Filed 10/19/26 P. v. Santiago-Santiago CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F089401
Plaintiff and Respondent,
(Super. Ct. No. 23CM2005)
v.
SERAFIN SANTIAGO-SANTIAGO,
OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kings County. Kathy
Ciuffini, Judge.
Jean M. Marinovich, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney
General, Kimberley A. Donohue, Assistant Attorney General, Dina Petrushenko and
Jeffrey D. Firestone, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Serafin Santiago-Santiago (appellant) repeatedly sexually abused his stepdaughter
over the course of several years, beginning when she was 10 years old. A jury convicted
appellant of two counts of aggravated sexual assault of a child under the age of 14 by
forcible rape (Pen. Code,1 §§ 269, subd. (a)(1), 261, subd. (a)(2); counts 1 & 2), one
count of forcible lewd act upon a child under the age of 14 (§ 288, subd. (b)(1); count 3),
and four counts of lewd act upon a child under the age of 14 (§ 288, subd. (a); counts 4-
7). As to each count, the jury found true the aggravating circumstances allegations that
the “victim was particularly vulnerable” (Cal. Rules of Court, rule 4.421(a)(3)), and that
appellant “took advantage of a position of trust or confidence to commit the offenses”
(Cal. Rules of Court, rule 4.421(a)(11)). The trial court sentenced appellant to 30 years
to life plus 24 years in state prison.
On appeal, appellant raises claims of ineffective assistance of counsel based on
defense counsel’s failure to object to alleged evidentiary error and prosecutorial
misconduct, instructional error concerning unanimity, cumulative error, and sentencing
error under section 667.6, subdivision (d). We reject each claim. The parties agree,
however, that separate abstracts of judgment should have been prepared for the
determinate and indeterminate portions of appellant’s sentence. We agree and direct the
trial court to prepare amended abstracts of judgment. In all other respects, we affirm.
BACKGROUND
I. General Background
The victim was born in December 2008 and was 15 years old at the time of trial.
Appellant, born in 1981, was the victim’s stepfather. He began dating the victim’s
mother when the victim was five or six years old and later married her. Appellant lived
with the victim and her family, initially in an apartment and later in a house the family
moved into in 2020. The victim has two younger sisters, S.D. and V.H., who are two and
four years younger than her, respectively. The victim’s mother and appellant also have a
son who is seven years younger than the victim.
1 All further statutory references are to the Penal Code unless otherwise indicated.
2.
II. Appellant’s Sexual Abuse of the Victim
A. Victim’s Testimony
The victim testified that appellant began touching her inappropriately when she
was 10 years old, approximately one year before the family moved from the apartment to
the house. Appellant would place his hand around her waist or on her inner thigh, or
touch her buttocks. Whenever the victim told appellant that his touching made her
uncomfortable, he would respond that it was unintentional or that he did not “mean it in a
weird way.” The victim explained the touching occurred when her mother and siblings
were not present in the room.
Appellant’s sexual conduct escalated after the family moved into the house.
Appellant would enter her bedroom in the middle of the night and force her to have sex
with him. The victim would try to push and kick appellant away, but was unable to stop
him. Her sisters were often asleep in the bedroom when this occurred, but according to
the victim, they were heavy sleepers and did not wake up. The victim did not recall the
first time appellant forced her to have sexual intercourse but believed she was 11 or
12 years old. On one occasion, appellant told her he was doing this to “prepare” her for
when she was older.
The victim testified that appellant forced her to have sex with him several times
per month, “or whenever he got a chance to.” She also estimated that appellant touched
her vagina, breasts, and buttocks more than five times each.
The victim did not disclose the abuse to her mother because her mother was happy
with appellant and she feared that no one would believe her. She eventually told her
maternal aunt after the aunt noticed that the victim would push appellant away when he
tried to hug her and would avoid being around him. The victim explained that she
ultimately disclosed the abuse because she was tired of it and wanted it to stop.
3.
B. Forensic interview of the victim
Law enforcement conducted a forensic interview of the victim in July 2023, when
she was 14 years old. A recording of the interview was admitted into evidence and
played for the jury.
The victim stated appellant began touching her breasts and vagina while the family
was still living in the apartment. She recalled an incident in the kitchen or dining room in
which appellant touched her breasts and then claimed he was only playing around. On
another occasion, while her mother was not home, appellant again touched her breasts.
The touching continued after the family moved into the house. The victim
described an incident in which appellant touched her buttocks while she was washing
dishes and again claimed he was “just playing.”
When the interviewer asked the victim to describe the “worst time” she
remembered, the victim explained that appellant’s conduct escalated in June 2020, when
she was 11 years old and her mother became very ill with COVID. The victim believed
her mother’s illness made it easier for appellant to enter her bedroom at night without
being noticed. She stated that this was when appellant began to “penetrate[]” her. The
victim explained that her siblings often slept in the same room as her, and sometimes in
the same bed. She described appellant entering her bedroom, massaging her breasts,
removing her clothes, and putting his mouth on her breasts. Although the victim would
try to push him away, he would stop only briefly before resuming his conduct.
The interviewer then asked the victim to describe one specific incident, from
beginning to end, in which appellant sexually abused her in her bedroom. Although the
victim acknowledged the request and appeared to begin describing a particular incident,
her account remained largely generalized as she explained what appellant would typically
do when he entered her room. The victim stated that she would wrap herself in blankets
in an effort to deter appellant from touching her, but he would leave and later return and
continue. Appellant would eventually insert his fingers into her vagina despite her efforts
4.
to push him away. He would then force himself on top of her and position himself
between her legs. The victim explained that when her siblings were on the bed, she
sometimes tried to wake them. If appellant noticed one of them beginning to move, he
would go to the bathroom and wait until the sibling fell back asleep. Appellant would
then return, carry the victim from the bed to the floor, and insert his penis into her vagina.
She would continue trying to push appellant away but was unable to do so because he
was stronger than she was. She recalled that the first time appellant forced her to engage
in sexual intercourse was when she was 11 years old.
The victim described another incident of sexual abuse that occurred while her
siblings were outside playing on a waterslide and her mother and aunt were away running
an errand. Appellant pulled the victim aside, placed her on her mother’s bed, and
positioned himself between her legs. The victim tried to push appellant away, but he
overpowered her. He penetrated her vagina with his penis for three to four minutes,
stopping when one of the victim’s sisters could be heard entering the house.
The victim stated that the last incident of forcible sexual intercourse occurred
while her mother was away from the house with her grandfather. Appellant lay down
next to the victim on her bed, pulled off her blanket, removed her underwear, and
attempted to insert his finger into her vagina. The victim told appellant to leave her alone
and tried to push and kick him away, but he did not stop. Appellant then inserted his
penis into her vagina and continued for approximately 10 to 15 minutes, stopping when
the victim’s grandfather could be heard returning to the house.
