Opinion
E051831
12-07-2011
THE PEOPLE, Plaintiff and Respondent, v. JAIME LLAMAS, Defendant and Appellant.
Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and Kyle Niki Shaffer, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. RIF142940)
OPINION
APPEAL from the Superior Court of Riverside County. J. Thompson Hanks, Judge. Affirmed.
Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and Kyle Niki Shaffer, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant Jaime Llamas of one count of aggravated sexual assault of a child under the age of 14 (count 1—Pen. Code, § 269, subd. (a)(1)) and three counts of lewd and lascivious acts with a child under the age of 14 (counts 2-4—Pen. Code, § 288, subdivision (a)). The trial court sentenced defendant to an aggregate, indeterminate term of incarceration of 15 years to life consisting of the following: 15 years to life on count 1; the midterm of six years on count 2, stayed pursuant to Penal Code section 654; and the midterm of six years concurrent on counts 3 and 4. Defendant appeals contending the trial court erred in limiting his cross-examination of the People's Evidence Code section 1108 witness, committed prejudicial judicial misconduct, prejudicially failed to instruct the jury with the requisite unanimity instruction, and that the aforementioned alleged errors resulted in prejudicial cumulative error. We affirm the judgment.
A mistrial was previously declared after a prior jury hung, seven to five, regarding the same charges.
FACTUAL AND PROCEDURAL HISTORY
The victim, born in March 1992 and 18 years old at the time of trial, testified that when she was six years old, defendant, her father's cousin, moved in with her and her family. She was living with her mother, father, brother, and defendant in a home in Corona. She slept in her own room while defendant shared a room with her brother. A bathroom connected their two rooms. Some time after defendant moved in, but while the victim was still in elementary school, defendant began sexually molesting her. The assaults discontinued only when defendant moved out of the house; she was still in elementary school.
The victim's parents testified that defendant moved in with them in the summer of 1999, when he was 19 years old and the victim was seven years old. Defendant moved out in April 2003.
The first incident she could recall occurred while they were sitting on a couch in the loft watching television. Defendant started massaging her back. He moved his hands lower down her back until he reached her "butt." Defendant then reached around and "started rubbing [her] between [her] legs on [her] vagina." The victim sat up and turned around because defendant's actions made her uncomfortable. Defendant apologized and said it was an accident. The victim felt "scared and just confused."
The second incident the victim remembered occurred when she, her father, and defendant were all swimming in a community pool at her uncle's trailer park. Her father was teaching her how to swim, taking her around the pool by holding his hands under her stomach, and letting her kick and stroke her arms. At some point, her father got out of the pool, lay down in a chair, and put a towel on his face. Defendant offered to continue teaching her in the same manner. Defendant moved her over to the deep end where he stuck his fingers underneath her bathing suit and into her vagina. The victim became scared and told defendant she did not want to swim any more.
The victim testified that on several occasions, defendant "would go in the middle of the night when I was sleeping, and he would pull down his pants and he would pull down mine and my underwear, and he would . . . penetrate me and go inside . . . ." The victim estimated that defendant raped her approximately five times. Sometimes he would hold her down with his hands.
The victim testified as to one particular time defendant raped her: "He pulls down my pajama bottoms and my underwear down to my ankles, and he takes off his shorts. And then he gets on top of me, and then I feel motion. He starts kind of swaying back and forth. [¶] . . . [¶] I felt [his penis] inside me and in my vagina. And I felt his body just moving." Defendant placed his hands on the side of her head and then covered her eyes. The experience was painful. When he finished, she cried.
One night she stayed over at her cousin Marlene's home; she slept in the same bed as Marlene. Defendant slept the night at the home as well. The victim woke early in the morning to defendant digitally penetrating her vagina. She woke Marlene and asked to switch sides on the bed; as they did, defendant removed his hand from her underwear.
