Filed 1/8/18 P. v. Ortega CA4/3




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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,

Plaintiff and Respondent,

v.

RITO ORTEGA,

Defendant and Appellant.


G053432

(Super. Ct. No. 15NF0678)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County,
W. Michael Hayes, Judge. Affirmed.
Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.

Appellant Rito Ortega was convicted of six counts of child sexual abuse for molesting two of his wife’s sisters, G. and S. He contends one of his convictions – for committing a lewd act against G. in count 1– must be reversed because the trial court failed to give the standard unanimity instruction. We disagree and affirm the judgment.
FACTS AND PROCEDURAL BACKGROUND
Count 1 of the information alleged appellant committed a lewd act, described only as “touching,” with G. when she was under the age of 14. At trial, G. testified appellant started molesting her when she was 11 years old. She said the molestation was ongoing and included instances where appellant made her touch his penis. Asked how many times appellant made her do this, G. said, “A couple of times. I don’t remember exactly.” For the most part, G. was also unable to recall the circumstances under which appellant made her touch his penis. However, she testified, “I remember once it was in the living room.”
The abuse was not revealed for over a decade, but when appellant was interviewed by the police, he admitted touching both G. and her sister S. in an inappropriate manner. He also admitted he made G. touch his penis once or twice. At trial, appellant changed his tune with respect to S., insisting he never touched her sexually. However, he admitted molesting G. and having her touch his penis.
In closing argument, the prosecutor attempted to clarify the factual basis for count 1. He told the jury that although G. described multiple acts of sexual abuse, count 1 was based on the fact appellant “had her touch his penis multiple times. I’m asking you to find that happened one time.” The prosecutor also told the jury, “You’re going to see the unanimity instruction where you all need to agree on which act was committed and you all agree that those acts occurred during that same time period. Basically, this instruction is just saying make sure you all agree on which act was committed. It’s going to take all 12 of you.”
Defense counsel essentially conceded the charges involving G. in her closing argument. Given that appellant admitted sexually abusing G. to the police and at trial, defense counsel told the jury the counts related to G. were “not an issue.” However, she still urged the jury to hold the prosecution to its burden of proof on all of the charges. In the end, the jury convicted appellant as charged, including lewd conduct with G. as alleged in count 1. The verdict form on that count described the conduct as “touching,” but did not elaborate beyond that.
After the jurors were released, the court realized it had inadvertently failed to instruct them on the unanimity requirement. Owning up to the failure, the trial judge said, “Both counsel asked for [the unanimity instruction]. The court agreed to it. . . . I have no idea why it’s not in the packet. And it’s nobody’s fault but mine.” Nevertheless, the judge did not believe the oversight justified a new trial. Speaking to that issue, he stated any error occasioned by not giving the unanimity instruction was harmless beyond a reasonable doubt, given how the case was pled, proven and argued. He therefore denied appellant’s new trial motion and sentenced him to 45 years to life in prison.
DISCUSSION
Appellant contends the failure to instruct on the unanimity requirement constituted prejudicial error, but we agree with the trial court that if error occurred, it was patently harmless under the circumstances presented.
“In California, a jury verdict in a criminal case must be unanimous. [Citation.] Thus, our Constitution requires that each individual juror be convinced, beyond a reasonable doubt, that the defendant committed the specific offense he is charged with. [Citation.] Therefore, when the evidence suggests more than one discrete crime, either: (1) the prosecution must elect among the crimes or (2) the trial court must instruct the jury that it must unanimously agree that the defendant committed the same criminal act. [Citations.]” (People v. Hernandez (2013) 217 Cal.App.4th 559, 569.)
The unanimity requirement “‘is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed.’ [Citation.] . . . ‘The [unanimity] instruction is designed in part to prevent the jury from amalgamating evidence of multiple offenses, no one of which has been proved beyond a reasonable doubt, in order to conclude beyond a reasonable doubt that a defendant must have done something sufficient to convict on one count.’ [Citation.]” (People v. Russo (2001) 25 Cal.4th 1124, 1132.)
In this case, it is clear the prosecutor made an election as to the type of touching alleged in count 1 when he explained to the jury that count was based on appellant’s conduct in making G. touch his penis. However, appellant contends that election was insufficient because, as the prosecutor admitted, G. testified appellant made her touch his penis on more than one occasion. That would be a problem if G. had described multiple touching instances that occurred on different days or at different times. (See, e.g., People v. Melhado (1998) 60 Cal.App.4th 1529 [specific election required where evidence showed defendant threatened the victim at three different times].) But the only particular incident she was able to remember was the one time it happened in her living room. Because G. was unable to provide any details regarding the other times appellant made her touch his penis, it is highly improbable the jurors looked beyond the living room incident in reaching their verdict on count 1. Given the state of the evidence, it is simply not likely the jurors were in disagreement as to which particular act formed the evidentiary basis for that count. There was no need for a unanimity instruction. People v. Russo, supra, 25 Cal.4th at p. 1132 establishes that a unanimity instruction is required only when there is a danger that without it, some jurors might believe the defendant is guilty based on one act, while others might believe him guilty based on another act. Here, it is inconceivable the jury could have been unconvinced by G.’s description of the living room incident but convinced of some other undescribed incident.
Even assuming otherwise, any error in failing to give the instruction was harmless beyond a reasonable doubt because, consistent with G.’s testimony, appellant admitted to the police and to the jury that he made G. touch his penis on multiple occasions, and defense counsel made no attempt to defend appellant with respect to any of the charges involving G. (See People v. Arevalo–Iraheta (2011) 193 Cal.App.4th 1574, 1590 [no prejudice from lack of unanimity instruction where defendant admitted to more offenses than he was convicted of]; People v. Parsons (1984) 156 Cal.App.3d 1165, 1174 [failure to given unanimity instruction deemed harmless where “appellant was unable to proffer any defense, but merely put the People to their proof”].) Accordingly, there is no cause for reversal.
DISPOSITION
The judgment is affirmed.


BEDSWORTH, ACTING P. J.
WE CONCUR:



MOORE, J.



THOMPSON, J.