Opinion
E079912
06-05-2024
THE PEOPLE, Plaintiff and Respondent, v. RUBEN SOTO CHAVEZ, Defendant and Appellant.
Laura Schaefer, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, A. Natasha Cortina, Christine L. Bergman, and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. INF1800450 Matthew C. Perantoni, Judge. Affirmed.
Laura Schaefer, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, A. Natasha Cortina, Christine L. Bergman, and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MENETREZ, J.
A jury convicted Ruben Soto Chavez of committing numerous sex offenses against his minor niece, Jane Doe, including that he forcibly raped and impregnated her when she was 13 years old. (Pen. Code, § 261, subd. (a)(2); unlabeled statutory citations are to this code.) The jury found true the allegation that Chavez personally inflicted great bodily injury on Jane in committing that offense, so the trial court imposed the mandatory sentence of life without the possibility of parole for that conviction under the One Strike Law. (§ 667.61, subds. (a), (c)(1), (d)(6), (j)(1).)
On appeal, Chavez challenges the sufficiency of the evidence supporting the great bodily injury enhancement. He also argues that the trial court prejudicially erred by (1) admitting certain evidence, (2) giving the jury a purportedly ambiguous instruction on the definition of great bodily injury, (3) not instructing the jury on bodily harm for another enhancement, and (4) not giving the jury a unanimity instruction for certain offenses. We affirm.
BACKGROUND
I. The initial report and investigation
Jane was born in mid-April 2000. Chavez was born in 1963 and is Jane's paternal uncle. Jane's parents died one year after she was born. Jane and her younger brother, John Doe, lived with their paternal grandmother after their parents died. Jane's paternal grandmother died around Mother's Day in 2012, when Jane was 12 years old.
After Jane's paternal grandmother died, Chavez moved into her house to take care of Jane and John. When Chavez moved in to Jane's residence, he was married to Maria and had three adult sons, who lived with Maria. Maria did not move in with Chavez to take care of Jane and John.
In late November 2014, Jane gave birth to baby Doe. Baby Doe was born 223 days (or seven months and nine days) after Jane's 14th birthday. When Jane disclosed her pregnancy to Maria, Jane said that she did not know who the father was. A teacher of Jane's adopted baby Doe.
Evidence was admitted at trial concerning the exact birthdates of Jane and baby Doe.
In March 2018, Jane told Melanie F. (a friend of one of Chavez's sons) that Chavez had recently hit her because he believed that Jane was flirting with someone else. Melanie asked Jane if Chavez had ever "touched" her, and Jane responded, "[H]e raped me. He rapes me every day. He started raping me when my grandma died ...." Jane disclosed that Chavez was the father of baby Doe. Jane admitted being suicidal, explaining, "I'm tired of this abuse. I'm tired of his rape that he's doing to me. I'm tired of everything." Melanie worked at a high school and reported the abuse to a school resource officer, who contacted law enforcement.
A criminalist examined DNA samples taken from Chavez, Jane, and baby Doe and concluded that there was "strong evidence" that Chavez and Jane were baby Doe's biological parents. The criminalist reported that it was approximately 520 trillion to 920 quadrillion times more likely that baby Doe's biological parents were Jane and Chavez than that they were two random people.
II. The charges
Chavez was charged by information with: (1) four counts of forcible rape (§ 261, subd. (a)(2)) alleged to have occurred during different specified periods when Jane was aged 13 (count 1), 14 (count 3), and 15 (counts 4 &5); (2) two counts of lewd and lascivious conduct under section 288, subdivision (a) (counts 6 &7); and (3) two counts of forcible lewd and lascivious conduct (§ 288, subd. (b)(1); counts 2 &8). The four counts of lewd and lascivious conduct were alleged to have occurred before Jane turned 14 years old.
With respect to counts 1 and 2-a forcible rape count and a forcible lewd and lascivious conduct count alleged to have occurred when Jane was 13 years old-the information alleged that in committing those offenses Chavez personally inflicted both (1) great bodily injury in violation of sections 12022.53, 12022.7, and 12022.8 and within the meaning of section 667.61, subdivision (d)(6) (§ 667.61(d)(6)) and (2) bodily harm while she was under the age of 14 within the meaning of section 667.61, subdivision (d)(7) (§ 667.61(d)(7)).
