Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC630512
Mihara, J.
Defendant Ruben Jesse Martinez was convicted by jury trial of seven counts of forcible lewd conduct on a child (Pen. Code, § 288, subd. (b)(1)), two counts of non forcible lewd conduct on a child (Pen. Code, § 288, subd. (a)), and one count of continuous sexual abuse of a child (Pen. Code, § 288.5, subd. (a)). He was acquitted of one count of rape (Pen. Code, § 261, subd. (a)(2)) and one count of forcible lewd conduct on a child. Defendant was committed to state prison for a term of 54 years.
On appeal, he contends that the evidence does not support the jury’s verdicts and that the trial court erred in denying his petition for juror information. We conclude that the evidence supports the verdicts and that the trial court did not abuse its discretion in denying defendant’s petition for juror information. Accordingly, we affirm the judgment.
I. Factual Background
C. and R. first met defendant in 1987. Defendant was the boyfriend of their mother, L. Defendant did not live with them, but, one to three times a week, defendant would spend the night at the home that C. and R. shared with L. and their younger brother. C. and R. shared a bedroom. Defendant was a big man who weighed about 225 pounds. C. weighed less than 100 pounds. Although defendant never disciplined either of the girls or told them what to do, he was “a very big bully.”
In 1988, when C. was 10 or 11 years old, she and defendant were “wrestling,” and he grabbed her vaginal area with his hand over her clothes. It was a “[q]uick grab.” C. originally thought it might have been an “accident,” but a month or so later the same thing happened again. Defendant grabbed her in this manner a total of at least three times over a period of about a year.
After the first wrestling/grabbing incident, but before the second wrestling/grabbing incident, when C. was 11 years old, she was awakened late at night by the sound of the front door of the house opening. C. fell back to sleep for a couple of hours, and was awakened again by the sound of movement in her bedroom. Defendant was in C.’s bedroom. C. was “scared” and “didn’t want to make a commotion.” She was sleeping on her side, facing the wall. Defendant pulled C.’s underwear down, pulled her body closer to the edge of the bed, and put his penis between her thighs near her bottom. He left his penis there for a couple of seconds, and then he removed it, pulled her underwear back up, and left the room. C. continued to lie there with her eyes closed.
Defendant repeated this conduct (placing his penis between C.’s thighs) on at least 10 occasions over a period of one year. Some of these events occurred after October 1989. All of these incidents occurred prior to April 1990, while C. was under the age of 13. But it was on only three or four occasions that defendant pulled C.’s body closer to the edge of the bed. On October 17, 1989, when C. was 12, she and defendant were sitting on the couch, and defendant grabbed and held her vaginal area for a few seconds.
On one occasion in 1990, when R. was 10 years old, R. was lying on the floor watching television. After lying down next to her, defendant put his hand underneath her shorts and underwear and touched her vagina. R. “didn’t know what to do.” She got up and went to the bathroom. When she returned from the bathroom, she resumed her position on the floor next to defendant. He repeated the conduct and massaged her vagina. R. found this “really embarrassing” and hoped no one would learn of it.
C. left L.’s home in 1991 when she was 13 years old and went to live with her father. Shortly after C. left, defendant married L. After C. left the home, defendant began molesting R. regularly. Defendant would come into R.’s bedroom at night or in the early morning and lie down next to her in her bed. R. was usually awakened by the sound of the closed door to her room opening, but she would pretend to be asleep. Defendant, who was wearing underwear, would press his erect penis against her back or her front and put his hand under her clothing to touch her vagina. Defendant would use his hands to position R.’s body so that he could rub his penis against her. This happened 30 to 50 times.
As R. got older, defendant began pulling up her shirt, touching her breasts and putting his mouth on her breasts. This occurred “a handful of times.” When R. was 11 or 12, defendant began removing her underwear and shorts when he touched her. When he did not remove her clothing, he would remove his underwear and press his bare penis against her. Defendant always put her clothing back on her before he left the room. Defendant also would sometimes put her hand on his penis. Sometimes she would remove her hand, and he would put her hand back on his penis. R. would massage his penis when he did this. This hand/penis contact occurred about 100 times.
