P. v. First
Filed 4/13/11 P. v. First CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
| THE PEOPLE, Plaintiff and Respondent, v. DAVID DUAIN FIRST, Defendant and Appellant. | E049482 (Super.Ct.No. RIF139437) OPINION |
APPEAL from the Superior Court of Riverside County. W. Charles Morgan, Judge. Affirmed with directions.
Renee Rich, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton, and Emily R. Hanks, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION[1]
Defendant David Duain First, a man in his 60’s, admitted that he engaged in multiple sexual contacts with two young sisters who were under 14 years of age. A jury convicted defendant of 40 violations of committing a lewd and lascivious act. (§ 288, subd. (a).) The court sentenced him to an indeterminate prison term of 15 years to life under section 667.61.
On appeal, defendant protests the trial court’s failure to give a unanimity instruction. The People argue the case should be remanded for resentencing because defendant was eligible for 40 terms of 15 years to life, or 600 years to life.
We reject defendant’s claims of instructional error and affirm the judgment but remand for resentencing by the trial court according to the proper exercise of its discretion.
II
FACTUAL AND PROCEDURAL BACKGROUND
In January 2006, Jane Doe 1 was 12 years old and her younger sister, Jane Doe 2, was seven years old. The girls lived with their mother, her boyfriend, and their two younger sisters on a property in Rubidoux. The four girls slept in a camper with two bunk beds and no bathrooms. The mother and boyfriend occupied a trailer next door.
Defendant was a friend of the mother’s boyfriend. He babysat the girls two or three nights a week. After watching television, he would sleep with them in the camper, often in the same bed.
Jane Doe 1 testified that she would wake up and find defendant touching her genitals[2] under her clothing. Although she could not remember specific dates or details, he touched her more than 20 times and once told her he loved her.
Jane Doe 2 testified similarly that defendant touched her genitals more than 20 times while she was sleeping. She also saw defendant touching Jane Doe 1.
After the children were removed from mother’s custody and placed in foster care, they confided to their foster sister about the touching.
In a Riverside Child Assessment Team (RCAT) interview, Jane Doe 1 said defendant babysat for the sisters twice a week between November 2005 and March or April 2006. Defendant touched her almost every time. He slept in the bed with her and rubbed her genitals, chest, and leg. Once he grabbed her leg while she was watching television during the day.
In Jane Doe 2’s RCAT interview, she said she thought the molestations began when she was six years old and continued for two years. Defendant touched her genitals inside her underwear. The touching occurred more than 200 times.
Defendant admitted he would stay with the girls three times a week. After initially denying any sexual touching, he then claimed Jane Doe 2 had awakened him by putting his hands inside her underwear on her genitals. He also claimed that Jane Doe 1 had stroked her genitals against his hand. He finally admitted rubbing their genitals but denied penetrating them. He never touched their bare breasts but he bumped against them. He knew it was wrong and would stop when they woke up. He first admitted touching Jane Doe 1 about six times and Jane Doe 2 five or six times. Then he admitted it happened “almost every time” he babysat the girls. He once told Jane Doe 1 she could be his girlfriend if she were older.
III
ANALYSIS
A. Instructional Error
Defendant was charged with 40 counts of committing a lewd act upon a child in violation of section 288, subdivision (a). The trial court did not give either a standard specific acts unanimity instruction, such as Judicial Council of California Criminal Jury Instructions, CALCRIM No. 3500, or a modified unanimity instruction, such as CALCRIM No. 3501. Defendant contends the trial court's failure to give a sua sponte unanimity instruction, combined with giving CALCRIM No. 207, constituted prejudicial error. The People agree a unanimity instruction should have been given but the People deny the failure to give the instruction was prejudicial.
In a criminal case, the jury must agree unanimously the defendant is guilty of a specific crime. (People v. Russo (2001) 25 Cal.4th 1124, 1132.) When “the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. [Citations.]” (Ibid.)
In child sexual molestation cases involving minors and repeated identical offenses, the unanimity rule has been refined: In such cases, although the jury may not be able to readily distinguish between the various acts, it is certainly capable of unanimously agreeing that they took place in the number and manner described.
“As previously stated, even generic testimony describes a repeated series of specific, though indistinguishable, acts of molestation. [Citation.] The unanimity instruction assists in focusing the jury’s 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 the three minimum prerequisites heretofore discussed are satisfied.” (People v. Jones (1990) 51 Cal.3d 294, 321 (Jones).) The three prerequisites include generic evidence describing (1) the type or kind of acts committed, (2) the number or frequency of the acts committed, and (3) the general time period in which these acts occurred. (Id. at p. 316; People v. Matute (2002) 103 Cal.App.4th 1437, 1448 (Matute).)
Here, there was generic testimony describing a repeated series of specific, though indistinguishable, acts of molestation which occurred between November 2005 or January 2006 and March or April 2006. We agree with the People that Jane Doe 1’s descriptions of being touched on her chest and leg did not constitute separate incidents of molestation. Jane Doe 1 and Jane Doe 2 testified that defendant touched them in the same way on numerous occasions. The court should have given an instruction based on CALCRIM No. 3501—providing instruction on unanimity when there is generic evidence of the charged offenses.
