P. v. Orona
Filed 1/30/14 P. v. Orona
CA2/5
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
ULISES ORONA,
Defendant and Defendant.
B248869
(Los
Angeles County
Super. Ct. No. BA383879)
APPEAL
from a judgment of the Superior Court of
the County of Los Angeles, Sam Ohta, Judge.
Affirmed.
Vanessa Place,
under appointment by the Court of Appeal, for Defendant and Defendant.
Kamala
D. Harris, Attorney General, Dane R.
Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant
Attorney General, Susan S. Pithey, Supervising Deputy Attorney General, Shawn
McGahey Webb, Deputy Attorney General, for Plaintiff and Respondent.
>
INTRODUCTION
Defendant and appellant Ulises Orona
a lewd act upon a child under
14 (Pen. Code, § 288, subd. (a)
name="_ftnref1" title="">[1]). On appeal, defendant contends that the trial
court erred in failing to instruct the jury on unanimity. We affirm the judgment.
BACKGROUND
A.
Factual Background
J.S.
was 10 years old at the time of trial. Defendant
is her uncle.
In
2011, when J.S. was eight years old, her family moved to Los Angeles. For the first six months, J.S.’s family lived
in a two-bedroom apartment with defendant’s family. J.S.’s family stayed in one bedroom and defendant’s
family stayed in the other bedroom. J.S.’s
parents worked at night and during that time, defendant, and her aunt and cousin,
took care of J.S. and her sister. When
defendant would take care of J.S. and her sister, they would sleep in
defendant’s bed.
One
night, while J.S.’s parents were working, defendant “tickle[d] [J.S.] in the
butt.†J.S. told her mother about it,
but her mother did not think “anything bad about it because [J.S.] said she had
been playing with [defendant].â€
On
another night, defendant touched J.S.’s vagina with his hand. J.S, her sister, aunt, and cousin were sharing
a bed, and when J.S.’s sister, aunt, and cousin were asleep, defendant slipped
his hand through the top of J.S.’s pajama pants and touched her vagina. J.S. moved defendant’s hand and “shooed†him away.
J.S. told her mother that defendant had
touched J.R.’s vagina. J.S’s mother was
angry and said that they would move out of the home as soon as they could.
J.S.’s mother did not call the police
because she was concerned about the family; she was afraid the family would “turn
against†her and her daughter. Thereafter,
J.S.’s mother noticed that when she shifted J.S. in bed at night, J.S. would
say, “No. No. Don’t touch me.†J.S.’s
mother, therefore, took J.S. to the hospital for a medical examination. Someone from the
police to advise of suspected child abuse.
Los
Angeles Police Department Officer Tony Villanueva spoke to J.S. and her mother.
J.S. told Officer Villanueva and his
partner that her uncle had placed his hand underneath her underwear and touched
her “private parts†on two occasions, making skin-to-skin contact. In explaining where on her body she had been
touched, she pointed to her “front private part.†J.S. did not tell Officer Villanueva that defendant
tickled her on the butt. A sexual abuse response
team exam was not conducted on J.S. because the exam is typically conducted
within 96 hours of the sexual assault, and it had been over a month since J.S. had
allegedly been touched on her vagina.
Los Angeles Police
Department Detective Victor Acevedo, the investigating officer on the case, met
with J.S. on several occasions and interviewed her about the incident. J.S. stated that she “had been touched in her
private areas including a previous incident where she was tickled by the
defendant on the buttocks.â€
About
one month after J.S. told her mother that defendant touched her, J.S. and her immediate
family moved out of defendant’s home.
Evidence
Karla
Antunez is defendant’s niece, and was 19 years old at the time of trial. When Antunez was between the ages of 7 and
12, she and her mother lived with defendant and his wife. J.S.’s father spoke to Antunez
about allegations made by another family member against defendant, and asked
Antunez if defendant had ever abused her.
She said that defendant had not abused her, and it was the first she had
heard of the allegations.
B.
