P. v. McDonald

Filed 3/8/07 P. v. McDonald 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Tuolumne County. Eric Du Temple, Judge.

Marc L. Christiansen, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Stanley Cross, Acting Assistant Attorney General, Kathleen A. McKenna and Connie A. Proctor, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Appellant McDonald was charged with five counts of committing oral copulation with a minor, Jane Doe, and one count of violating a court order. He claimed, as a defense to the sexual crimes, that he was mistaken about Jane Does age and believed her to be at least eighteen years old. The first trial resulted in a misdemeanor conviction for violating the courts restraining order, but a hung jury (mistrial) on the other counts. After a firm date was set for retrial of the five counts of oral copulation, the prosecutor learned that a material witness would be out of state during the time of trial. The court granted the prosecutors motion for a conditional examination of the witness, and the video recorded testimony was subsequently admitted into evidence in the second trial. Appellant was then convicted of the five counts of oral copulation. He now appeals, contending that his conviction should be reversed because admission of the video recording violated his constitutional right to confront witnesses. He also contends that the jury was not adequately instructed on which particular acts or incidents it could rely upon to reach its unanimous verdict, and consequently he may have been convicted of uncharged offenses. Although we will remand for correction or redetermination by the trial court of certain sentencing issues, in all other respects the judgment will be affirmed.^[1]

PROCEDURAL BACKGROUND

These criminal proceedings began as two separate cases against appellant. In the first case (No. CRF15480), appellant was charged with two counts of oral copulation with a minor (Pen. Code,  288a, subd. (b)(1)), and one count of disobeying a court order, a misdemeanor (Pen. Code,  166, subd. (a)(4)). These acts were allegedly committed in the County of Tuolumne. In the second case (CRF16616), appellant was charged with three counts of oral copulation with a minor. These acts were allegedly committed in the County of Stanislaus. All five oral copulation charges involved the same victim, referred to as Jane Doe. The remaining charge alleged that appellant violated a restraining order to cease all contact with Jane Doe. The two cases were consolidated for trial, and were tried and sentenced together in the County of Tuolumne.^[2]

Jury trial commenced on March 23, 2005. The jury convicted appellant of disobeying a court order (count 6), but was unable to reach a verdict on the five counts of oral copulation with a minor. Sentencing on count 6 was deferred. This was the first trial.

After the court declared a mistrial regarding the oral copulation counts (counts 1 through 5), a second trial of those counts commenced on June 29, 2005. The second trial culminated on July 6, 2005, when the jury convicted appellant of all five counts of oral copulation with a minor.

On August 15, 2005, appellant was sentenced to a total of two years in state prison. Specifically, on count 1 of the oral copulation charges, appellant was sentenced to two years; on counts 2 through 5 he was sentenced to two years each (to be served concurrently with the term imposed in count 1); and on count 6 for violation of a court order he was sentenced to six months (to be served concurrently with the term imposed in count 1). In addition, restitution was awarded to the victim, restitution fines were imposed, and appellant was ordered to register as a sex offender pursuant to Penal Code section 290. Thereafter, appellant timely filed his notice of appeal listing both cases.

FACTUAL SYNOPSIS^[3]

During the relevant time period in 2004, Jane Doe was 17 years old. She was born on September 5, 1986. Appellant was considerably older,^[4]and had a wife and children, including a daughter, T.M., who was close to Jane Does age. T.M. and Jane Doe were friends. Prior to the incidents for which appellant was convicted, Doe thought of appellant as just [T.M.s] dad. The two families knew each other because they attended the same church, and occasionally Doe would go on vacations and camping trips with appellants family.

In February or March of 2004, appellant offered Doe a secretarial job in which she would work in appellants home where appellant had an office for his chimney sweep business. Does parents allowed her to accept the job, with the understanding that they did not want her to be in the house alone with appellant, and they eventually expressed this condition to appellant as well as to Doe. Appellant assured Does parents he would not be in the house alone with her, a promise which on cross-examination he admitted was a lie. In fact, during the three or four weeks she was employed by appellant, he was alone with her often. He began confiding in her about his marriage problems, and she began confiding in him about her frustrations with having strict parents. Soon, he was giving her romantic cards, diamond jewelry and a gold ring. The relationship became physical, and the first act of oral copulation occurred at appellants house in either April or May of 2004. Doe recalled the first act happened in April, while appellant testified that it was in May.

According to Does testimony, after this first incident she and appellant had oral sex about two or three times per week which continued until late July or early August, a total of approximately 24 times. Along with this generic testimony, Doe was able to recall several particular incidents in which oral copulation occurred, including the first one at appellants home, two in June at a hotel in Oakdale, and one in July at the Aladdin Hotel in Sonora. She also recalled that starting in June of 2004, she would meet appellant at a rental home in Sugar Pine on unspecified occasions, where other acts of oral sex occurred. That same summer, she told the jury, there was also one trip to Santa Cruz in which there was oral sex with appellant.

Appellant admitted that he had oral sex with appellant as many as five times. He testified the first act was sometime in May at his house; the last was on June 29th at the Aladdin Hotel in Sonora; and he recalled one or possibly two hotel visits to Oakdale in June. He said there was perhaps another time in June at his house.

