Opinion
Superior Court County of Los Angeles, Super. Ct. No. TA078447, Los Angeles County, William R. Chidsey, Jr., Judge.
Allen G. Weinberger for Defendant and Appellant.
Edmund G. Brown, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, David F. Glassman, Deputy Attorney General, for Plaintiff and Respondent.
GILBERT, P.J.
A jury found Mario E. Osorio guilty of continuous sexual abuse of a person under 14 years of age, as alleged in count 1 (Pen. Code, § 288.5, subd. (a)); oral copulation with a person under 16, as alleged in count 4 (§ 288, subd. (b)(2)); and oral copulation with a person under 18, as alleged in count 5 (§ 288, subd. (b)(1)). The jury acquitted Osorio on counts alleging sodomy of a person under 16, assault with a deadly weapon and making criminal threats. Osorio was sentenced to 17 years and 4 months in prison.
All statutory references are to the Penal Code.
The trial court imposed the upper term on count 1 with consecutive terms on counts 4 and 5. We reverse the sentence as to count 1, and remand for resentencing pursuant to Cunningham v. California (2007) 549 U.S. __ [166 L.Ed.2d 856].)
FACTS
In January of 2001 Arlene M. was 12 years old. Osorio married her mother around 1996.
Between January and April of 2001, Arlene lived with her mother and Osorio on Mansel Avenue in Inglewood. During this period, Arlene had a sexual relationship with Osorio that included oral, vaginal and anal sex. Osorio had intercourse with Arlene more than twice a week.
In April of 2001, when Arlene was 13 years old, the family moved to El Paso, Texas. They stayed there until September of 2001. Osorio had sexual intercourse with Arlene in Texas.
In September of 2001, the family moved to Buren Avenue in Inglewood. Arlene had sexual encounters with Osorio about twice a week. The encounters would include oral, vaginal and anal sex.
In December of 2001, Arlene moved with Osorio to a house in Hawthorne. From December of 2001 until June of 2004, during which time Arlene was 13 to 15 years old, Osorio continued to have a sexual relationship with her. The sex included vaginal and anal intercourse and oral copulation.
In June of 2004, shortly before Arlene turned 16, the family moved to a house in Lynwood. Osorio and Arlene continued to have sex three or four times a week.
In March of 2005, Arlene's boyfriend told sheriff's deputies that Osorio threatened him with a firearm. While Arlene was being questioned, she told a sheriff's deputy Osorio had been molesting her since she was 12.
Deputies took Osorio into custody. He agreed to talk with Detective Richard Ruiz. The interrogation was recorded. Osorio admitted he had sex with Arlene about two times a week when they were living on Mansel Avenue in Inglewood, including oral copulation and vaginal intercourse. They lived on Mansel Avenue between January and April of 2001. Arlene was 12.
Osorio also admitted he had sexual relations with Arlene between April and September of 2001 when they lived in El Paso, Texas. They would have sex every week or two weeks. The sex included oral copulation and vaginal intercourse.
Osorio said he and Arlene only had sex twice when they lived on Buren Avenue in Inglewood between September and December of 2001. It was oral copulation. When the family moved to Hawthorne, Osorio said he and Arlene had sexual relations every weekend, or around 70 times. The sexual relations included oral sex and vaginal intercourse.
Finally, Osorio said that when the family moved to Lynwood, from about December of 2001 to June of 2004, he and Arlene had sexual relations every weekend. This included oral sex and vaginal intercourse.
Defense
Osorio testified on his own behalf. He denied he ever sexually molested Arlene. He said he confessed because he feared he would be mistreated by the police.
DISCUSSION
I
Osorio contends his conviction on count 4, alleging oral copulation with a person under 16 years, and count 5, alleging oral copulation with a person under 18 years, must be reversed. Osorio believes the convictions on counts 4 and 5 conflict with section 288.5, subdivision (c).
The jury convicted Osorio of violating section 288.5, subdivision (a), continuous sexual abuse of a child under age 14, as alleged in count 1. Section 288.5, subdivision (c), provides in part: "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 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."
The information alleged the offenses in count 1 occurred until Arlene was 14, the offenses alleged in count 4 occurred between the ages of 14 and 16, and the offenses alleged in count 5 occurred after Arlene turned 16. But the dates alleged in the information were never provided to the jury. The jury was neither instructed to find that the offenses occurred on or between any particular dates, nor did the verdict forms provide any particular dates. At best, the prosecutor told the jury in closing arguments that count 5 is "for a victim under the age of 18 years old but over the age of 16." Osorio argues the jury could have convicted him of the offenses alleged in counts 4 and 5 based on the same conduct it used to convict him of the offense alleged in count 1. That would violate section 288.5, subdivision (c).
But the error is harmless by any standard. Osorio confessed that he committed the offenses alleged in counts 1, 4, and 5 during the time periods alleged. Osorio's confession paralleled Arlene's testimony, except that he did not admit to sodomizing her. Osorio was acquitted of the sodomy counts. Obviously, the jury did not believe Osorio's defense that he never molested Arlene and that he made up his confession. An instruction that the jury must find the acts which constituted counts 4 and 5 must have occurred outside the time period alleged in count 1, would not have produced a result more favorable to Osorio.
