Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. VA099207, Robert J. Higa, Judge.
Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, James William Bilderback II and Steven E. Mercer, Deputy Attorneys General, for Plaintiff and Respondent.
TURNER, P. J.
I. INTRODUCTION
Defendant, Luis Armando Delgado, appeals from his convictions for nine counts of forcible lewd acts upon a child. (Pen. Code, § 288, subd. (b)(1).) The jury also found as to all counts: defendant had substantial sexual conduct with the victim who was under the age of 14 years old; the commission of the offenses involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness; the victim was particularly vulnerable; the manner in which defendant carried out the offenses indicated planning, sophistication, and professionalism; and defendant took advantage of a position of trust as a stepfather. Defendant argues the trial court improperly: instructed the jury with CALJIC Nos. 10.43, 2.50.1 and 2.50.2; failed to instruct the jurors with CALJIC Nos. 17.01 or 4.71.5; and had an improper unreported communication with the jurors. We affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
II. FACTUAL BACKGROUND
We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Elliot (2005) 37 Cal.4th 453, 466; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) J.G. lived with C.G., defendant, and two younger sisters in Bell Gardens between the ages of 10 and 11 years. C.G. is the mother of the victim, J.G. Defendant came to live with her family when J.G. was approximately four years old. Between the ages of 8 and 11, J.G. shared a bedroom with her mother, C.G., defendant, and two sisters. Two other men stayed in another bedroom of the home. Defendant’s uncle stayed in a third bedroom. J.G. slept on a mattress on the floor. C.G. worked at night. C.G. was gone from the home from 11:30 p.m. to 7 a.m. Defendant cared for the three children when C.G. was working. Defendant sometimes went into the garage to drink beer when C.G. was working. When defendant was drunk, he would come into the bedroom and touch J.G.’s breast and body, including her buttocks.
Defendant often played pornographic movies on the digital video recorder in the bedroom. J.G. recalled that in one of those videos, the naked woman told the naked man, “‘It’s my first time.’” When interviewed on January 18, 2007, J.G. explained to Detective Angelo Sinisi that the previous night defendant had been drinking. Defendant came into the room after J.G.’s sisters were asleep. Defendant had touched her, doing the same thing like the naked man and woman had done on the video. Defendant removed J.G.’s clothing and underwear. Defendant then removed his own clothing and boxer shorts. Defendant touched J.G.’s breasts and buttocks. Defendant then got on top of J.G. Defendant kissed J.G.’s neck and then placed his finger in her vagina. Defendant put his saliva in J.G.’s vagina. Defendant placed his penis in J.G.’s vagina and moved up and down for approximately 15 minutes. Thereafter, defendant in J.G.’s words, cleaned “some white thing” from his penis with a blue shirt. J.G. tried to stop defendant by pushing him. However, defendant held J.G. down by her wrists. After defendant cleaned himself, he fell asleep. J.G. went into the living room and cried. J.G. remained in the living room the remainder of the night.
On January 18, 2007, a social worker, Arturo Alva, interviewed J.G. at her school. J.G. recounted what happened to her. J.G. told Mr. Alva that defendant had been sexually abusing her for the previous two years. J.G. said defendant had touched her private parts, including her chest and vagina. J.G. told Mr. Alva that defendant would kiss her breasts. These events usually happened at night after her sisters were asleep and while C.G. was at work. J.G. said that she slept on the floor. However, defendant would insist that she get in bed with him. When J.G. refused to do so, defendant would “come and get” her. Defendant would also kiss J.G.’s neck while touching her private parts. These events occurred approximately three times a week. On January 17, 2007, defendant had been drinking. Defendant removed J.G.’s pants and underwear as well as his boxers. Defendant asked J.G. to view an adult movie depicting naked men and women. While defendant was viewing the movie, he was rubbing her from behind. Defendant then put his penis inside J.G. for approximately 20 minutes. J.G. said that a white liquid came out of defendant’s penis, which he wiped off with his T-shirt.
J.G. also described an incident to Mr. Alva when a cousin, spent the night at the family home. On that night, defendant touched J.G.’s body as he had over the previous two years. J.G. also described an incident where her aunt walked into the residence. This occurred while J.G. and defendant were lying on the floor. Defendant had unzipped J.G.’s pants and touched her private parts. Defendant told J.G. that if she told anyone about the incidents, her two sisters would be taken away.