Another time she was lying on the floor in the loft under a blanket watching a movie. Defendant lay down next to her and started to remove her clothing underneath the blanket. The victim then felt defendant's tongue inside her vagina. Defendant later told her it was his turn and placed her hand around his penis; she removed her hand. The victim told defendant she did not like what he was doing; defendant informed her that if she told her parents they would not believe her.
Another incident occurred when her parents left her in the care of defendant while they went to Laughlin. She and Marlene slept together in the victim's parents' bed. The victim awoke to defendant placing his fingers inside her vagina. She got up, ran to the bathroom, and locked herself in, where she sat and cried.
She first disclosed the abuse to Marlene when they were chatting on the internet in April 2007, when the victim was 15 years old. Marlene informed her that defendant had sexually abused one of Marlene's cousins, Eddie. The victim then told Marlene that she had likewise been abused by defendant.
In 2007, on Memorial Day weekend, the victim's parents were in Las Vegas. Defendant called her on her cell phone; she did not recall ever giving defendant her cell phone number. Defendant asked if her father was home and who she was staying with; defendant informed the victim his wife was not at his home, that he was home alone. The victim became alarmed at what she believed defendant was implying, that he would come over and do something to her. She told him she had to go and hung up.
When her parents returned, the victim felt the need to unburden herself regarding the abuse; she felt relieved, scared, and anxious at the prospect of revealing the abuse to her parents: "I just needed to say something. I felt like I was going to explode." She told her mother that she needed to talk; she was afraid that her mother would not believe her due to what defendant had told her. The victim started crying and told her mother that defendant had been touching her. Her mother asked if defendant had used his penis and the victim replied that he had; the victim's mother started crying and holding her.
Her mother told her father. Her mother asked if she wanted to report it; she said she did. The victim "felt a need to protect myself, protect my family, and protect . . . whoever else he could have hurt." That same week she and her parents reported defendant's conduct to the police.
The victim's father confronted defendant about the victim's allegations on Tuesday, the day after Memorial Day. Defendant initially denied the abuse, but later admitted it; he asked to be forgiven. The following day, Wednesday, the victim's parents went to the police station to file a report; however, defendant's wife showed up at the police station and begged them not to file a report. The victim's father testified that he agreed not to report defendant to the police if defendant's wife would "be responsible" for defendant and move away from the victim's family; he gave defendant's wife 24 hours. Defendant left for Mexico, but his wife remained. The victim's family filed a police report on Friday, because the victim's father believed defendant's wife had broken her agreement to be responsible for defendant.
Defendant's wife testified the victim's parents only wanted defendant to go back to Mexico but defendant did not want to go. Defendant later did return to Mexico, but not within the time specified by the victim's parents.
A few months later, defendant returned from Mexico. The victim's father went to defendant's wife's residence and followed defendant; the victim's father called the police; the police subsequently arrested defendant.
Eddie testified that when he was eight or nine years old, he went to Mexico with his mother. Defendant was five years older than Eddie. Defendant invited Eddie to go up to the mountains to feed the livestock. Defendant took him to a small, uninhabited house where he forced Eddie to pull down his pants. Defendant then pulled down his own pants, put Eddie on the floor, grabbed him, and sodomized him. Eddie screamed. Defendant also told Eddie to put his hand and mouth on defendant's erect penis; Eddie did so. Defendant threatened to kill him if he told anyone.
Eddie first disclosed the abuse in 2006, when he was 22 or 23 years old, to Marlene, who was nine to ten years younger than he. He told her because "It was just a depression that I had throughout my life, and I just couldn't hold it anymore. And I know she wasn't an appropriate person to tell, but I just couldn't take it anymore." Eddie thereafter tried to avoid defendant whenever he saw him in the United States.
Several defense witnesses testified the victim always appeared happy to see defendant and was continually affectionate with him; defendant's brother-in-law testified the victim would jump up on defendant with her legs open when hugging defendant; it appeared sexual and inappropriate for someone her age. Several defense witnesses testified that the victim asked defendant to dance with her at her Quinceanera; when defendant declined, she became upset.
