Opinion
B160925.
7-30-2003
THE PEOPLE, Plaintiff and Respondent, v. ROBERTO GOMEZ, Defendant and Appellant.
I. Mark Bledstein for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.
Roberto Gomez appeals from the judgment entered upon his conviction by jury of two counts of continuing sexual abuse of a child under 14 years of age (Pen. Code, § 288.5, subd. (a), counts 1 & 4) and two counts of lewd or lascivious conduct with a child under 14 years of age ( § 288, subd. (a),
All further statutory references are to the Penal Code unless otherwise indicated.
counts 2 & 3). The jury also found the allegation that appellant committed the offenses on more than one victim within the meaning of section 1203.066, subdivision (a)(7), to be true. The trial court sentenced appellant to six years in state prison. Appellant contends that (1) the trial court prejudicially erred by failing to instruct the jury sua sponte on unanimity in accordance with CALJIC Nos. 4.71.5 or 17.01, in connection with counts 2 and 3, (2) the trial court erred by refusing to declare a mistrial when the jury indicated it was deadlocked and by failing to instruct the jury in accordance with CALJIC No. 17.40 when it ordered further deliberations, and (3) there was insufficient evidence to sustain his convictions.
We modify the judgment to provide for DNA testing as required by section 296, and affirm the judgment in all other respects.
FACTUAL BACKGROUND
We review the evidence in accordance with the usual rules on appeal. (People v. Autry (1995) 37 Cal.App.4th 351, 358.) Appellant and his wife, Raquel, and their two children lived in a house in Huntington Park, out of which Raquel operated the Gomez Day Care Center (Center), where she cared for 12 to 14 children between the ages of three months and 12 years.
Melanie M. attended the Center from March through May 2001, when she was eight years old. In the play area in the Centers garage, appellant offered to play a "spinning game" with Melanie, in which he picked her up from behind, placed his hands under her arms and moved them on her breasts, while spinning her. On another occasion, Melanie was watching television in the living room when, without asking her, appellant came up behind her, picked her up and placed her on the couch, grabbing her in the chest area. Appellant also engaged in this conduct in the play area outside the house on a third occasion. Appellant played another game with Melanie, Jessica H. and Stephanie M., in which he placed a ball on a wall and lifted the girls to reach it, while grabbing their breasts. Raquel was not present on any of the occasions when appellant touched Melanie. Melanie "felt very uncomfortable and during those times [she] would, like, pretend that he was not there, but he would just get in front of [her] sometimes." She tried to avoid him. Fearing appellant would retaliate, Melanie told no one, including her mother, what he had done.
Jessica attended the Center from the time she was three or four years old until approximately a year before trial, when she was eight. Appellant played the spinning game with her, at which times he touched and squeezed her breasts, even on those occasions when she told him she did not want to play. Jessica testified that appellant engaged in this conduct with her approximately 10 times, over many months, and always in the garage. Although appellants touching bothered her, she did not tell her mother fearing what appellant might do.
Stephanie attended the Center from the time she was almost four years old until May 2001, when she was 11. She testified that appellant offered to play the spinning game with her about 20 times. He did not play the game with any of the young children. She did not remember the first time appellant touched her, but it occurred over a period of more than a year, the last time being approximately a year before trial. When she declined appellants offer to play, he would insist. Sometimes he approached Stephanie from the front and sometimes from the rear, putting his hands on her chest, squeezing her breasts and spinning her around. His playing made her feel uncomfortable. On one occasion when appellant lifted Stephanie to reach a ball he had placed on a wall, he put his hands under her blouse on her chest. To avoid appellants touching, when he approached, Stephanie would go behind tables and run out of the garage. She did not tell her mother, fearing her mother would get angry.
In June 2001, Los Angeles Sheriff Detective Richard Ruiz was assigned to investigate this matter. He spoke with appellants wife who reported that about four months earlier, she received a similar complaint about appellant, but when she confronted him, he denied it. After appellants arrest, Detective Ruiz conducted a tape-recorded interview of him at the police station after explaining appellants constitutional rights and giving him his Miranda warnings. Appellant admitted touching the girls breasts, insisting on playing the game and approaching the girls from behind even when they did not want to play, and pinching and touching Melanie "a lot of times," Stephanie approximately five times and Jessica 10 to 15 times. Before touching the girls, he would make certain his wife was not looking. When asked why he touched the girls, appellant said it was curiosity because he wanted to know how it felt. He also said he might have done it out of anger or vengeance because he was the victim of abuse when he was seven or eight years old. Appellant knew his actions were wrong.