J.G. told Officer Christopher Wiggins that defendant had been touching her body. J.G. also said defendant had been putting his private part in or near hers for approximately two to three years twice weekly. J.G. said that on more than one occasion, defendant would sometimes stand behind her and rub his private part against hers without actually inserting it inside her body. J.G. said that defendant started touching her when she was in elementary school. The first time that defendant put his penis inside J.G.’s vagina was when she was in elementary school. J.G. said defendant first inserted his penis in her vagina when she was approximately 10 years old.
On one occasion, C.G. was in Mexico. J.G. was laying on the floor next to defendant in the living room. J.G.’s aunt, L.P., walked into the living room unexpectedly. L.P. saw J.G.’s hand on top of defendant’s private part over his clothing. L.P. became angry and pulled J.G. away from defendant. L.P. then struck J.G. a few times. L.P. then took custody of J.G. until C.G. returned from Mexico. Thereafter, C.G. confronted defendant and asked him to move out. However, defendant told C.G. he had not done anything. Defendant never moved. When C.G. asked what had happened during the Mexico trip. J.G. said nothing happened. Defendant also told J.G. that C.G. was having an affair with another man. Defendant told J.G. if she told anyone what was happening between them, he would call the police. Defendant threatened to accuse C.G. of adultery to the authorities. Defendant said J.G.’s two sisters would then be taken away.
On January 18, 2007, J.G. was examined by Theresa Saracho, a nurse practitioner, for sexual assault. J.G. was “‘sad, tearful, crying,’” explaining that she had been subjected to ongoing sexual abuse by defendant from age eight or nine. J.G. reported that defendant had orally copulated her and penetrated her vagina. J.G. said that defendant touched her genital area and placed his fingers in her vagina over an ongoing period approximately twice a week. Defendant first had intercourse with J.G. when she was 9 or 10 years old. J.G. described the pain and bleeding that resulted from the first act of intercourse. J.G. said she was frightened and worried and had trouble sleeping because she did not know if defendant would do it again. J.G. explained she allowed defendant to molest her to prevent him from doing it to her sisters. Defendant engaged in this sexual misconduct while C.G. was at work.
J.G. described to Ms. Saracho what had occurred on January 17, 2007. J.G. had been asleep on the floor. Defendant ordered J.G. to get on the bed. When she refused, defendant carried J.G. to the bed. Defendant laid down behind J.G. Thereafter, defendant removed their pants. Defendant wet his fingers with saliva to moisten the area between J.G.’s buttocks. Defendant stimulated himself by placing his penis between J.G.’s buttocks. Defendant then stood up. When sperm came into his hands, defendant wiped it onto his shirt.
Ms. Saracho conducted a physical examination of J.G. That examination revealed that because J.G. had begun her menstrual cycle, her hymen was “stretchable.” As a result, her vaginal area would accommodate the insertion of a finger or an adult penis. When a child has been penetrated in the vaginal area she might not experience an injury. J.G. did not have any injuries to her hymen. If a child experienced an act of penetration by an adult penis some two years prior to an examination, any injury would have probably healed.
Senior Criminalist Cheryl Andersen examined results from a sexual assault examination performed on J.G. as well as the blue T-shirt recovered from defendant’s home. The external genital swab from the sexual assault kit tested positive for Amylase, an enzyme most often found in saliva and fecal matter. The amount of Amylase detected was more than Ms. Andersen would expect to find from an endogenous vaginal or external genital sample. Ms. Andersen found sperm heads on some of the stains on the blue T-shirt tested for semen. Other stains on the blue T-shirt tested positively for semen.
Approximately a month prior to January 18, 2007, after attending a fair, J.G. spent the night with an 11-year old cousin. J.G. asked the cousin to pretend to be asleep. This was so they would see what defendant would do to J.G. The cousin and J.G. went to a bedroom where they pretended to be asleep. Defendant came into the room and checked to see if J.G.’s cousin was asleep. Defendant then got on the bed and began to touch J.G.’s breasts and genital area. Defendant had removed J.G.’s pants. J.G. was not wearing panties. Defendant then lowered his pants. Defendant got on top of J.G. Defendant “put his part in hers” for 15 to 20 minutes. J.G. appeared “serious and sad.” Defendant then cleaned his private part with his shirt. After this incident the cousin’s stepfather began molesting her. The witness told a classmate and a friend about the molestation. The cousin’s friend then revealed what had happened. Eventually the cousin’s mother found out what had happened. The police came to arrest J.G.’s cousin’s stepfather the same day.