Defendant testified he never touched the victim inappropriately or threatened her. He testified he called the victim on her cell phone on Memorial Day in 2007 to see if he had to work; defendant worked with the victim's father and could not reach him. Defendant had the victim's cell phone number programmed in his phone because his cousin had called the victim from defendant's cell phone. He told the victim his wife was not home because the victim asked what he was doing. Defendant speculated that the victim fabricated the allegations against him because "she was attracted to [him]." Their relationship was normal until he started dating his wife; the victim then became upset.
Defendant left for Mexico after being confronted by the victim's father, because the latter threatened to call immigration on him, threatened to call the department of public social services with regard to his son, threatened to have him killed, and/or because defendant's grandmother in Mexico was sick. Defendant testified the incident between him and Eddie was instigated by Eddie. Defendant was urinating in front of two or three other children; Eddie, then eight years old, got in close proximity to him and asked if he could fellate defendant; defendant declined, but Eddie did it anyway for two or three seconds. Defendant then pushed him away.
DISCUSSION
A. LIMITATION ON CROSS-EXAMINATION
Defendant contends the court committed prejudicial error in refusing to allow him to cross-examine Eddie on a purported consensual sexual relationship the two had after the incident to which Eddie testified above. We hold the trial court acted within its discretion in excluding the admission of irrelevant evidence.
In the middle of trial, immediately before Eddie's testimony, the People requested the court exclude evidence of "some sexual contacts with the defendant when the victim was over 18." The prosecutor reiterated, "I want—I would ask the Court to exclude testimony regarding any sexual contacts that he had after the age of consent because I don't believe those are relevant to what happened to him when he was seven [sic] years old." The prosecutor contended that Eddie did, indeed, have consensual sexual relations with defendant after the former turned 18. Defense counsel countered that "this entire case that we have so far is premised upon the theory that, you know Eddie and the family have conspired to bring a case against my client. If my client is not allowed to testify to and discuss all of the sexual contact, the Court will be precluding the essence of my defense."
The court and counsel then engaged in the following colloquy:
"THE COURT: I appreciate your argument. There's no jury here. Just tell me what you think is relevant about adult consensual sexual contact.
"[Defense Counsel]: Because my client apparently made comments throughout the years about his relationship with Eddie, according to our witness, that infuriated Eddie. And it's important for the jury to know they had a relationship that lasted up until my client was into his 20s. And, you know, it's relevant. I think the jury is entitled to know that my client could have taunted him over the years about that relationship. There's a possible connection between the families.
"THE COURT: You keep saying 'could have' and 'possible.' What is it that Eddie is going to say about the relationship?
"[Defense Counsel]: Well, Eddie's going to say that there was some friends of [defendant] that over the years came up to him and said, I heard what [defendant] did to you. Eddie has denied being gay, having sexual relations with other men. My client would possibly show that he's exposed to him that he's, in fact—you know, he turned him gay.
"THE COURT: Okay. What he did as an adult is not before this Court, nor should it be. It's what he did with a child, a young boy, who can't give consent. That is the issue here. And the same way that [the victim] was too young to give consent. So that's the issue, whether or not he took advantage of a child sexually."
Defense counsel argued that a second sexual incident occurred between them when Eddie was 15 years old and defendant was between 20 and 23: "So I think it's highly relevant." The People responded, "I don't believe Eddie will say that he was 15 or 16 years old when he had any type of consensual contact with the defendant. I believe his testimony was that it was over 18." The court stated, "Well, I can understand if Eddie was upset with your client and had some sort of revenge motive to say—lie about him in some way. But I'm not hearing that. I'm not hearing any of that. I'm just hearing that there was a subsequent relationship between the two of them."
