P. v. Arciga
Filed 5/8/13 P. v. Arciga CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
TOMAS ARCIGA,
Defendant
and Appellant.
E054961
(Super.Ct.No.
SWF10002510)
OPINION
APPEAL
from the Superior Court
of
County. Jerry E.
Johnson, Judge. (Retired judge of the
Los Angles Super. Ct. assigned by
the Chief Justice pursuant to art. VI, § 6 of the Cal.
Const.) Affirmed.
Robert
E. Boyce, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Felicity Senoski and
Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant
Tomas Arciga is serving 100 years to life after a jury convicted him of four
counts of sodomizing his young nephew.
In this appeal, defendant argues the trial court erred when it failed to
instruct the jury, sua sponte, that
it must unanimously agree on which four incidents formed the basis for the four
charges. As discussed below, we conclude
that the prosecutor unambiguously elected to use the four discrete events that
defendant described during an interview with a sheriff’s deputy, and so no
unanimity instruction was necessary.
and Procedure
Until
he was arrested in November 2010, defendant repeatedly sodomized his young
nephew (the child) over a number of years.
These incidents took place at the child’s home and at defendant’s home
and ended when the child was eight years old.
On
March 25, 2011, the People
filed an information charging defendant with four counts of engaging in sodomy
with a child age 10 or younger. (Pen.
Code, § 288.7, subd. (a).) On September 19, 2011, the People filed
an amended information charging these same crimes and specifying that each took
place “on or about January, 2009 through and including November, 2010.â€
The
jury in defendant’s trial heard testimony on September 21, 2011.
First, the jury viewed a 49-minute videotape of the child’s Riverside
Child Assessment Team (RCAT) interview, which was also provided to them in a
transcript. The child testified briefly
before and after the videotape. The
transcript of the interview indicates the child told the interviewer that
defendant “touch[ed] [his] back part†“a lot of times†with defendant’s “front
part†and that the child had bled from there.
This took place at night and in the early morning, both at the child’s
home and at defendant’s home. The child
stated that sometimes he would tell defendant to stop, and that sometimes
defendant would stop, but sometimes he would say “I’m almost finished.†The child thought he was “like 3 or 5†when
defendant began to touch him like that.
The child said the last time the touching happened was at his own home,
after he turned 8 in June of 2010, but before school started for third grade.
stating that he kept telling defendant to stop.
The child then described another act of sodomy that took place in
defendant’s bedroom, and said that “it†happened more than one time. The child said that it happened also when he
was in second grade at both his house and in defendant’s bedroom. The child said that, whenever defendant spent
the night at the child’s home, “it†happened “most of the time.â€
Second, the
child’s mother testified. She stated
that defendant was her cousin and had lived at her home with her family in Moreno
Valley for about five months in
2007 or 2008. Even after defendant moved
to his own home in San Jacinto, he would “many timesâ€
come to their home to spend the night.
Defendant would sleep on the floor of their living room and the mother
would sometimes find the child sleeping downstairs with the defendant, even
though the child had been told not to.
The child and his siblings would also spend the night at defendant’s
home, mostly on Tuesdays. When the child
was about seven years old, they had a conversation in which the mother told the
child not to let anyone touch his private parts. At that time, the child told his mother that
defendant “sometimes slaps me in the butt.â€
The mother then warned defendant not to “do anything to my children,
because I will put you in jail.â€
In November of
2010, when the child was eight years old, he told his mother that defendant was
“touching his part.†The child did not
say very much, but he cried a lot. The
mother spoke with her husband, and with a friend, and later that evening spoke
with police. About two weeks later, she
took the child to a hospital where some people spoke to her child with her
outside of the room.
The final witness
was Corporal Sandoval from the Riverside Sheriff’s Department. In late 2010 he was a sheriff’s deputy with
10 years of experience and extensive training in interviewing and interrogating
crime suspects. On December 8, 2010, Sandoval interviewed defendant
for three to four hours. The interview
was audio and video recorded on the hard drive of a computer in the next
room. During the interview, defendant
initially stated that he had sexual contact with the child on three
occasions. The first took place in Moreno
Valley approximately one year
prior. The defendant described contact
between his penis and the child’s anus, but no penetration. Defendant began to describe a second incident
of sexual contact, then “suddenly said that he had only spanked the victim’s
buttocks.†At that point, Sandoval
determined it was time for a break in the interview. As he left, Sandoval asked defendant if he
thought they would be able to find any of his DNA on the child or the child’s
underwear. Sandoval went into the next
room to observe defendant.
When Sandoval
returned to the interview room, he told defendant that he had evidence
confirming that defendant had been raping the child. Defendant then described four separate
incidents of sodomy. The first occurred
at his mobile home in San Jacinto approximately one year prior to the
interview. Defendant sodomized the child
while the child sat on his lap on the couch.
The second incident occurred in Moreno Valley, also approximately one
year prior to the interview. Defendant
and the victim were lying on the floor downstairs while the child’s family was
sleeping upstairs. Defendant asked the
child in Spanish “me das tu colita†which translates roughly as “son, can I
have your small butt.†The child
initially said no, but eventually agreed after defendant continued to
insist. Defendant sodomized the
child. When defendant ejaculated, the
child told him it felt like defendant had urinated on him. Defendant wiped the child down and they went
to sleep. The third incident occurred at
defendant’s mobile home in San Jacinto, three to four months prior to the
interview. Defendant began to sodomize
the child in the living room, and then moved to the bedroom. The child asked defendant if he was almost
done. Defendant stated that he was, and
then continued until he was finished.