The victim explained that she did not disclose the sexual abuse sooner because she
was afraid. She recalled an occasion when she was alone in a car with appellant and told
him she wanted him to leave her alone. Appellant responded that if she told her mother,
her mother would not believe her and would think she was “crazy,” and that no one else
would believe her either, so there was no point in telling anyone what was happening.
Appellant also told the victim that, without him, her family was “nothing.” The victim
5.
understood this as a reference to appellant’s financial support of the family, explaining
that he had a good job and provided for them.
The victim eventually disclosed appellant’s sexual abuse to her aunt, with whom
she was very close. The day before the disclosure, appellant became upset because the
victim was talking on her cell phone with a male friend. According to the victim,
appellant typically reacted this way only when she was talking to her boyfriend or other
male friends and would suggest to her mother that the victim was hiding something. Her
mother then confiscated the phone and began reviewing her messages, while appellant
continued making comments about what she might find. The victim went into the
kitchen to wash dishes and broke down crying. When her sister S.D. asked what was
wrong, the victim told her that appellant touched her. S.D. reacted with apparent shock,
which the victim interpreted as disbelief, and the subject was not discussed further. The
following evening, the victim spoke with her aunt and told her about appellant’s abuse.
III. Disclosure to family and report to law enforcement
The victim’s aunt testified that she helped raise the victim and shared a close bond
with her. The aunt lived next door until moving away in 2019, but she continued to stay
in regular contact with the victim through visits, text messages, and video chats. During
a visit in July 2023, the aunt noticed that the victim seemed withdrawn and observed
marks on her legs that appeared consistent with self-cutting. When the aunt asked why
she was acting differently, the victim responded that she hated her life.
Later that month, the victim’s mother asked the aunt to speak with the victim
because she had been unable to get her to explain what was “going on with her.” During
a video call, the aunt asked the victim why she had been acting differently and cutting
herself. The victim initially responded that the aunt would not believe her. After the aunt
assured her otherwise, the victim disclosed that appellant had been sexually abusing her
for years. She stated that appellant touched her while she was under the covers in her
bedroom and while she was in the shower. The victim also explained that she had not
6.
told her mother because appellant had said that, without him, her mother would be “no
one in life” and unable to support the family. The aunt reassured the victim that she
would support her, then encouraged her to tell her mother about the abuse and helped her
do so.
The victim’s mother testified that the victim “looked broken” when they discussed
the abuse. The mother was surprised by the allegations and had not known that the abuse
was occurring. She told the victim they “had to do the right thing” and then called the
police. After reporting the abuse, she turned over appellant’s cell phones and electronic
tablet to law enforcement.
IV. Expert testimony on Child Sexual Abuse Accommodation Syndrome
A licensed psychologist who testified as an expert in child sexual abuse explained
Child Sexual Abuse Accommodation Syndrome (CSAAS). She described CSAAS as an
“educational framework” used to understand behaviors exhibited by children who have
experienced sexual abuse that may seem counterintuitive to adults. These behaviors may
include developing coping mechanisms rather than actively resisting an abuser, as well as
delayed and incremental disclosure of the abuse.
V. Other sexual offense evidence
Following appellant’s arrest, an officer searched his cell phone and found two
photographs of the victim’s younger sister, V.H., stored in the phone’s photo gallery.
The photographs had been taken in V.H.’s bedroom when she was approximately eight
years old. In the photographs, V.H. is shown holding three balloons attached together to
resemble a penis and testicles, with end of the balloon consistent with a penis in her open
mouth. When questioned about the photographs during a law enforcement interview,
appellant responded, “I know it looks bad.”
7.
DISCUSSION
I. Appellant’s Ineffective Assistance of Counsel Claims are Without Merit
Appellant contends defense counsel was ineffective for failing to object to several
aspects of the prosecution case. He argues counsel should have objected to (1) the
victim’s aunt’s testimony describing the substance of the victim’s initial disclosure of
appellant’s sexual abuse; (2) testimony by the victim’s mother and aunt that they knew
the victim was telling the truth when she disclosed the abuse to them; and (3) alleged
instances of prosecutorial vouching during closing argument. Appellant maintains that
counsel’s omissions constituted deficient performance and was prejudicial, requiring
reversal of all counts.
A. Applicable law and standard of review
To prevail on an ineffective assistance of counsel claim, the claimant must
establish counsel’s performance fell below an objective standard of reasonableness, and
that prejudice occurred as a result. (Strickland v. Washington (1984) 466 U.S. 668, 687–
688.) “Prejudice is shown when there is a ‘reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.’ ” (People v. Jennings (1991) 53 Cal.3d 334, 357.) The claimant has the
burden of showing both deficient performance and resulting prejudice. (People v. Lucas
(1995) 12 Cal.4th 415, 436.)
On direct appeal, an ineffective assistance of counsel claim will be sustained “only
if the record on appeal affirmatively discloses that counsel had no rational tactical
purpose for his act or omission.” (People v. Fosselman (1983) 33 Cal.3d 572, 581.)
“Reviewing courts defer to counsel’s reasonable tactical decisions in examining a claim
of ineffective assistance of counsel [citation], and there is a ‘strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance.’ ”
(People v. Lucas, supra, 12 Cal.4th at pp. 436–437.)
8.
B. The record affirmatively shows defense counsel had a reasonable tactical
basis for declining to object to the victim’s aunt’s testimony concerning
the details of the victim’s disclosure of sexual abuse
The People moved in limine to permit the victim’s aunt to testify regarding the
circumstances surrounding the victim’s initial disclosure of appellant’s sexual abuse. The
trial court granted the motion but cautioned that the aunt could not recount the details of
the abuse conveyed to her by the victim because such statements would constitute
inadmissible hearsay.
At trial, when asked to describe the victim’s initial disclosure, the aunt provided a
lengthy narrative response that included some of the details of the abuse related by the
victim. Specifically, she testified that the victim told her appellant went into her room
while everyone was asleep and started touching her under the covers, and that she did not
like to shower by herself because appellant would come in and touch her.
Defense counsel did not object when the aunt recounted these details. The trial
court nevertheless intervened, called the parties to sidebar, informed them that the
testimony went beyond the limits of its in limine ruling, and directed the prosecutor not to
ask further questions concerning the substance of the disclosure.
During a break in the proceedings, the trial court offered to strike the objectionable
portion of the aunt’s testimony and/or admonish the jury. Defense counsel responded
that he had considered objecting but elected not to because the detail concerning abuse in
the shower “create[d] inconsistency as to the allegations of what actually happened,”
since the victim did not describe abuse occurring in the shower during her forensic
interview. Counsel asked the court not to strike the testimony or give any admonishment
for “strategic reasons,” and stated he would address the inconsistency during closing
argument.
