Opinion
C089036
03-04-2022
THE PEOPLE, Plaintiff and Respondent, v. RAFAEL ANTONIO GARCIA, Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. No. 15F06936
HULL, ACTING P.J.A jury found defendant Rafael Antonio Garcia guilty of crimes against three women including kidnapping with intent to commit rape or sexual penetration, forcible sexual penetration, and attempted rape. On appeal he contends (1) the trial court erred in excluding certain defense evidence, including that a victim had made a false rape claim; (2) the trial court erred in failing to instruct sua sponte on the lesser included offense of simple kidnapping; (3) the trial court failed to instruct or secure verdicts on the "One Strike" penalty provision; (4) the trial court erred in failing to sua sponte provide the jury with a unanimity instruction; and (5) the abstract of judgment must be corrected to reflect the term imposed on count 12. Additionally, defendant (6) asks us to review the in camera hearing held pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess); and (7) maintains the above errors were cumulatively prejudicial.
Contentions three, four, and five have merit. We will therefore reverse count 12, vacate the sentence imposed, and remand for resentencing.
Facts and History of the Proceedings
Defendant was charged with various sexually related and other acts perpetrated against five victims. For one victim, the prosecution moved to dismisses the charges midtrial for insufficient evidence. For another victim, the jury found defendant not guilty of sexual battery or battery.
Defendant was ultimately convicted of acts perpetrated against three victims: a victim who was a community college student; a victim who was working at a fast food restaurant; and a victim who was returning to her apartment. Each of those victims testified at trial.
1. The student victim
The student victim, who was 19 at the time the incident, testified that in the afternoon, during a break from class, she was sitting on a bench by the science building on her community college campus. Defendant came and sat next to her.
When asked at trial if she saw the man in the courtroom who sat down next to her, she testified "I don't remember him," adding that she could not remember what he looked like. And when asked if there were a lot of people at the community college that day, she testified, "I don't remember."
The man sat next to her for a minute or two and then got up and left. He returned a few seconds later and stood about seven feet away from the victim. He then told her to "come here," because he wanted to show her something. She followed him.
The man walked towards the men's restroom and said, "Come here." She said: "No. That's not a good idea." Defendant grabbed her wrist and pulled her inside the restroom. She tried to break away.
He then took her into the stall and pushed her into the corner by the toilet. Holding on to her, he told her to take off her clothes. When she didn't, he took off her pants and underwear. He then lifted her and placed her on her back, on the bathroom tile floor. The victim testified that defendant was also saying things to her, but she could barely hear or understand him.
The victim testified that defendant then removed his shorts and boxers and tried to put his penis in her vagina. Unsuccessful, he put his fingers in her vagina instead. He then again tried to put his penis in her vagina. She continued to push him away.
At some point, defendant ejaculated. He then cleaned himself and the victim with toilet paper. He then told her to "[g]o to the bathroom." She left, while defendant remained in the bathroom.
The victim testified that she then went to class and her mother later picked her up. She didn't tell her mother about the assault, explaining at trial, "I just didn't want to." On cross-examination she testified that she was afraid her mom would freak out.
There was no school the next day, and when the student victim returned to campus the day following, she went to see the campus nurse after her morning class, "[b]ecause I was afraid that I was pregnant." She told the nurse what happened. The nurse summoned the police to talk with the victim after which the police interviewed the victim. She told them what happened.
A recording of the victim's interview with an officer was played for the jury. A portion of the recording of her statement, where the victim said she had never had sex before, was excised at the defense's request. As discussed in part I, post, the defense had sought to admit evidence showing that that was a false statement.
Later, police came to her home and collected the clothes she wore during the sexual assault.
At trial, the parties stipulated that DNA found on the victim's underwear matched the victim as well as defendant.
The mother of the student victim testified that the victim is, "a people-pleaser, very agreeable. And she will-like if you ask her, 'Do you want to go to the movies?' she'll say, 'Yes.' And then you say, 'What movie?' She says, 'What movie do you want to see?' "
The mother also testified the victim had had issues progressing through school, and from kindergarten had an individual education plan to guide her through school.
The day of the incident, when her mother picked her up, the victim appeared "very, very frustrated." When her mother asked her about being late, the victim slammed her hands into her lap and said, "It will never happen again."
A sexual assault nurse examiner testified that she had examined the student victim three days after the assault. She found a large bruise on the victim's upper thigh. She also found small vaginal abrasions, which were consistent with the victim's telling of the attack. The victim told the nurse that defendant had dragged her into a restroom and penetrated her with his penis and fingers.