On numerous occasions when R. was under the age of 14, defendant would put R.’s legs on his shoulders and engage in “mock humping or dry humping.” His penis would touch her vagina but either her underwear or his underwear would be in between. R. always pretended to be asleep. This occurred about 40 times.
On one occasion when R. was 12 or 13 or possibly 14, defendant got into bed with R. and took off her shorts and underwear. He began poking his penis in the area of her vagina. Defendant said: “ ‘Do you want to feel it?’ ” “And then [he] began having -- having sex with” her. Defendant put his penis inside her vagina and moved it around. This hurt, and R. found blood when she went to the bathroom later. The day after this event, defendant came into R.’s room and said: “We got a little carried away last night. Let’s not let it happen again.”
Defendant continued to molest R., but he did not have intercourse with her again. At one point, R. wrote defendant a letter asking him to stop molesting her, and he stopped for a month but then resumed. At the time that defendant was molesting R., defendant weighed about 200 pounds, and R. weighed about 130 pounds. R. never did or said anything while defendant was molesting her. She was scared, disgusted, and impatient for him to leave her alone. Defendant molested R. until she and her mother and brother stopped living with him in 1994 when she was 15 years old.
C. told no one about the molestations until she told a friend in high school. C. testified that she did not tell R. about defendant’s conduct until both C. and R. were adults. C. had never thought about whether defendant might have been molesting R. also, and she had never seen defendant molest R. R., on the other hand, testified that, during the time period of the molestations, she “confirmed” to C. that “something [was] happening” to her. C. did not tell her mother about defendant’s conduct because she did not want to upset her mother. R. did not tell her mother because she was afraid that she would be separated from her mother. R. did not tell her father because she thought “it’s going to kill him.”
Defendant and L. divorced in 2000 or 2001. In March 2006, R. disclosed the molestations to her employer, who had known her for many years. Her employer encouraged her to tell the police, and she promptly did so. R. made two recorded telephone calls to defendant. Defendant’s responses to R.’s accusations during these telephone calls were highly suggestive of his consciousness of guilt. R. subsequently told L. about the molestations, though she never told her father. C. never told L. about the molestations. After R. told L. about the molestations, L. also made a recorded telephone call to defendant. Defendant’s responses to L.’s accusations during this call were also highly suggestive of his consciousness of guilt. R. filed a civil action against defendant in December 2006, which was pending at the time of the criminal trial.
II. Procedural Background
Defendant was charged by information with eight counts of forcible lewd conduct on a child (Pen. Code, § 288, subd. (b)(1)), two counts of non-forcible lewd conduct on a child (Pen. Code, § 288, subd. (a)), one count of forcible rape (Pen. Code, § 261, subd. (a)(2)), and one count of continuous sexual abuse of a child (Pen. Code, § 288.5, subd. (a)). R. was the alleged victim of six of the eight forcible lewd conduct counts (which were alleged to have occurred between January 1991 and October 1993), the rape count (which was alleged to have occurred between October 1992 and October 1994), and the continuous sexual abuse count (which was alleged to have occurred between January 1, 1990 and December 31, 1990). C. was the alleged victim of two of the forcible lewd conduct counts (which were alleged to have occurred between January 1988 and May 1989) and the two non-forcible lewd conduct counts (which were alleged to have occurred between January 1988 and May 1990).
At trial, defendant’s attorney suggested, in his cross-examination of R., that R. had “decided to go to the police solely for personal gain” and had filed a civil lawsuit against defendant “because you wanted money.” He suggested in his cross-examination of L. that L. had encouraged C. and R. to falsely accuse defendant of molesting them in order to obtain financial gain. Defendant’s attorney repeatedly asked L. if she had threatened to accuse defendant of molesting C. and R. if he did not give her the money she wanted.
Defendant testified at trial that he had never molested C. or R. He asserted that, during their marriage, L. repeatedly told him, in the presence of the children, that she would accuse him of molesting her children if he did not give her the money she requested. He complied with her extortion demands. Defendant believed that R. had been encouraged by L. to accuse him of molesting her so that they could extort more money from him.
