P. v. Cooper

Filed 3/13/07 P. v. Cooper CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. Arthur E. Wallace, Judge.

David H. Goodwin, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Louis M. Vasquez and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant Conrad C. Cooper was convicted of four counts of committing a lewd act upon a child (Pen. Code,^[1] 288, subd. (a)). Count 1 was committed against victim R.R. Counts 2 through 4 were committed against victim A.G. The court sentenced defendant to the midterm of six years on count 1. The court imposed a consecutive two-year term on count 2 (one-third the midterm) and two concurrent six-year terms on counts 3 and 4 for a total prison term of 8 years. On appeal, defendant contends his convictions on counts 2 through 4 must be reversed because the court failed to give a unanimity instruction. The People concede the court erred in failing to give a unanimity instruction but contend the error was harmless. We agree and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

As pertinent to the issue raised by defendants appeal, defendant was charged by information with three counts of lewd acts upon A.G. Each count alleged identical facts; i.e., that defendant committed a lewd act upon A.G., then seven years old, between March 1, 2003 and July 1, 2004.

At trial, A.G. described four lewd acts that took place in this time frame. Each act took place at a house in Tehachapi, on property where her mother worked training horses. While her mother was working, A.G. would often play up at the house with the property owners three granddaughters. Defendant lived on the property in a trailer behind the house.

On three occasions, defendant molested A.G. while she was sitting on his lap, playing computer games at a desk in the property owners bedroom. On the first two occasions, A.G.s older brother was sitting next to A.G. and defendant, but he was looking at the computer screen. On the second occasion, the property owner was also present, but he was lying on the bed about 12 feet away, watching television.^[2]

On the first occasion, defendant touched A.G.s crotch over and under her clothes. Defendant stopped and let A.G. go when she asked if she could go use the bathroom. Later, defendant told A.G. not to tell anyone or he would go to jail.

On the second occasion, defendant touched A.G. on her leg and crotch over her clothes. Defendant stopped when A.G. asked if she could get a glass of water.

On the third occasion, defendant rubbed his hand on the upper part of A.G.s leg. Defendant also touched her crotch [a] little bit but mainly touched her leg. Defendant asked A.G. if it felt good. A.G. said no and asked if they could go watch a movie because she did not want to play computer games anymore.

The fourth occasion occurred when A.G. and her brother were spending the night at the property owners house. A.G.s brother was sitting at the computer and A.G. was lying on her side on the floor under a blanket. Defendant sat down next to A.G. and then lay down on his side. A.G. pretended to be asleep. Defendant grabbed A.G.s hand, put it on his crotch, and moved it around over and under his clothing. The next day, he gave A.G. candy and told her not to tell anybody or he would get in trouble.

A.G. first disclosed the molestation to her friends, N.M. and O.M., after N.M. asked A.G. whether anything was going on with her and defendant. A.G. told them it was a secret and she did not want them to tell anyone. N.M. and O.M. told their mother, who called A.G.s mother. A.G.s mother then went over to their house and asked N.M. and O.M. some questions and spoke with their parents.

At the time A.G.s mother learned of the molestation, A.G. was staying with her grandmother. A.G.s mother called A.G.s grandmother and asked her to ask A.G. if anyone had touched her but to be very vague and not to mention defendants name. A.G. testified that when her grandmother first asked her if someone had touched her in the wrong place, she said, No, I dont think so. But after her grandmother asked a couple questions and mentioned defendants name, it helped her to remember and she answered [y]es.

The next day, A.G.s mother took A.G. to be interviewed by Deputy James Craig of the Kern County Sheriffs Department. Prior to the interview, A.G.s mother talked to A.G. [v]ery little about the molestation so as not to influence her mind. A.G.s mother testified she was acting on the advice of her boyfriend who was an officer with the California Highway Patrol. Between the time of trial and the initial interview with Deputy Craig, A.G.s mother continued to speak very little to A.G. about the case and did not press her for additional details.

A.G. testified she knew her friends N.M. and O.M.s mother kept them away from defendant because she thought there was something weird about him. On different occasions, A.G. overheard conversations between her mother and her mothers friends, during which her mother warned them to keep their children away from defendant because he was a bad man.

The defense

Deputy Craig testified that when he conducted his interview of A.G. on February 22, 2005, she told him that, on the first occasion she was molested, defendants hands were on the outside of her pants. Even though Deputy Craig specifically asked her, A.G. did not tell him anything about defendant putting his hands inside her clothing.

As to the occasion A.G. spent the night at the house, A.G. told Deputy Craig that she rubbed defendant over his pants, not inside them. She did not say anything about defendant grabbing her hand and making her rub him.

Deputy Craig arranged a forensic interview for A.G., on February 23, 2005, with Anna Hackler at the Dr. Diamond Center.^[3]

DISCUSSION

Because A.G.s testimony established four lewd acts and there were only three acts charged, defendant claims the court prejudicially erred by not giving sua sponte the unanimity instruction contained in CALJIC No. 17.01.^[4] We conclude any error in this regard was harmless.