Procedural Background
The District
Attorney of Los Angeles County filed an information charging defendant with committing
a lewd act upon J.S., a child under 14 in violation of section 288, subdivision
(a) (count 1), and committing a lewd act upon C.H., a child under 14 in
violation of section 288, subdivision (a) (count 2). As to both counts, it was further alleged
that defendant committed an offense specified in section 667.61, subdivision
(c) against more than one victim in violation of section 667.61, subdivisions.
(a) and (e).
Following a
trial, the jury found defendant guilty on count 1, and not guilty on count
2. The jury also found the multiple
victim allegation to be untrue.
The trial court
sentenced defendant to state prison for a term of eight years. The trial court ordered defendant to pay
various fines and assessments, and awarded defendant 862 days of
actual custody credit and 112 days of conduct credit.
DISCUSSION
Defendant
contends that his conviction “must be reversed for the court’s failure to
instruct the jury on unanimityâ€
name="_ftnref3" title="">[3] Defendant argues that because J.S. testified
about two separate incidents of lewd acts, “one involving [defendant’s touching
of J.S.’s] vagina, one involving [defendant’s touching of J.S.’s] butt,†“it is
impossible to tell from the record†on which act or acts of touching the jury
based its conviction.
1. Standard of Review
“We
review de novo a claim that the trial court failed to properly instruct the
jury on the applicable principles of law.
[Citation.]†(
Cal.App.4th 832, 850.)
2. Applicable Law
Section
288, subdivision (a), provides, in pertinent part, “any person who willfully
and lewdly commits any lewd or lascivious act . . . upon or
with the body, or any part or member thereof, of a child who is under the age
of 14 years, with the intent of arousing, appealing to, or gratifying the lust,
passions, or sexual desires of that person or the child, is guilty of a felony and
shall be punished by imprisonment in the state prison for three, six, or eight
years.†“Section 288 . . . ‘is
part of a statutory scheme that recognizes that some touchings of children are
others may or may not be, depending upon the actor’s
intent. [¶] . . . [¶] Lewd or lascivious conduct in violation of
section 288, subdivision (a) . . . requires ‘the specific intent of arousing, appealing to, or gratifying the lust
of the child or the accused.’ ([Citation],
italics added.)†(People v. Warner (2006) 39 Cal.4th 548, 556-557.)
In
a criminal case, a jury verdict must be unanimous. (People
v. Russo (2001) 25 Cal.4th 1124, 1132.)
“It is established that some assurance of unanimity is required where
the evidence shows that the defendant has committed two or more similar acts,
each of which is a separately chargeable offense, but the information charges
fewer offenses than the evidence shows.â€
(People v. Sutherland (1993)
17 Cal.App.4th 602, 611-612.) “Therefore,
cases have long held that when the evidence suggests more than one discrete
crime [but the defendant has not been charged with every crime suggested by the
evidence], either the prosecution must elect among the crimes or the court must
require the jury to agree on the same criminal act.†(People
v. Russo, supra, 25 Cal.4th at p.
1132.) A unanimity instruction is
required when the evidence shows more than one act that could constitute the
charged offense. (People v. Davis (2005) 36 Cal.4th 510, 561; People v. Diedrich (1982) 31 Cal.3d 263, 280-282.) “The duty to instruct on unanimity when no
election has been made rests upon the court sua sponte.†(People
v. Melhado (1998) 60 Cal.App.4th 1529, 1534.) A unanimity “instruction is intended to
eliminate the danger that the defendant will be convicted even though there is
no single offense which all the jurors agree the defendant committed.†(People
v. Sutherland, supra, 17
Cal.App.4th at p. 612.)
The prosecutor
stated during closing arguments that, “[J.S.] did the right thing. She told her mother. She told the first time, Hey, he tickled my
butt, and I didn’t like it. And, the mom
thought, well, he’s kind of jumpy. He
could have been just playing, you know, and [J.S.’s mother] didn’t really do
anything about it then. It wasn’t until
[J.S.] said, wait, he touched my private and/or she pointed to her vaginal
area, and that that point the mother decided, hey, it’s time to get out of this
home.†The prosecutor also stated during
closing arguments, “What are the facts?