Defendant’s attorney argued to the jury that “what these women are saying happened, did not happen.” He asserted that R. had made up these allegations to get money from defendant.
After one day of deliberations, the jury submitted two requests to the court. The first request sought a readback of C.’s testimony regarding the incidents. The second request sought a readback of R.’s testimony “regarding rape.” Shortly after the completion of the readbacks, the jury submitted a third request. It stated: “One juror has an alternative theory based on circumstantial evidence presented during the trial. [¶] We would like instructions on how to proceed.” The court discussed the matter with counsel, and then reread a number of instructions to the jury.
After another full day of deliberations, the jury acquitted defendant of the rape count and of one of the forcible lewd conduct counts on R. It convicted him of all of the other counts.
Defendant’s attorney thereafter filed a petition “for access to personal juror identifying information.” He sought the jurors’ names, addresses, and telephone numbers. The petition was supported solely by defendant’s attorney’s declaration. His declaration recounted the third inquiry from the jury, and he asserted that, as part of a possible new trial motion based on jury misconduct, “the defense is looking into a claim that the ‘alternate theory’ a particular juror advanced during deliberation may have been the product of his/her consultation with outside sources, namely publications and medical journals.”
The prosecution filed opposition to the petition in which it asserted that defendant had not shown good cause for release of juror information. The prosecutor characterized defendant’s theory of possible juror misconduct as “pure speculation.”
At the hearing on the petition, the court noted that it had “alerted” the jurors of the filing of the petition, and six of the jurors had responded that they did not want their information released. Defendant’s attorney argued that the jurors’ interests were protected by the fact that they could decline to talk to him. He asserted that there was “no compelling interest that would justify not disclosing juror information.” The prosecutor argued that defendant had not made a showing of good cause. The court concluded that “an inconsistent verdict does not rise to the level of good cause to require disclosure of sealed juror information.” It denied the petition.
Defendant subsequently moved for a new trial based in part on an allegation of jury misconduct. At the hearing on his new trial motion, defendant’s attorney asked the trial court to reconsider its ruling denying his petition for juror information. He conceded that there were no changed circumstances, and he clarified that he actually wanted the court to call the foreperson of the jury in for an evidentiary hearing on his jury misconduct allegation. Defendant’s attorney suggested that the juror’s “alternative theory” might have been “improper.” The court denied defendant’s new trial motion. Defendant was committed to state prison for a term of 54 years. He filed a timely notice of appeal.
III. Discussion
A. Sufficiency of the Evidence
Defendant contends that his lewd conduct convictions are not supported by sufficient evidence because multiple counts charged the same conduct during the same time frame and the evidence presented at trial did not “factually distinguish” the particular conduct underlying each count. He claims that these counts are “duplicative and multiplicitous.” Defendant also urges that “it defies logic” that the jury acquitted him on one of the six forcible lewd conduct counts against R.
“Multiplicitous counts are separately charged counts that are based on the same criminal behavior. [Citation.] They are improper because they allow multiple punishments for a single criminal offense.” (United States v. Jenkins (10th Cir. 2002) 313 F.3d 549, 557.) Here, none of the charged counts were “based on the same criminal behavior.” Defendant was alleged to have committed a number of separate acts of lewd conduct during the specified time periods. The information alleged that defendant had committed six separate acts of forcible lewd conduct on R. during a nearly three-year period, two separate acts of forcible lewd conduct on C. during a period of more than a year, and two separate acts of non-forcible lewd conduct on C. during a more than two year period. Defendant does not claim that the information, combined with the evidence presented at the preliminary examination, failed to supply him with adequate notice of the nature of the charges. The lewd conduct counts were not duplicative or multiplicitous.
Defendant contends that C. and R. provided solely generic testimony as to the lewd conduct counts which was inadequate because it failed to provide any basis to distinguish between the acts. It is not completely true that the testimony of C. and R. was entirely generic, but, to the extent that their testimony was generic, it nevertheless provided a substantial basis for the jury’s verdicts on the lewd conduct counts.