Respondent concedes, and we agree, that the aunt’s testimony recounting the
substance of the victim’s initial disclosure was inadmissible hearsay. “[P]roof of an
extrajudicial complaint, made by the victim of a sexual offense, disclosing the alleged
9.
assault, may be admissible for a limited, nonhearsay purpose—namely, to establish the
fact of, and the circumstances surrounding, the victim’s disclosure of the assault to
others.” (People v. Brown (1994) 8 Cal.4th 746, 749–750.) The jury may consider such
evidence “for the purpose of corroborating the victim’s testimony, but not to prove the
occurrence of the crime.” (People v. Ramirez (2006) 143 Cal.App.4th 1512, 1522.)
Accordingly, the evidence must generally be confined to the facts and circumstances of
the disclosure, omitting any description of the molestation itself. (Brown, at pp. 762–
764; People v. Flores (2024) 101 Cal.App.5th 438, 451–452.) The aunt’s testimony was
therefore objectionable to the extent it went beyond the circumstances surrounding the
disclosure.
Appellant nevertheless fails to establish that counsel’s failure to object constituted
deficient performance because the record affirmatively demonstrates a rational tactical
basis for counsel’s decision. (See People v. Fosselman, supra, 33 Cal.3d at p. 581.)
“Whether to object to inadmissible evidence is a tactical decision; because trial counsel’s
tactical decisions are accorded substantial deference [citations], failure to object seldom
establishes counsel’s incompetence.” (People v. Hayes (1990) 52 Cal.3d 577, 621; see
Strickland v. Washington, supra, 466 U.S. at p. 689 [recognizing a “strong presumption”
that counsel rendered adequate assistance].) In assessing the reasonableness of such a
tactical decision, we must exercise appropriate deference to avoid “the dual pitfalls of
second-guessing counsel’s tactics and chilling vigorous advocacy.” (In re Cordero
(1988) 46 Cal.3d 161, 180.)
Here, counsel explained on the record that he deliberately declined to object
because the victim had not testified, or otherwise stated, that appellant abused her in the
shower. Counsel viewed the discrepancy between the victim’s account and the aunt’s
testimony as a basis to challenge the victim’s credibility, a central issue at trial. He
emphasized the discrepancy during closing argument, asserting that the victim’s “story
changed” between her disclosure to the aunt and her statements to law enforcement, and
10.
that her otherwise uncorroborated testimony therefore lacked sufficient credibility to
establish the alleged sexual abuse beyond a reasonable doubt.
Appellant maintains that the shower allegation was not affirmatively inconsistent
with anything the victim previously said and thus afforded counsel no rational tactical
reason to forgo an objection. We disagree. The shower allegation was not a prior
inconsistent statement in the literal sense, but it gave defense counsel a basis to challenge
the completeness and consistency of her account and, in turn, her credibility. To be sure,
counsel’s decision allowed the jury to hear the shower allegation, which appellant
characterizes as a “new and highly prejudicial detail.” But that consequence was part of
the tactical tradeoff counsel faced in deciding whether to object or instead use the
discrepancy to impeach the victim’s credibility. Because “[a] reviewing court will not
second-guess trial counsel’s reasonable tactical decisions,” we decline to do so here.
(People v. Kelly (1992) 1 Cal.4th 495, 520.)
Appellant further argues that counsel’s failure to object resulted in the jury hearing
additional inadmissible or prejudicial evidence. First, he points to the aunt’s testimony
concerning the victim’s apparent self-cutting. That testimony, however, was not
objectionable on hearsay grounds because it described matters the aunt personally
observed. (See People v. Veamatahau (2020) 9 Cal.5th 16, 27.) In any event, counsel
raised an Evidence Code section 352 objection to the testimony at the next break in the
proceedings. Based on that objection, the trial court directed the prosecutor not to refer
to the subject further and later instructed the jury that the evidence was relevant only to
explain why the aunt questioned the victim about her changed behavior, not to support an
inference that the victim was cutting herself because appellant was sexually abusing her.
Next, appellant claims that counsel’s failure to object allowed the aunt to recount
additional details that had no impeachment value, including the victim’s fear that no one
would believe her and appellant’s warning that disclosure would have serious financial
consequences for the family. Even assuming this testimony was inadmissible, counsel
11.
could reasonably have declined to object to avoid drawing additional attention to these
details, which the jury had already heard from the victim herself during the playing of her
forensic interview. (See People v. Bona (2017) 15 Cal.App.5th 511, 522 [counsel was
not ineffective for failing to object to a statement that was “cumulative of other properly
admitted evidence”]); People v. Catlin (2001) 26 Cal.4th 81, 165 [decision whether to
object to testimony is highly tactical and may depend on whether an objection would
merely highlight undesirable testimony]; People v. Williams (1997) 16 Cal.4th 153, 215
[counsel could reasonably have declined to object where doing so would have highlighted
the testimony and made it appear more significant].) And because the aunt merely
repeated details the jury had already heard directly from the victim, we have no basis to
conclude that this testimony had any meaningful effect on the outcome of the trial. (See
People v. Jennings, supra, 53 Cal.3d at p. 357.)
Lastly, appellant characterizes the aunt’s manner of recounting these matters as an
“inflammatory emotional display,” noting that she stated the disclosure was difficult to
discuss and that the prosecutor observed she appeared to be “getting a little emotional.”
We are not persuaded that an objection by defense counsel would have diminished the
aunt’s emotional reaction while recounting such a sensitive matter. Moreover, counsel
could reasonably have concluded that interrupting an emotional and sympathetic witness
with an objection risked drawing still greater attention to both her reaction and the
challenged testimony. (See People v. Gray (2005) 37 Cal.4th 168, 213 [counsel
reasonably refrained from objecting so as not to appear unnecessarily harsh with a
sympathetic witness].)
In sum, the record reflects reasonable tactical bases for defense counsel’s decision
not to object to the challenged portions of the aunt’s testimony. Accordingly, appellant
has failed to demonstrate deficient performance on this basis.
12.
C. Appellant fails to establish defense counsel’s failure to object to opinion
testimony concerning the truthfulness of the victim’s disclosure
constituted deficient performance or resulted in prejudice
After the victim’s aunt recounted the victim’s initial disclosure of appellant’s
sexual abuse, the following exchange occurred:
“[Prosecutor]: [C]an you tell when [the victim] is lying to
you?
“[The Aunt]: Yes.
“[Prosecutor]: And did you believe she was lying to you?
“[The Aunt:]: No.”
Later, at the end of the victim’s mother’s direct testimony, a similar exchange
occurred:
“[Prosecutor]: Can you tell when your daughter is telling
the truth?
“[The Mother]: Yes.
“[Prosecutor]: When your daughter appeared broken when
you talked about [appellant’s sexual abuse]
for the first time, could you tell if she was
telling the truth?
“[The Mother]: Yes.
“[Prosecutor]: Was she telling the truth?
“[The Mother]: Yes.”