Defense counsel contended, "[i]f there's a possibility that Eddie was a minor, I think the jury is entitled to know." The court requested an explanation for why the jury would be entitled to such information. Defense counsel replied, "it goes to my entire defense. [¶] . . . [¶] . . . It's relevant because it shows that over the years, Eddie could have been very irritated . . . ." The court ruled: "We won't [be] going into any subsequent consensual relationship between [Eddie] and . . . defendant."
Defense counsel noted, "I think this is very prejudicial to the extent that there is an accusation that my client has this propensity to do this crime. The Court has allowed it. And for me not to be able to suggest that these two individuals over the years had a relationship—and I'm not fishing here. These are facts that are essential to my defense. [¶] . . . [¶] [I]t supports my defense that my client and Eddie had a relationship over the years. Eddie was very upset about what happened to him, and Eddie got together with that family and brought charges against my client. This was the essence of my opening . . . . That's just the only argument that I've established in my opening."
Only relevant evidence is admissible at trial, and trial courts have broad discretion to determine the relevance of proffered evidence. (People v. Weaver (2001) 26 Cal.4th 876, 933.) "Evidence Code section 352 accords the trial court broad discretion to exclude even relevant evidence 'if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.' 'Evidence is substantially more prejudicial than probative [citation] if, broadly stated, it poses an intolerable "risk to the fairness of the proceedings or the reliability of the outcome" [citation].' [Citation.] We review a trial court's ruling under Evidence Code section 352 for an abuse of discretion. [Citations.]" (People v. Clark (2011) 52 Cal.4th 856, 893.)
"[N]otwithstanding the confrontation clause, a trial court may restrict cross-examination of an adverse witness on the grounds stated in Evidence Code section 352. [Citation.] A trial court's limitation on cross-examination pertaining to the credibility of a witness does not violate the confrontation clause unless a reasonable jury might have received a significantly different impression of the witness's credibility had the excluded cross-examination been permitted. [Citations]" (People v. Quartermain (1997) 16 Cal.4th 600, 623-624.) "[N]ot every restriction on a defendant's desired method of cross-examination is a constitutional violation. Within the confines of the confrontation clause, the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance. [Citation.]" (People v. Chatman (2006) 38 Cal.4th 344, 372.)
Here, even with the benefit of counsel's arguments below and on appeal, we are at a loss to explain the relevance of any consensual sexual relationship Eddie may have had with defendant when Eddie was an adult or even as a minor. The fact, if it is a fact, that Eddie engaged in a consensual sexual relationship with defendant at some point years after his initial nonconsensual contact with defendant does not impugn his credibility with respect to his testimony that defendant sodomized him against his will when he was only eight or nine years old. Thus, the trial court acted well within its discretion in limiting, as irrelevant, defendant's cross-examination regarding any consensual sexual relations they may have had afterward.
Defendant appears to argue that the evidence would be relevant because his initial sexual conduct with Eddie "turned him gay," that Eddie harbored resentment for having been turned gay by defendant, that defendant subsequently taunted Eddie for being gay, and that defendant told others that Eddie was gay. Thus, Eddie had a motive to manufacture the allegations against defendant and conspire with the victim's family in order to exact revenge upon defendant. The dots simply do not connect. First, it is not at all clear why any subsequent consensual sexual relationship between defendant and Eddie would bear any relevance to defendant's proposed defense; in other words, the court did not restrict defendant's cross-examination of Eddie such that it would prohibit the development of this unique theory along other lines of questioning. Defendant still could have asked Eddie if he was gay, if he had engaged in homosexual relationships, if defendant turned him gay, if defendant taunted him for being gay, and if defendant told others that Eddie was gay. This he did not do. Moreover, defendant himself could have testified as to these matters.