“[I]n determining the sufficiency of generic testimony, we must focus on factors other than the youth of the victim/witness. Does the victim’s failure to specify precise date, time, place or circumstance render generic testimony insufficient? Clearly not. As many of the cases make clear, the particular details surrounding a child molestation charge are not elements of the offense and are unnecessary to sustain a conviction. [Citations.] [¶] The victim, of course, must describe the kind of act or acts committed with sufficient specificity, both to assure that unlawful conduct indeed has occurred and to differentiate between the various types of proscribed conduct (e.g., lewd conduct, intercourse, oral copulation or sodomy). Moreover, the victim must describe the number of acts committed with sufficient certainty to support each of the counts alleged in the information or indictment (e.g., ‘twice a month’ or ‘every time we went camping’). Finally, the victim must be able to describe the general time period in which these acts occurred (e.g., ‘the summer before my fourth grade,’ or ‘during each Sunday morning after he came to live with us’), to assure the acts were committed within the applicable limitation period. Additional details regarding the time, place or circumstance of the various assaults may assist in assessing the credibility or substantiality of the victim’s testimony, but are not essential to sustain a conviction.” (People v. Jones (1990) 51 Cal.3d 294, 315-316.)
The trial testimony of C. and R. identified the types of acts, the number of acts, and the general time periods during which these acts occurred. Defendant does not claim otherwise. Consequently, their testimony was sufficient to support the jury’s verdicts.
Defendant argues that there is an irreconcilable inconsistency between the acquittal on one lewd conduct count and the guilty verdicts on the five other lewd conduct counts during the same period against the same victim. “Inconsistent findings by the jury frequently result from leniency, mercy or confusion. [Citation.] Such inconsistencies in no way invalidate the jury’s findings.” (People v. York (1992) 11 Cal.App.4th 1506, 1510.) Nor are these verdicts necessarily inconsistent. The prosecutor suggested to the jury that it identify each of these six counts with one of the different kinds of acts that R. had identified as having occurred during this time period. The jury could have reasonably concluded that one of these kinds of acts did not involve the requisite force and, on that basis, acquitted on one of the counts. For instance, defendant’s initial touchings of R. as she was watching television might have been determined to lack any element of force. The jury’s verdicts are not undermined by the fact that the jury acquitted defendant on one of the six lewd conduct counts he was charged with committing against R.
The prosecutor identified six acts that the six forcible lewd conduct counts regarding R. could be based upon. One was defendant touching her vagina skin-to-skin. The second was defendant rubbing his penis against R.’s vaginal area. The third was defendant rubbing his penis against the back of R.’s body. The fourth was defendant forcing R. to put her hand on his penis. The fifth was defendant fondling R.’s breasts. The sixth was defendant engaging in simulated sex with R., with one of them wearing underwear.
Defendant has failed to establish that the jury’s verdicts are not supported by substantial evidence.
B. Denial of Petition For Access To Juror Information
Defendant claims that the trial court abused its discretion in denying his petition for access to juror identifying information.
“Pursuant to Section 237, a defendant or defendant’s counsel may, following the recording of a jury’s verdict in a criminal proceeding, petition the court for access to personal juror identifying information within the court’s records necessary for the defendant to communicate with jurors for the purpose of developing a motion for new trial or any other lawful purpose. This information consists of jurors’ names, addresses, and telephone numbers. The court shall consider all requests for personal juror identifying information pursuant to Section 237.” (Code Civ. Proc., § 206, subd. (g).)
“Upon the recording of a jury’s verdict in a criminal jury proceeding, the court’s record of personal juror identifying information of trial jurors... shall be sealed until further order of the court as provided by this section.” (Code Civ. Proc., § 237, subd. (a)(2).) “Any person may petition the court for access to these records. The petition shall be supported by a declaration that includes facts sufficient to establish good cause for the release of the juror’s personal identifying information. The court shall set the matter for hearing if the petition and supporting declaration establish a prima facie showing of good cause for the release of the personal juror identifying information, but shall not set the matter for hearing if there is a showing on the record of facts that establish a compelling interest against disclosure.” (Code Civ. Proc., § 237, subd. (b).)