2. The restaurant victim
The restaurant victim, who was 22 by the time of the trial, testified that in October 2015, she was working at a fast food restaurant. It was in the afternoon, and she was taking a break outside. Defendant came up to the bench the victim was sitting on and said "inappropriate things" to her. Defendant, who looked drunk, said he wanted to take her pants off and forcefully have sex with her.
The victim told him to leave her alone. When he continued to say inappropriate things, she got up. He then said: "I'm just trying to feel your pussy, and let me lick your pussy until I give you an orgasm." He followed her, continuing to say "inappropriate things."
At some point, he threw a beer can at her, hitting her shin. She kicked the can back. He also struck her. She testified, "It wasn't, like, hard, or anything like that, because I feel like I was, like, dodging. . . . But he brushed my face with his hands like he was trying to slap me, but it didn't connect as hard."
The victim ran into the restaurant, and her boss called the police. Later that day, she identified defendant to police.
At trial, a responding officer testified that he had located defendant in the area, based on the victim's description. Defendant appeared intoxicated.
3. The apartment victim
The apartment victim, who was 15 years old at the time of the incident, testified that on October 28, 2015, she was living in an apartment complex near a college parking lot (the same community college the student victim was attending). Near her home, defendant started to follow her, after she separated from her friend. When she reached the door to her apartment, she stopped; defendant did too.
As she reached for her keys in her bag, defendant lightly touched the back of her arm. When she turned around, defendant said, "Hey, come here," followed by, "Give me head." She said "No."
When defendant took a step closer, she took out her phone and took a picture of him. She then turned back to her door, as defendant continued to talk. When she tried to unlock the door, defendant grabbed her wrist. She yanked her wrist away and unlocked the screen door. She then unlocked the front door, slid inside, and shut the door.
The apartment victim testified that defendant appeared drunk. He had a strong odor of beer and also had a beer can in his pocket.
On cross examination, the victim agreed that when speaking to an officer immediately after the incident, and another officer two weeks later, she had mentioned defendant's light touch to her arm but not defendant grabbing her wrist.
As to the student victim, the jury found defendant guilty of kidnapping with intent to commit rape and/or sexual penetration (Pen. Code, § 209(b)(1); count 8; statutory section citations that follow are to the Penal Code); two counts of forcible sexual penetration (§ 289, subd. (a)(1); counts 9 and 10); and attempted rape (§ 664/261(a)(2); count 11). As to the apartment victim, the jury found defendant guilty of lewd acts on a child (§ 288, subd. (c)(1); count 12). And as to the restaurant victim, the jury found defendant guilty of battery (§ 242; count 13), after finding him not guilty of assault with intent to commit rape.
The trial court sentenced defendant to a 25-year-to-life indeterminate term, along with a four-year eight-month determinate term. It consisted of 25-years-to-life for forcible sexual penetration, as a One Strike offense (§ 667.61); the four-year upper term for attempted rape; and eight months (one third the middle) for lewd acts on a child. A 25-year-to-life term, for the other forcible sexual penetration count, was imposed and stayed with the court finding the two counts of penetration constituted one incident. Punishment for kidnapping was imposed and stayed under section 654. Finally, for battery, he received a six-month jail term, credited with time served.
Discussion
I
The Exclusion of Defense Evidence
Defendant first contends the trial court erred in precluding him from pursuing evidence that: (1) the student victim previously had made a false rape accusation, and (2) the student victim previously had sent nude photos of herself to a minor.
Prior to trial, the prosecution moved to exclude any evidence of the student victim's sexual conduct. Two instances were described in the motion. In one instance, which occurred before the charged incident, when the victim was 18, the victim called a medical call center. The call center then contacted the Sacramento Sherriff's Department. A responding officer interviewed the victim, who reported she had had a consensual sexual encounter (her first) with a known acquaintance. She said she was worried about getting pregnant and regretted having sex.
In the second incident, which occurred after the charged incident, when the victim was 20, the student victim exchanged naked photos via cell phone with a 16-year-old boy, she knew from high school. No charges were filed, and according to the motion, it was the boy who prodded the victim for naked photos and sent unsolicited photos of himself.
The prosecution argued the sexual encounters were "completely different" from the charged counts and would only serve to embarrass the victim for being young and confused. The motion also represented that the student victim suffers from an "auditory processing disorder," whereby she misuses certain words, misunderstands the meaning of some words, and "causes her social interactions to not be fluid." The prosecutor also told the court, "she sometimes will hear words, not completely comprehend them, and may, to cover for not understanding it, nod her head or agree . . . ."