The big ones here . . . you got to hear over the last
several days[.] [J.S.] said she was
touched two times. One time [defendant]
tickled [J.S’s] butt and one time he touched her vaginal area. [J.S.] always said it was hands—it was [defendant’s]
hands and it was skin to skin . . . . [¶] . . . [¶]
And [J.S.] pretty much has been consistent throughout this process
about those big facts. Let’s go
over. She told her mom. Okay?
And, remember, she told her mom previously about the tickling of the
butt. And the mom said, well, I’m not
going to do anything. It could have been
just playing around. And then she told
her about the vaginal touching. . . . [¶] . . . [¶] [T]he
one thing [J.S.] did not tell Officer Villanueva—and we don’t know if Mr.
Villanueva clarified [it] because he told us he wasn’t comfortable talking with
children, spend about 20 minutes total with her—there is no mentioning of
tickling of the butt. But [J.S.]
mentions and clarifies that during the brief filing interview . . .
. And there you see that that’s similar
to the preliminary hearing transcript testimony . . . , and
then two years later here you are in trial and as to these facts she’s
consistent.â€
During jury
deliberations, the jury submitted in writing several questions to the trial
court asking, inter alia, “Is there any testimony that clarifies where the butt
touching occurred, i.e., was this in a bed or some other location? Also who witnessed it?â€
4. Analysis
The
Attorney General contends that no unanimity instruction was required because
the prosecutor “elected,†during the introduction of evidence and closing
arguments, “to focus†on defendant’s touching of J.S.’s vagina, rather than his
“tickl[ing]†of J.S’s “butt,†as the basis for a conviction under count 1. We disagree; the trial court erred in not giving
a unanimity jury instruction.
The
prosecution’s election as to the act upon which he or she seeks to convict the
defendant must be “clearly communicated to the jury.†(People
v. Melhado, supra, 60 Cal.App.4th at p. 1539.) “To hold otherwise would leave open the door to
allowing a prosecutor’s artful argument to replace careful instruction. If the prosecution is to communicate an
election to the jury, its statement must be made with as much clarity and
directness as would a judge in giving instruction. The record must show that by virtue of the
prosecutor’s statement, the jurors were informed of their duty to render a
unanimous decision as to a particular unlawful act.†(Ibid.)
The
Attorney General does not contend, and the record does not provide, that the
prosecutor advised specifically the jury that she was seeking to convict the
defendant on count 1 based on his touching of J.S.’s vagina only. And, assuming that on balance, the prosecutor
chose “to focus†on defendant’s touching of J.S.’s vagina, rather than his
“tickl[ing]†of J.S’s “butt,†as the basis for a conviction under count 1, it
is insufficient. As stated in
prosecution’s closing argument in a manner which suggests that more emphasis
was placed on the 11
a.m. event than on the others. However, even assuming that this was so, we
find that the argument did not satisfy the requirement that the jury either be
instructed on unanimity or informed that the prosecution had elected to seek
conviction only for the 11 a.m.
event, so that a finding of guilt could only be returned if each juror agreed
that the crime was committed at that time.
Because the prosecutor did not directly
inform the jurors of his election and of their concomitant duties, it was error
for the judge to . . . disregard his sua sponte duty [to give a
unanimity instruction].†(
In addition, during
jury deliberations, the jury specifically asked the trial court, in writing, if
there was any testimony stating whether J.S. was located in a bed or somewhere
else when the alleged “butt touching†occurred, and who witnessed that incident.
the jury, or at least one juror, considered defendant’s “tickl[ing]†of J.S’s
“butt†as a possible basis for a conviction under count 1.
Because
the prosecutor did not clearly and directly communicate to the jury of her
election, it was error for the trial court to not instruct the jury, sua
sponte, on unanimity. (
at p. 1534 [“The duty to instruct on unanimity when no election has been made
rests upon the court sua sponteâ€].)
