P. v. Navarro
Filed 10/9/07 P. v. Navarro CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, Plaintiff and Respondent, v. PETER NAVARRO, Defendant and Appellant. | A113201 (SolanoCounty Super. Ct. No. FCR214694) |
Peter Navarro appeals his conviction by jury verdict of one count of a lewd and lascivious act on a child 14 years old by a person at least 10 years older than the victim. (Pen. Code, 288, subd. (c)(1).) He contends the court prejudicially erred in failing to give unanimity instructions. We agree.
BACKGROUND
Prosecution Case
The victim, D.W., was born in June 1986. Her older brother, I., is three years older, and her sister, Y., is four years older. In 1995 or 1996, when D.W. was nine or ten years old, her siblings began attending a physical education program at a sports club managed by appellant. Appellant befriended I. and Y., giving them rides home, buying them gifts and snacks, and taking them on outings. After appellant had been friends with I. and Y. for a couple of years, D.W. was permitted to go on the outings with them.
When D.W. was about 12 or 13 years old, she and her family and appellant and his family took a day trip to Campfire West Lake near Grass Valley.[1] Appellant took D.W. for a ride on his jet ski and allowed her to drive. As she drove, he held her around her waist. When she increased the speed, appellant lowered his hands and touched the outside and inside of her vagina with both hands for five or ten minutes. D.W. did not tell her mother about the incident because she feared her mother would be angry that she drove the jet ski without her permission.
After the jet ski incident, D.W. was able to go out with appellant and her siblings more often. They went out two to four times per week. At first they went for coffee in the evening at the San Francisco Coffee Company near the family house, but later they went to fast food restaurants, such as Taco Bell or Burger King. Appellant would send I. and Y. into the coffee shop or restaurant to get the food and tell D.W. to wait in the car with him. While they were inside, he would touch her breasts and her vagina with his hands, initially outside her clothes, and then underneath her clothes. She was under 14 years at the time. He first touched her under her clothes when they were outside the coffee shop and her siblings were inside playing checkers and waiting for the coffee. These touchings occurred before she started wearing a bra, which she started wearing at age 14; they occurred a hundred or more times, too many times to count, because he was coming around almost every couple of days. They occurred mainly at the coffee shop and occasionally at Taco Bell, Carls Jr., or Burger King, all in Vacaville. He then began to fondle her breasts and vagina under her clothes every few days and put his mouth on her breasts. Over the next two years D.W.s siblings outings with appellant tapered off, so that D.W. was going out with him by herself.
The touchings continued after D.W. turned 14. Both before and after she turned 14, appellant began kissing her breasts. She could not remember the first time he did so, but she remembered they were in his SUV outside the coffee shop. He also began to kiss her vagina, which first occurred when she was [f]ourteen, maybe . . . [f]ourteen or fifteen, and occurred in his SUV in a parking lot. This touching and kissing continued until November 2003, when she was 17 years old. It occurred in various secluded, dimly-lit Vacaville parking lots, including Applebees, WalMart, MacDonalds, the skating rink and CompUSA. During those years he kissed her vagina more than a thousand times.
On the evening of November 7, 2001, appellant parked with D.W. in his SUV in a dimly lit, secluded parking lot behind the Q-Zar store. He instructed her to go to the back of the SUV. She was in the passenger side back of the car. She pulled down her pants, appellant reclined his drivers seat and leaned backwards over the seat and began to lick her vagina. A spotlight flashed on the SUV. Appellant sat up quickly and told her to pull up her pants. He then pulled out the electric blanket they were supposed to be returning to WalMart or Sams Club and started to mess around as if thats the reason we were there. A police officer knocked on the window. D.W. stepped out of the SUV, and, in response to the officers question, said nothing was going on. The officer telephoned her mother. D.W. was home very fast after the incident, and denied to her mother that anything happened.
Police Officer Jeffrey Datzman testified that he was patrolling the area, saw the vehicle and noticed people inside. When he shone his patrol car spotlight into the SUV he saw a flur[r]y of activity, as if the occupants had been startled by the light. He recognized appellant as a manager of the health club to which he belonged. The other occupant was a girl in her mid teens. Appellant initially told Officer Datzman he was helping the girl with her homework. When Datzman commented on the dim light, appellant said they had been discussing issues the girl was having at school. The girl denied that there was anything going on. Datzman contacted the girls mother, who informed Datzman that the girl had her permission to be with appellant, and that she (mother) did not want anything done. There was a blanket in the SUV.
In November 2003, appellant fell out with D.W. and her mother, as a result, primarily, of appellants disapproval of Y.s husband. He sent emails to them saying he would discontinue seeing D.W. if she continued to see the husband.
In February 2004, D.W. told her best friend that appellant had molested her, and that the first molestation occurred on a jet ski. At her friends urging, D.W. told her mother about appellants conduct, and her mother contacted the police.
On March 8, 2004, D.W., working with the police department, made a pretext telephone call to appellant. During the call appellant told her he missed her and loved her. He agreed to meet her and send her emails without her mothers knowledge. He also told her that she would soon be 18 years old and her mother would have nothing to say about it.
