Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, No. RIF124462 Christian F. Thierbach, Judge.
Tonja R. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Angela Borzachillo and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI J.
In the middle of the night on May 19, 2005, defendant Juan Martinez Herrera entered a room where Jane Doe II (the sister of the girl defendant was dating) was sleeping. Defendant got into bed with her and put his arm around her stomach. He then unzipped his pants and started masturbating. At some point, he touched his penis to her back. Defendant then went into another bedroom where Doe II’s sister, Jane Doe I, was sleeping. He raped Doe I while holding her down with his hands and kissing her.
Defendant claims on appeal that the trial court erred by failing to give a unanimity instruction. We conclude there was no reversible error and affirm the judgment.
I
PROCEDURAL BACKGROUND
A Riverside County jury found defendant guilty of raping Doe I, a minor under the age of 14 and who was 10 or more years younger than defendant (Pen. Code, § 269, subd. (a)) (count 1) and one count of committing a lewd act with force upon Doe I (§ 288, subd. (b)(1)) (count 2). In addition, the jury found defendant guilty of lewd and lascivious conduct against Doe II (§ 288, subd. (a)) (count 3) and annoying and molesting Doe II, a misdemeanor (§ 647.6, subd. (a)) (count 4). As to counts 1, 2, and 3, the jury found true the allegation that defendant committed the crimes against more than one victim within the meaning of section 667.61, subdivision (e)(5).
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant was sentenced to 15 years to life on count 1 and a consecutive sentence of 15 years to life on count 3. The sentence on count 2 was stayed pursuant to section 654, and the sentence on the misdemeanor molestation in count 4 was to run concurrently with the sentences on counts 1 and 2. Defendant received a total sentence of 30 years to life in state prison.
II
FACTUAL BACKGROUND
A. Lewd and Lascivious Conduct Against Doe II
In 2005, the then-31-year-old defendant dated Doe II’s 18- or 19-year-old sister, Monica. Doe II was 13 years old at the time. Doe II, Monica, 12-year-old Doe I, and another sister lived with their grandmother in Mead Valley.
On May 19, 2005, Does I and II had their friends, Cynthia and Yvette, stay the night at their house. Monica was not at the house that night, but the grandmother was.
Cynthia and Doe II were sleeping together in Doe II’s bed. Doe II woke up in the middle of the night to find defendant standing inside the room. Defendant got into bed next to Doe II. He appeared drunk and smelled “really, really bad.” Defendant put his arm around Doe II and put his hand on her stomach.
Doe II heard defendant unbuckle his belt. She had her back to him, and it was hard to see in the room. Doe II heard noises that sounded like defendant was masturbating. She felt his penis on her lower back or buttocks over her clothes for three to five seconds. She told him to get out of her room. She heard him buckle his pants and leave the room. Before leaving, defendant said to her “What, you don’t want none of this?”
B. Rape and Lewd and Lascivious Act With Force Against Doe I
On that same night, Doe I was sleeping in her room with Yvette. In the middle of the night, defendant came into her bedroom and said, “I want you.” Defendant got on top of Doe I. He smelled like alcohol. He pulled down Doe I’s shorts and held her arms over her head. Doe I “kept on telling him no.” Defendant then put his penis in her vagina, moving it in and out, and forcibly kissed her on the mouth. As a result of defendant’s conduct, Doe I was bleeding from her vagina.
Yvette woke up and heard defendant slapping Doe I’s thigh. Yvette asked Doe I what they were doing but did not recall the response. She eventually got up and left the room.
The next day, Doe II went into Doe I’s room and saw defendant sleeping. Doe II yelled at him to get out of the house. He got up and jumped out the bedroom window.
Police found defendant hiding in a bedroom closet at his house. After a struggle, defendant escaped and ran to a neighbor’s house. He was eventually arrested.
Defendant was charged with violating section 148, subdivision (a)(1), resisting arrest, but it was dismissed by the trial court pursuant to section 1118.1.
Defendant presented no evidence on his behalf.
III
UNANIMITY INSTRUCTION
Defendant contends that the trial court should have given a unanimity instruction for the acts committed against Doe II that were the basis of the section 288, subdivision (a) conviction. He claims two acts could have constituted the crime - defendant touching her stomach with his hand and touching her lower back with his penis - and the jury should have been instructed they must unanimously decide which act constituted the crime.
A. Additional Factual Background
The prosecutor originally included Judicial Council of California Criminal Jury Instructions (CALCRIM) No. 3500, the unanimity instruction, in his requested jury instruction packet, but it was not given. The jurors were instructed with the mental state, i.e., specific intent, required for the lewd and lascivious act against Doe II within the meaning of section 288, subdivision (a) and the definition of the crime.
CALCRIM No. 3500 provides: “The defendant is charged with __________ <insert description of alleged offense > [in Count _____] [sometime during the period of _____ to _____]. [¶] 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 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.”
In closing argument, the prosecutor explained to the jury that count 3 involved defendant wrapping his arm around Doe II and touching his penis to her back. The People argued, “[T]his Count 2, touching, you could have a stomach or his penis against her. Again, he’s pulling against her, and for one reason. Obviously, that’s not enough. He touched her with his penis. You heard her testimony to those touchings.”
In response, defense counsel argued that defendant was trying to hug Doe II and was not using force. Defense counsel also argued, “The brief touching of the lower back, like three to five seconds with the penis, that’s not enough for the lewd touching [c]ount. There’s no proof that it was intentional touching. Briefly laying of his hand on the stomach for less than a minute, briefly, again, that is not enough touching required for the lewd touching [c]ount.” Defense counsel argued any touching of Doe II was without the specific intent required for the crime.
