Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Stanislaus County Super. Ct. No. 1102475, Loretta Murphy Begen, Judge.
Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Jamie A. Scheidegger, Deputy Attorneys General, for Plaintiff and Respondent.
KANE, J.
Defendant Daniel Garcia was convicted of molesting and sexually exploiting his girlfriend’s daughter (the victim). On appeal, he contends (1) the trial court inadequately instructed the jurors on unanimity, (2) various other instructions were erroneous, and (3) his sentence violated Blakely v. Washington (2004) 542 U.S. 296 (Blakely). We will affirm.
PROCEDURAL SUMMARY
On February 14, 2006, the Stanislaus County District Attorney charged defendant with three counts of committing a lewd and lascivious act upon a child (Pen. Code, § 288, subd. (a); counts I-III) and misdemeanor sexual exploitation of a child (Pen. Code, § 311.3; count IV). The jury found defendant guilty as charged on all counts and the court sentenced him to 12 years in prison, as follows: the upper term of eight years on count I, plus two consecutive terms of two years each on counts II and III. The court stayed imposition of sentence on count IV (§ 654).
FACTS
In 2000, the victim’s mother began dating defendant and they eventually had a daughter together. In 2002, defendant, the victim’s mother, and the two girls moved into defendant’s father’s house on Spruce Street in Modesto. During the three months they lived there, the victim’s mother worked nights and defendant would take care of the girls. When the victim’s mother was gone, defendant would move the victim from her bed on the floor up to his bed and molest her.
In 2003, the family moved to a mobile home in Hanford. There, defendant continued to molest the victim when the victim’s mother was at work. Sometimes he would put a pillow over the victim’s face when he touched her.
The victim’s mother and defendant separated in September 2004. The victim’s mother moved to Modesto with the girls. Defendant would come to visit his daughter and take her and the victim for overnight visits. The last time defendant molested the victim was during one such visit at a Motel 6 in Modesto on about February 4, 2005 or October 3, 2005.
On November 13, 2005, a manager at Rite Aid developed a roll of photographs containing extremely explicit sexual content involving a minor. He called the police. The manager recognized defendant in the photographs as the person who had dropped off the film for developing. Defendant’s name and telephone number were on the form. Defendant returned to pick up the prints, but they had been confiscated by the police.
The police described the photographs as containing very graphic sexual contact between an adult male and a juvenile female. Five of the photographs depicted the crotch area of an undeveloped female. The female was wearing girls’ flowered panties. One photograph showed a penis inserted into her vagina. A hand with a tattoo was visible. When questioned by the police, defendant admitted he had taken the photographs. He said the female wearing the flowered panties was a 19-year-old he had met and spent one night with. Another picture showed the same female with her panties pushed aside and fingers inserted into her vagina. Another picture was of her vagina and panties. Defendant admitted it was his penis and his hand in the pictures. There were also pictures of mature women, some including defendant, and one picture of his daughter sleeping.
The police took the photographs to the victim’s mother, who identified the girl in the picture as the victim, based on a mole on her thigh and the panties she was wearing. The victim’s mother went to the victim’s room to retrieve the panties but could not find them. She finally found them stuffed in the back of the victim’s pajama drawer, rather than where she usually kept her underwear. The police asked the victim if she had been touched inappropriately and she denied it. When her panties were tested, they were found to contain sperm and DNA that matched defendant’s DNA.
The victim spoke to a mental health clinician. A videotape of one of their interviews was played for the jury. In it, the victim explained that when they lived at defendant’s father’s house in Modesto, defendant would put a pillow over her head and touch her “in [her] private part” when her mother was away or “whenever he wanted to,” which was more than five times. She would pretend to be asleep but she would secretly look at him. The molestations started when the victim was about seven or eight years old.
The victim identified her “private part” on a drawing as her crotch area.
The victim explained that defendant also molested her when she was nine years old and they lived in the mobile home in Hanford. Defendant would touch her both over and under her clothing. He would take off her clothing. He continued to molest her whenever he wanted to, which was more than 10 times. She did not know whether he ever touched her private part with anything other than his hands because he put a pillow over her face.
She explained that the last time defendant touched her was at a Motel 6 in Hanford, where she and her little sister spent the night with defendant. She and her sister fell asleep on the bed. Defendant moved the victim to the floor and touched her all over her body, both over and under her clothing. He took her clothes off at some point. At first she was asleep and when she woke up she realized he was touching her. She pretended to be asleep. For that reason, she could not see whether he had his clothes on or off. She did not think defendant took any pictures of her, but he did have a video camera.
