826, 834, footnote 3.
Likewise, in People v. Perez (2005) 35 Cal.4th 1219, the Supreme Court affirmed the Court of Appeal’s reversal of a conviction of possession of hydriodic acid precursors with the intent to manufacture methamphetamine (Former Health & Saf. Code, § 11383, subd. (c)(2), see Stats. 2003, ch. 619, § 1). The high court concluded that because the court erroneously instructed the jury on a theory of aider and abettor liability where there was no proof of an attempted or completed crime by another party, and it precluded the defendant’s argument that an essential element of such liability was missing, the verdict had to be reversed because it could not be determined if it was founded upon this legally inadequate theory. (Perez, supra, at pp. 1232-1233.)
In this instance, the submission of exhibit 7 to the jury as a potential basis for finding defendant to have violated section 311.4(c) in count 5 constituted a legally inadequate theory. The submission was “ ‘a particular theory of conviction submitted to [the jury that was] contrary to law—[because it] . . . fail[ed] to come within the statutory definition of the crime.’ ” (Guiton, supra, 4 Cal.4th at p. 1125, quoting Griffin, supra, 502 U.S. at p. 59.) It is analogous to the circumstances in Green, supra, 27 Cal.3d 1: just as the jury there was not in a position to determine whether the victim was forcibly taken a sufficient distance to satisfy the legal element of asportation for the kidnapping enhancement, the jury in this instance was unable to ascertain whether the taking of Jane’s photograph while she was unconscious was legally sufficient to constitute her “engag[ing] in . . . posing or modeling” as required under section 311.4(c). Since we cannot determine whether the jury’s verdict of guilty on count 5 was based upon the legally inadequate theory of exhibit 7, or, alternatively, was based upon the adequate theory of exhibit 8 or exhibit 9, the conviction must be reversed. (People v. Marshall, supra, 15 Cal.4th at pp. 37-38.)
Because we reverse the count 5 conviction, we need not address defendant’s third claim of error, i.e., whether the court committed sentencing error by imposing a consecutive sentence for the count 5 conviction.
DISPOSITION
The judgment is reversed. The matter is remanded to the trial court for the limited purpose of retrying defendant (at the election of the prosecution) as to count 5.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Mihara, J.