Second, there is simply no evidence in this record that Eddie and defendant did engage in a consensual sexual relationship. Although the People below asserted they did, and that Eddie testified to this, neither party cites any portion in the record supporting such a statement. Indeed, it does not appear Eddie even testified at the previous trial. Moreover, defense counsel only alleged a second sexual incident between defendant and Eddie when the latter was still a minor. This is woefully short of an offer of proof that they were engaged in a consensual sexual relationship. Finally, the evidence adduced at trial directly contradicts any such assertion. Eddie testified that while he continued to see defendant sometimes in the United States, he avoided any contact with him. Defendant testified that the time Eddie forcibly fellated him was "the only incident that I had with him." Eddie testified he never discussed the case with the victim or her family. The victim testified she neither discussed with Eddie what defendant did to him nor her own impending testimony in the case. Thus, whatever relevance any subsequent consensual sexual relationship between Eddie and defendant bore to defendant's defense was properly excluded in the court's exercise of its discretion to exclude irrelevant or marginally relevant evidence.
Defendant also contends the court erred in denying his motion for mistrial premised on the court's limitation of defendant's cross-examination of Eddie. However, defendant fails to cite to the record to support the contention he ever actually moved for a mistrial and neglects to argue the matter. Our review of the record discloses no such motion.
B. JUDICIAL MISCONDUCT
Defendant contends the court disparaged defense counsel in front of the jury, depriving defendant of due process and a fair trial. In the first instance, defendant failed to object to any of the purported acts of judicial misconduct; thus, we hold defendant forfeited the issue on appeal. Proceeding to the merits of the contention to forestall a claim of ineffective assistance of counsel, we hold the court committed no acts of misconduct, let alone prejudicial misconduct.
"As a general rule, judicial misconduct claims are not preserved for appellate review if no objections were made on those grounds at trial. [Citations.] However, a defendant's failure to object does not preclude review 'when an objection and an admonition could not cure the prejudice caused by' such misconduct, or when objecting would be futile. [Citations.]" (People v. Sturm (2006) 37 Cal.4th 1218, 1237; People v. Boyette (2002) 29 Cal.4th 381, 458-459.)
"'"Although the trial court has both the duty and the discretion to control the conduct of the trial [citation], the court 'commits misconduct if it persistently makes discourteous and disparaging remarks to defense counsel so as to discredit the defense or create the impression it is allying itself with the prosecution' [citation]. Nevertheless, '[i]t is well within [a trial court's] discretion to rebuke an attorney, sometimes harshly, when that attorney asks inappropriate questions, ignores the court's instructions, or otherwise engages in improper or delaying behavior.' [Citation.] Indeed, '[o]ur role . . . is not to determine whether the trial judge's conduct left something to be desired, or even whether some comments would have been better left unsaid. Rather, we must determine whether the judge's behavior was so prejudicial that it denied [defendant] a fair, as opposed to a perfect, trial.' [Citation.]"' [Citations.]" (People v. Blacksher (2011) 52 Cal.4th 769, 824.)
Defendant's first complaint derives from defense counsel's repeated attempts to elicit testimony from the victim that she had an untrusting relationship with her parents. Five variously worded questions aimed at drawing out the same desired answer were asked of the victim; each time she answered in a manner non-conducive to defendant's defense. The court eventually stated, "Well, we're kind of going around in circles here. If you've got something relevant that you want to ask about, go to it. We aren't just going to sit her[e] and discover these things." First, defense counsel failed to object or request a curative instruction; thus, defendant forfeited the issue on appeal. Although a failure to object will not be deemed a forfeiture of error where "an objection or request for admonition would have been futile or an admonition would not have cured the harm," (People v. Young (2005) 34 Cal.4th 1149, 1188) we discern no such futility in this or any other of the complained of instances of misconduct. Second, we fail to see how the court's comment can, in any way, be viewed as disparaging.