Miranda v. Arizona (1966) 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602.
DISCUSSION
I. The trial court was not required to give the jury a unanimity instruction.
Appellant was convicted of committing two acts of lewd or lascivious conduct with Melanie a child under 14 years of age in violation of section 288, subdivision (a) with the intent of arousing, appealing to or gratifying his lust, passion or sexual desire. Appellant contends that the trial court erred in not instructing the jury sua sponte, in accordance with CALJIC No. 17.01 or CALJIC No. 4.71.5, on the requirement that the jurors must unanimously agree on the two lewd or lascivious acts that formed the basis of the charges in counts 2 and 3. The evidence in support of those charges reflected at least three distinct acts of improper touching that could constitute the charged offenses. Melanie testified as to one incident of playing the spinning game in the garage, another incident in the living room where appellant came up behind her while she was watching television, picked her up and placed her on the couch and a third incident in which he lifted her to reach a ball he had placed on the wall. She also testified to an incident of the spinning game in the play yard outside the house.
CALJIC No. 17.01 provides: "The defendant is accused of having committed the crime of ____________ [in Count ______]. The prosecution has introduced evidence for the purpose of showing that there is more than one [act] [or] [omission] upon which a conviction [on Count ______] may be based. Defendant may be found guilty if the proof shows beyond a reasonable doubt that [he] [she] committed any one or more of the [acts] [or] [omissions]. However, in order to return a verdict of guilty [to Count ______], all jurors must agree that [he] [she] committed the same [act] [or] [omission] [or] [acts] [or] [omissions]. It is not necessary that the particular [act ] [or] [omission] agreed upon be stated in your verdict."
CALJIC No. 4.71.5 provides: "In order to find the defendant guilty, it is necessary for the prosecution to prove beyond a reasonable doubt the commission of [a specific act [or acts] constituting that crime] [all of the acts described by the alleged victim] within the period alleged. [P] And in order to find the defendant guilty, you must unanimously agree upon the commission of [the same specific act [or acts] constituting the crime] [all of the acts described by the alleged victim] within the period alleged."
During closing argument, the prosecutor argued: "And while Melanie testified on the stand that there were many times that he touched her, there are only two counts that are alleged. And you might be asking yourself why arent there more counts or why isnt there just one count? Well, Melanie was able to give us a little more specifics in terms of when they took place. She remembers it was during that period of the time and we know that one of them took place in the garage for sure. One of them took place when she was watching T.V. for sure. And there was also another one that came out, I guess, when they were playing ball. But, we know for sure two specific instances, and thats why it was charged that way."
Appellant argues that because there was evidence of three distinct acts that the jury could have determined constituted the lewd and lascivious acts against Melanie, but only two counts against appellant related to those acts, the jury could only find him guilty if they unanimously agreed on the same two acts. Without either a unanimity instruction or an election by the prosecution, he argues, there is no assurance the jury unanimously agreed on the same two acts. This contention is without merit.
A defendant is entitled to a verdict in which all 12 jurors concur beyond a reasonable doubt as to each count charged. (People v. Jones (1990) 51 Cal.3d 294, 305, 270 Cal. Rptr. 611, 792 P.2d 643.) "When an accusatory pleading charges the defendant with a single criminal act, and the evidence presented at trial tends to show more than one such unlawful act, either the prosecution must elect the specific act relied upon to prove the charge to the jury, or the court must instruct the jury that it must unanimously agree that the defendant committed the same specific criminal act." (People v. Melhado (1998) 60 Cal.App.4th 1529, 1534.) The reason for this requirement is that absent an election or a unanimity instruction, when there is more than one unlawful act shown by the evidence, there is the risk that the jurors will select different acts in finding guilt, with none of the acts being chosen by the jurors unanimously. This would violate the constitutionally based requirement that the jury must unanimously agree on each charge. When a unanimity instruction is required, the trial court must instruct on unanimity sua sponte. (People v. Salvato (1991) 234 Cal. App. 3d 872, 880, 285 Cal. Rptr. 837.)
In People v. Riel (2000) 22 Cal.4th 1153, 1199, 998 P.2d 969, our Supreme Court recognized an exception to the requirement of a sua sponte unanimity instruction where multiple acts may constitute the charged crime. In Riel the parties never distinguished between the different acts that could constitute the offense, and the defendant presented the same defense to each act. The court concluded that where there is no evidence from which the jury could have found the defendant guilty of one act but not the other, there is no danger that different jurors would find the defendant guilty based on different acts.