The police confirmed that defendant had stayed in that particular Motel 6 on two specific occasions. The motel rooms were similar to the room depicted in the photographs.
Defense Evidence
Defendant’s aunt testified she had seen defendant and the victim’s mother fight. When they did, the victim’s mother belittled defendant. Defendant was an attentive father, but the victim’s mother would threaten to keep defendant from seeing the girls if he did not provide for them.
Defendant’s former roommate testified that defendant treated her children well during the three months they lived together. She left her children with him; she believed he showed no signs of being a child molester.
Defendant’s father testified that he did not suspect defendant was molesting the victim while they were living at his house. He said the victim’s mother was rude when she and defendant broke up.
Defendant testified on his own behalf. He denied ever touching the victim inappropriately. He admitted taking most of the photographs on the roll of film, including the picture of the penis and the vagina. He said it was his penis and the vagina belonged to the young woman he spent one evening with at a hotel, as he had earlier explained. Defendant denied taking pictures of the female with the flowered panties. He explained that he left his camera unattended in various locations and someone must have used it to take those pictures. He admitted he was the person who brought the film to the store to be developed.
As for the matching DNA on the victim’s panties, defendant explained that his DNA was placed on the panties without his knowledge. In addition, defendant believed the victim’s mother would cause the victim to lie and make things up about him.
DISCUSSION
I. Unanimity Instruction
Defendant contends the trial court erred by instructing the jurors with an improper unanimity instruction. As a result, they were not informed that they were required to unanimously agree on which specific criminal acts constituted the crimes in counts I, II, and III. He maintains that the instruction, although it referred to and encompassed three separate charges, was written in the singular tense and therefore it allowed the jurors to convict him of all three counts even if the jurors unanimously agreed he committed only one criminal act. We disagree.
In a criminal case, a jury verdict must be unanimous. (Cal. Const., art. I, § 16; People v. Russo (2001) 25 Cal.4th 1124, 1132.) “Additionally, the jury must agree unanimously the defendant is guilty of a specific crime. [Citation.]” (Ibid.) “What is required is that the jurors unanimously agree [the] defendant is criminally responsible for ‘one discrete criminal event.’ [Citation.] ‘[W]hen the accusatory pleading charges a single criminal act and the evidence shows more than one such unlawful act, either the prosecution must select the specific act relied upon to prove the charge or the jury must be instructed in the words of CALJIC No. 17.01 or 4.71.5 or their equivalent that it must unanimously agree beyond a reasonable doubt that [the] defendant committed the same specific criminal act.’ [Citation.]” (People v. Thompson (1995) 36 Cal.App.4th 843, 850.)
“This requirement of unanimity as to the criminal act ‘is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed.’ [Citation.] For example, in People v. Diedrich [(1982)] 31 Cal.3d 263, the defendant was convicted of a single count of bribery, but the evidence showed two discrete bribes. [The court] found the absence of a unanimity instruction reversible error because without it, some of the jurors may have believed the defendant guilty of one of the acts of bribery while other jurors believed him guilty of the other, resulting in no unanimous verdict that he was guilty of any specific bribe. [Citation.] ‘The [unanimity] instruction is designed in part to prevent the jury from amalgamating evidence of multiple offenses, no one of which has been proved beyond a reasonable doubt, in order to conclude beyond a reasonable doubt that a defendant must have done something sufficient to convict on one count.’ [Citation.]” (People v. Russo, supra, 25 Cal.4th at p. 1132.)
In this case, the information charged three separate counts of lewd and lascivious conduct, each count specifying a criminal act occurring during a specific time period and in a specific location. As charged in the information, for count I, the criminal act occurred between February 4, 2005 and October 3, 2005, in Stanislaus County; for count II, the criminal act occurred between January 1, 2002 and December 31, 2002, in Stanislaus County; and for count III, the criminal act occurred between December 1, 2003 and September 30, 2004, in the City of Hanford.
The evidence then established the places and times of the different acts. The victim testified that defendant molested her when they lived at defendant’s father’s house on Spruce Street in Modesto, when they lived in a mobile home in Hanford, and when she stayed with defendant in a Motel 6 in Modesto . The prosecution also played the recording of the victim’s interview, in which she clearly explained the three different locations and what occurred at each. The victim estimated the time frames of these incidents, and other evidence confirmed those time frames more definitively.
During argument, the prosecutor stated her election of acts for each count, as follows:
“… [The victim] was able to talk about how [defendant] had been touching her. How he touched her when they lived at his father’s house. And she knew it was in Modesto. She knew they made a little bed for her on the floor. He would get down on the floor to molest her.