III. Jane's account
Jane was 22 years old when she testified at trial. A forensic interview of Jane was conducted in March 2018, when she was 17 years old. A video recording of that interview was played for the jury, and a transcript of the interview was admitted into evidence. There were some discrepancies between Jane's testimony and her interview. At trial, Jane explained that she had lied about certain things during the forensic interview because Maria drove Jane to the interview and told Jane to lie.
Jane was in the sixth grade when Chavez moved in and began caring for her and John. She said that everything was fine for the first two months after he moved in. Then, one night when Jane was 12 years old, Chavez came into her bedroom while she was asleep. Jane awoke to find Chavez touching and rubbing her breasts and vagina over her clothing. When Jane described the incident to the interviewer, she referred to her body parts as her "boobies" and "the line." Jane pretended to be asleep throughout the encounter.
Approximately one week later, Chavez came back into Jane's bedroom at night. He touched Jane's vagina over her clothing, attempted to grab her breasts, and attempted to pull off her pajama pants. Jane told Chavez "[n]o" and pushed him. Chavez responded by hitting Jane on the back "really hard," knocking the wind out of her. Chavez then "just left the room."
The next time that Chavez came into Jane's bedroom and attempted to take off her clothes he was "a little more aggressive." Jane told Chavez "no" and tried "to fight back, but [she] didn't want to get beat up by [Chavez] again." Chavez removed Jane's pajama pants and attempted to put his penis in her vagina but was not successful.
Chavez returned to Jane's bedroom the next night and told her, "I'm just doing this so you could learn," by which he explained that he wanted her to "learn [for] the future." Jane responded, "I'm just a kid....I'm going to learn when I'm older. I'm not going to learn from a family member." Chavez "forced" Jane-"[h]e removed all of [her] clothes," "opened [her] legs," and put his penis in her vagina. Jane said that Chavez "went too hard," "continued and continued until he stopped," and hurt Jane. Chavez ejaculated inside of Jane. Jane was crying but tried to hold back her tears because she did not want Chavez to see her "weakest part," "get mad," and abuse her. Chavez "was like kind of smiling" and told Jane that she would be "in trouble" if she told anyone.
Jane said that after the first incident of successful penetration similar encounters occurred repeatedly and "a lot." Chavez inserted his penis into her vagina and ejaculated inside of her approximately three to four times per week, though he occasionally would not touch Jane for a period of about two weeks. Chavez wore a condom only once. Jane had to pretend that she "liked it" because otherwise Chavez would "get mad." In addition, Chavez touched Jane's breasts and vagina about four times per week, both over and under her clothing. Jane explained that the pattern-that several times per week Chavez touched her breasts and vagina, and put his penis inside of her, and ejaculated- started after Mother's Day 2012 and occurred throughout 2012 and 2013, through the beginning of 2014.
Jane started menstruating sometime in 2013. Her menstrual cycle was regular until sometime in 2014, when Jane noticed that she had not menstruated for a few months. She did not then know how babies were created, but she learned by doing online research at school to understand what was happening to her body. Jane felt the baby move inside her stomach and conducted further research about pregnancy.
Jane realized that she was pregnant when her stomach started getting big, when she was around five months pregnant. Jane masked her pregnancy by wearing John's t-shirts and sweatshirts. Chavez told Jane that she was pregnant and that it was "too late to do an abortion." When Jane was about seven to eight months pregnant and could no longer hide the pregnancy, Jane told Maria that she was pregnant. Chavez told Jane to lie to Maria about who had impregnated her, and Jane did. Once Jane told Maria that she was pregnant, Jane moved into Maria's house for the duration of the pregnancy, and Chavez stopped touching Jane.
The day after Jane told Maria about the pregnancy, Maria took Jane to see a gynecologist. Jane attended a total of three doctor's appointments before she gave birth to baby Doe. During the third appointment, the doctor told Jane that she had to go the emergency room "real fast, because the baby was already coming." Jane testified that the baby was "full term" when she was at the third doctor's appointment. An investigator from the district attorney's office testified that in April 2021 Jane told him that "she was full term when her baby was born" and that Chavez had started having sex with her when she was 13 years old.