Testimony was presented from several witnesses about a meeting on May 4, 2004, between the church pastor, appellant, and Does parents. Does parents had discovered a romantic card and jewelry. They suspected something was going on and wanted appellant to stop pursuing their daughter. According to Does mothers testimony, appellant claimed the gifts were just to encourage her, and he warned them that when [Doe] was 18, she was probably going to leave home. He did not mention anything about Doe turning 18 on May 5th or May 8th. According to his testimony, he did tell them her eighteenth birthday was coming soon. At the meeting, appellant promised he would have no further purposeful contact with Doe. The promise was admittedly false, to get them off his back; he immediately called Doe after the meeting, and he was seeing her again shortly thereafter.

The gist of appellants defense was not that he did not have oral sex with appellant, but that he believed in good faith that she was already 18 years old. According to appellant, when he explained they could only go so far because of her age, Doe told him that her eighteenth birthday was either May 5th or May 8th of that year. It was only after that time that he began to have oral sex with Doe. Appellant testified that he did not learn the truth until late July, when he received a call from Mr. Martinelli indicating the police were getting involved, after which Doe allegedly confessed to him that she was actually 17 and that her birthday was in September. In stark contrast, Does testimony was that he knew in April that her eighteenth birthday was in September. Doe testified that she would talk with him often about it because she could not wait until [she] turned 18 in September. The subject of her age and what they would do once she was 18 would come up in conversation at least twice a week. She denied ever telling him that she would turn 18 on May 5th or May 8th of 2004.

Both sides presented witnesses other than appellant and Doe, to testify on the question of when appellant knew Doe was turning 18 in September. For the prosecution, Steve Martinelli testified that sometime in June of 2004 appellant told him, Everyone is going to be surprised in September when Jane Doe turns 18. Mark Christie similarly testified that in May or June, appellant told him that they (appellant and Doe) were going to run off when she turned 18 in September. Also, Does parents testified that at the meeting on May 4th, they pointed out the fact that their daughter was under age. For the defense, a number of witnesses said that Doe told them she was 18 or 19 years old. Don Swanson testified that in May he called appellants cell phone, and Doe answered and informed him that she and appellant were going out to celebrate her birthday. There was also testimony indicating that Doe may have celebrated a previous birthday in May rather than September.

The parties stipulated that Does father obtained a restraining order from the court on August 10, 2004, on behalf of his daughter. The order was issued and served that same day. The courts order prohibited appellant from having any contact with Jane Doe and her family, either by telephone or any other means, including mail, fax or e-mail. It was due to expire on August 27, 2004. The order was extended in a hearing held on August 27, 2004, to October 29, 2004. Appellant was not present at this hearing, and no proof was offered that appellant had notice of the extension until October 29, 2004. Doe testified that sometime after the restraining order was issued, but before she left for college on August 21st, appellant called and asked her to pick up a letter he had written to her. The letter would be placed under the stairs at the house in Sugar Pine. She picked up the letter before she left for school. Doe also recalled that before she left for college, she went to appellants house to return some gifts to him. He gave her two letters at that time. She testified that one of the letters she received from him before leaving for school expressly mentioned the restraining order.

CONTENTIONS ON APPEAL

Appellant McDonald makes the following assertions of error: (1) There was no substantial evidence to support the misdemeanor conviction for violating a court order; (2) The admission of videotaped testimony of a material prosecution witness was improper and violated appellants constitutional right to confront witnesses; (3) There was instructional error, including failure to give an adequate unanimity instruction and failure to instruct the jury which acts it may rely upon to convict; (4) Mandatory registration as a sex offender violated appellants right of equal protection; (5) Portions of the sentence were improper; and (6) The abstract of judgment must be corrected. We will address each of these contentions.

DISCUSSION

A. Substantial Evidence Supports Misdemeanor Conviction.

Appellant claims there was insufficient evidence to support his conviction for violation of the courts restraining order. In particular, appellant argues the evidence failed to show that he contacted Doe after the courts order was issued. We disagree.

1. Standard of Review.

To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Bolden (2002) 29 Cal.4th 515, 553.) We must draw all reasonable inferences in support of the judgment. (People v. Wader (1993) 5 Cal.4th 610, 640.) It is not our function to reweigh the evidence, reappraise the credibility of witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact. We look for substantial evidence, and we may not reverse a conviction for insufficiency of the evidence unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction. (People v. Bolin (1998) 18 Cal.4th 297, 331.)

Furthermore, [c]ircumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt. (People v. Bradford (1997) 15 Cal.4th 1229, 1329.) If the circumstances, plus all the logical inferences the jury might have drawn from them, reasonably justify the jurys findings, our opinion that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. (People v. Bradford, supra, 15 Cal.4th at p. 1329; People v. Panah (2005) 35 Cal.4th 395, 489.)

Evidence of a defendants state of mind is almost inevitably circumstantial, but circumstantial evidence is as sufficient as direct evidence to support a conviction. [Citations.] (People v. Bloom (1989) 48 Cal.3d 1194, 1208.) It is well-settled that [a] jury may infer a defendants specific intent from the circumstances attending the act, the manner in which it is done, and the means used, among other factors. (People v. Park (2003) 112 Cal.App.4th 61, 68.)

2. Substantial Evidence Existed that Appellant Violated Court Order

The court order served on August 10th forbade appellant from contacting Doe in any way, including by letter or telephone. As noted above, Doe testified that sometime after the restraining order was issued, but before she left for college on August 21st, appellant telephoned and urged her to pick up a letter he had written to her. He said the letter would be found under the stairs at the house in Sugar Pine. She picked up the letter before she left for school. There was also testimony from Doe that before she left for college, she went to appellants house to return some gifts to him. He gave her two letters at that time. One of the letters which she received from him before leaving for school expressly mentioned the restraining order. There was clearly sufficient evidence for the jury to conclude that appellant contacted the appellant in willful violation of the courts order.