Detective Sinisi and Officer Wiggins accompanied J.G. to her home on January 18, 2007, to conduct a search of the residence. The home was searched with C.G.’s permission. Detective Sinisi recovered a blanket that J.G. identified as having been on the bed the previous night. J.G. also identified the blue shirt defendant used to wipe himself off.
J.G. and her sisters were placed in a foster home. After a year, she was returned to C.G.’s custody. J.G. spoke to the foster mother about the sexual encounters with defendant. J.G. also discussed the matter with a social worker.
Detective Sinisi interviewed defendant on January 23, 2007. Detective Sinisi videotaped the interview and made a recording as well. Defendant admitted to drinking habits that were consistent with what J.G. had stated. Defendant admitted he was having difficulty in his marriage because he suspected his wife was having an affair. Defendant described the details of his sexual activity with J.G. on January 17, 2007. Those details were consistent with what J.G. had reported. Defendant said the he felt J.G. was seducing him and that she initiated all contact with him. Defendant admitted that once J.G.’s aunt had walked in unexpectedly. J.G.’s hand was on his groin area and her zipper had malfunctioned. Defendant also discussed an incident when J.G. and a cousin went to a fair. Defendant had accompanied them. Thereafter, the cousin spent the night at his home. Defendant said the two girls walked into the bedroom and took off their shirts. Defendant described J.G.’s cousin as being “well formed.” Defendant admitted that he was human and could be tempted. Defendant stated the two girls had been watching a pornographic video when he entered the bedroom.
Defendant admitted he began touching J.G. when she was nine years old. Defendant said he would disrobe J.G. and himself and rub his penis on her vagina without penetration. Defendant said the first time he penetrated J.G.’s vagina was three weeks prior to January 17, 2007. Defendant said they had both disrobed themselves. Defendant claimed he placed his penis near J.G.’s vagina to masturbate. According to defendant, he placed his penis in her vagina. Defendant pushed J.G. away and ejaculated into his hand. Defendant said he was wearing a blue Playboy T-shirt on January 17, 2007.
III. DISCUSSION
A. Instructions
1. Propensity evidence
a. factual and procedural background
Defendant argues that the trial court improperly instructed the jury with CALJIC Nos. 10.43, 2.50.1, and 2.50.2, thereby denying his constitutional right to due process. While discussing jury instructions, defense counsel objected to CALJIC Nos. 10.43 and 2.50.1, “They are kind of part and parcel of each other, and my objection to these is just a general objection.” Defense counsel further argued: “I think that there was not any substantial evidence of other sexual offenses, other than really, in my opinion, the incident that happened the year before January the 17th, and then the incident that happened on January the 17th, so I think that this instruction would be misleading.” The trial court inquired why the instruction was needed. The prosecutor explained that counts 1 and 2 related to January 17, 2007 and the remaining seven counts fell between certain dates. However, the prosecutor indicated, defendant was not charged with all of the acts. The trial court inquired: “How do you decide which ones are charged and which ones aren’t? [¶] That becomes a problem. [¶]... [¶] Are we going to have the jurors determine which ones fall within the charged ones and which ones don’t?” The prosecutor responded: “All the jurors need to determine is whether an act occurred when she was under the age of 14, a separate act. They need to just determine whether there were nine separate acts.” The trial court continued: “It confuses them, I think, because then you are going to ask them, all right, which ones fall within the - - those separate counts and which ones don’t, and then the question is do we have to unanimously agree which ones fall - - [¶] This takes into account all the conduct. This takes all the conduct between those dates.” The trial court inquired: “Do they have to decide which of the seven fall within those counts or - - do you see what I mean?” The prosecutor clarified: “No, they don’t. [¶]... [¶] [I]f you agree that all of the acts that she testified about or that were in evidence are true, you don’t have to agree on the specific offense. If you agree that they’re all true, you just - - as long as that number is seven or more, you can make a decision that way.”