This case falls squarely within the Riel exception. Appellants acts against Melanie were not differentiated by the parties. There was no evidence challenging Melanies testimony that any of the acts occurred. Appellant admitted, at least generically, in his interview with Detective Ruiz, touching Melanie "a lot of times." His defense to all of his acts with Melanie was that he touched her out of curiosity, anger or revenge, not for sexual arousal or gratification. On the state of the evidence presented, the jury had no basis to find appellant guilty of some but not all of the incidents. Therefore, as in Riel, the trial court had no obligation to instruct sua sponte on unanimity.
Even if the Riel exception does not apply, appellants contention must nonetheless be rejected. The prosecutors argument to the jury indicated with adequate clarity an election to have the incident in the garage and the incident in the living room constitute the two offenses that were the basis of the two charges. The prosecutor specifically related the two alleged counts to the two incidents that "Melanie was able to give . . . more specifics in terms of when they took place." After referring to the garage incident and living room incident, the prosecutor indicated "thats why it was charged that way."
This statement by the prosecutor stands in stark contrast to that made by the prosecutor in People v. Melhado, supra, 60 Cal.App.4th at page 1535, footnote 5, which the court found insufficient to constitute an election. There, in the course of outlining the elements of the offense to the jury, the prosecutor referred to multiple acts that might constitute criminal threats. He claimed that he emphasized only one, which constituted an election. However, he made no effort to distinguish which act he was considering to be the alleged act. Here, the prosecutor specifically indicated that the two incidents were the basis for the two counts alleged.
II. The trial court did not abuse its discretion in requiring the deadlocked jury to deliberate further.
On June 3, 2002, at 9:22 a.m., jury deliberations began. At 12:00 p.m., the jury recessed, resuming deliberations at 1:30 p.m. Beginning at approximately 3:00 p.m., the jury sent a series of questions to the trial judge, the last of which stated: "We are at deadlock. What is next step." The trial court questioned the jury, asking the foreman if he believed the jury was hopelessly deadlocked on the eight counts. He responded that it was. In response to the trial courts inquiry as to whether additional deliberations would make a difference, the foreman indicated it would not and that there was nothing the trial court could do to assist the jury to reach a verdict. He further indicated that he had taken three or four ballots, the vote on the last of which was 10 to 2 or 11 to 1. At the courts direction, the foreman did not reveal whether the majority was for guilt or acquittal. The trial court then polled the jurors individually as to whether additional deliberations might allow it to reach a verdict. Seven jurors believed it would. Because of the split of opinion, the trial court decided to discharge the jury for the day (it was then 4:00 p.m.) and have them return the next morning to resume deliberations. Defense counsel did not object to this procedure, offer alternative suggestions or request any instructions be given to the jury with regard to the further deliberations.
At the conclusion of this questioning, Juror No. 6 indicated he was having child care problems due to his jury service. The court agreed to write a letter for Juror No. 6s wife to show her supervisors.
At 1:30 p.m., the next day, the jury indicated that it had reached verdicts, finding appellant guilty on all eight counts. It also found the allegation that he committed the offense on more than one victim pursuant to section 1203.066, subdivision (a)(7) to be true as to the first four counts.
The trial court subsequently dismissed counts 5 and 6 for lewd acts as to Stephanie because the jury had found appellant guilty of continually sexually abusing her in count 1, and dismissed counts 7 and 8 for lewd acts as to Jessica because the jury had found him guilty of continually sexually abusing Jessica in count 4.
Appellant contends that the trial court erred in requiring the jury to deliberate further after being advised that it was deadlocked because doing so was coercive. He argues that, in these circumstances, the message the trial court gave to the jury was that it wanted the jury to reach a verdict. The danger of a judicially coerced verdict was enhanced, he asserts, because one juror was having child care problems and the jury reached agreement after only three additional hours of deliberations, which he argues "was not enough time to reconsider the evidence." Appellant further contends that this error was exacerbated because when the trial court sent the jury back for further deliberations, it failed to instruct the jurors of their duty to decide the case individually in accordance with CALJIC No. 17.40.
CALJIC No. 17.40 provides: "INDIVIDUAL OPINION REQUIRED — DUTY TO DELIBERATE [P] The People and the defendant are entitled to the individual opinion of each juror. [P] Each of you must consider the evidence for the purpose of reaching a verdict if you can do so. Each of you must decide the case for yourself, but should do so only after discussing the evidence and instructions with the other jurors. [P] Do not hesitate to change an opinion if you are convinced it is wrong. However, do not decide any question in a particular way because a majority of the jurors, or any of them, favor that decision. [P] Do not decide an issue in this case by the flip of a coin, or by any other chance determination."