Appellant contends that defense counsel was ineffective for failing to object to
either colloquy. He argues that no reasonable tactical basis could justify counsel’s failure
to object to what he characterizes as inadmissible opinion testimony concerning the
victim’s credibility. Appellant further emphasizes that the prosecutor relied on the
13.
mother’s testimony during closing argument to bolster the credibility of the victim’s
disclosure.2
Respondent concedes, and we agree, that the challenged portions of the aunt’s and
mother’s testimony were objectionable. “[G]enerally a lay witness may not express an
opinion about the veracity of another person’s statement because the statement’s veracity
is for the jury to decide.” (People v. Houston (2012) 54 Cal.4th 1186, 1221.) Such
opinions are ordinarily “of little assistance in deciding the credibility of testimony by
percipient witnesses who do have personal knowledge.” (People v. Chatman (2006)
38 Cal.4th 344, 381.) Neither the victim’s mother nor her aunt had personal knowledge
of the alleged sexual abuse. Their opinions that the victim was telling the truth when she
disclosed the abuse were therefore irrelevant to the jury’s assessment of her credibility.
(See People v. Melton (1988) 44 Cal.3d 713, 743–744.)
However, we are not persuaded that counsel’s failure to object constituted
deficient performance. By the time the challenged testimony was introduced, the jury
already had ample reason to conclude that the victim’s mother and aunt believed her
disclosure was truthful. The aunt responded to the disclosure by encouraging and
assisting the victim in telling her mother, and the mother immediately reported the abuse
to law enforcement, telling the victim that they “had to do the right thing.” Counsel
could reasonably have concluded that the witnesses’ subsequent opinion testimony added
little to what their conduct had already conveyed and that an objection would merely
have drawn additional attention to the testimony. (See People v. Bona, supra,
2 Specifically, the prosecutor argued: “[The mother], she talked about how she
noticed her daughter -- I believe the word she said was broken. My daughter seemed
broken. When I asked her what her demeanor was when she was telling [the mother]
about what had happened to her, and her mother said I know when my daughter is telling
the truth. I know she was telling the truth. She came to me and she was broken.”
14.
15 Cal.App.5th at p. 522; People v. Catlin, supra, 26 Cal.4th at p. 165; People v.
Williams, supra, 16 Cal.4th at p. 215.)
For similar reasons, even assuming deficient performance, appellant has not
established prejudice. Although the victim’s credibility was a central issue at trial, the
jury already had ample evidence that the mother and aunt believed her accusations of
sexual abuse were credible. Their opinion testimony was therefore largely cumulative,
and there is no reasonable probability that either their admission or the prosecutor’s brief
reference to the mother’s statement during closing argument affected the verdict. (People
v. Cain (1995) 10 Cal.4th 1, 28–29 [no reasonable probability that counsel’s failure to
object to cumulative evidence affected the verdict].)
D. The prosecutor’s comments during closing argument did not amount to
impermissible vouching. Defense counsel was not ineffective for failing
to object
During closing argument, defense counsel highlighted several aspects of the
evidence that, in his view, made the victim’s allegations “hard to believe.” He pointed to
the victim’s statement that her sister did not appear to believe her initial disclosure, her
mother’s lack of suspicion before the disclosure, the absence of physical evidence, and
her mother’s failure to have her examined by a doctor. Counsel also advanced the theory
that the victim fabricated the allegations after becoming upset over the confiscation of her
phone and the possibility that her mother would discover messages she wished to keep
private.
In rebuttal, the prosecutor responded:
“Defense [counsel] just talked about a lot of stuff that he kept saying
it is hard to believe. It is hard to believe that this happened…. It is
hard for me to believe that the victim would make all of this up.
Come into court, testify in front of strangers. Fake the real emotion,
and the real tears you all saw here today, because of some stuff on
her phone that she didn't want her mom to see. It is hard to believe
that that is the lie she would go with. That rather than telling her
mom I have this boyfriend or whatever defense is talking about that
was on her phone. It is hard to believe that she would rather tell her
15.
mom your husband has been having sex with me. Your husband has
been molesting me since I was nine. Your husband has been raping
me weekly for years…. It is hard to believe that all of this was a
lie.”
Focusing on the prosecutor’s single use of the phrase “it is hard for me to believe,”
appellant contends the prosecutor improperly expressed a personal belief in the victim’s
credibility and that defense counsel rendered ineffective assistance by failing to object.
Prosecutorial misconduct occurs when “ ‘[a] prosecutor … uses deceptive or
reprehensible methods to persuade the jury.” (People v. Parson (2008) 44 Cal.4th 332,
359.) When a misconduct claim is based on comments made before the jury, “ ‘ “the
question is whether there is a reasonable likelihood that the jury construed or applied any
of the complained-of remarks in an objectionable fashion.” ’ ” (People v. Gonzales and
Soliz (2011) 52 Cal.4th 254, 305.) In making that determination, we “ ‘ “do not lightly
infer” that the jury drew the most damaging rather than the least damaging meaning from
the prosecutor’s statements.’ ” (People v. Centeno (2014) 60 Cal.4th 659, 667.)
A prosecutor may not place “ ‘the prestige of the government behind a witness
through personal assurances of the witness’s veracity or suggest[] that information not
presented to the jury supports the witness’s testimony.’ ” (People v. Rivera (2019)
7 Cal.5th 306, 336.) But “so long as a prosecutor’s assurances regarding the apparent
honesty or reliability of prosecution witnesses are based on the ‘facts of [the] record and
the inferences reasonably drawn therefrom, rather than any purported personal
knowledge or belief,’ her comments cannot be characterized as improper vouching.”
(People v. Frye (1998) 18 Cal.4th 894, 971, disapproved on another ground by People v.
Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) The challenged remarks must therefore be
considered in context to determine whether there was a substantial risk the jury would
understand them as resting on information outside the trial record. (People v. Mincey
(1992) 2 Cal.4th 408, 447–448.)
16.
Ordinarily, a defendant must preserve a claim of prosecutorial misconduct by
making a timely and specific objection and requesting an admonition. (People v.
Gonzales and Soliz, supra, 52 Cal.4th at p. 305.) Because, as appellant concedes, defense
counsel did not object, we consider the issue through the rubric of ineffective assistance
of counsel. The claim fails if the prosecutor’s argument was proper because, where there
is no sound legal basis for an objection, counsel’s failure to object cannot establish
ineffective assistance. (People v. Cudjo (1993) 6 Cal.4th 585, 616; see People v.
Anderson (2001) 25 Cal.4th 543, 587 [“Counsel is not required to proffer futile
objections”].)
Here, the prosecutor’s use of first-person language did not amount to improper
vouching. “ ‘The fact that comments upon the testimony of certain witnesses made in an
argument have been couched in the first person does not of itself render them
improper.’ ” (People v. Ward (2005) 36 Cal.4th 186, 216.) Indeed, our Supreme Court
has rejected misconduct claims based on prosecutors’ use of phrases such as “I believe”
and “I think” where, considered in context, the remarks merely conveyed the prosecutor’s
view of the evidence and the reasonable inferences to be drawn from it. (People v.
