Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF113195 . J. Thompson Hanks, Judge. Affirmed with directions.
David P. Lampkin, 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, Lilia E. Garcia and Arlene A. Sevidal, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gaut J.
All statutory references are to the Penal Code.
A jury convicted defendant Edward James Luna of 13 sexual offenses: three counts of committing a lewd act (§ 288) against his niece in July and August 2003 and 10 counts of rape (§ 261) against his stepdaughter between January 2001 and August 2003. The court sentenced defendant to a total term of 166 years to life: the upper term of eight years on count 1; a consecutive midterm of six years on count 2; a consecutive term of two years on count 3; and 10 consecutive indeterminate sentences of 15 years to life on counts 4 through 13.
On appeal, defendant argues the court should have given a unanimity instruction on counts 5 through 13 involving rape. He also challenges the upper-term sentence on count 1. The parties agree defendant is entitled to 699 days of custody credit rather than 697 days. Subject to modification of the custody credits, we reject defendant’s contentions on appeal and affirm the judgment.
2. Facts
Defendant lived in Corona with his stepdaughter. His niece lived nearby and often spent the night at defendant’s house with her cousins.
Defendant was born in 1966. He is five feet, nine inches tall and weighs 270 pounds. His stepdaughter was born in December 1989. His niece was born in September 1993.
a. The Niece
One night in 2003, the niece was watching television at defendant’s house. When one of her cousins fell asleep on the floor, defendant and the niece carried her to an upstairs bedroom. When the niece lay down on the bed, defendant also laid down. He unbuttoned his pants and put his hand under her underwear, touching her genitals. Then he removed his hand and placed her hand on his stomach and forced her to grasp and fondle his penis. About a month later, defendant again lay down next to her in bed and tried to pull her away from the cousin, next to whom she was sleeping.
The niece’s reference to “vagina” seems inaccurate since she did not remember whether defendant inserted his fingers or hands inside her.
In August 2003, the niece told the stepdaughter that defendant was touching her or that he “made her give him a blow job.” The niece also told her cousin, who told defendant’s wife, who then took the niece to the police station.
After defendant saw his wife’s car at the police station, he called his brother, distraught, repeatedly saying, “Bro, I love you, I... f’d up, I’m sorry, I never meant to hurt you.”
In an interview, the niece described the way defendant touched her as like being “tickled” but painful. The stepdaughter initially denied that defendant had actually molested her but she claimed she had tried to make the niece feel better by saying he had. In a later interview, the stepdaughter accused defendant of molesting her for several years.
In a police interview, defendant claimed he had rubbed the niece’s stomach when she complained it hurt but his touching was limited to her abdomen, stomach, and side.
b. The Stepdaughter
When the stepdaughter was in the fourth grade, defendant forced her to copulate him orally in the garage and on other occasions.
In the sixth grade, she was suffering stomach aches because she was lactose intolerant. Defendant said it was a vaginal problem and undertook to treat her by inserting his fingers. He squeezed her breasts so they would not grow unevenly.
Defendant first raped the stepdaughter on a bedroom floor when she was about 11 years old. He dragged her on the carpet, causing rug burn on her back. He said “it would only hurt for a second and then it would feel good, and then [she] would enjoy it for the rest of [her] life.”
He also attempted to have anal sex “because most porn stars on the Internet enjoyed it” but she screamed and there was blood so he stopped. Defendant forced her to watch pornography on the television and the computer. Defendant’s computer hard drive contained pornography.
For a few years, when the stepdaughter was between the ages of 11 and 13, defendant raped her every Wednesday while her mother was at work and any other time her mother was gone. In the summers, defendant took her to work with him in Long Beach and engaged in sexual activity with her at lunch time and in his truck.
When the stepdaughter was in the hospital, defendant warned her not to tell the doctors about him. Defendant had made multiple threats to the stepdaughter, including that he would kill her mother and hurt her pets. He also beat her dog and broke its legs before abandoning it.
The stepdaughter denied any abuse in her first interview because she thought nothing would be done. In her second interview, she said she was initially afraid to report defendant because she was scared and he would hurt her pets.
c. Defense Theory
Defendant’s theory was that his wife encouraged the stepdaughter and the niece to lie about defendant to give the wife an advantage in divorce and child custody proceedings ongoing between 2002 and 2004. The stepdaughter admitted defendant had called the police when she quarreled with her mother.
Defendant testified the divorce was pending while he still lived with his wife and he obtained declarations from the neighbors with negative information about his wife. He admitted having pornography on his computer. He denied sexually molesting the niece or the stepdaughter. Defendant’s friend, Guy Hall, testified defendant was loving and affectionate with children.
3. Unanimity Instruction
Defendant was charged with 10 counts of rape between January 2001 and August 2003 when the stepdaughter was between 11 and 13 years old. She testified he raped her at least once a week during that time. Counts 4 and 5 occurred in 2001. Counts 6 through 9 occurred between June 2001 and April 2002. Count 10 occurred in 2002. Counts 11 and 12 occurred between January 2003 and July 2003. Count 13 occurred in August 2003. The stepdaughter offered the most specific testimony about the first rape that caused rug burns. She could not remember particular details about each subsequent rape except that they took place every Wednesday night while her mother was working.
Defendant contends that counts 5 through 13 should be reversed because they are supported by generic evidence and the trial court did not give a unanimity instruction: “In a criminal case, a jury verdict must be unanimous. [Citations.]... Additionally, the jury must agree unanimously the defendant is guilty of a specific crime. [Citation.] Therefore, cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. [Citations.]” (People v. Russo (2001) 25 Cal.4th 1124, 1132.)
In child sexual molestation cases involving minors and repeated identical offenses, the unanimity rule has been refined: “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.