In late November 2014-223 days (or seven months and nine days) after Jane's 14th birthday-Jane gave birth to baby Doe. Jane did not hold or look at baby Doe after she was born. Jane stayed in the hospital for two to three days after giving birth and needed stiches on her vagina as a result of the delivery. Jane's breasts filled with milk and were painful for two months after she gave birth.
Jane moved back into her grandmother's house with Chavez after baby Doe was born. Chavez did not touch Jane for three months after she gave birth, while Jane was recovering. During that period, Jane once yelled at Chavez and told him that she hated him. Chavez beat up Jane and told her to apologize, which she did so that he would stop beating her.
In 2015, Chavez "started touching [Jane] again. He started trying to put his penis inside of [her]. He still continued, and it wouldn't stop. He came with the same routine and more abuse, abuse that would come to [Jane] and [her] brother. So it was nonstop. It still continued the same thing over and over." Jane confirmed that "once it started again, [Chavez] would come in and force his penis in [her] vagina." Chavez also continued touching Jane's breasts and vagina, both over and underneath her clothing.
From 2015 through 2017, Chavez resumed the same pattern of abuse as that he had inflicted before Jane's pregnancy. Chavez touched Jane's breasts and vagina and put his penis inside her vagina approximately three to four times per week, with occasional two-week intervals in which he did not touch her.
IV. The verdict and sentencing
The jury found Chavez guilty of one count of forcible rape when Jane was aged 13 (count 1), two counts of forcible rape when she was aged 15 (counts 4 &5), and one count of the lesser included offense of attempted rape by force while Jane was aged 14 (§§ 261, subd. (a)(2), 664; count 3). With respect to count 1, the jury found true the allegations that Chavez personally inflicted great bodily injury and bodily harm on Jane under subdivision (d)(6)-(7) of section 667.61. The jury also found Chavez guilty of the four lewd and lascivious conduct offenses. (§ 288, subds. (a), (b)(1).) As to count 2, the jury found not true the great bodily injury and bodily harm enhancements under subdivision (d)(6)-(7) of section 667.61.
The court sentenced Chavez to an aggregate sentence of life without the possibility of parole plus 31 years, consisting of life without the possibility of parole for count 1, eight years for count 2 stayed under section 654, and consecutive sentences of one year for count 3, six years each for counts 4, 5, and 6, two years for count 7, and 10 years for count 8.
DISCUSSION
I. The One Strike Law
The One Strike Law mandates imposition of a sentence of life without the possibility of parole if a defendant is convicted of forcible rape (§ 261, subd. (a)(2)) upon a victim who is under 14 years of age and at least one of the specified circumstances listed in subdivision (d) of section 667.61 exists. (§ 667.61, subds. (a), (c)(1), (j)(1).) If the victim is at least 14 years old, then the One Strike Law requires a sentence of 25 years to life under the same circumstances. (§ 667.61, subd. (a).)
Two of the circumstances triggering a sentence of life without the possibility of parole if the victim is under 14 years old are set forth in subdivision (d)(6)-(7) of section 667.61. (§ 667.61, subds. (a), (c)(1), (d)(6)-(7), (j)(1).) Section 667.61(d)(6) applies if the defendant personally inflicts "great bodily injury on the victim," and section 667.61(d)(7) applies if the defendant personally inflicts "bodily harm on the victim who was under 14 years of age."
II. Great bodily injury
Chavez challenges the sufficiency of the evidence supporting the true finding on the great bodily injury enhancement for count 1. He also contends that the trial court prejudicially erred by admitting testimony that Jane's pregnancy was full term and by improperly instructing the injury on the definition of great bodily injury. None of the arguments has merit.
A. Section 667.61(d)(6)
The great bodily injury enhancement in section 667.61(d)(6) applies if "[t]he defendant personally inflicted great bodily injury on the victim or another person in the commission of the present offense in violation of Section 12022.53, 12022.7, or 12022.8." (§ 667.61(d)(6).) Section 12022.7 defines "'great bodily injury'" under the listed provisions as meaning "a significant or substantial physical injury." (§ 12022.7, subd. (f); see also §§ 12022.8, 12022.53, subd. (d).) "Proof that a victim's bodily injury is 'great'-that is, significant or substantial within the meaning of section 12022.7-is commonly established by evidence of the severity of the victim's physical injury, the resulting pain, or the medical care required to treat or repair the injury." (People v. Cross (2008) 45 Cal.4th 58, 66 (Cross).) A minor's pregnancy without medical complications resulting from unlawful sexual conduct can support a finding of great bodily injury. (Id. at p. 61.)