Defendant's second complained-of commentary occurred when defense counsel asked the victim about her testimony that she was wearing jeans when defendant first molested her. The victim replied she did not remember. Defense counsel persisted in noting that she mentioned something about wearing jeans. The People objected, contending defense counsel was misstating the record. The court observed that it did not remember the victim saying anything about wearing jeans. First, again, defendant failed to object and, therefore, forfeited any contention the comment was misconduct. Second, while contrary to the court's observation, the victim did testify she was wearing jeans during the first incident; she immediately qualified that statement saying, "I don't really remember." Thus, this was not an area that was really ripe for impugning the victim's credibility regardless. Third, the court's comment, while erroneous, could hardly be deemed disparaging.
Defendant's third complaint reflects on the court's instruction to defense counsel that he not attempt to impeach the victim with her preliminary testimony by reading that testimony, but rather, allow her to read the prior testimony, and then ask if this affected her answer: "No, no. That's not the way we do it. [¶] . . . [¶] We don't do it by you reading something. [¶] . . . [¶] If you want to try to refresh her memory, you can do that." First, once more, defendant failed to object, forfeiting the contention on appeal. Second, we fail to see anything remotely belittling in the court's statements.
Defendant contends the court committed misconduct in limiting his cross-examination of the victim regarding how often, how long, and to where the victim would travel alone with defendant. The People objected that the question was vague. The court responded, "Well, I certainly understand the thrust of your questions, but you seem to be engaging in discovery here asking about things that I'm assuming you would already know before we got to trial." Defendant complained he had not had the opportunity to interview the victim. Nonetheless, the court noted, "We're doing a lot of discovery here, and that's going to take us a long time. If you have something that you want to bring out, do it." Yet again, defendant failed to object, thereby forfeiting the issue. Moreover, regardless of whether defense counsel had the opportunity to interview the victim, he certainly had the opportunity to interview defendant. Thus, defense counsel should have been in a position to ask more specific questions regarding the time, place, and locations to which the defendant and the victim traveled alone. To the extent defense counsel failed to ask these questions of defendant prior to trial, the fault lies with him and not with the court for limiting an extended fishing expedition on cross-examination. Furthermore, the court's comments were not remotely denigrating of defense counsel.
Defendant's fifth complained-of remark relates to the court's response to defense counsel's hearsay objection to the prosecutor's question of the victim's mother. The People asked the victim's mother who the victim told her had committed the molestation. The court noted, "we're going to receive this not necessarily for the truth of the matter, but as [it] explains the conversation that took place between mother and daughter." Defendant contends the court's overruling of his objection was erroneous because there is no mother/daughter exception to the hearsay rule. First, once more, defendant failed to object, forfeiting the issue. Second, while there is no mother/daughter exception to the hearsay rule, admitting the testimony only to explain the subsequent conduct of the victim and her mother is completely outside the rule against hearsay. This is the proper purpose for which the court overruled defendant's objection. Third, the manner in which the court ruled on defendant's objection in no way impugned him or signaled that it was siding with the prosecution.
Defendant's sixth allegation of misconduct concerns the court's response to the prosecution's objection to defense counsel's cross-examination of the victim's mother. Defense counsel asked if the victim and Eddie hung out together. The victim's mother replied that they did not. Defense counsel then asked her how often the victim and Eddie hung out. The People objected. The court noted, "She just said they didn't hang out together." First, again, defendant failed to object forfeiting the issue. Second, the court's observation was demonstrably correct, its evidentiary ruling clearly proper, and its statement was in no way a personal attack upon defense counsel.