At the hearing, the defense moved to introduce those incidents as evidence of the victim's sexual conduct, under Evidence Code section 782. Defense counsel provided additional details, explaining that as to the earlier incident, which occurred six months before the charged incident, the victim snuck out of her house to have sex, "then calls police to report a rape, but when they get there she says it's not a rape, consensual, but I'm afraid I'm pregnant. I didn't want to tell my mom." Counsel later reiterated: "She was afraid she was pregnant and regretted having sex with him, and that is why she contacted law enforcement." No charges were filed because the victim said the sex was consensual.
The defense sought to impeach the victim with that evidence, noting the victim had reported that the charged incident was her first sexual contact. Counsel also cited the similarity to the charged incident in that the victim contacted the health department fearing she was pregnant and saying she was raped: "I think part of what was happening is that she has a lack of understanding, has been really sheltered in her growing up. And so I think for those reasons, it is something that is either relevant or could potentially become relevant based upon cross-examination of her." Counsel added that it was the defense's position that the charged incident was consensual, but the victim regretted her participation and believing she was potentially pregnant, falsely reported she was raped. Counsel argued the incident was therefore also admissible under Evidence Code section 1101.
The prosecutor argued the victim's "description and what she thought might be rape or not be rape is not important. Her understanding, legal understanding of . . . what's rape and what's not rape is not at all relevant." Further, the incident, the prosecutor maintained, bolstered the victim's credibility, adding, "she does have some mental deficiencies. [¶] I think this will highlight those deficiencies, but it will also show to demonstrate when she has the consensual contact and when she does not."
The trial court excluded the earlier incident as irrelevant. It explained the incident was "somewhat similar" to the charged incident, but there were some "glaring differences." While the victim called law enforcement and reported a rape, the minute the officer showed up, she said the sex was consensual, she didn't think she was raped, but she was afraid she might be pregnant. The court noted that the victim appeared to have "a very limited understanding of how this all works," and, "it sounded like she thought she may have been raped because she regretted having the consensual sex . . . ." The court noted the victim did not go through with reporting a rape, no rape kit was done, "[n]obody filed anything." It continued: "So based on that, I don't find it relevant to this case in that I don't think there's any new or additional information that those statements came out of her mouth with regard to [defendant]. So I would have to see something glaringly similar between the two before I would find this relevant in this case."
As to the later incident, defense counsel told the trial court that the victim had made false statements in connection with it. She had said she had met the minor in high school, but in fact they had met on Facebook. Counsel also argued sending naked photos to a minor was admissible as moral turpitude conduct.
The trial court took the matter under submission, noting the evidence did not fall under Evidence Code section 782, evidence of the victim's sexual conduct. Later, the trial court excluded the incident under Evidence Code section 352. It explained, the conduct occurred after the charged incident, was not substantially similar to it, and did not involve sexual relations. Further, the incident was more prejudicial than probative.
Later, during cross-examination of the student victim, defense counsel again asked the court for permission to question the victim about her earlier recanted report of rape. Counsel argued it was relevant because the victim had appeared very inexperienced while testifying, "as though she may not even know about sex," but the prior incident shows she had had prior sexual experience. Counsel added that it was relevant because the defense's position is the encounter was consensual.
The trial court responded that, "[t]he difference between this particular incident and the one in which she supposedly snuck out to meet a boy, then called the police afterwards, then basically did tell the police, 'I don't think I was raped, I'm just afraid I'm pregnant,' she stated she was raped in this one. So it's not like a mistake or why she was trying to get the officers there." The court continued, "So I don't think it is similar enough. And under [Evidence Code section] 352 and under the rape shield laws, I'm finding that the first act was a consensual act, and she was confused about what might have happened in terms of getting pregnant." The court added while the victim appeared to be confused about how one gets pregnant, "it doesn't fall within the level of [Evidence Code section] 1101, and I would not allow it in."
Later, the trial court excluded the student victim's statement from her interview with an investigating officer where she said she had never had sex before.
Analysis
1. The earlier incident
As to the first incident, defendant argues excluding the evidence was error as the false rape report was relevant to credibility and demeanor, even if the victim recanted once police arrived. It also showed the victim was untruthful when she told officers she had never had sex before.
The People respond that excluding the evidence was within the trial court's discretion under Evidence Code section 352. In support, the People argue the case is analogous to People v. Tidwell (2008) 163 Cal.App.4th 1447 (Tidwell), where this court upheld the exclusion of proffered evidence of prior false rape accusations under Evidence Code section 352.