“And she remembered at their mobile home in Hanford, when they lived there, that he would touch her there as well. And that her mom worked nights.
“And she remembered the last time he touched her was at Motel 6 in Modesto. [¶] We know from the receipts and from the defendant’s admission that he did rent a motel room at Motel 6 in Modesto twice; once on February 4th, 2005, and once on October 3rd, 2005. [¶] … [¶] You have the receipts and the records that [the victim’s mother] brought to court about where they were living and when. The mobile home that they rented in December of 2003. Where she was working when they lived on Spruce [Street] in Modesto, and she paid her cell phone bill. [¶] … [¶]
“Based on all of this evidence, [defendant] has been charged with four counts; three counts of a violation of Section 288 of the Penal Code, a lewd and lascivious act. [¶] … [¶]
“In [the victim’s] care center interview, she specifically talked about -- and these relate to the counts that the defendant is charged with[ -- h]ow some of the touching occurred at [defendant’s] father’s home in Modesto. And they lived there during 2002, confirmed by [the victim’s] mother, the defendant’s father, and the receipts that you have in evidence.
“[The victim] also recalls being touched at the mobile home that they rented. They lived there from 2003 [until] approximately September of 2004. You have the rental agreement in evidence. You have [the victim’s mother’s] testimony and the defendant’s testimony about when they lived at that mobile home.
“And finally, [the victim] recalled being touched at the Motel 6. And we know the defendant rented a room at Motel 6 in Modesto in February of [2005] and again in October of [2005].”
During its instructions, the trial court instructed the jurors orally on unanimity with CALCRIM 3501, as follows:
“The People have presented evidence of more than one act. To prove that the defendant committed the offense of a violation of Penal Code Section 288, lewd and lascivious acts, you must not find the defendant guilty unless, No. 1, you all agree that the People have proven the defendant committed at least one of these acts, and you all agree on which act he committed; or No. 2, you all agree that the People have proven that the defendant committed all the acts alleged to have occurred during this time period.
“I will read you the specific[] dates that were included in the information, ladies and gentlemen.
“For Count 1, the acts are alleged to have occurred between … [¶] February 4th, 2005, to October 3rd, 2005.
“In Count 2, the acts are alleged to have occurred between January 1st, 2002, and December 31st, 2002.
“And in Count 3, between December 1st, 2003, and September 30th, 2004.
“Counsel, these were not included in the instructions, but I’ve added them.”
The jury was also provided a written form of CALCRIM No. 3501, which stated:
“The defendant is charged with Lewd act with a child, PC Section 288 sometime during the period of 2-4-05[] to 10-3-05 (Count 1)
1-1-02 12-31-02 (Count 2)
12-1-03 9-30-04 (Count 3)
“The People have presented evidence of more than one act to prove that the defendant committed this offense. You must not find the defendant guilty unless:
“1. You all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act he committed;
“OR
“2. You all agree that the People have proved that the defendant committed all the acts alleged to have occurred during this time period.”
CALCRIM No. 3501 provides:
During deliberation, the jury requested and received a readback of the victim’s testimony regarding the Spruce Street and Hanford addresses, and the defendant’s testimony regarding the photographs. Later, the jury indicated it had not yet reached an agreement on two of the four counts, and asked the court what would happen if they were not able to do so. The jurors informed the court that they believed further deliberations would be helpful, and shortly thereafter they agreed on four verdicts.
Under these circumstances, we conclude the jury was adequately instructed on the need for unanimity on all three counts of lewd and lascivious conduct. As we have explained, the information clearly charged three separate counts with three different time frames, the evidence plainly established the acts that occurred at those three separate locations and time frames, the instructions again informed the jurors there were three separate counts for the three separate times frames, and the prosecutor elected the separate acts for the separate counts. Thus, even if the instruction could have been clearer, the circumstances as a whole clarified any possible confusion. Furthermore, the jurors’ requests and statements confirmed that they understood their responsibility to agree on separate acts to support the three separate counts. Any error in the court’s instruction on unanimity was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18; People v. Thompson, supra, 36 Cal.App.4th at p. 853 [Chapman standard applies to failure to properly instruct on unanimity].)