The
error, however, was harmless. There is a
split of authority whether the harmless error standard to be applied when a
trial court erroneously fails to give a unanimity instruction is under
18, 24 [harmless beyond a reasonable doubt standard] or People v. Watson (1956) 46 Cal.2d 818, 836 [reasonable probability
of a more favorable result standard]. (
Cal.App.4th 559, 576 [noting split of authority and stating the “majority of
the courts that have addressed the issue have applied Chapmanâ€]; People v. Wolfe
(2003) 114 Cal.App.4th 177, 185-186 [Chapman
standard applies]; see People v. Vargas
(2001) 91 Cal.App.4th 506, 562 [applying the Watson standard].) Under
either standard the error was harmless.
Under
Chapman v. California,
“[W]here the defendant offered the same defense to all criminal acts and ‘the
jury’s verdict implies that it did not believe the only defense offered,’
failure to give a unanimity instruction is harmless error. [Citation.] . . . The
error is also harmless ‘[w]here the record indicates the jury resolved the
basic credibility dispute against the defendant and therefore would have
convicted him of any of the various offenses shown by the evidence . . .
.’ [Citation.]†(People
v. Hernandez, supra, 217
Cal.App.4th at p. 576; People v. Jones
(1990) 51 Cal.3d 294, 307; People v.
Thompson (1995) 36 Cal.App.4th 843, 853.)
“[C]ases found harmless any error in failing
either to select specific offenses or give a unanimity instruction, if the
record indicated the jury resolved the basic credibility dispute against the
defendant and would have convicted the defendant of any of the various offenses shown by the evidence to have been
committed.
[Citations.] [¶] For example, in [
conviction of one count of lewd conduct based on testimony by the child victim
that defendant, her uncle, molested her regularly each week at her home or at
his workplace. Although no prosecutorial
election was made and no unanimity instruction was given, the court concluded
that no prejudicial error occurred. The
defendant made only a weak attempt to assert an alibi defense; in essence the trial
involved a question of credibility, and the jury’s verdict necessarily implied
that it believed the victim. Under such
circumstances, no unanimity instruction was needed.†(People
v. Jones, supra, 51 Cal.3d at p. 307.)
Here,
the case relied almost exclusively on J.S.’s testimony for defendant’s
conviction under count 1; she testified that she was touched improperly by
defendant on two occasions—defendant “tickled†her butt, and touched her vagina. In support of count 1, the prosecutor did not
introduce physical evidence that the touchings occurred, nor did she introduce
testimony from anyone that he or she witnessed the touching. Defendant did not testify, but his sole defense
was essentially that J.R. might have actually thought “something happened to
her in the nature of being touched for sexual gratification purposes but she’s
wrong.†In essence the trial involved a
question of credibility, and the jury’s verdict necessarily implied that it
believed J.S. The jury’s verdict
reflects that it resolved the basic credibility dispute against defendant and,
therefore, would have convicted him of all alleged lewd acts. That is, the jury would have convicted defendant
regardless of whether a unanimity instruction was given, and therefore any error
by the trial court in not giving the instruction was harmless.
DISPOSITION
The judgment is
affirmed.
NOT TO BE PUBLISHED
IN THE OFFICIAL REPORTS.
MOSK,
J.
I concur:
KRIEGLER, J.
>
I
concur in the judgment. My disagreement
is limited to the issue of whether the jury was correctly instructed. In my view, there was no duty to provide a
unanimity instruction because there was an alleged uncertainty as to exactly
how defendant committed the crime. (
1132; People v. Ortiz (2012) 208
Cal.App.4th 1354, 1376-1377.) The
prosecutor clearly stated she was seeking to convict defendant based upon the
touching of the vagina. No violation of
any pertinent Constitution occurred.
TURNER,
P. J.
name="_ftn1" title="">[1] All
statutory citations are to the Penal Code unless otherwise noted.
name="_ftn2" title="">[2] The
specific facts pertaining to the molestation of C.H. (count 2), for which
defendant was acquitted, are omitted because they are not relevant to the
appeal.