B. Sufficiency of the evidence, and evidentiary issues
Chavez does not deny that the evidence that he impregnated Jane was sufficient to prove that he personally inflicted great bodily injury on Jane for purposes of section 667.61(d)(6). He instead challenges the sufficiency of the evidence that he impregnated Jane when she was 13 years old, arguing that the prosecution did not present any evidence concerning "how the date of coitus resulting in pregnancy is calculated" or "the calculation of the gestation period or the number of weeks [Jane] was pregnant when she delivered the baby." Chavez also argues that the trial court prejudicially erred by admitting evidence that Jane had said that the pregnancy was full term, and he claims that the evidence was meaningless in any event, because the prosecution "presented no competent evidence to explain what that meant in relation to the date of coitus." We conclude that there was sufficient evidence to support the enhancement, and we otherwise find no prejudicial error.
"'We review the sufficiency of the evidence to support an enhancement using the same standard we apply to a conviction.'" (People v. Rivera (2019) 7 Cal.5th 306, 331.) "In reviewing a sufficiency of the evidence claim, our role is limited. We review the entire record to determine whether it discloses reasonable and credible evidence to allow a rational trier of fact to determine guilt beyond a reasonable doubt. [Citation.] We draw all reasonable inferences in favor of the judgment. [Citation.] Matters of credibility of witnesses and the weight of the evidence are '"'the exclusive province'"' of the trier of fact." (People v. Cardenas (2020) 53 Cal.App.5th 102, 119, fn. 11.)
There was sufficient evidence that Chavez impregnated Jane when she was 13 years old, so there was sufficient evidence to support the jury's true finding on the great bodily injury enhancement. (Cross, supra, 45 Cal.4th at p. 61.) The fact that the normal length of human gestation is 40 weeks or nine months is a matter of common human experience and hence is deemed within the common knowledge of the jury. (People v. Davis (2013) 57 Cal.4th 353, 360 (Davis) ["'[F]acts are deemed within the common knowledge of the jury only if they are matters of common human experience or well known laws of natural science'"].) Jane testified that Chavez sexually penetrated her and ejaculated inside of her when she was 13 years old. She said that Chavez ejaculated inside of her several times per week after that first incident until she was seven or eight months pregnant. The prosecution admitted evidence of Jane's and baby Doe's dates of birth, from which the jury could deduce that Jane gave birth to baby Doe 223 days, or seven months and nine days, after Jane's 14th birthday. Moreover, Jane estimated that she told Maria about the pregnancy when she was seven to eight months pregnant. After Jane told Maria about the pregnancy, Jane attended two doctor's appointments before being sent to the emergency room at the third appointment to deliver baby Doe. The record contains no evidence that baby Doe was born prematurely or needed any of the specialized medical care that often accompanies a premature birth.
From that evidence, the jury could reasonably infer that Chavez impregnated Jane when she was 13 years old-that is, at least 224 days or seven months and 10 days before baby Doe was born. We accordingly conclude that there was sufficient evidence to support the true finding on the enhancement that Chavez personally inflicted great bodily injury on Jane when she was 13 years old. (§ 667.61, subds. (d)(6), (j)(1); Cross, supra, 45 Cal.4th at p. 61.)
We reject Chavez's contention that because the prosecution did not admit any evidence (expert or otherwise) explaining "how the date of coitus resulting in pregnancy is calculated," "the calculation of the gestation period," or "the number of weeks [Jane] was pregnant when she delivered the baby," the evidence was insufficient. No such evidence was necessary for two reasons. First, as we have already explained, the normal length of human gestation is a fact deemed within the common knowledge of the jury. (Davis, supra, 57 Cal.4th at p. 360.) Second, the argument is irrelevant to our review of the sufficiency of the evidence. We review "whether the evidence was sufficient, not whether hypothetical evidence would have strengthened the prosecution's case." (People v. Vargas (2020) 9 Cal.5th 793, 821-822.) Although medical evidence showing that Jane delivered baby Doe when she was full term would have strengthened the prosecution's case that Chavez impregnated Jane when she was 13 years old, the absence of such medical evidence does not undermine the sufficiency of the evidence admitted.