B. Videotape of Witnesss Conditional Examination

Next, appellant contends that the trial court improperly admitted into evidence a videotape of a witnesss conditional examination. Appellants argument is two-fold: (1) The trial court did not comply with the statutes relating to admission of conditional examinations; and (2) His constitutional right to confront and cross-examine the witness was violated. As explained below, we conclude that appellants arguments on both fronts are unavailing.

The witness in question, Steven Martinelli, testified in the first trial about conversations he had with appellant in June or July of 2004 in which appellant indicated his awareness that Doe was not going to turn 18 years old until September of 2004. Martinelli was therefore a material witness in the prosecutions effort to disprove appellants defense was that he mistakenly believed that Doe was 18 years of age when he had sexual relations with her.^[5]

The need for the conditional examination arose after the first trial resulted in a hung jury on the oral copulation charges, and an attempt was made to schedule a retrial of those charges. On April 4, 2005, the parties agreed to a date for the second trial of June 29, 2005. When the date was set, the prosecutor was not present, but another attorney from his office was present. On June 7, 2005, the prosecutor filed a motion to continue the trial until July 12, 2005, because he had learned that Martinelli was going to be on a prepaid vacation at the time of the trial. Defense counsel opposed the motion because he was unavailable on the dates proposed by the prosecutor and he objected to further delay. The court denied the motion to continue trial.

The prosecutor then filed a motion for a conditional examination on the ground that Martinelli, a material witness, would be traveling out of the country (in Mexico) on a prepaid vacation at the time of trial.^[6] In his moving papers, the prosecutor argued that the transcript from the first trial would not, by itself, adequately serve this purpose, since it was important to obtain further testimony from Martinelli to clarify the dates of certain conversations.^[7] Defense counsel filed a declaration in opposition to the motion, asserting among other things that the prosecutor was negligent in failing to promptly ensure that his witnesses would be available for the new trial date, and that Martinelli was not a material witness. At oral argument, the prosecutor stated it was his intention that, if granted, the examination would only encompass the new areas of testimony, in which clarification was needed of the dates of certain conversations. Later in the same hearing, however, when the court asked for time estimates, the prosecutor indicated that two hours would be enough time to conduct the examination, even if we decide to do the whole thing. Defense counsel agreed that two hours would be sufficient because his testimony only took half hour last time. The judge concluded that Martinelli was a material witness and, as it appeared he was going to be out of the country, granted the motion for a conditional examination. As to the prosecutors proposal to limit the scope of the examination, the judge indicated he was not ruling on that question: Im just going to grant the motion and youve stated your intent. In response to defense counsels question about being able to make objections during the conditional examination, the judge explained, the conditional exam is going to be in front of a judge, so there will be a judge there ruling on it.

The conditional examination was conducted before Judge Boyack on June 21, 2005. At the outset of the examination, it became necessary to obtain clarification of the scope of the examination. Defense counsel insisted that the prosecutor could only inquire into matters which would refresh the witnesss recollection about certain dates. The prosecutor disagreed, noting that the court did not restrict the scope of the examination, and the whole thing would only take about forty minutes. He explained further: The options are to either have the jury have the transcript of this witnesss first testimony read by someone taking the stand in his place and then playing a videotape on select issues which I think would be confusing to the jury. Because of how short [the] testimony of this witness would be, it would be easier -- it would be less confusing and it would be appropriate to just go ahead and take his testimony again. Judge Boyack took a brief recess to consult with Judge DuTemple about the matter, since Judge DuTemple heard and ruled on the motion for conditional examination and would also be the trial judge. Judge Boyack returned to the bench and announced that Judge DuTemple has suggested that it would be most appropriate to have the whole matter heard now, so well do that.

During the conditional examination, appellant was present with his attorney, Mr. Borden, who made numerous evidentiary objections and engaged in extensive cross-examination of the witness. Based on certain receipts which helped him clarify the date of his conversation with appellant, Martinelli testified at the conditional examination that in mid-June appellant told him everyone is going to be surprised in September when Jane Doe turns 18.

At the second trial, the video-recorded testimony of Martinelli from the conditional examination was presented to the jury with no objection raised concerning its admissibility.

Appellant first claims the trial court failed to comply with the statutory requirements of Section 1345 when it admitted the video-recording of Martinellis testimony, because there was no finding that the witness was unavailable as defined in Evidence Code section 240. We will consider this statutory argument.

1. Statutory Requirements for Admission

A conditional examination is a means of perpetuation of testimony of a material witness who may become unavailable to testify at trial. (5 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000), Criminal Trial,  66, p. 122-123.) Thereafter, [t]he completed deposition may be read in evidence (or a video recording of the examination shown) by either party if it appears that the witness is unavailable as a witness within the meaning of [Evidence Code section] 240. (Id. at p. 123 [emphasis in original].)