CALJIC No. 10.43 was given as follows: “Evidence has been introduced for the purpose of showing lewd or lascivious acts between the defendant and the alleged victim on one or more occasions other than that charged in this case. [¶] If you believe this evidence, you may use it only for the limited purpose of tending to show the defendant’s lewd disposition or intent toward the child. [¶] You must not consider that evidence for any other purpose.” Thereafter, the trial court gave CALJIC No. 2.50.1: “Within the meaning of the preceding instructions, the prosecution has the burden of proving by a preponderance of the evidence that a defendant committed a crime or sexual offenses other than those for which he is on trial. [¶] You must not consider this evidence for any purpose, unless you find by a preponderance of the evidence that the defendant committed the other crimes or sexual offenses. [¶] If you find other crimes were committed by a preponderance of the evidence, you are, nevertheless, cautioned and reminded that before a defendant can be found guilty on any crime charged or any included crime in this trial, the evidence as a whole must persuade you beyond a reasonable doubt that the defendant is guilty of that crime.” Finally, CALJIC No. 2.50.2 was given: “‘Preponderance of the evidence’ means evidence that has more convincing force than that opposed to it. If the evidence is so evenly balanced that you are unable to find that the evidence on either side of an issue preponderates, your finding on that issue must be against the party who had the burden of proving it. [¶] You should consider all of the evidence bearing upon every issue, regardless of who produced it.”
b. the trial court could reasonably instruct the jury regarding propensity
In People v. Falsetta (1999) 21 Cal.4th 903, 911, our Supreme Court held: “Available legislative history indicates [Evidence Code] section 1108 was intended in sex offense cases to relax the evidentiary restraints [Evidence Code] section 1101, subdivision (a), imposed, to assure that the trier of fact would be made aware of the defendant’s other sex offenses in evaluating the victim’s and defendant’s credibility. In this regard, [Evidence Code] section 1108 implicitly abrogates prior decisions of this court indicating that ‘propensity’ evidence is per se unduly prejudicial to the defense.” (See also People v. Branch (2001) 91 Cal.App.4th 274, 281.) Defendant acknowledges that the prosecution may introduce evidence of other sexual offenses to demonstrate a defendant’s propensity to commit similar crimes. (Evid. Code § 1108, subd. (a) ; People v. Lewis (2009) 46 Cal.4th 1255, 1284-1285; People v. Reliford (2003) 29 Cal.4th 1007, 1009; People v. Falsetta, supra, 21 Cal.4th at p. 911.) Defendant further concedes the instructions at issue have been approved by the California Supreme Court. Defendant argues, “However, in appellant’s case, it was error to instruct the jury that it could infer criminal propensity with regard to the ‘charged’ offenses where the prosecution presented ‘uncharged offenses’ for the same instances involved in the charged offenses.”
Evidence Code section 1108, subdivision (a) states in part, “In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.”
At the outset, we respectfully disagree with the factual predicate of defendant’s contention that the other offenses evidence consisted entirely of charged crimes. J.G. stated that defendant molested her regularly. J.G.’s testimony is consistent with the theory the molestation that occurred on October 30, 2005, the initial date charged in the information, was not the first time defendant engaged in sexual conduct with her. Also, count 9 charges defendant with committing sexual molestation through December 31, 2006. Counts 1 and 2 charge defendant with molesting J.G. on January 17, 2007. No count alleges defendant molested J.G. between December 31, 2006, and January 17, 2007. A trier of fact could reasonably conclude defendant had engaged in proscribed sexual conduct prior to October 30, 2005, and between December 31, 2006, and January 17, 2007 and constituted uncharged offenses subject to Evidence Code section 1108.
In any event, defendant relies on People v. Quintanilla (2005) 132 Cal.App.4th 572, 583, which involved the use of charged instances of domestic violence pursuant to Evidence Code section 1109 to prove the defendant’s propensity to commit other charged offenses. In a divided opinion, the court in Quintanilla held that Evidence section 1109 does not contemplate the use of other charged offenses to prove a defendant’s disposition to commit acts of domestic violence. (Id., at p. 583.) But our colleagues in the Court of Appeal for the Sixth Appellate District in People v. Wilson (2008) 166 Cal.App.4th 1034, 1052, disagreed with the Quintanilla holding: “We discern three reasons for permitting the jury to use evidence of charged sex offenses to show a propensity to commit another charged offense. First, the plain wording of Evidence Code section 1108 does not limit its application to cases involving uncharged sex offenses. The statute provides that when a ‘defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.’ The statute does not distinguish between charged and uncharged offenses.... [T]he policy concerns or factors that Falsetta described as ‘supporting the general rule against the admission of propensity evidence’ are not implicated where multiple offenses are charged in the same case.