Defendant's final complained-of conduct concerns the court's responses to defendant's questioning of the victim's mother with respect to her own conversations with Eddie. Defense counsel asked if the victim's mother had questioned Eddie, and what she asked of him. The People objected on the grounds of relevance. The court observed, "Well, I don't see how we're going to get into this without getting into hearsay now as to what Eddie's conversation was." When defense counsel asked the victim's mother if she had conversations with anyone else regarding what happened to Eddie, the prosecution again objected on the grounds of relevance. The court noted, "I'm having a hard time with this. Is it your intention to call Eddie[?]" When the People responded that it was, the court indicated it would be more appropriate to address the issue after Eddie's testimony. As noted by defendant, the trial court never actually issued a ruling on the People's objections; however, defense counsel could easily have pressed the court for such a ruling. Moreover, defendant again failed to object on the grounds of misconduct. Furthermore, we see nothing denigrating defense counsel or defendant in the court's remarks. Finally, to the extent defendant is contending he was erroneously barred from asking pertinent questions, we note defense counsel failed to ask such questions of Eddie, and failed to call the victim's mother back to the stand after Eddie's testimony.
In the context of the record as a whole, the seven complained-of incidents do not support a determination that the trial court was biased in favor of the prosecution. We note the court made a couple of curt remarks to the prosecution, as well as ruling adversely on the People's objections on a number of occasions. Moreover, defendant's complaints appear more properly characterized as objections to the court's evidentiary rulings or control of the proceedings, rather than judicial misconduct. In any event, we discern no disparagement of defense counsel; no indication of a bias in favor of the People; and, therefore, no prejudicial conduct such that it deprived defendant of a fair trial.
C. UNANIMITY INSTRUCTION
Defendant contends the court prejudicially erred in failing sua sponte to give the jury a unanimity instruction. We agree the court erred in neglecting to instruct the jury with CALCRIM No. 3501 or CALJIC No. 17.01. Nevertheless, we hold the error was harmless.
We note the court instructed the jury entirely with CALJIC instructions. "The California Judicial Council withdrew its endorsement of the long-used CALJIC instructions and adopted the new CALCRIM instructions, effective January 1, 2006." (People v. Thomas (2007) 150 Cal.App.4th 461, 465.) "Use of the Judicial Council instructions is strongly encouraged. If the latest edition of the jury instructions approved by the Judicial Council contains an instruction applicable to a case and the trial judge determines that the jury should be instructed on the subject, it is recommended that the judge use the Judicial Council instruction unless he or she finds that a different instruction would more accurately state the law and be understood by jurors." (Cal. Rules of Court, rule 2.1050(e); see also Thomas, at p. 465.)
A criminal defendant is entitled to a verdict in which all 12 jurors concur as a matter of due process under the state and federal Constitutions. (People v. Russo (2001) 25 Cal.4th 1124, 1132.) In any case in which the evidence would permit jurors to find the defendant guilty of a crime based on two or more discrete acts, either the prosecutor must elect among the alternatives or the court must require the jury to agree on the same criminal act. (Id. at pp. 1132-1133.) Where it is warranted, the court must give the instruction sua sponte. (People v. Riel (2000) 22 Cal.4th 1153, 1199.) The omission of a unanimity instruction is reversible error if, without it, some jurors may have believed the defendant guilty based on one act, while others may have believed him guilty based on another. (Russo, at p. 1133.)
In People v. Jones (1990) 51 Cal.3d 294, the court rejected "the contention that jury unanimity is necessarily unattainable where testimony regarding repeated identical offenses is presented in child molestation cases. In such cases, although the jury may not be able to readily distinguish between the various acts, it is certainly capable of unanimously agreeing that they took place in the number and manner described." (Id. at p. 321.) Thus, the court concluded, "[t]he unanimity instruction assists in focusing the jury's attention on each such act related by the victim and charged by the People. We see no constitutional impediment to allowing a jury, so instructed, to find a defendant guilty of more than one indistinguishable act . . . ." (Ibid., italics added.) "[W]hen there is no reasonable likelihood of juror disagreement as to particular acts, and the only question is whether or not the defendant in fact committed all of them, the jury should be given a modified unanimity instruction which, in addition to allowing a conviction if the jurors unanimously agree on specific acts, also allows a conviction if the jury unanimously agrees the defendant committed all the acts described by the victim." (Id. at p. 322.) Nevertheless, cases generally hold the omission of a unanimity instruction harmless if the record reveals "no rational basis, by way of argument or evidence, by which the jury could have distinguished between [the acts which would constitute the offenses]." (People v. Deletto (1983) 147 Cal.App.3d 458, 473; People v. Matute (2002) 103 Cal.App.4th 1437, 1450.) In contrast, if there is a rational basis on which jurors could distinguish between alternative factual bases, omission of a unanimity instruction is normally reversible error.
