P. v. Osuna

Filed 2/24/06 P. v. Osuna CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Keith D. Davis, Judge. Affirmed.

Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Pamela Ratner Sobeck,

Supervising Deputy Attorney General, David Delgado-Rucci and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Jesus Adrian Osuna appeals from judgment entered following jury convictions for committing a lewd act upon a child (Pen. Code, § 288, subd. (a))^[1]; count 1) and continuous sexual abuse (§ 288.5, subd. (a); counts 2 and 4). The jury also found true as to count 1 that defendant inflicted great bodily injury (§ 12022.7, subd. (a).) The jury acquitted defendant of count 5 (lewd act upon a child), and the court dismissed count 3 (oral copulation of a person under 14) pursuant to the People's motion. The trial court sentenced defendant to 35 years in prison.

Defendant contends the trial court erred in instructing the jury that, if it found defendant had impregnated his daughter in the commission of committing count 1, the jury must find the great bodily injury (GBI) enhancement true. Defendant also contends that, as to count 1, the trial court erred in failing to give sua sponte a unanimity instruction requiring the jury to agree on the particular lewd act constituting the crime.

We conclude there was no instructional error and affirm defendant's conviction.

1. Factual Background

Defendant molested his daughter (the victim), beginning in 2001, when she was 11 years old, until December 2003, when the victim was 13. Defendant stopped when the police interviewed him in December 2003. Defendant had intercourse with her during this period at least once a week. Defendant also orally copulated her. Until December 2003, the victim did not tell anyone out of fear.

The police investigated the matter further when the victim gave birth by caesarean section in May 2004. Initially, the victim said her boyfriend was the father of the child but at trial the victim testified she had not had intercourse with anyone other than defendant. She was unaware she was pregnant until May 2004, when she felt ill. Defendant took her to the hospital, and she had a caesarian section delivery. DNA testing established defendant was the father of the baby. Defendant denied impregnating or molesting the victim.

2. GBI Instruction

Defendant contends the special instruction on the GBI enhancement attaching to count 1, relating to defendant impregnating his daughter, was improper because it relieved the jury of making a finding as to whether the victim's pregnancy constituted GBI. We disagree.

The information charges that defendant committed a lewd act upon the victim during October 2003, and in committing such act, inflicted GBI on the victim by impregnating her.

The People argue defendant waived his challenge to the special instruction because he failed to raise his objection in the trial court. Regardless of whether the objection was waived, it has no merit.

In order to find true the GBI enhancement, the jury was required to find that the victim's pregnancy was a consequence of defendant's alleged lewd acts committed in October 2003. The trial court properly instructed the jury to this effect. The court gave the jury the standard GBI instruction, CALJIC No. 17.20, in relevant part, as follows: â€