Chavez also argues that Jane's testimony that the baby was full term, along with the same statement that she made to the district attorney's investigator, was inadmissible, so the trial court prejudicially erred by admitting that evidence. The argument fails. Assuming for the sake of argument that the trial court abused its discretion by admitting the evidence, the error was harmless. As we have already explained, there was ample evidence that Chavez impregnated Jane when she was 13 years old, even without the evidence that Jane believed that she delivered baby Doe full term. Given all of that other evidence, it is not reasonably probable that the jury would have reached a conclusion more favorable to Chavez-namely, that Jane was 14 years old when Chavez impregnated her-had the trial court excluded Jane's statements that baby Doe was born full term. (People v. Lapenias (2021) 67 Cal.App.5th 162, 170; see also People v Watson (1956) 46 Cal.2d 818, 836.)
For these reasons, we conclude that there was sufficient evidence to support the true finding that Chavez inflicted great bodily injury on Jane by impregnating her when she was 13 years old. We further conclude that any error by the trial court in admitting Jane's statements that the delivery was full term was harmless.
C. Jury instruction on great bodily injury
For the great bodily injury enhancement, the jury was instructed that if it found Chavez guilty of forcibly raping Jane when she was 13 years old as alleged in count 1, then it had to determine whether "the People have proved the additional allegation that the defendant personally inflicted great bodily injury on Jane Doe in the commission of that crime." The jury was instructed that "[g]reat bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm." (CALCRIM No. 3160.) Consistent with that instruction, in closing argument the prosecutor twice told the jury, "Great bodily injury means significant or substantial physical injury that is greater than minor or moderate harm."
Relying on People v. Medellin (2020) 45 Cal.App.5th 519 (Medellin), Chavez argues that "the definition of great bodily injury in CALCRIM No. 3160 is ambiguous and subject to an interpretation that permits a jury to find great bodily injury where the injury is only greater than minor, but not greater than moderate." The argument lacks merit.
We independently review whether a jury instruction correctly states the law. (People v. Possey (2004) 32 Cal.4th 193, 218.) We determine whether a given instruction was correct based on "'the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.'" (People v. Castillo (1997) 16 Cal.4th 1009, 1016; People v. Young (2005) 34 Cal.4th 1149, 1202.) "While a single sentence in an instruction 'may or may not be confusing, depending upon the context in which the sentence lies,' an instructional error '"'cannot be predicated upon an isolated phrase, sentence or excerpt taken from the instructions ....'"'" (People v. Quinonez (2020) 46 Cal.App.5th 457, 465-466 (Quinonez).)
Quinonez rejected the same argument that Chavez advances concerning the great bodily injury instruction. (Quinonez, supra, 46 Cal.App.5th at p. 466.) The court reasoned that the defendant's argument was "based on taking one phrase out of context of the entirety of the instructions. All of the challenged instructions that were given in this case defined great bodily injury as 'significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.' (CALCRIM Nos. 875, 860, 3160, italics added.) These instructions did not allow the jury to find [the] defendant guilty and the enhancements true upon the determination that [the victim's] broken nose only constituted 'moderate' harm. Instead, the instructions expressly stated the jury had to find [that the victim's] injuries were 'significant or substantial,' consistent with the well-recognized definition of great bodily injury." (Ibid.) We agree with and adopt Quinonez's analysis and conclusion.
Chavez's reliance on Medellin for the contrary conclusion is misplaced. In Medellin, the defendant argued, and the People conceded, that in closing argument the prosecutor had misstated the law concerning great bodily injury by repeatedly telling the jury that an injury that was merely more than minor was sufficient to constitute great bodily injury. (Medellin, supra, 45 Cal.App.5th at pp. 533, 536.) The jury was otherwise instructed that "great bodily injury means 'greater than minor or moderate harm.'" (Id. at p. 534.) Medellin concluded that the prosecutor's misstatement of the law was prejudicial error (id. at pp. 534-536) in part because the instruction on great bodily injury was ambiguous in that it could "'impermissibly allow a jury to' find great bodily injury means greater than minor harm alone is sufficient" (id. at p. 534).