Cummings (1993) 4 Cal.4th 1233, 1303, fn. 48, abrogated on another ground by People v.
Merritt (2017) 2 Cal.5th 819, 831; People v. Adcox (1988) 47 Cal.3d 207, 236–237.)
Viewed as a whole, the prosecutor’s comments would not reasonably have been
understood as an expression of personal belief based on information outside the record.
Defense counsel had repeatedly argued that various aspects of the evidence made the
victim’s allegations “hard to believe” and suggested that she fabricated them because of
the dispute over her phone. The prosecutor responded in kind by echoing counsel’s “hard
to believe” rhetoric, but pointed to evidence concerning the victim’s conduct during and
after her disclosure that, in the prosecutor’s view, supported her credibility and
undermined the defense theory of fabrication. In that context, the prosecutor’s single use
of the phrase “for me” did not render her otherwise permissible comments on the
17.
evidence improper vouching. We therefore conclude the prosecutor did not commit
misconduct, and counsel’s ineffective assistance of counsel claim is without merit.
II. The Trial Court’s Failure to Give CALCRIM No. 3501 Was Harmless, and
the Modified Unanimity Instruction Given Was Not Misleading
The trial court instructed the jury with a modified version of the standard
unanimity instruction, CALCRIM No. 3500. Appellant contends that because the
prosecution relied on generic testimony to support the charged offenses, the court had a
sua sponte duty to instruct the jury instead with CALCRIM No. 3501 (Unanimity: When
Generic Testimony of Offense Presented). He further contends that the unanimity
instruction the court gave was misleading because it suggested the unanimity requirement
was satisfied so long as all jurors agreed on a single act underlying one of the charged
offenses, without requiring unanimous agreement as to the acts supporting the remaining
offenses.
A. Background
The third amended information charged appellant with seven sexual abuse
offenses, all alleged to have occurred between December 2017 and December 2022.
Counts 1 and 2 charged aggravated sexual assault of a child (§ 269, subd. (a)(1)),
predicated on forcible rape (§ 261, subd. (a)(2)), and were described as “first time” and
“last time,” respectively. Count 3 charged forcible lewd act upon a child (§ 288,
subd. (b)(1)) and was described as “defendant’s hand to victim’s vagina.” Counts 4
through 7 charged lewd act upon a child (§ 288, subd. (a)) and were described as “hand to
breast first time,” “hand to breast last time,” “hand to butt,” and “hand to vagina,”
respectively.
In closing argument, the prosecution did not make a clear election as to the
particular acts supporting each count. (See People v. Melhado (1998) 60 Cal.App.4th
1529, 1534 (Melhado) [prosecutor may “elect specific act relied upon to prove the charge
to the jury”].) For counts 1 and 2, the prosecutor relied on the victim’s general account
18.
of how appellant frequently forced her to have sexual intercourse, arguing that appellant
“raped her on at least two occasions … but the evidence shows it was a lot more.” For
count 3, the prosecutor pointed to the victim’s statements that appellant would insert his
fingers into her vagina and would overcome her resistance when she tried to push him
away. For counts 4 through 7, the prosecutor relied on the victim’s testimony that she did
not remember how many times appellant touched her breasts, buttocks, or vagina, but
knew that each form of touching occurred repeatedly and more than five times.
The trial court instructed the jury with the following modified version of
CALCRIM No. 3500 (Unanimity):
“[Appellant] is charged with [a]ggravated sexual assault of child;
forcible lewd act with child; [and] lewd act with child in Count 1, 2,
3, 4, 5, 6, and 7, sometime during the period of December 19, 2017
to December 18, 2022.
“The People have presented evidence of more than one act to prove
that the defendant committed this offense. You must not find
[appellant] guilty unless you all agree that the People have proved
that [appellant] committed at least one of these acts and you all agree
on which act he committed.”3
B. The trial court erred in failing to instruct the jury with CALCRIM
No. 3501, but the error was harmless beyond a reasonable doubt
In a criminal case, the jury’s verdict must be unanimous. (U.S. Const., 6th
Amend.; Cal. Const., art. I, § 16; People v. Anzalone (2013) 56 Cal.4th 545, 555.) That
requirement extends to the particular crime committed: “the jury must agree
unanimously the defendant is guilty of a specific crime.” (People v. Russo (2001)
25 Cal.4th 1124, 1132.) Thus, “when violation of a criminal statute is charged and the
evidence establishes several acts, any one of which could constitute the crime charged,
3 Appellant did not object to the instruction or request that it be modified.
Respondent nevertheless concedes that his related claims are not forfeited because, if
meritorious, the asserted instructional errors would have affected his substantial rights.
(See People v. Hillhouse (2002) 27 Cal.4th 469, 503; § 1259.)
19.
either the state must select the particular act upon which it relied for the allegation of the
information, or the jury must be instructed that it must agree unanimously upon which act
to base a verdict of guilty.” (People v. Jennings (2010) 50 Cal.4th 616, 679.)
In People v. Jones, our high court explained that a modified unanimity instruction
may be appropriate when multiple counts are supported by generic testimony describing
repeated but indistinguishable acts. (People v. Jones (1990) 51 Cal.3d 294, 321–322
(Jones); see People v. Matute (2002) 103 Cal.App.4th 1437, 1448 (Matute).) Such
testimony commonly arises in child molestation cases involving “the so-called ‘resident
child molester’ [citation], who either lives with his victim or has continuous access to …
her.” (Jones, at p. 299.) In those circumstances, the victim may be unable to distinguish
the individual offenses by date, place, or other details, making it difficult for the jurors to
identify and agree upon a particular act. (Id. at pp. 305, 321.) The inability to
differentiate among the incidents does not, however, make unanimity unattainable. (Id. at
p. 321.) Because credibility is ordinarily the “true issue” in such cases, the jury will
either believe the victim’s account that the repetitive pattern of abuse occurred or
disbelieve it. (Id. at p. 322.) If the jury unanimously finds that the defendant committed
all of the acts described by the victim, it necessarily agrees that he committed each
specific act within that series. (Ibid.)
Accordingly, “when there is no reasonable likelihood of juror disagreement as to
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.” (Jones, supra, 51 Cal.3d at p. 322.) CALCRIM No. 3501 implements
that rule by permitting conviction if the jurors either unanimously agree on a particular
act supporting each charged offense or unanimously agree that the defendant committed
20.
all of the acts described by the victim and at least the number of offenses charged.4 By
contrast, when the evidence indicates the jurors might disagree as to which particular act
the defendant committed, the standard unanimity instruction applies. (Jones, at p. 321.)