The fourth incident occurred in the child’s Moreno Valley home 15 to 30
days prior to the interview. Defendant
and the victim were downstairs lying on the floor while the child’s family was
upstairs asleep. Defendant sodomized the
child. During this, the child asked him
if he was done, or to stop. Defendant
stated he was almost done and then continued until he was finished.
Sandoval asked the
defendant if there were any other incidents.
Defendant stated “that similar incidents had occurred a total of four to
six times†and briefly described a “fifth†incident in which he penetrated the
child’s anus with one of his fingers.
Sandoval then asked defendant if he had anything else he wanted to say,
or any questions. Sandoval asked
defendant if he would write a letter of apology to the child’s family, and
defendant agreed to do so. Sandoval read
the letter to the jury, translating from Spanish to English.
Sandoval testified
that, after the interview was concluded, he went into the next room and copied
the interview from the computer’s hard drive onto a DVD or CD,
letter into the evidence file for this case.
Sandoval sat at the computer and reviewed the recorded interview while
he typed his report summarizing the interview, pushing “stop†and “play†at
will. The CD or DVD that Sandoval burned
was later determined to be defective, and he was not able to retrieve the file
from the computer with the help of an information technology consultant. For this reason, Sandoval’s memory and the
written report are the only accounts of the interview with defendant.
On September 22,
2011, the jury convicted defendant of all four counts. On November 4, 2011, the trial court
sentenced defendant to four consecutive life terms, for a total of 100 years to
life. This appeal followed.
Defendant argues
that because he was charged with only four counts of sodomy, but the evidence
reasonably established that he committed far more more than four such acts, the
trial court committed prejudicial error in failing to instruct the jury, sua
sponte, with either Judicial Council of California Criminal Jury Instruction,
CALCRIM No. 3500 or No. 3501, the unanimity instruction. We disagree.
A criminal
defendant is entitled to a verdict in which all 12 jurors concur as a matter of
due process under the state and federal
Constitutions. (People v. Russo (2001) 25 Cal.4th 1124, 1132.) In any case in which the evidence would
permit jurors to find the defendant guilty of a crime based on two or more
discrete acts, either the prosecutor must elect among the alternatives or the
court must require the jury to agree on the same criminal act. (Id.
at pp. 1132-1133.) Where it is
warranted, the court must give the instruction sua sponte. (People
v. Riel (2000) 22 Cal.4th 1153, 1199.)
The omission of a unanimity instruction is reversible error if, without
it, some jurors may have believed the defendant guilty based on one act, while
others may have believed him guilty based on another. (Russo,
supra, 25 Cal.4th at p. 1133.)
Here, the trial
court was not required to give the unanimity instruction because the
prosecution elected to have the jury consider only the four incidents of sodomy
to which defendant confessed during his interview with Corporal Sandoval. The jury heard evidence about these four
incidents. The jury also heard from
Sandoval that, before he told defendant that there was physical evidence,
defendant had stated that he merely had non-penetrating sexual contact with the
child on three occasions, and had described two occasions, neither of which was
sodomy. In addition, the jury heard the
child describe during the RCAT interview several incidents of sodomy. Defendant claims in this appeal that the jury
could have convicted him of the four counts, but without agreeing unanimously
on which incidents constituted the four counts.
This argument fails because the prosecutor specified in his
were based on the four incidents of sodomy to which Sandoval testified that
defendant confessed during their interview on December 8, 2010.
In his closing
statement, the prosecutor made the following comments mentioning the four
charged counts:
“And we’ve only
charged four counts. And the evidence has
proven beyond a reasonable doubt that this—these interactions probably happened
far more than four times.â€
“ . . . and
he abused him sexually, multiple times.
Many times. As I said, he was
there one to two times a week.
counts that he admits to.â€
“There’s only one
reasonable conclusion in this case, and that is the defendant sodomized this
young boy more than four times. But he’s
charged with four separate acts of sodomy of [John Doe].â€
“I’m asking you to
look at the evidence in this case, and come to the conclusion, the only
reasonable conclusion based on the evidence, that the defendant is guilty of
sodomizing his nephew four times.â€
With the statement
“And all we’ve charged is four counts, four counts that he admits to,†the
prosecutor clearly elected to prove the four charges with defendant’s
description of the four incidents to Officer Sandoval. The prosecutor went on to describe each of
the four acts in detail, just as related to Corporal Sandoval by
defendant. The prosecutor then commented
that these accounts by defendant are corroborated by testimony from the child
and from his mother, in that the abuse happened both at the child’s home in
Moreno Valley and at defendant’s home in San Jacinto and “in the same time
frame that [John Doe] has told us about, in the same time frame that we know
the defendant had access to [John Doe], based on his mom.†Thus, it is clear from the prosecutor’s
closing argument that the four sodomy counts are based on the four particular
instances described by defendant in the second portion of his interview. The testimony of the child and his mother are
used only for corroboration as to the general time frame and the two places
where the crimes were committed. The
prosecutor clearly did not use this testimony to establish additional instances
of abuse. Thus, the trial court had no
duty to instruction the jury, sua sponte,
on the unanimity requirement.
Disposition
The judgment is
affirmed.
NOT TO BE
PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
McKINSTER
J.
CODRINGTON
J.
name="_ftn1" title=""> [1] This contrasts with the defendant’s own
statements, set forth below, that the last incident happened 15 to 30 days
before defendant’s interview with the sheriff’s deputy in December 2010.
name="_ftn2" title=""> [2] Sandoval called the item a CD, the prosecutor
called it a DVD.