Medellin's analysis is inapplicable because here the prosecutor did not misstate the law. On the contrary, the prosecutor's description of great bodily injury in closing argument was a verbatim recitation of the great bodily injury instruction. (See also CALCRIM No. 3160.)
Moreover, in People v. Sandoval (2020) 50 Cal.App.5th 357, another panel of the same court that decided Medellin rejected Medellin's conclusion that the great bodily injury instruction is ambiguous. (Sandoval, at p. 360.) Sandoval explained: "'[I]njury that is greater than minor or moderate harm' [in CALCRIM No. 3160] cannot reasonably be read to mean injury that is more than minor but less than moderate. Such an interpretation simply does not make sense, legally or grammatically, particularly when the phrase is preceded by the explanation that great bodily injury means physical injury that is 'significant or substantial.' In our view, there is no reasonable likelihood the jury would parse the instructions in such a tortured way as to create the ambiguity [the] defendant and the Medellin majority find." (Id. at p. 361.) Sandoval concluded that when CALCRIM No. 3160 is "read as a whole" it "clearly informed jurors that great bodily injury meant significant or substantial physical injury, i.e., injury that was greater than moderate harm." (Sandoval, at p. 362.) We agree.
We accordingly conclude that the definition of great bodily injury in CALCRIM No. 3160 is not ambiguous. The trial court did not err by instructing the jury with that definition of great bodily injury.
III. Failure to instruct the jury on bodily harm
Chavez argues, and the People concede, that the trial court erred by failing to instruct the "jury as to the factual elements the prosecution was required to prove to render a finding for the" bodily harm enhancement under section 667.61(d)(7) on count 1. We agree that the trial court erred by not providing the jury any instruction on the bodily harm enhancement under section 667.61(d)(7). (People v. Sengpadychith (2001) 26 Cal.4th 316, 326 ["failure to instruct the jury on an element of a sentence enhancement provision . . . is federal constitutional error if the provision 'increases the penalty for [the underlying] crime beyond the prescribed statutory maximum'"].) We nevertheless conclude that the error was harmless. (Ibid. [failure to instruct on an element of a sentence enhancement provision is reviewed for prejudice under Chapman v. California (1967) 386 U.S. 18, 24].) The true finding on the bodily harm enhancement has no effect on Chavez, given that the jury also found true the great bodily injury enhancement. A true finding on either enhancement subjected Chavez to a sentence of life without the possibility of parole. (§ 667.61, subd. (j)(1) ["A person who is convicted of [forcible rape under § 261, subd. (a)(2)] upon a victim who is a child under 14 years of age under one or more of the circumstances specified in subdivision (d) . . . shall be punished by imprisonment in the state prison for life without the possibility of parole"].) Given the jury's true finding on the great bodily injury enhancement, the additional true finding on the bodily harm enhancement had no effect on Chavez's sentence. Any error in failing to instruct on the bodily harm enhancement was therefore harmless beyond a reasonable doubt.
IV. Unanimity
Chavez argues that the trial court prejudicially erred by failing to give the jury a unanimity instruction with respect to counts 1, 2, 6, 7, and 8. We are not persuaded.
A. Relevant proceedings
During closing argument, the prosecutor described the initial encounters that Chavez had with Jane as: "[O]ne night while [Jane] was asleep, [Chavez] crept into her bedroom and he touched her on her-first on her boobies and then on her line, her vagina. [¶] . . . A few days later, he comes into her room again, and that is when he gets more aggressive and he tries to take off her pants and she fights back by pushing him slightly she said." The prosecutor explained that these acts formed the basis of counts 6, 7, and 8.