In Tidwell, the defense sought to admit evidence of two instances where the victim had claimed rape. (Tidwell, supra, 163 Cal.App.4th at p. 1452.) The victim was a deaf woman with learning disabilities. (Id. at p. 1449.) In one instance, the victim reported to police that she had been kidnapped and raped, then returned to her apartment. (Id. at p. 1452.) The victim's friend later told police that the victim had gone to her boyfriend's house, he was not there, but one of the boyfriend's friends "touched" her. (Id. at p. 1453.) The friend did not believe a stranger had attacked the victim. (Ibid.) In the other incident, seven months later, the victim went for a drive with a school friend; they drove to a park public restroom where he forced her to have sex with him. (Ibid.) Months later, the victim told a counselor the school friend had raped her. (Ibid.) She also told a police officer the friend had pulled her from a store, took her forcibly by car, and raped her. She also claimed she had told two counselors at the school and had obtained emergency contraceptive from the campus nurse. (Ibid.) School records, however, reflected only that the victim had come in because of vomiting that day and not because of a rape complaint. (Ibid.) The school friend was arrested, but claimed the sex was consensual, and he was not prosecuted. (Ibid.)
The trial court excluded the evidence under Evidence Code section 352, explaining the victim had never recanted her prior rape complaints, and thus their falsity could only be established though the testimony of the accused men. (Tidwell, supra, 163 Cal.App.4th at pp. 1453-1454.) The court noted the school friend had asserted his right to remain silent, making him unavailable as a witness. (Id. at p. 1454.) It also cited the weakness of the evidence indicating the rape complaints were false, noting the prosecution intended to call a witness who would testify that the school friend had also raped her around the same time as the incident with the victim. (Ibid.)
We affirmed, explaining that even if the evidence was relevant and admissible, the trial court acted within its discretion in excluding it because the evidence was weak on the victim's credibility and would require undue consumption of time. (Tidwell, supra, 163 Cal.App.4th at pp. 1456-1457.) We noted that while a prior false rape accusation is relevant to the victim's credibility, the proffered prior rape accusations would have no bearing on credibility unless it was established the complaints were false. (Id. at pp. 1457-1458.) And it was not readily apparent they were. (Ibid.) We also noted that, "[i]n addition to the weaknesses in the evidence concerning falsity of the rape complaints, admitting the evidence would have resulted in an undue consumption of time as the defense attempted to bolster its view and the prosecution introduced evidence that [the accused] had raped another female student." (Id. at p. 1458.)
Here, the People argue that as in Tidwell, the proffered evidence would have necessitated a trial within a trial. Defendant replies that here, unlike in Tidwell, there is no dispute that the victim reported the rape. The People have the better argument.
At the outset, similarity to the charged crime is not a requirement for a prior false rape claim to be admitted. Rather, a factfinder may consider" 'any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony'" in determining a witness's credibility. (People v. Xiong (2020) 54 Cal.App.5th 1046, 1067; Evid. Code, § 780.) Still, such "[e]vidence may be excluded under Evidence Code section 352 'if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.'" (People v. Winbush (2017) 2 Cal.5th 402, 469.)
To that, a trial court's decision regarding Evidence Code section 352 is reviewed for abuse of discretion. (People v. Powell (2018) 5 Cal.5th 921, 961.) Further, in making such rulings, "the trial court need neither recite each factor it considered, nor detail the evidence supporting each factor. Instead, the record need only reflect that the court weighed the relevant factors." (Quail Lakes Owners Assn. v. Kozina (2012) 204 Cal.App.4th 1132, 1140; see also People v. Clair (1992) 2 Cal.4th 629, 660-661 [" 'Certainly, the trial judge need not expressly weigh prejudice against probative value-or even expressly state that he has done so' "].) And, here, we find the Evidence Code section 352 determination was within the court's discretion.
While the parties appear to agree that a rape was reported, significant uncertainty surrounded that report. It is not clear what was said on the call to the call center. To counter the false rape claim of the defense, the prosecution would, at least, have had to subpoena the call center's records and, if they did not report exactly what was said, then call a witness or witnesses from the call center who actually talked to the victim. Even then, the possibility remains that what was said by the victim would have remained unclear. Did the victim volunteer that she had been raped, or was she responding to a yes or no question such as those asking whether she was "forced" to have sex where her understanding may have been that being encouraged to have sex was force? In that instance, the call center would no doubt have been persuaded to call law enforcement. The uncertainty of what she said could have implications given the victim was apparently "very agreeable," lacked an understanding about sex, and may have had an auditory processing disorder, causing her to misunderstand and misuse certain words. Indeed, it is not entirely clear if the victim had reported a rape or if something else in the call caused the call center to notify the police of a rape. It is telling that the victim immediately told responding officers the sex was consensual.