Penal Code sections 1335 through 1345 govern conditional examinations. According to section 1336, subdivision (a): When a material witness for the defendant, or for the people, is about to leave the state, or is so sick or infirm as to afford reasonable grounds for apprehension that he or she will be unable to attend the trial, or is a person 65 years of age of older, or a dependent adult, the defendant or the people may apply for an order that the witness be examined conditionally. ( 1336, subd. (a) [emphasis added].)  The application must be accompanied by a declaration stating, among other things, the name of the witness, the reasons his or her testimony is material to the defense or prosecution of the action, and the grounds for seeking the conditional examination -- i.e., that the witness is about to leave the state, is sick, elderly, or his or her life is in jeopardy. ( 1337.) If the court or judge is satisfied that the examination of the witness is necessary, an order must be made that the witness be examined conditionally, at a specified time and place, and before a magistrate designated therein. ( 1339.) The defendant has the right to be present in person and with counsel at such examination. ( 1340.)

Section 1345 governs the admissibility of the conditional examination at trial, and provides as follows: The deposition, or a certified copy of it, may be read in evidence, or if the examination was video-recorded, that video-recording may be shown by either party at the trial if the court finds that the witness is unavailable as a witness within the meaning of Section 240^[8]of the Evidence Code. The same objections may be taken to a question or answer contained in the deposition or video-recording as if the witness had been examined orally in court. ( 1345 [emphasis added].) Thus, a prerequisite to admission of the examination is that the witness is found to be unavailable within the meaning of Evidence Code section 240.

Appellant contends that the video recording of Martinellis conditional examination was improperly admitted because there was no showing that he was unavailable under Evidence Code section 240, since the prosecutor failed to offer evidence of reasonable diligence to secure the witnesss presence at trial. The respondent counters that unavailability is established if the witness is out of state, and no showing of diligence is needed, relying on People v. Thompson (1998) 61 Cal.App.4th 1269 (Thompson).

In Thompson, supra, 61 Cal.App.4th 1269, the Court of Appeal addressed the admissibility of a conditional examination where the witness in question was out of state. In that case, the trial court had authorized a conditional examination of a witness, a Mr. Rollin, because he was going to be out of state due to a planned vacation in Hawaii at the time of trial. The defendant objected to the conditional examination procedure and requested that the court make findings of the witnesss unavailability and due diligence on the part of the prosecution. (Id. at p. 1277.) The trial court declined to make such findings, but instead merely found that Rollin would be on an out-of-state vacation, and on that basis ordered the examination. (Ibid.) At the time of trial, when Rollin was in fact in Hawaii, the trial judge held that the conditional examination was admissible. The defendant objected that the trial court failed to find Rollin unavailable to testify at trial. (Ibid.) The defendant appealed on the ground that the trial court erred in allowing the conditional examination to be admitted into evidence without a finding of due diligence, in view of the definition of an unavailable witness set forth at Evidence Code, section 240, subdivision (a)(5). (Id. at p. 1278.) The Court of Appeal rejected the defendants arguments, and held (based on its construction of the conditional examination statutes, i.e., 1335-1345) that if a witness is out of state he is unavailable for purposes of allowing his conditional examination to be admitted at trial, and no further showing is needed. (Id. p. 1279-1280.)

The present case appears to be on all-fours with Thompson. Thus, if we were to follow Thompson, it would resolve in respondents favor the issue of whether the statutory grounds for admissibility were satisfied.

Appellant urges that we decline to follow Thompson on the ground that its reasoning is flawed. He notes that sections 1335 through 1344 deal only with the initial step of preserving testimony by means of a conditional examination when it is anticipated the witness may become unavailable to testify at trial. At that initial stage, the trial court is not ruling on admissibility, but merely allowing the testimony to be preserved. (See In re Francisco M. (2001) 86 Cal.App.4th 1061, 1079, fn. 13.) However, in the section specifically addressing admissibility, i.e., section 1345, it provides that a conditional examination may be admitted in evidence if the court finds that the witness is unavailable as a witness within the meaning of section 240 of the Evidence Code. Further, Evidence Code section 240 provides that a witness who is absent from the hearing is unavailable only if there has been reasonable diligence to procure the witnesss attendance by the courts process (Evid. Code,  240, subd. (a)(5)) or the court is unable to compel his or her attendance by its process. (Evid. Code,  240, subd. (a)(4).) Thus, appellant argues, a conditional examination of an out of state witness is admissible only if something more is shown -- i.e., that there has been a reasonable diligence to procure the witnesss attendance at trial, or the court is unable to compel the witnesss attendance by its process.

Although appellants arguments are plausible, we find it unnecessary to decide whether Thompson was correctly decided. There are other, more basic reasons apparent in the record for concluding that appellants appeal on this ground cannot succeed.

First, at the time of trial, when the prosecutor introduced the video-recording of Martinellis conditional examination, no objection was made that the video-recording was inadmissible hearsay, or that the witness was not unavailable, or that admission of the recording would violate the appellants right to confront witnesses. We find that the appellant has failed to preserve the issue for appeal. The general rule, which is fully applicable here, is that questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal. (People v. Waidla (2000) 22 Cal.4th 690, 717; and Evid. Code,  353.)^[9]

Second, no dispute was raised whether Martinelli was in fact out of the country and hence beyond the courts process at the time of trial, which is a distinct basis for unavailability under Evidence Code 240.^[10] Appellant appears to have acquiesced on this point. In connection with the motion for conditional examination, the prosecutor submitted a declaration indicating that Martinelli would be traveling out of the country, i.e., to Mexico, at the time set for trial. Although the statement about Martinelli was hearsay, no objection was made to the declaration at the time of the motion or at trial, nor was any objection made at trial that a foundational showing for admissibility was lacking. On this record, we conclude it was not disputed that the witness in question, Mr. Martinelli, was traveling out of the country, and/or any defect in regard to the prosecutors foundational showing on this issue was waived. (See Evid. Code,  353; 6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Reversible Error,  36, p. 495 [A defendant who did not induce the error ... may nevertheless, by conduct amounting to acquiescence in the action taken, waive the right to attack it]; People v. Jenkins (2000) 22 Cal.4th 900, 1000 [appellate court will generally not consider procedural defects if objection could have been made but was not appropriately presented to trial court].)