Respondent concedes, and we agree, that due to the generic nature of the victim’s
testimony and forensic interview, the trial court should have instructed the jury with
CALCRIM No. 3501. While the victim described some specific incidents, much of her
testimony and prior statements concerned repeated acts of abuse that she described in
general terms rather than as distinct occurrences. For this reason, the failure to give
CALCRIM No. 3501 was error. (See Matute, supra, 103 Cal.App.4th at p. 1448; Jones,
supra, 51 Cal.3d at pp. 321–322.)
However, we conclude the error was harmless. Courts have disagreed whether the
erroneous failure to give a proper unanimity instruction is reviewed under Chapman v.
California (1967) 386 U.S. 18 (Chapman) or People v. Watson (1956) 46 Cal.2d 818.
(People v. Jones (2024) 106 Cal.App.5th 1085, 1096.) The more recent cases adopt the
majority view that Chapman applies. (Ibid.; People v. Fish (2024) 102 Cal.App.5th 730,
738; People v. Hernandez (2013) 217 Cal.App.4th 559, 576–577 (Hernandez); People v.
Milosavljevic (2010) 183 Cal.App.4th 640, 647.) We need not further address the
conflict because, even under the more stringent Chapman standard, any error was
harmless beyond a reasonable doubt.
The jury was not left uninstructed on unanimity. The modified version of
CALCRIM No. 3500 given here expressly instructed the jury that it could not find
4 CALCRIM No. 3501 provides, in pertinent part, that where “[t]he People have
presented evidence of more than one act to prove the defendant committed the charged
offense[s]” during the time period alleged, the jury may not convict unless the jurors
either (1) unanimously agree that the defendant committed at least one act supporting
each charge and agree on the particular act committed, or (2) unanimously agree that “the
People have proved that the defendant committed all the acts alleged to have occurred
during this time period [and have proved that the defendant committed at least the
number of offenses charged].”
21.
appellant guilty of an offense unless all jurors agreed both that appellant committed an
act constituting the offense and on which act he committed. The jurors were also given
CALCRIM No. 3515, which instructed that each count is a separate crime, and that the
jurors must “consider each count separately and return a separate verdict for each one.”
Read together, these instructions required the jurors to unanimously agree on the specific
acts of sexual abuse that supported each count, and “ ‘[w]e presume jurors follow [the
trial court’s] instructions.’ ” (People v. Covarrubias (2016) 1 Cal.5th 838, 887.)
Appellant nonetheless asserts, without further analysis, that the failure to give
CALCRIM No. 3501 lowered the prosecution’s burden of proof. The complete failure to
instruct on unanimity may have that effect where it permits conviction without all jurors
agreeing that the defendant committed the same criminal act. (See People v. Wolfe
(2003) 114 Cal.App.4th 177, 187–188; Hernandez, supra, 217 Cal.App.4th at pp. 576–
577.) But that concern is not present here because the instructions given required the
jurors to unanimously agree on the act supporting each count. Moreover, CALCRIM
No. 3501 does not impose an additional burden on the prosecution, but instead “provides
an additional manner by which a jury may unanimously find a defendant guilty beyond
that provided in CALCRIM No. 3500.” (People v. Vasquez (2017) 14 Cal.App.5th 1019,
1046.) Its omission therefore did not dispense with the requirement of unanimity or
otherwise reduce the prosecution’s burden of proof. If anything, the omission deprived
the prosecution of an additional means of establishing unanimity.
Appellant also argues that the failure to give CALCRIM No. 3501 was prejudicial
because there was a reasonable possibility the jurors disagreed as to which acts supported
the individual offenses. This argument is difficult to reconcile with the premise
underlying his claim that CALCRIM No. 3501 was required. Jones explained that a
modified unanimity instruction of the type embodied in CALCRIM No. 3501 is
appropriate when “there is no reasonable likelihood of juror disagreement as to particular
22.
acts.”5 (Jones, supra, 51 Cal.3d at p. 322.) If the evidence instead presented a
reasonable likelihood of such disagreement, as appellant asserts in arguing prejudice,
Jones would call for the standard unanimity instruction, which the court gave here, rather
than CALCRIM No. 3501.
In any event, the manner in which the case was tried provides further assurance
that the verdicts were unanimous. The defense at trial was that the victim fabricated all
allegations of sexual abuse and that inconsistencies in her accounts undermined her
credibility. Appellant made no effort to distinguish among particular instances of abuse.
Thus, the central issue for the jury was the victim’s credibility, not whether some acts
occurred and others did not. Given the generic nature of much of the victim’s account
and appellant’s categorical denial of the alleged abuse, the jury was effectively presented
with a binary decision: either “ ‘believe the [victim’s] testimony that the consistent,
repetitive pattern of acts occurred or disbelieve it.’ ” (Jones, supra, 51 Cal.3d at p. 322.)
The guilty verdicts on all counts show that the jury resolved this credibility dispute
against appellant and support the conclusion that the jurors “must have believed beyond a
reasonable doubt that [appellant] committed all acts if he committed any.” (People v.
Thompson (1995) 36 Cal.App.4th 843, 853; see Hernandez, supra, 217 Cal.App.4th at
p. 577; Matute, supra, 103 Cal.App.4th at p. 1450; Jones, at pp. 321–322.)
Considering the unanimity instructions actually given, the nature of appellant’s
prejudice arguments, and the manner in which the case was tried, we conclude beyond a
reasonable doubt that the omission of CALCRIM No. 3501 did not affect the verdicts,
and this claim is without merit.
5 The “Instructional Duty” section of the Bench Notes to CALCRIM No. 3501
quotes this portion of Jones.
23.
C. The modified unanimity instruction did not suggest that unanimity was
required as to only one count
Appellant also contends the jurors may have interpreted the modified version of
CALCRIM No. 3500 given by the trial court as requiring unanimity on only one count.
He argues that, under the wording of the instruction, the jurors could have unanimously
agreed on a single act and then returned guilty verdicts on the remaining six counts
without reaching unanimous agreement as to the acts supporting those counts.
“In reviewing a claim that a court’s instructions were incomplete or misleading,
we must independently determine whether there is a reasonable likelihood that the jury
construed or applied the challenged instructions in a manner contrary to law.” (People v.
Parker (2025) 113 Cal.App.5th 1261, 1271.) “ ‘[W]e evaluate the instructions given as a
whole, not in isolation.’ ” (People v. Moore (2011) 51 Cal.4th 1104, 1140.) “We
interpret the instructions so as to support the judgment if they are reasonably susceptible
to such interpretation, and we presume jurors can understand and correlate all instructions
given.” (People v. Vang (2009) 171 Cal.App.4th 1120, 1129.)
We agree with appellant that the modified instruction was not ideally phrased.