Taken together, this was not a cut-and-dry case of a false rape report. Ascertaining what precisely had transpired on the call-and its significance given the victim's auditory processing disorder, her propensity to be agreeable, and lack of understanding regarding sex-could entail additional witnesses and lengthy questioning of the victim (the prosecution has a right to rebut a false rape report claim). And even if the cascading peripheral questions could be resolved, the probative value of a prior false rape claim was limited by the fact that the victim immediately told officers the sex was consensual.
In light of this, it was not unreasonable for the trial court to conclude that the risk of confusing the issues, consuming time, or creating a trial within a trial, substantially outweighed the probative value. We therefore conclude the trial court did not exceed its discretion in excluding the evidence under Evidence Code section 352.
2. The later incident
As to the later incident, the trial court also acted well within its discretion. Sending nude photos had little if any bearing on the victim's credibility.
Further, competing versions of the later incident were offered. The defense maintained the victim sent naked photos of herself to the minor, knowing full well he was a minor. The prosecution maintained it was the minor who had prodded the victim for photos and was the first to send unsolicited photos.
Addressing those discrepancies again risked the creation of a trial within a trial. That concern combined with the minimal probative value rendered the trial court's decision to exclude the evidence under Evidence Code section 352 well within its discretion.
This contention, therefore, fails.
II
Instruction on Simple Kidnapping
Defendant next contends the trial court erred in failing to instruct the jury, sua sponte, on the lesser included offense of simple kidnapping. He reasons the evidence raised questions as to whether the movement was incidental to another crime or if the movement increased the risk of harm beyond that of rape, and therefore the jurors should have been instructed on simple kidnapping in order to consider these issues. He emphasizes the forced movement here was not a long distance. We find no error.
We review de novo the trial court's failure to instruct on a lesser included offense. (People v. Licas (2007) 41 Cal.4th 362, 366.)" 'A trial court must instruct the jury sua sponte on a lesser included offense only if there is substantial evidence," 'that is, evidence that a reasonable jury could find persuasive'" [citation], which, if accepted," 'would absolve [the] defendant from guilt of the greater offense' [citation] but not the lesser" [citation].'" (Ibid., italics omitted.) "Speculative, minimal, or insubstantial evidence is insufficient to require an instruction on a lesser included offense." (People v. Simon (2016) 1 Cal.5th 98, 132.)
Here, defendant has failed to identify substantial evidence that would absolve him of guilt of aggravated kidnapping but not simple kidnapping. As the jury was instructed, aggravated kidnapping requires that "[t]he movement must have increased the risk of physical or psychological harm to the person beyond that necessarily present in the rape or sexual penetration." (CALCRIM No. 1203.) This is not an element of simple kidnapping (though it may be considered in determining if the victim was moved a "substantial distance"). (CALCRIM No. 1215.) But defendant points to no evidence that moving the victim into the restroom stall did not increase her risk of physical or psychological harm beyond rape or sexual penetration. Defendant avers to the relatively short movement, but this does not amount to a colorable argument that moving the victim to the restroom stall did not also increase her risk of being further victimized physically or psychologically beyond the intended offense. Moving a rape victim from a public bench some distance into a restroom stall and putting the victim down on the floor next to the toilet can only reasonably be considered as risking the victim's physical and psychological harm beyond the fact of the rape. Moreover, the movement made the sexual acts less likely to be discovered as they occurred, thus risking the possibility of further physical harm beyond the act of rape.
So too, aggravated kidnapping requires that the victim "was moved or made to move a distance beyond that merely incidental to the commission of a rape or sexual penetration." (CALCRIM No. 1203.) But here too defendant has not pointed us to substantial evidence negating this element, such that simple kidnapping was established but not aggravated kidnapping. Again, defendant avers to the relatively short distance the victim was moved, but both simple and aggravated kidnapping require a finding that the victim was moved a "substantial distance," so the length of the movement does not necessarily absolve for one kidnapping offense but not the other.
Having failed to find evidence that would absolve defendant of the greater offense but not the lesser, we conclude the trial court did not err in failing to instruct on simple kidnapping sua sponte.
III
One Strike Sentencing
Next, defendant contends the failure to instruct the jury or secure verdicts on the One Strike penalty provision requires reversal. The People concede the error but maintain it was harmless beyond a reasonable doubt.
The People also argue the contention is forfeited for failure to object to the verdict forms when they were submitted to the jury or when they were returned. But in support, the People cite only People v. Jones (2003) 29 Cal.4th 1229, 1259, which pertained to a claimed ambiguity in the verdict form, and People v. Bolin (1998) 18 Cal.4th 297, 330, which pertained to a claimed "unintelligible" reference in a verdict form. Neither case addressed the failure to instruct or obtain a jury verdict on a statutorily authorized alternative sentencing scheme. We also note that there is a sua sponte duty to instruct on the One Strike elements. (People v. Jones (1997) 58 Cal.App.4th 693, 709 (Jones).)
