Opinion
A095928.
7-28-2003
THE PEOPLE, Plaintiff and Respondent, v. JOSE MARIO SARAVIA, Defendant and Appellant.
I.
INTRODUCTION
A jury convicted appellant Jose Mario Saravia of four counts of forcible commission of a lewd act on a child, in violation of Penal Code section 288, subdivision (b)(1). It was further found that appellant had substantial sexual conduct with a child under the age of 14, within the meaning of section 1203.066, subdivision (a)(8). After being sentenced to state prison for a total determinate term of 24 years, appellant filed this appeal. Appellant claims his due process rights were violated when the trial court failed to instruct the jury sua sponte on the requirement of unanimity pursuant to CALJIC No. 17.01. He also claims that there is insufficient evidence to support the convictions. We affirm.
All undesignated statutory references are to the Penal Code. The record shows that the first trial on these charges ended in a mistrial as a result of the jurys inability to reach a unanimous verdict.
Nothing the victim described is impossible or refuted by uncontestable facts. In fact, the victims version of events was supported by evidence from a physical exam, which showed trauma to his rectum that could only be
II.
FACTS AND PROCEDURAL HISTORY
The parties have fully summarized the evidence. We do so in less detail and in a light favorable to the judgment. In 1996, appellant lived with the victim, who was approximately four years old, and his mother. During the time appellant lived with the victim, he repeatedly sodomized him while the victims mother was at work. Eventually, in October 1996, the child reported to his mother that appellant was molesting him. The child said, "Mario had put his penis in his bottom on many different times." Appellant was known as "Mario." After the childs disclosure, the victims mother spoke to appellant, and appellant moved out of the apartment.
Immediately following the disclosure, the mother took her son to Kaiser Hospital in Walnut Creek and attempted to tell the staff about the assaults, but she did not speak English, and none of the staff on duty spoke Spanish. Ultimately, the hospital staff sent the minor home with some cream to apply to his bottom.
Afterward, the minor was unable to control his bowels, and he routinely soiled himself. During a doctors visit on February 20, 2000, the victim told the doctor about the prior sexual assault.
On February 20, 2000, Detective Ivan Menchaca of the Concord Police Department began an investigation after receiving a phone call from a nurse at the Kaiser Hospital regarding the minors complaint of sexual abuse. On March 17, 2000, Detective Manchaca interviewed the victim. During the interview, the victim told Detective Menchaca that appellant had repeatedly sodomized him while his mother was at work. Appellant would lower the childs underwear, then pull down his own underwear while they were standing on the floor. The child said "that when Mario put his penis in his butt, he would put it in and take it out three times, and Mario would put his penis all the way [inside] his butt." Afterward, the child would have to go to the bathroom and defecate.
On April 20, 2000, Dr. Walter Keller, a pediatrician specializing in the investigation of child sexual assault cases, performed an examination on the child. Dr. Keller examined the childs anus and made two notable observations. First, Dr. Keller observed a scar between the anus and the scrotum. This scar resulted from a tear or fissure that "almost certainly would have been bleeding at some point." Second, Dr. Keller observed a subsidence of the subcutaneous tissue in the perianal area, forming a cupping or concaved deformity around the anus. Both findings were "indicative of repeated anal penetrations," and were more substantial than the injuries Dr. Keller usually sees. There was no explanation for these injuries other than repeated anal penetrations.
On April 24, 2000, Detective Menchaca again met with the child. In response to a question, the child stated that appellant sodomized him 20 times. The child remembered that on four occasions he tried to get away, but appellant grabbed him or guided him back to the room where the assaults took place. On the other occasions, appellant talked the child into staying in the room.
Appellant testified in his own defense and denied ever sodomizing the child, touching him improperly, undressing the child, or even undressing himself in front of the child. Appellant stated, "I havent done nothing to the child. Why would I do something to him? That cant be. Not even when-not even if I had been drinking because I dont drink. I dont have any vices."