II
Osorio contends the trial court erred in failing to give sua sponte unanimity instruction, such as CALJIC No. 17.01 (CALCRIM No. 17.01). He argues the instruction was necessary because the jury was presented with evidence regarding oral copulation over a broad period of time, much of it overlapping count 1.
A unanimity instruction is necessary only if jurors could disagree on which act the defendant committed and yet convict him of the crime charged. (People v. Champion (1995) 9 Cal.4th 879, 932.) The possibility of such disagreement exists where the defendant is accused of a number of unrelated incidents, leaving the jurors free to believe different parts of the evidence and yet convict the defendant. (People v. Gonzalez (1983) 141 Cal.App.3d 786, 791-792.) Disagreement might also exist where the defendant offers a defense which could be accepted or rejected by a juror as to some but not all the acts. (Ibid.) Where the acts were substantially identical in nature, so that any juror believing one act took place would inexorably believe all acts took place, the instruction is not necessary. (People v. Champion, supra, at p. 932.)
Here Osorio confessed to all the crimes of which he was convicted. His defense to all the acts was the same: he did not molest Arlene. There was no basis on which a jury could disagree on which acts Osorio committed. The unanimity instruction was not required.
III
Osorio contends the trial court erred in sentencing him to the upper term on count 1, continuous sexual abuse of a person under age 14, and in sentencing him to consecutive terms for the remaining counts.
In sentencing Osorio to the upper term, the court found that Osorio had no prior criminal record as a mitigating circumstance. The court found three aggravating circumstances: that the victim was particularly vulnerable because Osorio was her stepfather; that Osorio as the victim's stepfather took advantage of a position of trust and confidence; and that the crimes show sophistication and planning in that they took place over an extended period of time.
Osorio argues that the trial court's imposition of the upper term and consecutive terms violated his right to a jury trial and due process. Osorio is correct that the United States Supreme Court decided in Cunningham v. California, supra, 549 U.S. __ [166 L.Ed.2d 856], that the factors used to impose the upper term must be decided by a jury. Cunningham, however, did not discuss the imposition of consecutive terms. Thus the California Supreme Court's opinion in People v. Black (2005) 35 Cal.4th 1238, remains controlling on the question whether a jury is necessary to determine the factors used to impose consecutive sentences. In Black, our Supreme Court decided a jury was not necessary. (Id. at p. 1262.) We must reverse and remand only on the question whether the upper term should be imposed on count 1.
We consider Osorio's other sentencing arguments in the event it might be helpful to the trial court on remand.
Osorio argues there is no evidence to support the finding that his victim was particularly vulnerable. He cites People v. Loudermilk (1987) 195 Cal.App.3d 996, 1001, for the proposition that the victim's vulnerability must be in a special or unusual degree, to an extent greater than in other cases. Osorio claims that here the victim was no more vulnerable than the typical victim of section 288.5. But here Osorio was the victim's stepfather. Section 288.5 does not require that the molester have any familial relationship with the victim. It can be anyone who lives in the same house as the victim, including a stranger who rents a room. (See People v. Clark (1992) 12 Cal.App.4th 663, 666.) That the molester is the victim's stepfather, supports a finding that the victim is particularly vulnerable. (Ibid.) For the same reason, that Osorio was the victim's stepfather supports the finding that he occupied a position of trust and confidence. (Ibid.)
Osorio points out that the trial court used his status as the victim's stepfather to find two aggravating factors: the victim's vulnerability and Osorio's position of trust and confidence. Although Osorio's parental relationship falls under both categories, it can only be credited to one, and cannot be counted as two aggravating circumstances. (People v. Clark, supra, 12 Cal.App.4th at p. 666.)
Osorio argues there is no evidence to support the finding that the crime was carried out with planning and sophistication. In so finding, the trial court stated that the crime took place over an extended period of time. Osorio claims that the factor is probably present in every residential child molester case. But section 288.5 requires only three acts of substantial sexual contact over three months. Here the evidence shows that sexual contact took place regularly from the time the victim was 12 until she was 14. Regular contact over a long period of time supports the conclusion that these were not simply acts of opportunity, but were the product of planning and sophistication.
IV
Finally, Osorio contends his punishment for counts 4 and 5 must be stayed under section 654.
Section 654 prohibits multiple punishment for the same act. It applies not only to a single act, but also to a course of conduct that constitutes an indivisible transaction. (People v. Flowers (1982) 132 Cal.App.3d 584, 588.) In the case of multiple sexual offenses against the same victim, each offense is deemed to have a separate objective, and is not part of an indivisible transaction within the meaning of section 654. (People v. Harrison (1989) 48 Cal.3d 321, 335-336.)
Osorio argues the oral copulation alleged in counts 4 and 5 occurred during the period of continuous sexual abuse alleged in count 1. But we have already disposed of that argument. The acts alleged in counts 4 and 5 occurred after the period of continuous sexual abuse alleged in count 1. The acts alleged in counts 4 and 5 are not governed by section 654. (People v. Harrison, supra, 48 Cal.3d at pp. 335-336.)
The matter is reversed and remanded for resentencing on count 1. In all other respects, the judgment is affirmed.
We concur: COFFEE, J., PERREN, J.