II. Other Instructional Claims
Defendant raises several other instructional claims. He asserts (1) CALCRIM No. 200 improperly invades the province of the jury and is coercive because it implies that the jurors are obligated to reach a verdict; (2) CALCRIM 220 allows the jury to consider a bias against the defendant; (3) CALCRIM 223 and 224 are contradictory, confusing and misleading for various reasons; (4) CALCRIM 226 fails to accurately convey the issue to be considered; and (5) numerous instructions erroneously refer to the jurors collectively rather than individually.
We have recently addressed these claims in People v. Ibarra (2007) 156 Cal.App.4th 1174. For the reasons explained in that case, we reject defendant’s contentions.
Because we find no instructional error, we also reject defendant’s claim of cumulative instructional error and ineffective assistance of counsel.
III. Upper Term Sentence
Defendant contends his upper term sentence violated Blakely, supra, 542 U.S. 296 and its progeny. We find no violation.
In Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), a five-justice majority of the United States Supreme Court held: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Id. at p. 490.)
Blakely held that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. [Citations.]” (Blakely, supra, 542 U.S. at p. 303, italics omitted.) Blakely describes three types of facts that a sentencing judge can properly use to impose an aggravated sentence: (a) “‘the fact of a prior conviction’” (id. at p. 301); (b) “facts reflected in the jury verdict” (id. at p. 303, italics omitted); and (c) facts “admitted by the defendant” (ibid., italics omitted).
Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856] held that aggravating factors, other than a prior conviction, used to impose an upper term for a criminal offense must be submitted to a jury and proved beyond a reasonable doubt, according to the requirements of Apprendi and Blakely. (Cunningham v. California, supra, at p. __ [127 S.Ct. at p. 864].) As a result, California’s Determinate Sentencing Law violates a defendant’s Sixth and Fourteenth Amendment right to a jury trial to the extent that it permits a trial court to impose an upper term based on facts found by the court rather than by a jury beyond a reasonable doubt. (Id. at pp. __ [127 S.Ct. at pp. 860, 868-871].)
In the recent case of People v. Black (2007) 41 Cal.4th 799 (Black II ), the California Supreme Court concluded that “imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Black II, supra, at p. 816.)
In this case, the trial court stated that it considered the following factors in aggravation: (1) the victim was particularly vulnerable and (2) defendant took advantage of a position of trust or confidence to commit the offense. These factors do not fall within the exceptions to Blakely. Thus, we consider whether the trial court’s error was harmless under the standard set forth in Chapman v. California, supra, 386 U.S. at page 24. (People v. Sandoval (2007) 41 Cal.4th 825, 838; see Washington v. Recuenco (2006) 548 U.S. 212.) In making this determination, “we must determine whether, if the question of the existence of an aggravating circumstance or circumstances had been submitted to the jury, the jury’s verdict would have authorized the upper term sentence.” (People v. Sandoval, supra, at p. 838.) “[I]f a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury, the Sixth Amendment error properly may be found harmless.” (Id. at p. 839.)
Here, the evidence was overwhelming that the victim was particularly vulnerable and that defendant took advantage of a position of trust or confidence to commit the offenses against her. Defendant not only lived with the victim during most of the molestations, he was essentially her stepfather. He molested her repeatedly -- whenever he wanted to, as she put it -- beginning when she was at the vulnerable age of only seven or eight years old. He initiated the molestations when she was sleeping and defenseless. Sometimes he put a pillow over her face. The victim’s mother entrusted the victim to defendant’s care, but he instead took the opportunity to repeatedly violate her when she was without her mother’s protection. We have absolutely no doubt that the jury, if it had been asked to determine whether the facts supported the aggravating factors of the victim’s vulnerability and defendant’s taking advantage of a position of trust or confidence to commit the offenses, would have found the factors true beyond a reasonable doubt. Accordingly, the use of either of these aggravating factors without a jury finding was harmless. (People v. Sandoval, supra, 41 Cal.4th at pp. 838-839.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: Gomes, Acting P.J., Dawson, J.
“The defendant is charged with ___________ <insert description[s] of alleged offense[s]> [in Count[s] ______] sometime during the period of ___________ to ___________.
“The People have presented evidence of more than one act to prove that the defendant committed (this/these) offense[s]. You must not find the defendant guilty unless:
“1. You all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act (he/she) committed [for each offense];
“OR
“2. You all agree that the People have proved that the defendant committed all the acts alleged to have occurred during this time period [and have proved that the defendant committed at least the number of offenses charged].”
The bench notes to this instruction state: “Give the bracketed portions when the defendant is charged with numerous charges for the same offense alleged to have occurred during the specified time period. (See People v. Matute [(2002)] 103 Cal.App.4th [1437,] 1448 [15 rapes charged during 15 months].)”