Of course, when a witness is out of the country, he or she is deemed unavailable within the meaning of Evidence Code section 240, subdivision (a)(4), because the court is unable to compel his or her attendance by its process.^[11] (See People v. Smith (2003) 30 Cal.4th 581, 609-610 [noting that if it was shown that witness was in Japan, unavailability would be established under Evid. Code,  240]; People v. Sandoval (2001) 87 Cal.App.4th 1425, 1433-1434 [witness in Mexico was unavailable within the meaning of Evid. Code,  240, subd. (a)(4), because court had no power to compel his appearance, although further showing of diligence needed to satisfy confrontation clause]; People v. Denson (1986) 178 Cal.App.3d 788, 790; People v. Ware (1978) 78 Cal.App.3d 822, 827-829.) Thus, it appears that a recognized statutory basis existed under Evidence Code section 240 for concluding the witness was unavailable, without any need to rely upon Thompson.^[12]

Third, even assuming arguendo that the trial court erred in admitting the evidence, any merely statutory error was harmless. As respondent correctly points out, Martinellis testimony was not unique, but was cumulative. Several other witnesses also testified that appellant knew how old Doe was and that her birthday was in September of 2004. Moreover, the appellant had a fair opportunity to cross-examine Martinelli during the conditional examination, and the appellant made full use of that opportunity. In light of the entire record, it is not reasonably probable that a result more favorable to defendant would have been reached in the absence of the error. (People v. Watson (1956) 46 Cal.2d 818, 836.)^[13]

2. Confrontation Clause Issues

Appellant claims that the admission of the conditional examination deprived him of his constitutional right to confront a witness, noting that for purposes of satisfying the confrontation clause a witness is not deemed unavailable unless there is a showing of good faith effort or reasonable diligence to procure his attendance. (See, e.g., People v. Sandoval, supra, 87 Cal.App.4th at pp. 1440-1445; Ohio v. Roberts, supra, 448 U.S. at p. 74 [disapproved on other grounds in Crawford v. Washington (2004) 541 U.S. 36]). However, the appellant failed to object on this ground in the trial court, and therefore the issue has been waived. (People v. Thompson, supra, 61 Cal.App.4th at p. 1280, fn. 11 [confrontation issue waived due to failure to raise such objection in trial court]; and People v. Sanders (1995) 11 Cal.4th 475, 526, fn. 17 [constitutional errors waived due to failure to object].)

Appellant makes a cursory argument that the failure to object to the introduction of the conditional examination should be deemed a case of ineffective assistance of counsel in violation of his constitutional rights. The argument is unpersuasive. Whether or not to object to admission of evidence is a tactical decision which rarely rises to the level of ineffective assistance of counsel. (People v. Dickey (2005) 35 Cal.4th 884, 914). In order to prevail on [an ineffective assistance of counsel] claim on direct appeal, the record must affirmatively disclose the lack of a rational tactical purpose for the challenged act or omission. (People v. Williams (1997) 16 Cal.4th 153, 215; People v. Ray (1996) 13 Cal.4th 313, 349.) Appellant has failed to meet this burden.

In passing, we note respondent contends that even if the confrontation clause issue had not been waived, any constitutional error was harmless under Chapman v. California (1967) 386 U.S. 18, 24. In this regard, respondent reiterates that Martinellis testimony was cumulative, since other witnesses also testified that appellant knew how old Doe was and that her birthday was in September of 2004. Additionally, appellant and his counsel were present during the conditional examination, and they had a full and fair opportunity to cross-examine the witness and raise evidentiary objections. (See Peoplev. Jurado (2006) 38 Cal.4th 72, 114-115 [When a defendant has had an adequate opportunity for cross-examination and the witness is unavailable at trial, use of prior testimony does not violate the defendants rights under the federal Constitution].) Appellant counters that since Martinelli was admittedly a material witness,^[14]his testimony contributed to the conviction and therefore a violation of the confrontation clause could not be harmless beyond a reasonable doubt. (See People v. Louis (1986) 42 Cal.3d 969, 993-994.) We find it unnecessary to resolve the question of whether any constitutional error was harmless under the standard of Chapman v. California, because the appellant clearly waived the issue by failure to object at trial.

C. Unanimity Instruction and Related Claims of Error

Appellant contends that the trial court failed to adequately instruct the jury concerning the need for unanimity with respect to each of the five counts of oral copulation with a minor. In this regard, appellant notes that while he was charged with only five counts of oral copulation, the evidence at trial included testimony indicating as many as twenty or more acts of oral copulation occurring over several months. In a separate but related argument, appellant claims that the jury was not adequately informed about the acts or incidents upon which the five counts are based, and thus there is a strong likelihood that he was convicted for uncharged offenses that were not elicited at the preliminary hearing.