Failure to give a unanimity instruction where it is warranted has the effect of lowering the prosecution's burden of proof in that the prosecution may obtain a conviction without having convinced all 12 jurors beyond a reasonable doubt that the defendant committed a particular criminal act. Therefore, such an error is reviewed under the standard enunciated in Chapman v. California (1967) 386 U.S. 18. (People v. Smith (2005) 132 Cal.App.4th 1537, 1545-1546; People v. Wolfe (2003) 114 Cal.App.4th 177, 186-188.) Under that standard, we must examine the evidence and inquire whether it is possible to determine, beyond a reasonable doubt, that the jury unanimously relied on the same "specific act[] in finding defendant guilty." (Smith, at pp. 1546-1547; see Wolfe, at p. 188.) In addition, where the defendant offers 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 & 370, fn. 60; see People v. Jones, supra, 51 Cal.3d at pp. 307-308.)
Although we agree the court should have given the unanimity instruction, we find no prejudice. Here, as in People v. Matute, supra, 103 Cal.App.4th at page 1449, "the number of counts brought against [defendant] and the time frame at issue were clearly explained to the jury, and the prosecutor pointed to the evidence which amply supported the number of counts. It was not a random number, but rather was one that was tied to the time frame involved and was more than adequately supported by [the victim's] unequivocal testimony . . . . There could be no confusion in the jury's mind that they were being asked to decide whether" defendant engaged in sexual conduct with the victim on four occasions over the period of time between January 2000 through 2002.The rape incidents as testified to by the victim were indistinguishable. Thus, the jury was faced with the prospect of either believing that all of them had occurred or none of them had. The jury obviously determined the latter.
Defendant argues that since the victim testified the molestations continued until defendant left the victim's home in April 2003, the acts alleged went beyond the timeframe provided in the information, i.e., between January 2000 and 2002. Thus, the unanimity instruction was required to prove that the jury unanimously agreed as to acts that occurred within the timeframe alleged in the information. Nevertheless, we believe the victim's testimony, that a picture of her produced by the prosecutor, which portrayed her as a third grade student between the ages of eight and nine, was reasonably susceptible to the inference that was the time span when the molestations occurred. Since the victim was born in 1992, this would mean the acts occurred between the years 2000 and 2001, within the time frame specified in the information. Although further acts may have occurred between January and April 2003, those were not the subject of the victim's testimony or the charges against defendant.
Although the remaining sexual incidents as testified to by the victim were distinguishable from one another, the People did select the acts that supported the additional charges. The prosecutor argued that the act of oral copulation in the loft supported count 2, the incident in the pool supported count 3, and the incident at Marlene's house supported count 4. The court instructed the jury: "In order to reach verdicts, all twelve jurors must agree to the decision."
Moreover, defendant offered the same defense to all the alleged incidents: he did not do it. Indeed, defendant actually admitted being present at the times and places that all the acts occurred, he simply denied doing them. Thus, defendant's defense was obviously disbelieved by the jury, who credited the testimony of the victim. Therefore, "[i]t is not reasonably probable that a result more favorable to appellant would have been reached in the absence of the instructional error because there is no reasonable possibility the jury failed to unanimously agree that appellant committed each specific act for which he was convicted." (People v. Matute, supra, 103 Cal.App.4th at p. 1450.)
Having concluded there was only one error, which does not justify reversal of defendant's conviction, we necessarily reject his contention that cumulative error requires such reversal.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
HOLLENHORST
Acting P. J.
KING
J.