A. Juror Unanimity
Appellant first argues that the court erred in failing to instruct the jury sua sponte regarding unanimous agreement on the specific acts constituting the bases for counts one through four, each of which alleged a forcible lewd act against the minor in violation of section 288, subdivision (b)(1). Appellant claims the omission of a unanimity instruction permitted the jury to convict him where the jury did not agree on the specific act of molestation he performed. Respondent agrees that the court had a sua sponte duty to give a modified unanimity instruction, but maintains that the error was harmless. "When an accusatory pleading charges the defendant with a single criminal act and the evidence presented at trial tends to show more than one such unlawful act, either the prosecution must elect the specific act relied upon to prove the charge to the jury, or the court must instruct the jury that it must unanimously agree that the defendant committed the same specific criminal act. [Citation.]" (People v. Melhado (1998) 60 Cal.App.4th 1529, 1534.) This requirement is founded in a criminal defendants constitutional right to due process and trial by jury, under which a defendant "is entitled to a verdict in which all 12 jurors concur, beyond a reasonable doubt, as to each count charged. [Citation.]" (Ibid., quoting People v. Jones (1990) 51 Cal.3d 294, 305, 270 Cal. Rptr. 611, 792 P.2d 643 (Jones); see also Cal. Const., art. I, § 16; 5 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Trial, § 645, p. 927.)
In Jones, supra, 51 Cal.3d 294, our Supreme Court discussed at length the tension between a defendants constitutional right to jury unanimity as to the criminal act charged and the difficulties of proving a series of molestations by a "resident" child molester. Jones began its discussion by noting, "Child molestation cases frequently involve difficult, even paradoxical, proof problems. A young victim . . ., assertedly molested over a substantial period by a parent or other adult residing in his home, may have no practical way of recollecting, reconstructing, distinguishing or identifying by specific incidents or dates all or even any such incidents." (Id. at p. 305.) The child victim is often able to offer only "generic" testimony. Typically, the child may testify that there were repeated acts of molestation over a period of time but cannot furnish many specific details, dates, or characteristics that distinguish the separate, individual acts. (Ibid.) Absent such details, it is difficult if not impossible for the jury to unanimously agree that the defendant committed the same particular criminal act. But if a defendant cannot be found guilty unless all 12 jurors can agree on which particular act on which particular occasion he committed, the molester is effectively insulated from prosecution in the case of repetitive molestations. (Ibid.)
Jones held that this inability to segregate repeated identical offenses does not necessarily make jury unanimity unattainable. (Jones, supra, 51 Cal.3d at p. 321.) "In such cases, although the jury may not be able to readily distinguish [among] the various acts, it is certainly capable of unanimously agreeing that they took place in the number and manner described. [P] Even generic testimony describes a repeated series of specific, though indistinguishable, acts of molestation. [Citation.] The unanimity instruction assists in focusing the jurys 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 . . . three minimum prerequisites . . . are satisfied." (Ibid., italics omitted.)
If the evidence indicates the jurors might disagree as to the particular act committed, such as when the defendant raises separate defenses to the offenses at issue, the standard unanimity instruction should be given. (Jones, supra, 51 Cal.3d at pp. 321-322.) However, if "there is no reasonable likelihood of juror disagreement as to the 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. [P] Because credibility is usually the true issue in these [generic testimony] cases, the jury either will believe the childs testimony that the consistent, repetitive pattern of acts occurred or disbelieve it. In either event, a defendant will have his unanimous jury verdict [citation] and the prosecution will have proven beyond a reasonable doubt that the defendant committed a specific act, for if the jury believes the defendant committed all the acts it necessarily believes he committed each specific act [citations]. " (Id. at p. 322.)
Respondent concedes that a modified unanimity instruction should have been given to the jury at the time it was instructed on the four counts of forcible lewd conduct under section 288, subdivision (b)(1). However, respondent claims that while the court was technically required to give a modified unanimity instruction, the failure to do so was necessarily harmless where, as here, the charged acts were substantively identical, and the only question presented was whether appellant committed all or none of the charged offenses. We agree.
The nature of the charge, of course, impacts due process considerations. In this case the allegations of the information were sufficient to meet appellants due process concerns. While the jury heard generic testimony of very similar acts occurring many times, the information described four specific instances. The information gave notice to appellant that he was accused of four separate counts of committing a forcible lewd act on a child under the age of 14 ( § 288, subd. (b)(1)) described as follows: (1) Count One-"The first time John Doe tried to get away from the defendant, the defendant placed his penis on the buttocks of John Doe." (2) Count Two-"The last time John Doe tried to get away from the defendant, and the defendant placed his penis on the buttocks of John Doe." (3) Count Three-"The first time John Doe did not try to get away from the defendant and the defendant placed his penis on the buttocks of John Doe." (4) Count Four-"The last time John Doe did not try to get away from the defendant and the defendant placed his penis on the buttocks of John Doe." The information charged that each assault occurred between January 1996 and December 1997. The jury was instructed that in order to reach a verdict, "all 12 jurors must agree to the decision and to any findings that you have been instructed to include in your verdict." The jury returned separate verdicts as to each count, which particularly described the nature of the act that constituted each count. Thus, the prosecutor made a clear election as to what acts constituted the four charges and the timeframe within which they were committed.