Respondent initially responds that by failing to object in the trial court on the grounds of jury coercion, appellant waived these contentions. We agree. (Evid. Code, § 353; People v. Neufer (1994) 30 Cal.App.4th 244, 254.) But even if these contentions had not been waived, we would nonetheless reject them on the merits. Section 1140 provides: "Except as provided by law, the jury cannot be discharged after the cause is submitted to them until they have agreed upon their verdict and rendered it in open court, unless by consent of both parties, entered upon the minutes, or unless, at the expiration of such time as the court may deem proper, it satisfactorily appears that there is no reasonable probability that the jury can agree." "A trial court is entitled under [section] 1140 to ascertain whether there is a reasonable probability the deadlock might be broken." (People v. Thomas (1991) 231 Cal. App. 3d 299, 303, 282 Cal. Rptr. 258.) "The determination whether there is reasonable probability of agreement rests in the sound discretion of the trial court. [Citation.] The court must exercise its power, however, without coercion of the jury, so as to avoid displacing the jurys independent judgment "in favor of considerations of compromise and expediency." [Citations.]" (Ibid.)
We see no impropriety in the trial courts handling of the impasse here. Based on its examination of the jury, it merely made a discretionary determination that there remained a reasonable probability the deadlock might be broken. The jury indicated it was deadlocked after only approximately four hours of deliberations for a matter involving three victims and eight counts, at the end of the day when jurors were likely tired and frustrated. The foreman had taken only three or four polls of the jurors, and the votes were either 11 to 1 or 10 to 2. Our Supreme Court has concluded that it is not inherently coercive to refuse to discharge the jury when the last vote in the deliberations is 11 to 1. (People v. Sheldon (1989) 48 Cal.3d 935, 959-960, 258 Cal. Rptr. 242, 771 P.2d 1330.) A majority of the jurors believed further deliberations might lead to a verdict. Under these circumstances, the trial court did not abuse its discretion in giving the jurors their evening recess and requiring additional deliberations the next day. When it questioned the jury and required further deliberations, the trial court made no remarks to the jury that could be characterized as coercive. It did not urge the jury to come to a verdict on any of the counts, did not suggest that the evidence was clear or that it was a simple case or suggest some necessity for reaching a verdict.
Appellant argues that because Juror No. 6 indicated to the court that he had child care problems and was anxious for deliberations to conclude, if he was a holdout juror he was likely coerced to "disregard his carefully held beliefs and vote for guilt," and if he was not a holdout juror, he likely pressured his fellow jurors to quickly conclude deliberations. The difficulty with appellants argument is that it is premised on pure speculation for which there is absolutely no evidence. We decline to speculate on what happened in the jury room.
Appellant also contends that when the jury returned for further deliberations, it only deliberated for an additional three hours, which "was not enough time to reconsider the evidence" but "only to ascertain that the holdout jurors had yielded to the pressure to change their votes . . . ." This contention is without merit. Once again, it is grounded on speculation. Furthermore, the jury did not necessarily have to reconsider all of the evidence when deliberations resumed but could have focused only on the evidence pertaining to the issues with which it remained concerned. In any event, there is no evidence that three hours was insufficient to reconsider all of the evidence. The jury had only deliberated four hours when it initially reached an impasse.
We also find no error in the trial courts failure to instruct the jury in accordance with CALJIC No. 17.40 when it required further deliberation. Appellant failed to request such an instruction, and we have been referred to no case obligating the trial court to so instruct sua sponte. Moreover, the jury was instructed in accordance with CALJIC No. 17.40 in the instructions given before the matter was submitted to it. That instruction was in the jury room with the jury during deliberations. It simply was not repeated when the jury was told to continue deliberating.
Appellant relies heavily on United States v. Mason (9th Cir. 1981) 658 F.2d 1263 which stated that when instructing a deadlocked jury, it "is essential in almost all cases to remind jurors of their duty and obligation not to surrender conscientiously held beliefs simply to secure a verdict for either party." (Id. at p. 1268.) However, in Mason, the trial court had given an Allen charge to the jury which encouraged it to reach a verdict and has been described as "standing at the brink of impermissible coercion." (Id. at pp. 1267- 1268.) Thus, in that case, an instruction warning the jurors to decide the case for themselves was necessary to counteract the coercive effects of the Allen charge. Here, the trial court did not make any coercive statements or give any coercive instructions to the jury that would require amelioration.