On the merits, we agree with defendant's contention.
Additional Background
"The Legislature enacted the One Strike law to increase the penalties imposed on defendants who commit certain sexual offenses under specified circumstances." (People v. Betts (2020) 55 Cal.App.5th 294, 299.) "The penalty imposed depended on the number and seriousness of those circumstances . . . ." (Ibid.) Under the statute, a 25-year-to-life term is imposed for the commission of certain enumerated offenses" 'under one or more of the circumstances specified in [section 667.61] subdivision (d) or under two or more of the circumstances specified in subdivision (e) . . . .'" (Ibid.)
Here, following the jury's verdict, the prosecution filed a sentencing brief, arguing that defendant should be sentenced under the section 667.61 One Strike alternative sentencing scheme. It acknowledged, however, that the jury was not instructed on the section 667.61 special findings, and the verdict forms did not include them.
Nevertheless, the people maintained that that failure was harmless because the elements of the aggravated kidnapping offense overlapped with "identical" elements for the section 667.61 One Strike allegation.
The trial court agreed. It noted that while the information alleged a One Strike enhancement, it was neither argued nor included in the verdict forms. But citing, Jones, supra, 58 Cal.App.4th 693, the court explained that it can look at what the jury found to determine whether to impose the One Strike enhancement. And, here, the jury found defendant guilty of kidnapping with intent to commit rape as well as two acts of forcible sexual penetration. And as to the One Strike elements, "[the jury] essentially found the allegations true by finding the defendant guilty of the kidnap with intent to commit rape and attempted rape as well as being found guilty of sexual penetration independently of each other. [¶] The Court finds this is sufficient to trigger the life sentence in 667.61(a)."
Analysis
" '[T]echnical defects in a verdict may be disregarded if the jury's intent to convict of a specified offense within the charges is unmistakably clear, and the accused's substantial rights suffered no prejudice.'" (People v. Camacho (2009) 171 Cal.App.4th 1269, 1272.) To that end," '" '[a] verdict is to be given a reasonable intendment and be construed in light of the issues submitted to the jury and the instructions of the court.'" '" (Ibid.) Where a challenge is directed at the verdict form, our "inquiry is confined to determining beyond any reasonable doubt whether the jury did find [the disputed finding] and whether it intended the verdict it returned to reflect that determination." (People v. Coelho (2001) 89 Cal.App.4th 861, 877, original italics omitted, italics added.)
On appeal, defendant argues the failure to obtain jury verdicts on the One Strike penalty provision is not harmless beyond a reasonable doubt because section 667.61, subdivision (d)(2) requires a finding of movement that substantially increases the risk beyond that inherent in rape-an element not present in the instructions the jury received.
The People respond that in finding guilt on aggravated kidnapping, the jury necessarily found that the movement of the victim substantially increased the risk of harm over and above that inherent in the underlying offense. The People point to CALCRIM No. 1203, aggravated kidnapping, which the jury received, and which instructs that in determining if the victim was moved a substantial distance, "substantial distance means more than a slight or trivial distance. The movement must have increased the risk of physical or psychological harm to the person beyond that necessarily present in the rape or sexual penetration." (Italics omitted.)
While the aggravated kidnapping (CALCRIM No. 1203) and One Strike instructions (CALCRIM No. 3175) substantially overlap, there is a critical difference. The One Strike instruction requires the jury to find that the movement of the victim "substantially increased the risk of harm to [her] beyond that necessarily present in the [sex offense]." (CALCRIM No. 3175, italics added.) The aggravated kidnapping, by contrast, requires a finding that "[t]he movement must have increased the risk of [physical or psychological] harm to the person beyond that necessarily present in the [specific sex offense]." (CALCRIM No. 1203; see also People v. Robertson (2012) 208 Cal.App.4th 965, 982 ["section 209, subdivision (b)(2) [aggravated kidnapping] does not require proof that the movement substantially increased the risk of harm to the victim"].)
A jury's finding of an "increased" risk cannot substitute for a required finding of a "substantially increased" risk. Indeed, in Jones, supra, 58 Cal.App.4th at page 713, on which the trial court relied, the aggravated kidnapping instruction the jury received expressly required a finding that the movement "substantially increased the risk of harm . . . ." Further, nothing in the record here compels the conclusion that the jury could only have found a substantially increased risk beyond that inherent in the sex offenses. (Cf. People v. Adams (2018) 28 Cal.App.5th 170, 192 ["The substantial increase in the risk of harm entire issue was uncontested"].) Accordingly, the aggravated kidnapping instruction cannot take the place of a One Strike instruction here. While the conceptual line between increasing the risk of harm and substantially increasing the risk of harm may in many cases be difficult to discern factually, the jury was not told it had to undertake that discernment here.