Even though the trial court erred in this respect, such error was harmless under Chapman v. California (1967) 386 U.S. 18, 24. (People v. Wolfe (2003) 114 Cal.App.4th 177, 187-188 (Fourth Dist., Div. Two); Matute, supra, 103 Cal.App.4th at p. 1450.) Here, as in Matute, the trial court instructed the jury that: “Your verdict on each count and any special findings must be unanimous. This means that, to return a verdict, all of you must agree to it.” (CALCRIM No. 3550.) Also, as in Matute, there was evidence of more incidents of defendant molesting Jane Does 1 and 2 than the 40 counts for which defendant was convicted. If he molested both girls a minimum of twice a week for three months, the number of incidents would be at least 48.
Furthermore, this case turned on the victims’ credibility. The sisters both testified to similar repeated acts of molestation. Defendant largely admitted his conduct although he claimed to have been tricked into confessing. The failure to instruct properly on unanimity was harmless error: “. . . no miscarriage of justice occurred here. It is not reasonably probable that a result more favorable to appellant would have been reached in the absence of the instructional error because there is no reasonable possibility the jury failed to unanimously agree that appellant committed each specific act for which he was convicted.” (Matute, supra, 103 Cal.App.4th at p. 1450.)
Nor was it prejudicial error to give an instruction based on CALCRIM No. 207: “It is alleged that the crimes occurred between Jan. 2006 through June 2006. The People are not required to prove that the crimes took place exactly on a specific day but only that it happened between Jan. 2006 through June 2006.” The prosecutor alleged and proved the subject crimes occurred within a certain time frame.
Defendant cannot rely on People v. Deletto (1983) 147 Cal.App.3d 458, which involved a factually significant distinction. In Deletto, the defendant was charged with one count of oral copulation but the evidence showed two discrete acts. Here the evidence reflected multiple, separate but indistinguishable, acts occurring over many months. Under the circumstances of this case, it was not error to instruct the jury that the prosecutor did not have to prove the crimes occurred on a specific day.
B. Sentencing Error
In the respondent’s brief, the People introduce the issue of sentencing error. Although as a general rule claims of sentencing error are not reviewed on appeal, the California courts recognize an exception for unauthorized sentences which are reviewable regardless of whether the issue was raised below. (People v. Smith (2001) 24 Cal.4th 849, 852-853, citing People v. Scott (1994) 9 Cal.4th 331, 353-354.) An unauthorized sentence may be corrected on appeal or remanded to the trial court. (People v. Murphy (1998) 65 Cal.App.4th 35, 43.) Because the trial court did not impose any sentence at all on 39 counts, the sentence was not authorized. (Scott, at p. 354.)
The probation report recommended 40 consecutive sentences of 15 years to life, or 600 years to life. Based on its interpretation of section 667.61, the trial court sentenced defendant to a single 15-year-to-life indeterminate term for all 40 counts. The People argue defendant should have been sentenced to 15 years to life for each of the 40 counts, subject to the trial court exercising its discretion to impose the sentences concurrently or consecutively: “The One Strike scheme therefore contemplates a separate life term for each victim attacked on each separate occasion.” (People v. Wutzke (2002) 28 Cal.4th 923, 926-929, 945 [upholding concurrent terms], citing People v. Murphy (2001) 25 Cal.4th 136, 153 & fn. 7, and cases cited; People v. Murphy, supra, 65 Cal.App.4th at pp. 40, 43.)
Defendant argues that the sentence was authorized because it may be interpreted to mean the trial court intended to impose 40 concurrent sentences of 15 years to life. Defendant contends it would violate principles of double jeopardy to remand the case for further proceedings, causing an increase in defendant’s sentence.
Our review of the record confirms that the trial court did not proceed as legally authorized. In the initial sentencing hearing, the court decided it could not impose multiple consecutive sentences for two victims. Instead, it expressly decided it could only impose one total indeterminate term of 15 years to life as to all 40 counts. The original abstract of judgment confused matters even further by listing counts 1 through 6, not as concurrent or consecutive, and listing 15 years “principal or consecutive time imposed” on each of counts 7 through 40.
After this appeal was filed, defendant made a motion to “amend the abstract of judgment to clarify the court’s pronouncement of sentence and correct clerical errors.” Defendant represented to the court that the Department of Corrections was interpreting his sentence to be 600 years to life. Defendant requested “this court clarify in the abstract that it did not impose consecutive terms of 15 years to life.” Apparently, defendant’s motion was decided without a hearing and the abstract of judgment was corrected to omit the references concerning counts 7 through 40 for 15 years “principal or consecutive time imposed.”
However, according to the record, the trial court initially based its sentence on the flawed premise that defendant could not be sentenced consecutively on 40 offenses against two victims. As both parties acknowledge, the trial court was wrong in this respect. The trial court did not correctly understand or exercise its discretion. It did not properly exercise its discretion in sentencing defendant, either initially or in response to the motion to correct the abstract. For that reason, we cannot presume the trial court knew and followed the applicable law to impose a lawful sentence of 15 years to life on each count, to be served concurrently. Therefore, defendant would not be subject to double jeopardy upon remand.
IV
DISPOSITION
We affirm the judgment but remand for resentencing by the trial court according to the proper exercise of its discretion under section 667.61. The court shall impose a sentence of 15 years to life on each of the 40 offenses and decide whether the sentences should be served consecutively or concurrently.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
s/Codrington
J.
We concur:
s/Ramirez
P.J.
s/Hollenhorst
J.