Allen v. United States (1896) 164 U.S. 492, 41 L. Ed. 528, 17 S. Ct. 154 (Allen). The Allen charge has been disapproved in California in People v. Gainer (1977) 19 Cal.3d 835, 852, 139 Cal. Rptr. 861, 566 P.2d 997.
III. The evidence
was sufficient to sustain appellants convictions.
Appellant contends that there was insufficient evidence to sustain the verdicts because there was no evidence he had physical contact with the girls with the specific intent to sexually arouse himself or the girls or to gratify any of their sexual desires. He argues that the only evidence of his intent was his statement to Detective Ruiz that he touched the girls out of curiosity, vengeance or anger as a result of the sexual abuse he suffered as a child. We disagree.
"In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]" (People v. Bolin (1998) 18 Cal.4th 297, 331, 956 P.2d 374.) We resolve all conflicts in the evidence and questions of credibility in favor of the verdict, and indulge every reasonable inference the jury could draw from the evidence. (People v. Autry, supra, 37 Cal.App.4th at p. 358.) Reversal on this ground is unwarranted unless" upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]." (People v. Bolin, supra, 18 Cal.4th at p. 331.) "The standard of review is the same where the People, as here, rely primarily on circumstantial evidence." (People v. Bloyd (1987) 43 Cal.3d 333, 346, 233 Cal. Rptr. 368, 729 P.2d 802; People v. Teale (1969) 70 Cal.2d 497, 505, 75 Cal. Rptr. 172, 450 P.2d 564.)
Section 288, subdivision (a) states in pertinent part: "Any person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in Part 1, upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony . . . ." (Italics added.) Section 288.5 penalizes three or more acts of lewd or lascivious conduct under section 288, with a child under 14 years of age within a period of no less than three months. These statutes are violated if the offender touches the body of a child under the age of 14 with the specific intent of arousing or appealing to or gratifying the lust of the child or the accused. Touching the sexual organ is not required. (People v. Diaz (1996) 41 Cal.App.4th 1424, 1427; People v. Martinez (1995) 11 Cal.4th 434, 442, 903 P.2d 1037.)
The trier of fact looks to all of the circumstances, including the lewd act, to determine whether the touching was performed with the requisite intent. (People v. Martinez, supra, 11 Cal.4th at p. 445.) Among the factors to be considered are the nature of the charged act, the physical evidence of sexual arousal, clandestine meetings, the defendants extra-judicial statements, other acts of lewd conduct, the relationship of the parties, the offenders use of coercion, bribery or deceit and the age of the defendant. (Ibid; In re Randy S. (1999) 76 Cal.App.4th 400, 405-406.)
While there was no direct evidence that appellant had the requisite intent when he touched the breasts of the three girls, as he told Detective Ruiz that he only touched the girls out of curiosity, anger or revenge, the circumstantial evidence was sufficient to sustain the jurys finding that appellant engaged in the conduct with the required intent. Appellant touched the girls breasts, by his own admission, many times over an extended period of time. He used coercive means, performing his acts even after the girls protested. He touched at least three different girls and attempted to avoid detection by his wife. Appellant knew what he was doing was wrong. A jury could reasonably infer from the number of occurrences of the conduct and the lengthy period of time over which it occurred that appellants intent was to achieve sexual gratification by his actions.
The information contained in the declaration of Dr. Raymond E. Anderson, referred to by appellant in his opening brief, was not evidence at trial and therefore cannot be considered in assessing the sufficiency of the evidence.
IV. The abstract of judgment must be modified to include the testing requirements of section 296.
Appellant was convicted of violations of continuous sexual abuse of a child under the age of 14 ( § 288.5, subd. (a)) and lewd and lascivious acts on a child under the age of 14 ( § 288, subd. (a)). Pursuant to sections 290 and 296, subdivision (a)(1)(A), he was required to submit to DNA testing. This requirement was mandatory but was not included in the judgment against appellant. ( § 296, subd. (c).) As such, appellants sentence was unauthorized and can therefore be modified at any time. (People v. Barriga (1997) 54 Cal.App.4th 67, 70 [failure to order AIDS testing which was mandatory made sentence unauthorized and subject to correction at any time].) We modify the judgment to provide for DNA testing as required by section 296. ( § 296, subd. (e); see People v. Terrell (1999) 69 Cal.App.4th 1246, 1255-1260.)
DISPOSITION
The judgment is modified to include DNA testing pursuant to section 296 and the trial court directed to modify the abstract of judgment accordingly. The judgment is affirmed in all other respects.
We concur: BOREN, P.J., NOTT, J.