“As previously stated, even generic testimony describes a repeated series of specific, though indistinguishable, acts of molestation. [Citation.] The 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, providing the three minimum prerequisites heretofore discussed are satisfied.
“For example, if the victim testified that an act of oral copulation occurred once each month for the first three months of 1990, and the People charge three counts of molestation, the jury’s unanimous conclusion that these three acts took place would satisfy the constitutional requirement of unanimity.
“Similarly, if an information charged two counts of lewd conduct during a particular time period, the child victim testified that such conduct took place three times during that same period, and the jury believed that testimony in toto, its difficulty in differentiating between the various acts should not preclude a conviction of the two counts charged, so long as there is no possibility of jury disagreement regarding the defendant’s commission of any of these acts. [Citations.]” (People v. Jones (1990) 51 Cal.3d 294, 321-322.)
The present case is identical to the examples described in Jones. The stepdaughter testified that an act of rape occurred once every Wednesday for several years and the People charged 10 counts. The jury’s unanimous conclusion that these 10 acts took place satisfies the constitutional requirement of unanimity. Jones also recognized that defendant could be convicted of fewer counts when the victim testified that more than that number had occurred.
Jones proposed there are circumstances when a modified unanimity instruction should be used: “[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.” (People v. Jones, supra, 51 Cal.3d at p. 322.)
A modified unanimity instruction was not given here. But any error was harmless as discussed in People v. Matute (2002) 103 Cal.App.4th 1437, 1447-1450, in which defendant was convicted of 15 counts of raping his daughter. The daughter testified the rapes occurred semiweekly for 15 months. She recalled specific details of only four rapes. But the appellate court held there was no reasonable possibility the jury did not unanimously agree defendant committed each of the 15 rapes.
Here the stepdaughter described weekly rapes for several years. Defendant denied any rape occurred and accused his stepdaughter and niece of lying at the instigation of his estranged wife. Obviously, the jury found the victim was more credible than defendant. Furthermore, the jury was properly instructed to decide each count separately. (CALJIC No. 17.02.) The jury rendered separate verdicts on each of the 10 counts. The omission of a unanimity instruction was not prejudicial error. (People v. Matute, supra, 103 Cal.App.4th at pp. 1449-1450.)
4. Upper-Term Sentence
The court based the eight-year upper-term sentence for count 1 on two aggravating factors: “violence and threat of harm” (Cal. Rules of Court, rule 4.421(a)(1), and “the victim’s vulnerability” (Cal. Rules of Court, rule 4.421(a)(3)).
In order to preserve his right to federal review, defendant argues that the upper-term sentence on count 1 was illegal under Cunningham v. California (2007) 549 U.S. 270, Blakely v. Washington (2004) 542 U.S. 296, and Apprendi v. New Jersey (2000) 530 U.S. 466. Defendant protests the trial court violated his Sixth Amendment right to trial by jury by imposing the upper term based on factors not admitted by defendant or found true by the jury beyond a reasonable doubt.
At the time defendant was sentenced on May 2, 2008, the sentencing scheme in effect was the version of the determinate sentencing law (DSL) that the Legislature amended effective March 30, 2007, (§ 1170, as amended by Stats. 2007, ch. 3, §§ 2, 7) in response to Cunningham. The amendment makes three basic changes to the procedure for imposing a term of imprisonment. First, the middle term is no longer the presumptive term. Second, the trial court has broad discretion to impose the lower, middle, or upper term based upon a specified standard, i.e., that which “best serves the interests of justice.” Third, the trial court need only set forth its reasons, but not facts, for imposing the lower, middle, or upper term. (§ 1170, subd. (b).) The trial court’s “sentencing discretion must be exercised in a manner that is not arbitrary and capricious, that is consistent with the letter and spirit of the law, and that is based upon an ‘individualized consideration of the offense, the offender, and the public interest.’” (People v. Sandoval (2007) 41 Cal.4th 825, 847.)
Pursuant to Sandoval, the trial court properly sentenced defendant to the upper term. We do not find the court acted in an arbitrary or capricious manner, but exercised its discretion consistent with the “spirit of the law.” (People v. Sandoval, supra, 41 Cal.4th at p. 847.) The court gave valid reasons for imposing the upper term and properly considered the nature of the offense and the victim.
Defendant acknowledges that we are bound by Sandoval. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) He argues that applying the amended DSL to him would violate the due process and the ex post facto clauses of the federal Constitution.
In People v. Sandoval, supra, 41 Cal.4th at pages 853-857, our Supreme Court held that imposition of sentence under the 2007 amendment to the DSL for a crime committed prior to the effective date of that amendment did not violate federal constitutional due process and ex post facto principles. Therefore, defendant’s ex post facto claim is without merit.
We note Sandoval also indicates that there is no due process problem with sentencing a defendant under the amended DSL, even if the defendant committed the crime before the amendment. Sandoval explains that where the criminal statute at issue specifies the maximum sentence that may be imposed, such notice affords a defendant sufficient warning for due process purposes. (People v. Sandoval, supra, 41 Cal.4th at p. 857.) At the time, defendant committed his crime in 2003, lewd conduct with a minor under 14 years of age carried a sentencing range of three, six, or eight years in state prison. (§ 288, subd. (a.).) Defendant was therefore on notice that he could be sentenced to eight years for the crime.
Moreover, even under the former DSL, “so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury.” (People v. Black (2007) 41 Cal.4th 799, 813.)
As indicated above, the court cited two circumstances in aggravation in imposing the upper term. Under Black, there is no constitutional right to a jury trial on determinations of these matters. Therefore, even under the former DSL, defendant’s constitutional challenge to the imposition of the upper term is without merit.
5. Disposition
We order the abstract of judgment corrected to show 699 days of custody credit. Otherwise, we affirm the judgment.
We concur Richli Acting P. J., Miller J.