With respect to those counts, the prosecutor argued: "Now, count 6 and count 7 are the first two times [Chavez] touched [Jane] inappropriately. When he touched her boobies and her line, her vagina, and that date range is from when [Jane] turned 12 until January 1st of 2014. And that is because we know that it happened sometime during that period. But because [Jane] was young at that age and can't give specific dates, we don't know exactly what day that conduct occurred. We just know that it occurred sometime when she was 12 or 13. [¶] Count 8 relates to the conduct that [Chavez] tried to take off her pants. So that is the same touching, but it requires that it be with force or fear on a child under 14. And that covers the date range from when she turned 12 until just a few months before her 13th birthday on January 1st."
As to counts 1 and 2, the prosecutor argued: "So count 1 is that the defendant raped [Jane] by force, fear or threats. And count 2 is that he touched her in lewd or lascivious ways with force, fear or duress. And these two charges relate to the same conduct, and he can be convicted of both of them. This relates to the conduct that occurred sometime between January 1st, 2014 and April 15th, 2014. [¶] And it is important because that date range is when [Jane] was 13 years old and was raped and touched inappropriately and caused her to get pregnant."
In addition, with respect to counts 1, 2, 6, 7, and 8, the jury was given the following unanimity instruction about the timing of the offenses: "You must not find the defendant guilty of [the specific offense] unless you all agree that the People have proved specifically that the defendant committed that offense [between the specified dates alleged in the information]. Evidence that the defendant may have committed the alleged offense during another date range is not sufficient for you to find him guilty of the offense charged."
B. Analysis
"In a criminal case, 'the jury must agree unanimously the defendant is guilty of a specific crime.'" (People v. Covarrubias (2016) 1 Cal.5th 838, 877.) "Therefore, when the evidence suggests more than one discrete crime, either: (1) the prosecution must elect among the crimes; or (2) the trial court must instruct the jury that it must unanimously agree that the defendant committed the same criminal act." (People v. Hernandez (2013) 217 Cal.App.4th 559, 569.) "The prosecution can make an election by 'tying each specific count to specific criminal acts elicited from the victims' testimony'-typically in opening statement and/or closing argument." (People v. Brown (2017) 11 Cal.App.5th 332, 341 (Brown); People v. Brugman (2021) 62 Cal.App.5th 608, 627 (Brugman).)
The prosecutor made a clear election during closing argument with respect to the specific conduct on which each of counts 1, 2, 6, 7, and 8 was based. The prosecutor specified that counts 1 and 2 were based on the same conduct-the incident that resulted in Jane's pregnancy. The prosecutor specified that counts 6 and 7 were based on the first time that Chavez inappropriately touched Jane-count 6 was based on the first time that Chavez touched Jane's breasts, and count 7 was based on the first time that Chavez touched Jane's vagina. The prosecutor specified that count 8 was based on the next sexually inappropriate encounter that Chavez had with Jane, which, as the prosecutor explained to the jury, included "the conduct that [Chavez] tried to take off her pants."
By tying each of those counts to specific criminal acts described in Jane's testimony, the prosecutor made an election that satisfies the unanimity requirement. (Brugman, supra, 62 Cal.App.5th at p. 628.) "Such an election removes the need for a unanimity instruction." (Brown, supra, 11 Cal.App.5th at p. 341.)
Chavez's only argument to the contrary is not persuasive. Although Chavez acknowledges the assertions made by the prosecutor in closing argument about the acts on which these counts were based, he argues that the unanimity instruction given about the timing of the offenses "told the jurors that they could base a conviction on any molest or rape occurring during the time frame specified, as long as they agreed the act occurred during the alleged time frame, and not at any other time. It did not tie the counts to a specific act." Chavez mischaracterizes the instruction. The given instruction did not allow the jury to base a conviction on any qualifying conduct alleged to have occurred during the specified timeframe. Rather, the instruction required the jury to only consider acts committed during the specific timeframe. Read together with the prosecutor's election concerning the acts tied to those offenses, the instruction meant that the jury could only find Chavez guilty of those offenses if it found that he committed the specific acts elected by the prosecutor within the specified timeframe. Moreover, because the prosecutor made an election about the acts constituting each of those offenses, no unanimity instruction identifying the specific act for each offense committed during the specified timeframe was necessary. (Brown, supra, 11 Cal.App.5th at p. 341.)
DISPOSITION
The judgment is affirmed.
We concur: MILLER, ACTING P. J. FIELDS, J.