When a defendant is charged with a single criminal act but the evidence reveals more than one such act, the prosecution must either select the particular act upon which it relies to prove the charge or the jury must be instructed that it must unanimously agree beyond a reasonable doubt that defendant committed the same specific criminal act. [Citations.] The unanimity requirement is constitutionally rooted in the principle that a criminal defendant is entitled to a verdict in which all 12 jurors concur, beyond a reasonable doubt, as to each count charged. [Citations.] (People v. Brown (1996) 42 Cal.App.4th 1493, 1500.)

The failure to give a unanimity instruction to the jury is governed by the harmless beyond a reasonable doubt standard of Chapman v. California (1967) 386 U.S. 18. (People v. Deletto (1983) 147 Cal.App.3d 458, 471 (Deletto).) Appellate courts have previously recognized that the failure to give the unanimity instruction does not require reversal unless the jurors could otherwise disagree which act a defendant committed and yet convict him of the crime charged. (People v. Brown (1991) 234 Cal.App.3d 918, 935, quoting People v. Gonzalez (1983) 141 Cal.App.3d 786, 791.) Put another way, the failure to give the unanimity instruction is harmless error where the jurys verdict implies that it did not believe the only defense offered. (Deletto, supra, 147 Cal.App.3d at p. 466, quoting People v. Diedrich (1982) 31 Cal.3d 263, 283.)

The courts rationale in Deletto applies here. [O]nly one witness, the minor, testified about the acts in question; no real evidence was admitted. (Deletto, supra, 147 Cal.App.3d at p. 466.) The defense similarly provided the jury with no evidence that focused on one act but not the other. (Id. at p. 467.) Here, although Deputy Craigs defense testimony arguably focused on two of the lewd acts described by the victim, the defense did not rely on his testimony to argue that those particular acts were not sufficiently proven or offer separate defenses to each lewd act alleged. Rather, the defense theory was that none of the acts occurred and that the victims testimony resulted from adult suggestions.^[5] The issue of how many different lewd acts occurred was never clearly discussed. Rather, both the prosecutor and defense counsel focused their argument on why the jury should either accept or reject the victims testimony in its entirety. Under these circumstances, the jurys verdict implied that it did not believe the only defense defendant offered.

People v. Smith (2005) 132 Cal.App.4th 1537, the case relied on by defendant, is distinguishable. Smith was charged with 10 counts of child molestation. However, the prosecution elicited testimony from the victim that she was molested on over 20 occasions during an approximate two-year period. (Id. at pp. 1541-1542.) The jury found Smith guilty of only one count of molestation. The court concluded, it is certainly reasonably possible that this jury concluded that as long as each juror believed beyond a reasonable doubt that defendant had molested [victim] at least once, it did not matter that they differed on what act of molestation actually occurred. (Id. at p. 1546.) As a result, the trial courts failure to read CALJIC No. 17.01 constituted prejudicial error. The scenario in this case is different. Here, the evidence established only one additional act than was charged and the jury found defendant guilty on all counts. Because of this and the reasons discussed above, we find the current case to be more analogous to Deletto than Smith, and conclude that the courts failure to give a unanimity instruction was harmless because it appears the jury rejected the only defense offered.

DISPOSITION

The judgment is affirmed.

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^* Before Levy, Acting P.J., Hill, J. and Kane, J.

^[1] All statutory references are to the Penal Code.

^[2] Neither A.G.s brother nor the property owner testified. There were only three witnesses called by the prosecution regarding the charges involving A.G.: A.G., A.G.s mother, and the sheriffs deputy who interviewed A.G. following her disclosure of the molestation.

^[3] A.G. testified she did not remember speaking with Anna Hackler. A.G. also testified her memory of what happened was better at the time of trial than when she was interviewed by Deputy Craig because some of the things the prosecutor and defense counsel asked her helped to bring back her memories.

^[4] CALJIC No. 17.01 reads: The defendant is accused of having committed the crime of ___ [in Count ___]. The prosecution has introduced evidence for the purpose of showing that there is more than one [act] [or] [omission] upon which a conviction [on Count ___] may be based. Defendant may be found guilty if the proof shows beyond a reasonable doubt that [he] [she] committed any one or more of the [acts] [or] [omissions]. However, in order to return a verdict of guilty [to Count ___], all jurors must agree that [he] [she] committed the same [act] [or] [omission] [or] [acts] [or] [omissions]. It is not necessary that the particular [act] [or] [omission] agreed upon be stated in your verdict.

^[5] Thus, defendants trial counsel argued: The point is not that there are differences or not that shes got a bad memory or not that a little girl cant remember stories and keep them straight or not that shes lying at all. The point is that the stories grew. And they grew in one direction and one direction only, and that is the direction of more and more sexual involvement. And they grew, as she said, as a result of people asking her questions and attributing meaning to acts. [] [] Theyre inherently improbable to think that thats the situation and thats whats happening. She also, by the way, testified that pretty much she was always in the presence of her brother or other people when she was with [defendant]. [] Now, theyre improbable in the sense that they would be sexual adventures, sexual assaults on behalf of [defendant], because thats what were talking about, sexual assault on a little girl in the presence of her older brother and in the presence of another adult right there. Its improbable, but its not improbable that after all that happened she would attribute meaning and shake her memory of those incidents because it probably is true that they were sitting there playing computer games a couple of times, and it probably is true that she slept in [the property owners] bedroom with her brother, and [defendant] was there until he went to bed in his own place. It probably is true, but thats about it.