As discussed hereafter, we will conclude that the jury was adequately instructed regarding the need for unanimity concerning the specified counts. On the other issues raised, although we agree that generic testimony was presented to the jury regarding numerous incidents that were not charged or encompassed in evidence shown at the preliminary hearing, we will conclude that any failure to specifically instruct the jury regarding which offenses may be relied upon to convict the appellant was effectively cured by the prosecutors election. In any event, any such error was waived by the appellant and was harmless error under all the circumstances. Accordingly, no basis for reversal is shown.

1. Jury Adequately Instructed on Unanimity Requirement

We will begin with appellants claim of instructional error regarding the need for jury unanimity. It is a matter of constitutional due process that a defendant is entitled to a verdict in which all 12 jurors concur, beyond a reasonable doubt, as to each count charged. (People v. Jones (1990) 51 Cal.3d 294, 305.) Jurors must unanimously agree, as to each count, that the defendant is criminally responsible for one discrete criminal event. [Citation.] (People v. Thompson (1995) 36 Cal.App.4th 843, 850 [italics in original].) A unanimity instruction is required if the jurors could otherwise disagree which act a defendant committed and yet convict him of the crime charged. (People v. Beardslee (1991) 53 Cal.3d 68, 93.) If such instruction is warranted, it must be given sua sponte where the evidence adduced at trial shows more than one act was committed which could constitute the charged offense, and the prosecutor has not relied on any single such act. (People v. Dieguez (2001) 89 Cal.App.4th 266, 274-275.)

Thus, if the evidence at trial indicates that more offenses were committed than were actually charged, or the jurors might disagree as to the particular act defendant committed, a standard unanimity instruction should be given. (People v. Jones, supra, 51 Cal.3d at p. 321.) [W]hen the accusatory pleading charges a single criminal act and the evidence shows more than one such unlawful act, either the prosecution must select the specific act relied upon to prove the charge or the jury must be instructed in the words of CALJIC No. 17.01 or 4.71.5 or their equivalent that it must unanimously agree beyond a reasonable doubt that defendant committed the same specific criminal act. (People v. Gordon (1985) 165 Cal.App.3d 839, 853, original italics, fn. omitted; People v. Thompson, supra, 36 Cal.App.4th at p. 850.)^[15]

In People v. Madden (1981) 116 Cal.App.3d 212, where evidence of several acts of criminal oral copulation within a specified time period were presented at trial but the defendant was not charged with a violation of all of those acts, the Court of Appeal found reversible error because the jury was not told [that] all of the jurors had to agree on a specific act. (Id. at p. 218; see also, People v. Alva (1979) 90 Cal.App.3d 418, 424 [reversible error where no election or instruction and the evidence showed numerous criminal acts over six month period].)

In People v. Gordon, supra, 165 Cal.App.3d 839, the defendant argued on appeal that he was denied due process because the jury was presented with more than one factual basis which might constitute the crime charged (i.e., lewd conduct with a minor in violation of Penal Code section 288). In that case, although no election was made by the prosecutor that the jury should consider only a specific act, an instruction in the form of CALJIC No. 17.01 was given. The Court of Appeal held that because the jury was instructed pursuant to CALJIC No. 17.01 that it must unanimously agree on a particular act or acts, there was no instructional error. (Id. at p. 854; see also, People v. Dunnahoo (1984) 152 Cal.App.3d 561, 571-572.)

In the present case, the appellant was charged with five separate counts of violating Penal Code section 288a, subdivision (b)(1) [oral copulation with a minor]. At the outset of the trial, the clerk read to the jury the five counts from the information. The counts were broken down according to time frame. Counts 1, 2 and 3 each occurred on or about or between June 1st, 2004, and June 30th, 2004; Count 4 occurred on or about or between May 1st, 2004, and May 31st, 2004; and Count 5 occurred On or about or between July 1st, 2004, and July 15th, 2004.

The evidence at trial was sufficient to show that the appellant committed many more acts than those that were charged. Jane Doe^[16]testified that acts of oral copulation occurred two to three times per week, the first incident being in April and the last at the end of July or beginning of August of 2004. She estimated a total of 24 separate acts of oral copulation were committed by defendant. Appellant admitted that he had oral sex with Jane Doe -- but said it was limited to four or five times. He testified the first act was sometime in May at his house; the last was on June 29th at the Aladdin Hotel in Sonora; and he recalled one or two hotel visits to Oakdale in June and perhaps another time at his house. Jane Does testimony included the particular acts admitted by appellant.

During closing argument, the prosecutor reminded the jury of the five separate counts, as charged in the information, including the time frame involved for each count. The trial judge instructed the jury regarding the need for unanimity, based on the wording of CALJIC No. 17.01. Specifically, the unanimity instruction given was as follows:

The defendant is accused of having committed the crime of unlawful oral copulation on a person under 18 in Counts 1 through 5. The prosecution has introduced evidence for the purpose of showing that there is more than one act upon which a conviction of Counts 1 through 5 may be based. The defendant may be found guilty if the proof shows beyond a reasonable doubt that he committed any one or more of the acts. However, in order to return a verdict of guilty as to Counts 1 through 5, all jurors must agree that he committed the same act or acts. It is not necessary that the particular act agreed upon be stated in your verdict.

Appellant contends that the instruction was inadequate because, by grouping all five counts together in the same instruction, the jury would be confused as to which acts were being referred to and the time periods involved. Appellant asserts that under the circumstances, CALJIC No. 4.71.5 (the other standard unanimity instruction) should have been given instead.