In closing, the prosecutor argued that the brief touching when defendant “hugged” Doe II and the touching of defendant’s penis for three to five seconds was enough to constitute a violation of section 288, subdivision (a).
B. Analysis
Section 288, subdivision (a) provides in relevant part, “Any person who willfully and lewdly commits any lewd or lascivious act... 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....”
It is well established that the jury’s verdict in a criminal case must be unanimous. (People v. Russo (2001) 25 Cal.4th 1124, 1132.) As a result of this principle, when one criminal act is charged but the evidence tends to show the commission of more than one such act, “either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act.” (Ibid.) “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.’” (Ibid.) “[S]uch an instruction must be given sua sponte where the evidence adduced at trial shows more than one act was committed which could constitute the charged offense, and the prosecutor had not relied on any single such act. [Citations.]” (People v. Dieguez (2001) 89 Cal.App.4th 266, 274-275.)
Here, we disagree with the People that the prosecutor in his argument “placed greater emphasis” upon the act of defendant putting his penis on Doe II’s back to support that it was the only factual basis on which the jury could find defendant guilty of the lewd conduct; however, we disagree with defendant that a unanimity instruction was required.
A unanimity instruction is not required if the evidence shows a defendant’s acts occurred during a “continuous course of conduct.” (People v. Napoles (2002) 104 Cal.App.4th 108, 115.) As one court explained, “no unanimity instruction is required when the acts alleged are so closely connected as to form part of one continuing transaction or course of criminal conduct. ‘The “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.’ [Citations.]” (People v. Dieguez, supra, 89 Cal.App.4th at p. 275.)
“Thus, the unanimity instruction is appropriate ‘when conviction on a single count could be based on two or more discrete criminal events,’ but not ‘where multiple theories or acts may form the basis of a guilty verdict on one discrete criminal event.’ [Citation.] In deciding whether to give the instruction, the trial court must ask whether (1) there is a risk the jury may divide on two discrete crimes and not agree on any particular crime, or (2) the evidence merely presents the possibility the jury may divide, or be uncertain, as to the exact way the defendant is guilty of a single discrete crime. In the first situation, but not the second, it should give the unanimity instruction.” (People v. Russo, supra, 25 Cal.4th at p. 1135.)
Here, even though the two acts that formed the basis of the charged crime of violating section 288, subdivision (a) were separated in time, albeit briefly, they were so closely connected as to form part of one continuing transaction. The prosecutor described the two acts as the “touching” in this case that formed the basis for the crime of violating section 288, subdivision (a). There was no reasonable basis upon which the jury could distinguish between the acts. We conclude the trial court was not required to give a unanimity instruction.
Even if we were to conclude the trial court erred by failing to give a unanimity instruction, we would find that such error was harmless. There is a split of authority as to whether the failure to give a unanimity instruction is subject to the beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705] or the state-law standard under People v. Watson (1956) 46 Cal.2d 818, 836. (See People v. Wolfe (2003) 114 Cal.App.4th 177, 185-186 (Fourth Dist., Div. Two) [describing split of opinion as to applicable standard of harmless error for failure to give unanimity instruction].) As we did in Wolfe, we apply the Chapman standard of review. (Wolfe, at p. 188.)
Under Chapman “‘we must ultimately look to the evidence considered by defendant’s jury under the instructions given in assessing the prejudicial impact or harmless nature of the error.’ [Citation.] ‘[W]e must inquire whether it can be determined, beyond a reasonable doubt, that the jury actually rested its verdict on evidence establishing the requisite [elements of the crime] independently of the force of the... misinstruction. [Citation.]’ [Citation.]” (People v. Wolfe, supra, 114 Cal.App.4th at p. 188.)
“The erroneous failure to give a unanimity instruction is harmless if disagreement among the jurors concerning the different specific acts proved is not reasonably possible.” (People v. Napoles, supra, 104 Cal.App.4th at p. 119, fn. omitted.) Where the defendant offered the same defense to all the charged criminal acts, and “the jury’s verdict implies that it did not believe the only defense offered,” then the failure to give the instruction is harmless error. (People v. Diedrich (1982) 31 Cal.3d 263, 283, called into doubt on other grounds in People v. Greenberger (1997) 58 Cal.App.4th 298, 370.)
Here, we conclude beyond a reasonable doubt that the jury rested its verdict on evidence that established the requisite elements of the crime even without the unanimity instruction having been given. The jury was properly instructed on the elements of the crime of lewd and lascivious conduct and the requisite intent. We see no reason why the jury would have distinguished between the acts of defendant putting his hand on Doe II’s stomach and putting his penis on her back. Defendant presented the same defense to both acts: that they were too brief to constitute a touching and that he did not possess the requisite intent to arouse Doe II. It is not reasonable - when the prosecutor argued that both acts were committed with the intent to sexually arouse Doe II - that some of the jurors would have believed only one incident occurred and, since the acts were committed during a brief time period, that he did not possess the requisite intent for one act but not the other. Finally, defendant did not dispute that either touching occurred. As such, if the jurors believed beyond a reasonable doubt that one of the acts constituted lewd conduct, it is inconceivable that they would not have found the other act constituted lewd conduct.
Based on the evidence before the jury, they either believed that defendant possessed the requisite intent when he climbed into bed with Doe II or he did not. There is nothing in the evidence to support that they could find one act was committed but not the other. As such, based on the evidence and the defense presented by defendant, any conceivable error by failing to give the unanimity instruction was harmless.
IV
DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ P. J. KING J.