([People v.] Falsetta, supra, 21 Cal.4th at p. 915.) The defendant does not face an ‘unfair burden of defending against both the charged offense and the other uncharged offenses’ or ‘protracted “mini-trials” to determine the truth or falsity of the prior charge’ or ‘undue prejudice arising from the admission of the... other offenses’ in cases such as this, since he is already required to defend against all of the charges. [Citation.] Thus, the reasons for excluding propensity evidence set forth in Falsetta do not apply to cases involving propensity evidence based on charged offenses.” (Emphasis added.)
We agree with Wilson. Defendant suggests that Wilson is distinguishable. This, defendant argues, is because in Wilson the preponderance of evidence standard for review in propensity inference was not present in the jury instructions. The trial court in Wilson did utilize the preponderance standard as to the uncharged offense. The fact a preponderance of evidence instruction was utilized here does not prove the jurors convicted defendant utilizing a preponderance of the evidence standard. We review the instructions as a whole to determine whether it is reasonably likely that the jury misconstrued the instructions given. (People v. Reliford, supra, 29 Cal.4th at p. 1013; People v. Roybal (1998) 19 Cal.4th 481, 526-527; People v. Mendoza (1998) 18 Cal.4th 1114, 1134; People v. Frye (1998) 18 Cal.4th 894, 957, overruled on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) In People v. Frye, supra, 18 Cal.4th at page 957, our Supreme Court held, “In conducting this inquiry, we are mindful that ‘“a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.”’” (People v. Frye, supra, 18 Cal.4th at p. 957, quoting. Boyde v. California (1990) 494 U.S. 370, 378; see also People v. Burgener (1986) 41 Cal.3d 505, 538, overruled on another point in People v. Reyes (1998) 19 Cal.4th 743, 753.) The jurors were instructed to consider the instructions as a whole (CALJIC No. 1.01) and that the prosecution must prove guilt beyond a reasonable doubt. (CALJIC No. 2.90.) The jurors were instructed that for each offense, “[T]here must exist a union or joint operation of act or conduct and a certain specific intent in the mind of the perpetrator. Unless this specific intent exists the crime to which it relates is not committed.” (CALJIC. No. 3.31.) CALJIC No. 2.50.1 cautioned the jurors, “If you find other crimes were committed by a preponderance of the evidence, you are, nevertheless, cautioned and reminded that before a defendant can be found guilty on any crime charged or any included crime in this trial, the evidence as a whole must persuade you beyond a reasonable doubt that the defendant is guilty of that crime.” The California Supreme Court has consistently stated that on appeal: “‘“Jurors are presumed to be intelligent, capable of understanding instructions and applying them to the facts of the case.”’ [Citations.]” (People v. Carey (2007) 41 Cal.4th 109, 130, quoting People v. Lewis (2001) 26 Cal.4th 334, 390; People v. Yeoman (2003) 31 Cal.4th 93, 139; People v. Bradford (1997) 15 Cal.4th 1229, 1337; People v. Osband (1996) 13 Cal.4th 622, 714; People v. Kemp (1961) 55 Cal.2d 458, 477; see Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 803.)
Further, in his closing argument, the prosecutor reviewed the various acts of masturbation. The prosecutor noted: “Defendant was also predisposed to committing lewd acts upon [J.G.’s] body.... He touched [J.G.’s] body at least twice a week from the time that she was nine years old until the time that she was eleven years old. We only have nine counts charged, but you can use the other evidence of uncharged sex acts to conclude that the defendant was predisposed to touching [J.G.’s] body in a lewd way.” Later, the prosecutor reminded the jurors: “There’s more than nine acts. All you have to do is find nine acts. Apply the law to the facts in this case....” These comments, when coupled with the instructions given, directed the jurors that they must find nine separate acts to convict defendant of the charges. Moreover, J.G. gave consistent statements to several law enforcement officers; two social workers; and a foster mother. J.G.’s recitation of what occurred was corroborated by: a cousin; an aunt; and C.G. In addition, defendant’s own detailed confession was consistent with J.G.’s accounts. In light of other instructions given, the prosecutor’s closing argument, and the overwhelming proof of guilt, any error was harmless beyond a reasonable doubt. (People v. Prieto (2003) 30 Cal.4th 226, 257-258 [erroneous special-circumstance instruction harmless beyond a reasonable doubt]; People v. Ervin (2000) 22 Cal.4th 48, 91; Chapman v. California (1967) 386 U.S. 18, 24; People v. Williams (1994) 30 Cal.App.4th 1758, 1763.)