We conclude that the instructions regarding the need for jury unanimity were adequate. At the beginning of the trial and in closing argument, the jury was explicitly informed of the five separate counts and time periods involved for each count. Following trial, the jury was instructed, based on the language of CALJIC No. 17.01, that in order to return a verdict all jurors must agree that he committed the same act or acts. Moreover, in the instruction which followed immediately thereafter, using the wording of CALJIC No. 17.02, the court informed the jury as follows: Each count charges a distinct crime. You must decide each Count separately. The defendant may be found guilty or not guilty of any or all of the crimes charged. Your finding as to each count must be stated in a separate verdict. Even if, as appellant claims, CALJIC No. 4.71.5 would have been preferable under the circumstances of this case since it makes provision for offenses occurring within certain time periods, we believe the jury was adequately instructed on its responsibility. The jury was informed that the appellant would have to be found guilty or not guilty as to each individual count and that as to each count all the jurors would have to agree he committed the same act. We therefore reject the appellants contention that the court failed to instruct the jury regarding the need for unanimity.

2. Appellant Had Notice of Charges He Had to Defend Against, and the Charges Corresponded to Evidence Shown at Preliminary Hearing

Appellant claims that he was not given notice of the charges he must defend against because some of the evidence presented at trial went beyond the original five counts. Further, he asserts that due to instructional error, he may have been convicted of uncharged offenses or incidents that were not within the scope of the preliminary hearing. We will begin our discussion of these contentions by showing that appellant had adequate notice of the particular offenses he was being prosecuted for, which notice was based on the evidence presented at the preliminary hearings and the actual counts set forth in the information. Afterwards, in the section which follows this one, we will address the contention that the jury may have convicted him based on the testimony of other, uncharged incidents.

Of course, due process requires that a defendant be adequately notified of the charges against him, and this notification is accomplished in large measure through the preliminary hearing. Consequently, a defendant may not be prosecuted for an offense not shown by the evidence at the preliminary hearing or arising out of the transaction upon which the commitment was based. (People v. Burnett (1999) 71 Cal.App.4th 151, 165-166.) The preeminent due process principle is that one accused of a crime must be informed of the nature and cause of the accusation. [Citation.] Due process of law requires that an accused be advised of the charges against him so that he has a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial. (People v. Jones, supra, 51 Cal.3d at p. 317.) The important role of the preliminary hearing in giving notice of the charges, along with the matters set forth in the information, was summarized by People v. Jeff (1988) 204 Cal.App.3d 309, 341-342 as follows:

Notice of the specific charge is a constitutional right of the accused. (People v. Puckett [(1975)] 44 Cal.App.3d [607,] 611.) An information which charges a criminal defendant with multiple counts of the same offense does not violate due process so long as (1) the information informs defendant of the nature of the conduct with which he is accused and (2) the evidence presented at the preliminary hearing informs him of the particulars of the offenses which the prosecution may prove at trial. (People v. Jordan (1971) 19 Cal.App.3d 362, 369-370; People v. Tolbert (1986) 176 Cal.App.3d 685, 690, fn. 2.) The information plays a limited but important role -- it tells a defendant what kinds of offenses he is charged with and states the number of offenses that can result in prosecution. However, the time, place, and circumstances of charged offenses are left to the preliminary hearing transcript. This is the touchstone of due process notice to a defendant. (People v. Gordon, supra, 165 Cal.App.3d 839, 870-871 (conc. opn. of Sims, J.).) So long as the evidence presented at the preliminary hearing supports the number of offenses charged against defendant and covers the timeframe(s) charged in the information, a defendant has all the notice the Constitution requires. The defendant may demur if he or she believes the lack of greater specificity hampers the ability to defend against the charges. ( 1004, subd. 2.) Failure of a defendant to demur bars any assertion on appeal of vagueness in the information. ( 1012.) (People v. Jeff, supra, 204 Cal.App.3d at pp. 341-342.)

In the present case, the preliminary hearings gave appellant notice of the five charges against him. Although all of the charges were ultimately tried together in Tuolumne County, nevertheless, because the sexual offenses occurred in two counties -- i.e., Tuolumne and Stanislaus -- there were two separate preliminary hearings. The evidence presented at the two preliminary hearings was substantially the same regarding the oral copulation charges, and consisted of testimony from an investigator for the District Attorneys office, Mr. Knight. At the preliminary hearing in Tuolumne County, evidence was presented of five instances of unlawful oral copulation by appellant with Jane Doe, two of which occurred in Tuolumne County in Sonora, the other three in Stanislaus County at a hotel or hotels in Oakdale. The evidence indicated the Tuolumne County acts consisted of one incident in approximately May at the defendants house in Sonora, and the other at the Aladdin Hotel in Sonora in July. At the Stanislaus County preliminary hearing, a total of five acts of oral copulation were once again indicated, three of which were in Stanislaus County at a hotel in Oakdale in approximately May through July of 2004. According to investigator Knight, the appellant admitted to having oral sex with Doe three or four times between May and July 2004, in the Oakdale and the Sonora areas, but appellant claimed that he thought Doe was already 18 years old at that time.

