Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 09CF0694, Daniel Barrett McNerney, Judge.
Jerry D. Whatley, 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, Steve Oetting and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
ARONSON, J.
A jury convicted defendant Jorge Garibaldi Martinez of lewd conduct with a child under the age of 14 (Pen. Code, § 288, subd. (a); all statutory references are to the Penal Code unless otherwise noted), continuous sexual abuse (§ 288.5, subd. (a)), and lewd conduct with a child age 14 or 15 (§ 288, subd. (c)(1)). It also found to be true an allegation he engaged in substantial sexual conduct (§ 1203.066, subd. (a)(8)). Martinez contends the trial court prejudicially erred by instructing with a modified version of CALCRIM No. 207. For the reasons expressed below, we affirm the judgment.
I
Factual and Procedural Background
Guadalupe, born in June 1993, testified she arrived from Mexico in 2005 or 2006 and lived in Santa Ana with her mother and her stepfather Martinez, born in May 1976. Martinez began his sexual molestations of Guadalupe during the summer of 2006, when he stayed home to nurse a recently injured shoulder. Martinez approached Guadalupe, massaging her legs and touching her breasts. This led to regular sexual intercourse, occurring several times a week, until March 2009. Guadalupe eventually became pregnant, giving birth to a baby girl in April 2007, roughly eight months after conception. Martinez acknowledged to Guadalupe he fathered the child, although he denied this when Guadalupe’s mother confronted him.
Guadalupe lied to her mother and others about the father’s identity. She claimed a boyfriend, Juan, fathered the child. After the birth of the child, Guadalupe and Martinez resumed having regular intercourse. Guadalupe’s mother eventually grew suspicious when she noticed facial similarities between Martinez and the baby. In March 2009, Guadalupe ultimately revealed to her mother that Martinez was the father of her child. Guadalupe’s mother called the police. Martinez admitted to investigators he had regular sexual intercourse with Guadalupe and that he believed he was the child’s father, which a subsequent DNA analysis confirmed.
Following a trial in May 2010, a jury convicted Martinez as noted above. In July 2010, the trial court sentenced Martinez to a prison term of 16 years, comprised of the aggravated 16-year term for continuous sexual abuse (§ 288.5), and concurrent terms on the other counts.
II
Discussion
Martinez did not object to the instruction in the trial court. Section 1259 provides “[t]he appellate court may also review any instruction given... even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby.” (See People v. Konow (2004) 32 Cal.4th 995, 1024-1025 [substantial rights are affected if the error might reasonably have affected the outcome].)
Section 288.5 provides, “(a) Any person who either resides in the same home with the minor child or has recurring access to the child, who over a period of time, not less than three months in duration, engages in three or more acts of substantial sexual conduct with a child under the age of 14 years at the time of the commission of the offense, as defined in subdivision (b) of Section 1203.066, or three or more acts of lewd or lascivious conduct, as defined in Section 288, with a child under the age of 14 years at the time of the commission of the offense is guilty of the offense of continuous sexual abuse of a child and shall be punished by imprisonment in the state prison for a term of 6, 12, or 16 years. [¶] (b) To convict under this section the trier of fact, if a jury, need unanimously agree only that the requisite number of acts occurred not on which acts constitute the requisite number. [¶] (c) No other act of substantial sexual conduct, as defined in subdivision (b) of Section 1203.066, with a child under 14 years of age at the time of the commission of the offenses, or lewd and lascivious acts, as defined in Section 288, involving the same victim may be charged in the same proceeding with a charge under this section unless the other charged offense occurred outside the time period charged under this section or the other offense is charged in the alternative. A defendant may be charged with only one count under this section unless more than one victim is involved in which case a separate count may be charged for each victim.”
The court orally instructed: “‘Now, it’s alleged that, as to count 1, the crime occurred between June 1, 2006 and September 30th of 2006. In count 2 the crime occurred between October 1, 2006 and June 29, 2007 and as to counts 3 and 4 those crimes occurred between June 30, 2007 and March 12, 2009. [¶] ‘People are not required to prove that the crimes took place exactly on a particular date. Only that it happened reasonably close to those dates or in between those dates.”
The court’s written instruction provided: “It is alleged that the crime occurred on [or about] ___ . The People are not required to prove that the crime took place exactly on that day but only that it happened reasonably close to that day. [¶] CT. 1: BETWEEN 6-1-06 AND 9-30-06 [¶] CT. 2: BETWEEN 10-1-06 AND 6-29-07 [¶] CT. 3 AND 4: BETWEEN 6-30-07 AND 3-12-09.”
Martinez contends “the prosecution had to prove beyond a reasonable doubt not only that three or more acts of sexual intercourse were committed but that three or [more] months passed between the first and last act.... Moreover, it had to establish[] that each of these predicate acts had been committed before Guadalupe[’s] 14th birthday.... Under the instructions, however, sexual relations... that occurred shortly after her [14th] birthday, could be included in the matrix of determining whether 90 days had passed between the first an[d] last acts. Indeed, an act that occurred shortly after her [14th] birthday could be included... since it sufficed if ‘it happened reasonably close to that date.’”