2. Unanimity Instruction
Defendant argues that the trial court had a sua sponte duty to instruct the jury with either CALJIC No. 17.01 or 4.71.5 regarding unanimity. Defendant argues that CALJIC Nos. 10.43, 2.50.1 and 2.50.2 allowed the jury to convict him without agreeing on the act to support the particular count charged. A trial court is obliged to instruct, even without a request, on the general principles of law which relate to the issues presented by the evidence. (§§ 1093, subd. (f), 1127; People v. Ledesma (2006) 39 Cal.4th 641, 715; People v. Ervin, supra, 22 Cal.4th at p. 90.) In this case, the jurors were instructed with CALJIC No. 10.42 in part as follows, “Defendant is accused in Counts 1 through 9 of having committed the crime of lewd act with a child by force or fear in violation of section 288, subdivision (b)(1) of the Penal Code.” Thereafter, the offense was defined. The jurors were also instructed with CALJIC No. 17.02 as follows: “Each count charged a distinct crime. You must decide each count separately. The defendant may be found guilty or not guilty of any or all of the crimes charged in counts 1 through 9. Your finding as to each count must be stated in a separate verdict.” The California Supreme Court has made clear “‘“A unanimity instruction is required only if the jurors could otherwise disagree which act a defendant committed and yet convict him of the crime charged.” [Citations.]...’” (People v. Champion (1995) 9 Cal.4th 879, 932, quoting People v. Beardslee (1991) 53 Cal.3d 68, 93; see also People v. Stankewitz (1990) 51 Cal.3d 72, 100; People v. Crandell (1988) 46 Cal.3d 833, 875.) In Champion, one of the defendants raped a victim twice. After raping her in a bathroom, the defendant left but returned shortly thereafter to rape her again. The Supreme Court held, “[O]nce a juror determined that defendant Ross committed one of the two rapes, it is inconceivable that the juror would not also conclude that Ross also committed the second rape of the same victim.” (People v. Champion, supra, 9 Cal.4th at p. 932; see People v. Riel (2000) 22 Cal.4th 1153, 1200.)
In this case, counts 1 and 2 alleged that defendant committed two forcible lewd acts against J.G. on January 17, 2007. J.G. testified that defendant disrobed her, kissed her neck, and touched her breasts and buttocks. Defendant also placed his finger in J.G.’s vagina. Defendant put his saliva in J.G.’s vagina. Defendant placed his penis in J.G.’s vagina and moved up and down for approximately 15 minutes. Thereafter, defendant cleaned “some white thing” from his penis with a blue shirt. During closing argument, the prosecutor explained that each act defendant performed on January 17, 2007 constituted a lewd act in an of itself. The prosecutor argued that kissing and disrobing J.G. alone constituted the crime in count 1. Defendant’s further acts of placing his finger in J.G.’s vagina, moistening her vagina with saliva, and rubbing his penis between her thighs and buttocks for 20 minutes certainly satisfied the elements of count 2 particularly in the context of virtually uncontroverted evidence of guilt. These acts were committed on the same day and within a period of less than an hour. Any juror who believed defendant committed one lewd act would have inexorably believed that he also committed the other. As a result, the trial court did not have a duty to give a unanimity instruction. (People v. Benavides (2005) 35 Cal.4th 69, 98 [“‘[T]he unanimity instruction is not required when the acts alleged are so closely connected as to form part of one transaction’”] People v. Riel, supra, 22 Cal.4th at p. 1200; People v. Barnett (1998) 17 Cal.4th 1044, 1150; People v. Champion, supra, 9 Cal.4th at p. 932; People v. Stankewitz, supra, 51 Cal.3d at p. 100.)
With respect to the remaining seven counts, the information set forth specific dates as to each count over the two year period during which J.G. said defendant had repeatedly performed similar acts when he had been drinking and after C.G. left for work. The prosecutor argued that counts 3 through 9 involved almost identical scenarios and occurred two or three times a week. Moreover, CALJIC No. 4.71 instructed: “When, as in this case, it is alleged that the crime charged was committed ‘on or about’ a certain date, or ‘on or between’ certain dates, if you find that the crime was committed, it is not necessary that the proof show that it was committed on that precise date or within the specified range of dates; it is sufficient if the proof shows that the crime was committed while the child was under the age of 14.” As noted the California Supreme Court has consistently stated that on appeal jurors are presumed to have followed the trial court’s instructions. (People v. Carey, supra, 41 Cal.4th at p. 130; People v. Yeoman (2003) 31 Cal.4th 93, 139; see Cassim v. Allstate Ins. Co., supra, 33 Cal.4th at p. 803.)