The pattern version of CALCRIM No. 3500 is worded to address unanimity as to a single
charged offense.6 Here, the trial court apparently modified the first paragraph so the
instruction would encompass all seven charged offenses, but did not make corresponding
changes to the second paragraph. The first paragraph informed the jury that appellant
was charged with seven sexual abuse offenses. The second paragraph, however, stated
6 The pattern version of CALCRIM No. 3500 states, in pertinent part:
“The defendant is charged with _____ <insert description of alleged
offense> [in Count ____] [sometime during the period of _____ to
______].… [¶].
“The People have presented evidence of more than one act to prove
that the defendant committed the charged offense…. You must not
find the defendant guilty … unless you all agree that the People have
proved that the defendant committed at least one of these acts and
you all agree on which act (he/she) committed.”
24.
that the People had “presented evidence of more than one act to prove that [appellant]
committed this offense.” It then instructed the jury not to find appellant guilty unless
“you all agree that the People have proved that [appellant] committed at least one of these
acts and you all agree on which act he committed.”
Despite the imprecise phrasing, we do not find a reasonable likelihood that the
jury interpreted the instructions as requiring unanimity on the specific act for only one
count. The first paragraph expressly advised the jury that appellant was charged with
seven separate counts. Although the second paragraph retained the pattern instruction’s
singular reference to “this offense” and the requirement that the jurors agree on “which
act he committed,” nothing in the instruction suggested that this requirement applied to
only one of the seven counts. Moreover, immediately after giving the challenged
unanimity instruction, the trial court instructed the jury under CALCRIM No. 3515 that
each count is a separate crime and that it must “consider each count separately and return
a separate verdict for each one.” The court again emphasized the unanimity requirement
in CALCRIM No. 3550, instructing the jury that its verdict on each count must be
unanimous, meaning that “all of you must agree to it.”
Read together, the instructions required the jury to consider each count separately
and to unanimously agree on the act appellant committed before returning a guilty verdict
on that count. Considering the instructions as a whole, and the court’s repeated emphasis
that the verdict on each count must be unanimous, we conclude there is no reasonable
likelihood the jurors understood the unanimity requirement to apply to only one of the
seven counts, and we reject this claim.
III. Cumulative Error
Appellant raises a claim of cumulative error. He contends the combined effect of
defense counsel’s alleged deficient performance and the asserted instructional error
rendered his trial fundamentally unfair. We disagree.
25.
“Under the ‘cumulative error’ doctrine, errors that are individually harmless may
nevertheless have a cumulative effect that is prejudicial.” (In re Avena (1996) 12 Cal.4th
694, 772, fn. 32.) A claim of cumulative error is essentially a due process claim. (People
v. Rivas (2013) 214 Cal.App.4th 1410, 1436.) The test is whether the defendant received
a fair trial. (Ibid.)
We reject appellant’s claim of cumulative error because we have denied all of his
individual claims. (See People v. Bradford (1997) 14 Cal.4th 1005, 1057 [cumulative
prejudice argument rejected because each individual contention lacked merit or did not
result in prejudice].) Taking all of appellant’s claims into account, we are satisfied that
he received a fair adjudication.
IV. Substantial Evidence Supported the Trial Court’s Finding that Count 3 Was
Committed on a “Separate Occasion” (§ 667.6, subd. (d)(1)), Requiring Full-
Term Consecutive Sentencing
The trial court imposed a full, separate, and consecutive 10-year term on count 3
pursuant to section 667.6, subdivision (d)(1). Appellant contends the evidence did not
establish that the offense occurred on a “separate occasion” than the forcible rape alleged
in count 1, as required for mandatory consecutive sentencing. He therefore seeks remand
so the court may exercise its discretion under section 667.6, subdivision (c), to impose a
consecutive or concurrent term.
A. Background
As detailed above, count 3 charged appellant with a forcible lewd act upon a child
(§ 288, subd. (b)(1)), described in the third amended information as “defendant’s hand to
victim’s vagina.”
At the sentencing hearing, the trial court began by describing its tentative
sentencing choices. As to counts 1 and 2, the court stated that each count carried a
mandatory indeterminate term of 15 years to life and that the terms had to be imposed
consecutively under section 667.6. As to count 3, the court indicated that the offense
26.
“falls under the list of crimes under 667.6[, subdivision ](d),” and it intended to impose
the upper term of 10 years. The court further explained that section 667.6 did not apply
to counts 4 through 7, and that, under section 1170.1, it intended to impose the upper
term on count 7, and one-third of the middle term on counts 4 through 6.
Defense counsel submitted on the indicated sentence, commenting that the court
was “largely mandated to do certain things as to the consecutive sentencing and the life
terms.” The prosecutor concurred that full-term consecutive sentencing was appropriate
because the offenses involved “separate acts” and “separate incidents over a period of
several years.” The trial court agreed with the prosecutor that the evidence established
“multiple sexual assault crimes occurring within” the five-year period alleged, and that
they were “separate and distinct crimes with respect to the same victim.
Consistent with its tentative sentencing decision, the trial court imposed a fully
consecutive term of 10 years on count 3. The court expressly found that the offense
“occurred on a separate occasion” and that “between one sex crime and another
[appellant] had a reasonable opportunity to reflect on his actions, and nevertheless
resumed [his] sexually assaultive behavior.” The court also reiterated that this finding
required the imposition of “a full[,] separate and consecutive term,” under section 667.6.
Additionally, in electing to impose the upper term on count 3 based upon the factors in
aggravation found true by the jury, the court observed: “[The victim] testified numerous
times about her inability to stop [appellant’s] behavior by telling him to stop. By trying
to kick or push him off. And this conduct as she described is more than necessary for the
forceable nature of the crimes, or crime under [section 288, subdivision (b)(1)]. He went
into her bedroom at night when her mother was asleep or not around.”
B. Applicable law and standard of review
Section 667.6 sets forth “two alternative sentencing frameworks” for certain sex
offenses. (People v. Catarino (2023) 14 Cal.5th 748, 752.) Under section 667.6,
27.
subdivision (c), “a full, separate, and consecutive term may be imposed for each violation
of an offense specified in subdivision (e) if the crimes involve the same victim on the
same occasion.” Section 667.6, subdivision (e), enumerates qualifying sex offenses,
including the offense charged in count 3, forcible lewd act upon a child (§ 288,
subd. (b)(1)). (§ 667.6, subd. (e)(5)).
By contrast, under section 667.6, subdivision (d)(1), if the sentencing court finds
that one or more offenses listed in subdivision (e) “involve[d] separate victims or … the
same victim on separate occasions,” the statute mandates that “[a] full, separate, and
consecutive term shall be imposed for each violation.” Thus, a finding “that the crimes
involved separate victims or occurred on separate occasions eliminates the court’s
discretion.” (People v. Catarino, supra, 14 Cal.5th at p. 753.) Absent such a finding the
court retains discretion under section 667.6, subdivision (c) to impose consecutive or
concurrent sentences.