“After the hearing, the records shall be made available as requested in the petition, unless a former juror’s protest to the granting of the petition is sustained. The court shall sustain the protest of the former juror if, in the discretion of the court, the petitioner fails to show good cause, the record establishes the presence of a compelling interest against disclosure as defined in subdivision (b), or the juror is unwilling to be contacted by the petitioner. The court shall set forth reasons and make express findings to support the granting or denying of the petition to disclose.” (Code Civ. Proc., § 237, subd. (d).)
Defendant’s petition was based solely on the jury’s third inquiry during deliberations. This inquiry read: “One juror has an alternative theory based on circumstantial evidence presented during the trial. [¶] We would like instructions on how to proceed.” Defendant’s attorney claimed that “the defense is looking into a claim that the ‘alternate theory’ a particular juror advanced during deliberation may have been the product of his/her consultation with outside sources, namely publications and medical journals.” He also suggested that the jury’s acquittal of defendant on two counts was somehow suggestive of misconduct. The prosecutor characterized defendant’s theory of possible juror misconduct as “pure speculation.” Six jurors protested the release of their personal juror information. The court found that defendant had failed to show good cause and denied the petition.
Defendant’s burden was to make “ ‘a sufficient showing to support a reasonable belief that jury misconduct occurred, that diligent efforts were made to contact the jurors through other means, and that further investigation is necessary to provide the court with adequate information to rule on a motion for new trial....’ ” (People v. Carrasco (2008) 163 Cal.App.4th 978, 990 (Carrasco).) We review the trial court’s ruling under the deferential abuse of discretion standard. (People v. Jones (1998) 17 Cal.4th 279, 317.)
Defendant contends that “a prima facie showing of a potential misconduct is sufficient” to require a finding of good cause. The case he cites for this proposition, People v. Holloway (1990) 50 Cal.3d 1098 (Holloway), has nothing to do with the nature of a defendant’s burden to show good cause for release of juror information. The cited page (page 1111) of Holloway concerns whether the presumption of prejudice that arose from indisputable juror misconduct had been rebutted. (Holloway, at p. 1111.) Defendant also argues that a “potential for prejudice” is sufficient to show good cause. Defendant cites “People v. Rhodes, (1989) 43 Cal.App.4th 839, 852” as authority for this argument. No such case appears at that location. The cited page, which appears in People v. Wilson (1996) 43 Cal.App.4th 839 (Wilson), does not contain any support for defendant’s argument. Wilson upheld a trial court’s denial of a petition for juror information because the defendant had failed to provide any support for his speculative theory of juror misconduct. (Wilson, at p. 852.) Perhaps defendant was trying to cite People v. Rhodes (1989) 212 Cal.App.3d 541 (Rhodes). However, Rhodes utilized the very same standard that we apply here. Good cause is shown “if the defendant sets forth a sufficient showing to support a reasonable belief that jury misconduct occurred....” (Rhodes, at p. 552; accord Carrasco, supra, 163 Cal.App.4th at p. 990.). The mere “potential” for juror misconduct is not enough to support a reasonable belief that misconduct actually occurred.
The trial court could have reasonably concluded that defendant’s showing did not support a reasonable belief that misconduct had occurred. Defendant’s showing was limited to the jury inquiry regarding a juror’s “alternative theory based on circumstantial evidence presented during the trial.” Although defendant suggests that such an “alternative theory” might have been based on external information, this is completely unsupported speculation, as the jury’s inquiry plainly stated that the “alternative theory” was based on “evidence presented at trial.” Defendant also suggests that this “alternative theory” might have led to the jury’s acquittals. Exactly how these acquittals might indicate juror misconduct goes unexplained. The trial court did not abuse its discretion in denying defendant’s petition.
At the commencement of the trial, the court instructed the jury: “It would be a violation of your oath to consult any reference work in helping you reach any decision in connection with this case. And now with the advent of the internet, it would be a violation of your duty, as well, to Google anything in connection with this case for definitions on the law or anything of that nature.”
IV. Disposition
The judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P. J., McAdams, J.