Nonetheless, any error in failing to give a unanimity instruction was harmless under any prejudice based standard of reversible error. (Chapman v. California, supra, 386 U.S. at p. 22; People v. Breverman (1998) 19 Cal.4th 142, 165; People v. Watson (1956) 46 Cal.2d 818, 836.) The California Supreme Court has held: “In determining whether there was prejudice [from instructional error], the entire record should be examined, including the facts and the instructions, the arguments of counsel, any communications from the jury during deliberations, and the entire verdict.’” (People v. Wims (1995) 10 Cal.4th 293, 315, quoting People v. Guiton (1993) 4 Cal.4th 1116, 1130; see also People v. Lasko (2000) 23 Cal.4th 101, 111.) Here, the prosecutor argued that multiple similar offenses occurred prior to the January 17, 2007 incidents on a routine basis, as often as two or three times a week. Some of these acts were corroborated by J.G.’s aunt, cousin and mother. As set forth above, CALJIC No. 17.02 directed the jurors: “Each count charges a distinct crime. You must decide each count separately. The defendant may be found guilty or not guilty of any or all of the crimes charged in counts 1 through 9. Your finding as to each count must be stated in a separate verdict.” The verdict forms for counts 1 through 9 reflect the jurors’ careful consideration of the evidence, as demonstrated by their true findings that: the allegations of actual great bodily harm or threats of same or high degree of cruelty; J.G. was particularly vulnerable; and defendant took advantage of his position of trust as a stepfather. When we view the information which specified the dates for each count, the prosecutor’s argument specifying the time frames during which the offenses occurred, the instructions given, and the verdict forms, we are convinced beyond a reasonable doubt that the jury unanimously agreed that the crimes took place in the number and manner described even without a unanimity instruction. (See People v. Matute (2002) 103 Cal.App.4th 1437, 1450 [no unanimity instruction required where the defendant had repeated acts of sexual intercourse with his daughter a couple of times a week over a two-year period].)
B. Trial Court’s Ex Parte Communication with the Jurors
1. Factual and procedural background
Defendant argues that the trial court improperly entered the jury room to answer a question posed during deliberations, thereby violating his federal and state constitutional rights. Defendant further argues the record of the communication and the settled statement are inadequate. We disagree. The clerk’s transcript in this matter reflects that on May 30, 2008, the jury posed the following question: “What are the differences between the 9 separate counts. How do we differentiate [sic] the counts. Can we get further details of each count.” The minute order of May 30, 2008 states, “Pursuant to stipulation, the court enters the jury room and verbally answers the 2 questions according to the agreement between court and counsel.” On February 4, 2009, pursuant to rule 8.155(c)(2) of the California Rules of Court, we ordered the trial court to prepare a settled statement concerning the instructions given to the jury on May 30, 2008, in response to the jurors’ note. We further ordered the trial court hold a hearing in an effort to prepare a settled statement of the instructions given to the jury on May 30, 2008 in response to the jurors’ note. Thereafter, on February 10, 2009, the trial court held the settled statement hearing with trial counsel. The trial court stated, “And, first of all, we can stipulate that counsel agreed to the answer at the time and agreed that I could give that answer to the jurors, step into the jury room, given them the answer, and step back out; is that correct?” Counsel responded affirmatively. The trial court continued, “I think we all agree and we stipulate that the answer was to direct the jury to, A, an instruction, some instructions, or all the instructions, period; is that correct?” Defense counsel answered, “My recollection is that we agreed that the Court would refer the jury to the instructions, plural, without specifying any particular instruction or instructions.” The prosecutor responded: “Whereas, my best recollection, which admittedly is not the best, is as follows, which may be a little difficult to follow. [¶] I cannot specifically recall whether we referred them to all of the jury instructions as an entire set or whether or not we highlighted one or some of a certain specific set of jury instructions, so that would be my position, that we cannot tell, or at least I cannot remember if we said - - referred to all the jury instructions as a whole or one or some specifically.” The trial court then stated: “The court’s recollection is very similar to yours, that normally, in situations such as this, I and counsel have agreed to direct the jurors to, A, an instruction or some of the instructions or maybe all of the instructions in a question such as this. I don’t recall whether we directed them to any specific instruction or just referred to them as instructions in general.” The trial court and both counsel further agreed there were no additional instructions given. In addition, no factual references, additional testimony or further instruction on the law were given to the jurors.