The People additionally argue that the jury necessarily found another set of One Strike circumstances satisfied. The 25-year-to-life sentence can also rest on a finding of two circumstances under section 667.61, subdivision (e). (§ 667.61, subd. (a).) One such circumstance being the kidnapping of the victim, and another being a finding that an offense specified in subdivision (c) has been committed against more than one victim. (§ 667.61, subd. (e).) To that, the People maintain that "[t]he existence of multiple victims was also established by overwhelming evidence," and point to the convictions against the apartment and restaurant victim.
What the People overlook is that the qualifying offenses against multiple victims must be enumerated in section 667.61, subdivision (c). (§ 667.61, subd. (e)(4) ["The defendant has been convicted in the present case or cases of committing an offense specified in subdivision (c) against more than one victim"].) Neither the battery (§ 242) against the restaurant victim, nor the lewd and lascivious acts (§288, subd. (c)(1)) against the apartment victim are enumerated in subdivision (c) of section 667.61. We note that violations of section 288 subdivision (a) and (b) are enumerated, but not subdivision (c)(1). (§ 667.61, subd. (c).) Therefore, the One Strike punishment cannot rest on that finding either.
Because the One Strike penalty provision was not submitted for jury determination and because the record does not support a finding that this error was harmless beyond a reasonable doubt, the sentence imposed under the One Strike law is vacated and the matter is remanded for resentencing.
IV
Unanimity Instruction
Defendant next contends the trial court erred in failing to provide a unanimity instruction on count 12, the lewd and lascivious touching of the apartment victim sua sponte. He reasons the evidence disclosed two distinct touches of the victim's arm, the prosecutor made no election between the two, and each touch was subject to its own defense. We agree.
Additional Background
The apartment victim testified that the first touch was to her wrist, not her shoulder. Later, the prosecutor said, "there was a light touch to her arm to get her attention."
As to the lewd and lascivious touching of the apartment victim, the prosecutor argued during closing argument: "[The victim] testified to two touches. One he grabbed my wrist then also touched the back of my shoulder. And those-any part of her body would qualify. You have him touching her according to her testimony, twice."
Defense counsel, for her part, argued at closing: "It's not enough that [defendant] touched her. The DA has to prove to you beyond a reasonable doubt at the moment of the touch, that the touch was done to gratify himself sexually or gratify [the victim] sexually. There's no evidence of that whatsoever." Counsel went on to argue the touch to the arm "was to get her attention."
As to grabbing the victim's wrist, defense counsel noted the victim gave two statements to officers after the incident, in both she spoke only of one touch: a light touch to her arm to get her attention. "She was interviewed twice right after it happened, and both times she says she was touched only once. Light touch on her arm to get her attention. She never tells the officers, either of them, that her arm was grabbed or she was pulled." Counsel also argued, "She came and told you there were two touches, but it's just not believable."
Analysis
We review a claim that the trial court failed to instruct the jury on the applicable principles of law de novo. (People v. Lueth (2012) 206 Cal.App.4th 189, 195.)
"In a criminal case, a jury verdict must be unanimous." (People v. Russo (2001) 25 Cal.4th 1124, 1132.) Accordingly, when the evidence suggests more than one discrete crime, and the prosecution does not elect which it intends to prove beyond a reasonable doubt, the trial court must give a unanimity instruction. (Ibid.) This prevents a defendant from being convicted without all jurors agreeing on the crime committed. (Ibid.)
An exception exists, however, when "the acts alleged are so closely connected as to form part of one transaction." (People v. Stankewitz (1990) 51 Cal.3d 72, 100.) This" 'continuous conduct' rule applies when the defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for the jury to distinguish between them." (Ibid.)
On that point, the People maintain that both acts of touching were part of a continuous course of conduct such that no unanimity instruction was required. According to the People, the touchings occurred one after another, with no breaks, and thus a jury would not likely find one occurred without the other taking place. The People also maintain the defense primarily challenged whether defendant possessed the requisite intent.
The defense raised two distinct defenses for the two alleged acts. For the light touch to the victim's arm, the defense argued that it was done to get the victim's attention and had nothing to do with sexual gratification. For the wrist grab, the defense argued it never happened, averring to the victim's failure to mention it to responding officers after the incident.