The Stanislaus County acts became the basis for Counts 1, 2 and 3, all of which were alleged to have occurred on or about or between June 1, 2004 and June 30, 2004. The Tuolumne County acts became the basis for Counts 4 and 5 of the amended Information, with Count 4 alleged to have occurred on or about or between May 1, 2004 and May 31, 2004, and Count 5 alleged to have occurred on or about or between July 1, 2004 and July 15, 2004. It is clear that each of the five counts of oral copulation that appellant was charged with were encompassed within the evidence presented at the preliminary hearing. That is, the five counts directly corresponded to the acts shown by the preliminary hearing evidence.

On the eve of the first trial, the prosecutor advised the judge and defense counsel that Jane Doe just informed him there were actually more acts involved than she originally told investigators. Instead of merely the five discrete acts noted above, she now divulged that appellant committed oral copulation with her two or three times per week during the approximate time frame of April to July or August. Based on this frequency, Doe would estimate there were approximately 24 incidents of oral copulation. When this came to light prior to the first trial, defense counsel objected to inclusion of the evidence of other incidents. In response, the prosecutor made clear that he had no intention of amending the information to prosecute the appellant for 24 acts. He was sticking to the original five counts; he simply wanted to meet his obligation of promptly informing the court and counsel of this development. The trial judge stated he would not exclude Does generic testimony as to the 24 incidents, noting among other things that the thrust of [appellants] defense is that the acts happened, its just that your client had a good faith belief she was 18.

Thus, even though evidence of other incidents would be introduced at trial, there is no question that the appellant had sufficient notice of the offenses he was being prosecuted for -- namely, the five original charges based on the incidents that were elicited from the evidence at the preliminary hearings. So long as the evidence presented at the preliminary hearing supports the number of offenses charged against defendant and covers the timeframe(s) charged in the information, a defendant has all the notice the Constitution requires. (People v. Jeff, supra, 204 Cal.App.3d at pp. 341-342.)

3. Prosecutors Election Obviated Any Need for More Specific Instructions; Even if Error Occurred, It Was Waived and/or Harmless

Although only five incidents of oral copulation were prosecuted against appellant, at trial Jane Doe testified to approximately 24 total incidents. She explained that earlier she was protecting appellant, which was why she originally told the district attorney there were only the five acts. When the trial date came, she decided she would tell the whole truth. She testified that beginning in April through the end of July, and perhaps into mid-August, she had oral sex with the appellant two or three times per week. Based on this frequency, she estimated that there were approximately twenty-four separate acts of oral sex during that time period. She also testified that beginning sometime in June, once appellant had access to a rental home in Sugar Pine, she began having oral sex with him at that location. Obviously, this generic testimony presented the jury with evidence of other uncharged offenses.

Appellant contends that the jurors should have been instructed on what offenses they were to determine and not have been permitted to range over all the offenses shown by the evidence so they could convict of uncharged offenses. Because evidence of 24 incidents was presented to the jury without such an instruction, he argues that he was likely convicted of an uncharged offense or an offense not elicited by evidence at the preliminary hearing. (See In re Hess (1955) 45 Cal.2d 171, 174-175 [A person cannot be convicted of an offense not charged against him by indictment or information]; People v. Burnett (1999) 71 Cal.App.4th 151, 165-175 [error to prosecute and convict based on offenses not shown by the evidence at the preliminary hearing.]) In this same vein, appellant argues the particular unanimity instruction given (i.e., CALJIC No. 17.01) was nonspecific as to which incidents could be relied upon to convict, which arguably allowed the jury to convict based on any of the uncharged offenses proven by Does generic testimony of 24 incidents.

We disagree with appellants conclusions. In light of the manner in which this case was presented, we do not believe the jury could have misunderstood its responsibility to rely only on the five offenses actually charged. Unlike the case in People v. Burnett, supra, 71 Cal.App.4th 151, where the prosecutor pursued conviction based on acts not described by the evidence at the preliminary hearing, here only the five original counts were pursued. More to the point, the prosecutor in this case specifically advised the jury during closing argument that the five counts were based on the same five incidents that Jane Doe initially reported to the authorities, which were also the same incidents appellant had largely admitted to at trial. The jury understood what these initially-reported incidents were. There was extensive testimony on the subject of what Jane Doe initially said to investigators in contrast to her present testimony that included the 24 incidents. Specifically, Jane Does initial disclosures to the District Attorneys investigator, Mr. Knight, indicated one incident of oral sex with appellant in May at appellants home in Sonora, approximately three in June at an Oakdale hotel, and one in July at the Aladdin hotel in Sonora. These are the same incidents which were elicited at the preliminary hearing. Clearly, the jury understood which acts it was entitled to rely on for conviction.

Moreover, in closing argument the prosecutor explained further that to convict the defendant of the five counts, you must believe that the sex took place as Jane Doe initially said it did, which acts the defendant largely by and large [sic] admits. This much, then, the jurors were told they hadtobelieve in order to convict -- that the five initially reported incidents occurred, whether or not they thought any other incidents also took place. Because of the prosecutors election of the acts upon which conviction must be based, we conclude that a more specific unanimity instruction was not necessary. (See, e.g., People v. Jones, supra, 51 Cal.3d at p. 307 [under either/or rule, selection of specific act or acts relied upon obviates need for unanimity instruction]; People v. Burnett, supra, 71 Cal.App.4th at p. 174 [Unquestionably, when the evidence tends to show a larger number of distinct criminal acts than have been charged a conviction will be upheld if the prosecution elected which act it would rely upon for each allegation or if the jury was given a unanimity instruction]).

But even if there was error, it was waived. A