Section 667.6, subdivision (d)(2) provides the following guidance in determining
whether offenses were committed on separate occasions: “[T]he court shall consider
whether, between the commission of one sex crime and another, the defendant had a
reasonable opportunity to reflect upon the defendant’s actions and nevertheless resumed
sexually assaultive behavior. Neither the duration of time between crimes, nor whether
or not the defendant lost or abandoned the opportunity to attack, shall be, in and of itself,
determinative on the issue of whether the crimes in question occurred on separate
occasions.”
We review a trial court’s finding that offenses occurred on separate occasions for
substantial evidence. (People v. Garza (2003) 107 Cal.App.4th 1081, 1092; People v.
King (2010) 183 Cal.App.4th 1281, 1325.) “Once the trial court has found, under
section 667.6, subdivision (d), that a defendant committed the sex crimes on separate
occasions, we will reverse ‘only if no reasonable trier of fact could have decided the
28.
defendant had a reasonable opportunity for reflection after completing an offense before
resuming his assaultive behavior.’ ” (King, at p. 1325.)
C. Substantial evidence supported the trial court’s separate-occasion
finding
We conclude the evidence supported the trial court’s finding that count 3 occurred
on a separate occasion than count 1. The victim testified appellant forced her to have
sexual intercourse multiple times per month and that he touched her vagina more than
five times. During her forensic interview, the victim likewise described repeated acts of
forced sexual intercourse and other sexual abuse, often occurring at night after appellant
entered her bedroom. In describing the bedroom assaults, the victim stated appellant
would digitally penetrate her, and on some occasions, she tried to push him away, but he
overpowered her. From this evidence, the court could reasonably find that appellant
repeatedly committed forcible rape and forcible digital penetration over a period of years,
and that at least one forcible digital penetration occurred on a different day, and thus on a
separate occasion, from either of the forcible rapes charged in counts 1 and 2.
Appellant’s substantial evidence challenge rests on his assertion that, during
closing argument, the prosecutor expressly elected as the basis for count 3 an act of
digital penetration that occurred during the same incident as the rape alleged in count 1.
From this premise, he claims that the victim’s forensic interview was too vague to
establish whether there was a break between the two acts sufficient to permit reflection
because she had difficulty distinguishing the various incidents of sexual abuse.7
7 Appellant also claims the trial court never expressly found that count 3 was
committed on a separate occasion from the offenses and may have erroneously concluded
that full-term consecutive sentencing was mandatory solely because the offense (§ 288,
subd. (b)(1)) is enumerated in section 667.6, subdivision (e). The record belies this
contention. The court expressly found that the offenses occurred on separate occasions
and based its imposition of a full, consecutive term on that finding. We therefore need
not further address appellant’s suggestion that the court misunderstood the applicable
law.
29.
Assuming the trial court’s section 667.6 sentencing determination was constrained
by the prosecutor’s purported election, we conclude no election occurred. To obviate the
need for an unanimity instruction, the prosecutor can make an election by “ ‘tying each
specific count to specific criminal acts elicited from the victims’ testimony’—typically in
opening statement and/or closing argument.” (People v. Brown (2017) 11 Cal.App.5th
332, 341.) Such an election must be communicated to the jury “with as much clarity and
directness as would a judge in giving instruction.” (Melhado, supra, 60 Cal.App.4th at
p. 1539.) “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.)
Here, appellant asserts that the prosecutor made an election while discussing
count 3 by referring to what the victim “described as one of the wors[t] incidents.”
Viewed in context, however, the prosecutor was addressing whether the evidence
satisfied the force element required for a violation of section 288, subdivision (b)(1),
rather than identifying a factual basis for count 3. In explaining why the force element
had been met, the prosecutor argued:
“This is where she is talking about when she described as one of
the wors[t] incidents. And she said he was touching me there, he
would just start putting his fingers inside me. And then like he
would -- because there was sometimes I would push him away, it is
like he was stronger than me. I can’t. Plus I was a little girl. Trying
to push someone away while they’re trying to grab your vagina is
sufficient force to prove a [violation of section 288, subdivision
(b)(1)]. This element has been met.”
Nothing in these remarks communicated, or even suggested, that the prosecutor
was relying on a particular incident as the sole factual basis for count 3, let alone the
same incident underlying the rape charged in count 1. Although the forensic interviewer
at one point asked the victim to describe the “worst time” she remembered, the victim
went on to describe what appellant generally did during the numerous incidents in which
he entered her bedroom and sexually assaulted her. Against that backdrop, the
30.
prosecutor’s reference to the “wors[t] time” is better understood as identifying the portion
of the interview from which she drew the victim’s statements concerning force. The
prosecutor then paraphrased the victim’s description of how appellant overcame her
efforts to physically resist digital penetration on multiple occasions. Accordingly, the
prosecutor’s remarks did not clearly identify a particular incident as the factual basis for
count 3, and therefore did not constitute an election made “with as much clarity and
directness as would a judge in giving instruction.” (Melhado, supra, 60 Cal.App.4th at
p. 1539.)
In short, the evidence at trial established that appellant committed numerous acts
of forcible rape and forcible digital penetration, and the trial court could reasonably
conclude that count 3 occurred on a separate occasion than counts 1 and 2 within the
meaning of section 667.6, subdivision (d)(1). We therefore conclude the trial court’s
finding was supported by substantial evidence, and we reject this claim.
V. The Trial Court Must Issue Separate Abstracts of Judgment for the
Determinate and Indeterminate Portions of Appellant’s Sentence
Appellant’s aggregate sentence consists of both determinate and indeterminate
terms. The trial court imposed consecutive indeterminate terms of 15 years to life on
counts 1 and 2, a consecutive determinate term of 10 years on count 3, a consecutive
determinate term of eight years on count 7, and consecutive two-year terms on counts 4,
5, and 6.
The parties agree, as do we, that the trial court incorrectly recorded both the
determinate and indeterminate portions of appellant’s sentence in a single abstract of
judgment. The court prepared an indeterminate abstract of judgment using Judicial
Council form CR-292, which correctly reflects the indeterminate terms imposed on
counts 1 and 2. However, it did not prepare a separate abstract of judgment for the
determinate terms. Instead, the court recorded the determinate terms on form CR-
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290(A), an “attachment page” for a determinate abstract of judgment, and inserted that
page into the indeterminate abstract of judgment.
The trial court should have prepared a separate determinate abstract of judgment
using the appropriate form, Judicial Council form CR-290. Accordingly, we direct the
trial court to prepare separate abstracts of judgment reflecting the determinate and
indeterminate portions of appellant’s sentence on the appropriate Judicial Council forms,
CR-290 and CR-292, respectively.
DISPOSITION
The trial court is directed to prepare amended abstracts of judgment that record the
determinate sentences on Judicial Council form CR-290 and the indeterminate sentences
on Judicial Council form CR-292. The trial court shall then forward the amended
abstracts of judgment to the appropriate entities. In all other respects, the judgment is
affirmed.
DE SANTOS, J.
WE CONCUR:
HILL, P. J.
SANDHU, J.
32.