Some jurors could have accepted the defense's first argument but not the second, and vice versa. Because we have no way of knowing if the jury reached a unanimous decision as to at least one of the acts, the error was prejudicial under any standard. We must therefore reverse the count 12 conviction, lewd and lascivious acts, for the failure to provide a unanimity instruction.
V
Abstract of Judgment
Defendant contends the abstract of judgment must be corrected to reflect the term imposed on count 12. The People agree. While the parties are correct that the abstract of judgment reflects a four-year eight-month term for count 12, when the trial court imposed an eight-month term, the contention is rendered moot by our reversal of the count 12 conviction. We therefore take no action on this contention.
VI
In Camera Review
Defendant next asks that we independently review the in camera examination in both sealed reporter's transcripts. (See People v. Mooc (2001) 26 Cal.4th 1216, 1225-1226 (Mooc).) The People offer no objection. Having done so, we find no error.
A Pitchess motion permits a criminal defendant to "compel discovery" of certain information in police officer personnel files. To do so, the defendant must first demonstrate good cause by making "general allegations which establish some cause for discovery" of the information and by showing how it would support a defense to the charge against him. (Pitchess v. Superior Court, supra, 11 Cal.3d at pp. 536-537; see Evid. Code, § 1043, subd. (b)(3).) If good cause is shown, the custodian of the officer's records brings to court all the potentially relevant records and, in camera, the trial court determines if any information from the records must be disclosed to the defense. (Mooc, supra, 26 Cal.4th at p. 1226.)
We will not disturb a trial court's ruling on a Pitchess motion absent an abuse of discretion. (Alford v. Superior Court (2003) 29 Cal.4th 1033, 1039.)
We have independently reviewed the sealed transcript of the Pitchess proceeding. From that, it does not appear the court actually reviewed the Pitchess materials presented in camera. It appears from the transcript that the court simply took the custodian's word for what was in the Pitchess materials although the court did apparently review a report (the only report that would be covered by the Pitchess motion according to the custodian of the records) of an incident relating to a fellow officer that concluded the subject officer engaged in "sophomoric" behavior, but nothing further.
The court did not state it had reviewed the materials presented by the custodian of records. If the court had reviewed the materials, it should have said so on the record, and added it had reviewed the materials pursuant to the requirements of Mooc, stating specifically what records it reviewed. Instead it appears the custodian gave a summary of the records the custodian brought to the hearing, gave a copy of the relevant report to the court with yellow post-it notes marking the relevant portions of the report and then the trial court made a ruling. The court did not describe with particularity (e.g., title of report and number of pages) what had been presented, a requirement set forth in Mooc nor, according to the record before us, did the court retain a copy of the materials.
Even so, we find any error in the Pitchess review harmless. In this investigation, the subject officer only showed the student victim a photo lineup. The thrust of the good cause showing related to the officer previously harassing people (defendant claiming in his Pitchess request that the officer harassed him in the past); engaging in conduct leading to suggestive photo lineups, unlawful identification procedures and illegal arrests. But the officer did not arrest defendant. We note the victim did not identify defendant in court based on a photo lineup or otherwise.
And, more importantly, defendant's identification in this campus crime was not an issue at trial. The DNA linked him to the crime and his defense was consent. Thus, any error in the Pitchess procedure was harmless under any standard. (See, People v. Gaines (2009) 46 Cal.4th 172, 182 ["To obtain relief, then, a defendant who has established that the trial court erred in denying Pitchess discovery must also demonstrate a reasonable probability of a different outcome had the evidence been disclosed"]; People v. Samuels (2005) 36 Cal.4th 96, 110 ["even if the trial court erred because defendant made a showing of good cause in support of his request [citation], such error was harmless in light of the extensive evidence linking defendant to the murders"].)
VII
Cumulative error
Finally, defendant contends the cumulative effect of the errors prejudiced him in a credibility case, denying him due process and a fair trial. While we have found merit in three of his claims, we do not think their cumulative effect warrants reversal of any remaining count.
The failure to obtain jury verdicts on the One Strike allegation, the failure to provide a unanimity instruction, and the error in the abstract of judgment had no effect on the presentation of evidence, or defendant's ability to provide a defense. And the request to review the Pitchess motion did not reveal additional grounds for error.
We therefore conclude there is no basis for reversing any remaining count based on cumulative error.
Disposition
The conviction on count 12 is reversed. The sentence imposed under the One Strike law is vacated, and the matter is remanded for resentencing. In all other respects, the judgment is affirmed.
We concur: DUARTE, J., MURRAY, J. [*]
[*] Retired Associate Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.