Furthermore, a conviction will be reversed for failing to give a unanimity instruction unless the failure was harmless beyond a reasonable doubt. (See People v. Matute (2002) 103 Cal.App.4th 1437, 1449; People v. Brown (1996) 42 Cal.App.4th 1493, 1502 (Brown).) In determining whether the error is harmless, "the important question is whether there was anything in the record . . . to support discriminating between the two incidents such that the jury could find that appellant committed one molestation but not the other. [Citation.]" (Brown , supra, at p. 1502.) Stated slightly differently, " "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 [unanimity] instruction is not necessary to the jurys understanding of the case." [Citations.]" (People v. Champion (1995) 9 Cal.4th 879, 932, 891 P.2d 93.)
When the evidence at trial is analyzed in light of this standard, it is hard to imagine how the jury could have come to anything but a unanimous conclusion on the evidence in this case. The purpose of the unanimity instruction is to prevent the jury from amalgamating evidence of multiple offenses, not one of which has been proven beyond a reasonable doubt, in order to conclude that a defendant must have done something in order to convict. (People v. Deletto (1983) 147 Cal. App. 3d 458, 472, 195 Cal. Rptr. 233.) However, there was no evidence presented in the case at bench that could be added up in such a way. The victim described a continuous course of conduct, and no evidence was introduced from which the jury could have distinguished one act from another. Appellant testified and denied that the acts occurred. The jurors could either accept the victims testimony as a whole or reject it as a whole, but there was no evidence that presented an individual juror with the option of distinguishing between the acts and basing a guilty verdict on one portion of the testimony that another juror rejected. The evidence simply did not permit the jurors to make anything other than a unanimous decision that appellant committed all or none of the acts. Thus, it is clear beyond a reasonable doubt that the jury unanimously agreed that the offenses charged in counts one through four occurred as described, regardless of the absence of a unanimity instruction.
B. Sufficiency of the Evidence
Appellant begins his attack on the evidence supporting the four lewd act convictions by asserting that in "this case, the actual or guessed at number of alleged assaults that supposedly occurred changed constantly, when-in-time they occurred changed constantly, the age of [the victim] when they occurred changed constantly, when-in-time they were first discovered and/or reported by [the victims] mother changed constantly, and how many assaults the police were told occurred changed constantly." He insists "the generic testimony in the present case is utterly lacking in credibility."
We review the evidence at trial under the applicable standards. "The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [P] Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witnesss credibility for that of the fact finder. [Citations.]" (Jones , supra, 51 Cal.3d at p. 314.)
The court in Jones concluded that even generic testimony—such as that an act of intercourse occurred monthly over a period of years—could provide substantial evidence in support of a judgment. Such testimony, the court explained, outlines a series of specific incidents, each of which constitutes a separate offense and each of which could be separately punished. (Jones , supra, 51 Cal.3d at pp. 313-316.) The particular details of a child molestation charge are not elements of the offense. (Id. at p. 315.)
With regard to conflicts in the evidence, we adopt what the court stated before in People v. Cortes (1999) 71 Cal.App.4th 62: "Although the victim gave inconsistent and conflicting testimony, it was not as a whole incapable of being believed. It was the trial courts function to resolve the inconsistencies and contradictions in her testimony, and, as noted, on appeal we resolve all inferences and inconsistencies in favor of the trial courts findings. [Citations.]" (Id. at pp. 73-74.) We see no reason to resolve the conflict in the victims testimony differently than the jury.
The evidence in this case showed that the victims mother worked at night cleaning offices, and that her work schedule gave appellant ample opportunity to molest the victim. At the time of trial, the victim was seven years old and he described the way in which appellant preyed on him. When appellant lived with the victim and his mother, he did something to the victims "back." The victim testified that appellant "was putting his pico behind me, and I did not like what he was doing." This hurt him. When the victim was interviewed by the investigating officer he recalled that on several occasions, he tried to get away, but appellant grabbed him or guided him back to the room where the assaults took place. On other occasions, appellant talked the victim into staying in the room. The number of counts brought against appellant and the timeframe at issue were clearly explained to the jury, and the prosecutor pointed to the evidence that supported the jurys convictions. explained by repeated anal penetrations. Hence the trials outcome turned on credibility: Did the jury believe the victims accusations or appellants denials? The jury believed the victim. That finding binds us, and we cannot reverse it on appeal.
At trial, the victim used the word "pico" for penis.
III.
DISPOSITION
The judgment is affirmed.
We concur: Kline, P.J., Lambden, J.