2. Forfeiture
Section 1138 states in relevant part: “After the jury have retired for deliberation,... if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called.” In People v. Roldan (2005) 35 Cal.4th 646, 729, our Supreme Court held: “When a trial court decides to respond to a jury’s note, counsel’s silence waives any objection under section 1138. (People v. Kageler (1973) 32 Cal.App.3d 738, 746.) ‘The failure of defendant’s counsel to object or move for a mistrial upon the court frankly informing him of the court’s action might also be construed to be a tacit approval. Approval of the court’s action, even though it might have been a technical violation of section 1138 of the Penal Code, cures any possible error.’ (People v. House (1970) 12 Cal.App.3d 756, 765-766, disapproved on other grounds in People v. Beagle (1972) 6 Cal.3d 441, 451-452.) We reached a similar conclusion in the analogous situation in which the trial court declined to respond to a jury’s note pursuant to section 1138. (People v. Boyette[ (2002)] 29 Cal.4th [381], 430.)” (Ibid., overruled on another point in People v. Doolin, supra, 45 Cal.4th at p. 421; see also People v. Rodrigues (1994) 8 Cal.4th 1060, 1193.)
In this case, defense counsel agreed to the procedure followed by the trial court. As noted, the May 30, 2008 minute order states, “Pursuant to stipulation, the court enters the jury room and verbally answers the 2 questions according to the agreement between court and counsel.” As set forth above, this agreement was confirmed at the time of the settled statement proceedings on February 10, 2009, “And, first of all, we can stipulate that counsel agreed to the answer at the time and agreed that I could give that answer to the jurors, step into the jury room, give them the answer, and step back out; is that correct?” Both the prosecution and defense counsel agreed that occurred. As a result, any error has been forfeited. (See People v. Barrios (2008) 163 Cal.App.4th 270, 279 [defense counsel’s agreement that the judge could write any response to a jury question on the jurors’ note waived the issue on appeal]; People v. Ross (2007) 155 Cal.App.4th 1033, 1048.) Defendant has therefore forfeited the issue.
3. The settled statement adequately demonstrates that defendant was not prejudiced by the trial court’s direction to follow the instructions given
Notwithstanding that forfeiture, defendant was not prejudiced by either the trial court’s communication with the jurors or the settled statement related thereto. Defendant argues that the trial court’s “failure to preserve a complete record” violates his state and federal constitutional rights. However, in the absence of a verbatim transcription of what occurred at trial, our Supreme Court has held a settled statement can suffice to provide meaningful appellate review. (People v. Hawthorne (1992) 4 Cal.4th 43, 66-67; People v. Holloway (1990) 50 Cal.3d 1098, 1116, overruled on another point in People v. Stansbury (1995) 9 Cal.4th 824, 834.) Defendant concedes that the appellate record is deemed inadequate only if it prejudices the accused’s ability to prosecute an appeal. That most assuredly has not occurred.
In any event, defendant has failed to demonstrate any prejudice has occurred. Our Supreme Court has held, “A conviction will not be reversed for a violation of section 1138 unless prejudice is shown.” (People v. Frye, supra, 18 Cal.4th at p. 1007; People v. Jennings (1991) 53 Cal.3d 334, 384-385.) In this case, the record, including the settled statement, demonstrates the trial court, with the agreement of counsel, went into the jury room in response to the jurors’ question and directed them to reconsider either some or all of the instructions previously given. No further instruction, direction, additional testimony or factual references were given. The California Supreme Court has held: “The court has a primary duty to help the jury understand the legal principles it is asked to apply. [Citation.] This does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury’s request for information. (People v. Gonzalez (1990) 51 Cal.3d 1179, 1213.)” (People v. Beardslee, supra, 53 Cal.3d at p. 97; see also People v. Cleveland (2004) 32 Cal.4th 704, 755.) The trial court directed the jurors to the previously given instructions with the consent of counsel. Defendant has not demonstrated that he was prejudiced by this decision.
III. DISPOSITION
The judgment is affirmed.
We concur: ARMSTRONG, J. MOSK, J.