We disagree. The court instructed the jury (CALCRIM No. 1120) that to prove Martinez guilty of continuous sexual abuse of a child under the age of 14, the prosecution “must prove that: [¶]... [¶] 2. The defendant was engaged in three or more acts of (substantial sexual conduct/[or] lewd or lascivious conduct) with the child; [¶] 3. Three or more months passed between the first and last acts; AND [¶] 4. The child was under the age of 14 years at the time of the acts.... [¶] You cannot convict the defendant unless all of you agree that he committed three or more acts over a period of at least three months.... [¶]... [¶] Under the law, a person becomes one year older as soon as the first minute of his or her birthday has begun.” (Italics added.) The correctness of jury instructions is reviewed in light of the court’s entire charge to the jury. (People v. Crandell (1988) 46 Cal.3d 833, 874.)
Here, there is no reasonable likelihood the jury misconstrued CALCRIM No. 207 to convict Martinez of continuous sexual abuse based on conduct occurring after Guadalupe’s 14th birthday. As noted, the instructions required the prosecution to prove Guadalupe “was under the age of 14 years at the time of the acts.” (CALCRIM No. 1120.) No juror would have concluded that acts occurring “reasonably close, ” but after, the dates specified would suffice. The court correctly instructed the jury that before it could return a guilty verdict it must find beyond a reasonable doubt Martinez committed at least three prohibited sex acts against Guadalupe over a span of at least three months, before she turned 14 years old on June 30, 2007.
Martinez also argues the Use Notes to CALCRIM No. 207 provide it is error to give the instruction when similar offenses are charged in separate counts, stating, “In this case four similar offenses were charged....” The cases referred to in the Use Notes concern very different situations, where a single crime occurring on a discrete date was charged, but the evidence suggested more than one possible occurrence. For example, in People v. Gavin (1971) 21 Cal.App.3d 408, 411, the defendant was charged with possession of controlled drugs on October 25. Evidence presented at trial suggested the defendant also may have possessed drugs on September 27. The court provided CALJIC No. 4.71, similar to CALCRIM No. 207. The jury asked for guidance concerning “‘the time element involved when referring to “on or about, ”’” and requested a rereading of the portion of testimony relating to the earlier possession. Defense counsel argued the jury was apparently struggling with the fact of the earlier possession and objected the instruction “‘allow[ed] them to go back and encompass that particular act, and if so, I would object to allowing that to go back some 30 days before the day in question....’” (Gavin, at pp. 416-417.) The trial court read a dictionary definition of “on or about.” The prosecutor declined to expressly elect one act or the other.
The appellate court held the court’s failure to clear up the jury’s confusion regarding the earlier possession was fundamentally unfair to the defendant because “[a]pparently some juror or jurors were not convinced that defendant was responsible for the drugs found in her house on the night of October 24-25, but were willing to find her guilty of possessing amphetamines on September 27. The judge’s comments reflect his recognition of that situation, and his belief that he was powerless to relieve it. The abstract definitions of ‘on or about’ which the court read to the jury did not enlighten them at all on this matter. The simple and proper solution would have been for the court to tell the jury directly that the People’s evidence had been offered to prove that defendant unlawfully possessed drugs on October 24 and 25, 1969; and defendant was not charged with possession on any other date. [¶]... The ‘on or about’ instruction given by the court at the request of the People was, in the context of this case, confusing. The jury itself called attention to the ambiguity, and defense counsel specifically pointed out the defect and its possible consequences. It was then the duty of the court to correct its mistake.” (Id. at p. 418, fn. omitted.)
Here, the evidence at trial supported a finding of hundreds of acts of sexual intercourse occurring from mid-2006 through March 12, 2009. The prosecutor explained he had charged the initial act resulting in conception as count 1, subsequent acts occurring before Guadalupe’s 14th birthday as count 2, and the first and last acts occurring after her 14th birthday as counts 3 and 4. The jurors did not express any confusion. The concerns expressed in the Use Note were not present in this case.
Finally, Martinez complains that in reading CALCRIM No. 207, the court omitted the word “alleged” before referring to counts 2, 3 and 4. As noted, the court orally instructed: “Now, it’s alleged that, as to count 1, the crime occurred between June 1, 2006 and September 30th of 2006. In count 2 the crime occurred between October 1, 2006 and June 29, 2007 and as to counts 3 and 4, those crimes occurred between June 30, 2007 and March 12, 2009.” He contends the court’s oral instruction “presumes that the crimes alleged in counts 2, 3, and 4, were committed.” We disagree. Any reasonable jury would have understood the court’s reference to the “alleged” offense in count 1 also applied to the subsequent counts the court listed in quick succession. Trial counsel did not object, which suggests a person hearing the instruction would not have been misled. The court instructed the jury that “[e]ach of the counts charged in this case is a separate crime. You must consider each count separately and return a separate verdict for each one, ” (CALCRIM No. 3515) and required the prosecution to prove Martinez’s guilt beyond a reasonable doubt (CALCRIM No. 220). Also, the jury received a written copy of the instruction. It referenced “alleged” in a context that clearly applied to each count. There is no indication jurors were confused by the difference between the oral and written versions of CALCRIM No. 207. We discern no basis to reverse.
III
Disposition
The judgment is affirmed.
WE CONCUR: BEDSWORTH, ACTING P.J., FYBEL, J.