On March 9, 2004, D.W. made a second pretext telephone call to appellant. The following colloquy occurred during the conversation:
[Appellant]: . . . Whats up, Babe?
[D.W.]: Well, I dont know how to start this, so--
[Appellant]: Did you do something bad?
[D.W.]: In a sense.
[Appellant]: Whatd you do?
[D.W.]: Well . . . [the best friend] spent the night and we were talking a lot . . . And . . . we started talking about . . . guys, and what weve done with em and everything?
[Appellant]: . . . and you told her things that you shouldnt have told her? You shouldnt say what they are, anyway. . . . Is that what . . . youre trying to tell me?
[D.W.]: Well, I didnt say that I did em with you, I just told her [y]eah, like Ive had oral sex.
[Appellant]: And she told somebody?
[D.W.]: Not yet, but Im worried that she will. I dont know what to do.
[Appellant]: Why would she?
[D.W.]: I dont know, shes . . . a Goody goody, I guess. Shes like, What?
[Appellant]: Yeah, but Honey if she doesnt know who . . . who you did anything with, its not a big deal if she has no clue.
[D.W.]: Well, shes kind of pushing to find out who I did it with. . . .
[Appellant]: Well we really havent done anything really, like that. You know what I mean? So dont worry about it. . . . [W]hat you should do is say, You know what? I think you took it for more than what it was. [A]nd just tell her that and dont worry about it. [] Okay, because . . . its nothing. Because you havent done anything like what shes thinking you did. You know what I mean?
[D.W.]: Well, actually I told her kind of what I did []
[Appellant]: Yeah, but dont worry about it. Dont worry about it. Okay? I dont want to talk about it on the phone, because . . . whatever it is that you said or she thinks you did is not . . . anything that you did, so dont dont worry, okay? [] [W]hen you talk with [the best friend] just tell her . . . You know why I told you that? To see what reaction I would get from you. Okay? Because shes thinking of something that you really havent done. Okay, and so just tell her no . . . and just leave it at that and the only person that can get yourself in trouble is you, okay? Because she doesnt really know much of anything and you cant--and she cant really say anything because she doesnt know anything, unless you tell her more. You know what I mean? So as long as you dont tell her anything more, you dont have anything to worry about.
[D.W.]: You think thatll work?
[Appellant]: . . . Well, think about it. If you dont tell her anything more, what can she say? Nothing, she doesnt know. [ ] Remember, and be careful what you say with people. . . . [T]heres some things that you dont need to discuss with anybody. Anybody. Closest friend, anybody. [] [b]ecause if you [do], you get yourself in trouble [] and I dont want you in trouble.
[D.W.]: And I dont want to get you in trouble, either. I want to see you again.
[Appellant]: Well I cant . . . get in trouble, because we havent done anything for that, anyway, okay? [] Its not . . . a problem as long as . . . we know we havent done anything and youre the only one that can say that we have. [] And I cant get in any trouble other than trying to keep you out of trouble with your mother [] so just dont even tell [the best friend] anything more . . . about anything that you have done, because it would . . . create a problem and it can be a very serious problem.
Defense
Appellant testified that as an adult, he has tried to help and mentor young people because he had been befriended by an older neighbor when he was a boy. When he met I. and Y., he learned they lacked food and were not permitted to go on outings, so, starting in September 1998 with their mothers permission, he provided them food, rides and excursions. D.W. joined them when she was 13 or 14. He remembered taking the three siblings to the North Beach Coffee Shop[2]two times, once going inside with them and once staying in the car, which was parked right in front of the shop, with D.W. He encouraged the three siblings to attend college, bought them gifts, paid for driving school, and helped their mother. Y. stopped going on outings when she turned 18. I. stopped going out when he moved out of the family house at 18. Appellant took D.W. out alone after I. and Y. were out of the picture. He treated D.W. like a daughter, and she confided in him that she had attempted suicide because of her mothers attitude toward her.
When Officer Datzman knocked on appellants SUV window on November 7, 2001, D.W. was looking for a receipt to return a blanket appellant had purchased for her. Appellant told the officer he and D.W. were discussing D.W.s problems with her mother. Photos of his SUV showed that its seats did not recline as D.W. described.
In November 2003, appellant informed D.W. and her mother that he was not going to spend any more time with D.W. because they did not respect his view of Y.s husband. When D.W. threatened to say he had raped her if he did not give her the money from a bank account he had opened for her, he gave her the money.
D.W. telephoned him March 8, 2004. She told him not to inform her mother that she had contacted him. The call was followed by a series of emails. From their comments appellant was concerned she might be contemplating suicide again. He contacted D.W.s mother, who told him he could not see D.W.
D.W. telephoned him again March 9; the call was confusing. She was saying [something] about doing something, but would not say what it was. They did not talk about sex in either phone call. They sometimes spoke over each other; he never heard her mention oral or sex during the call and did not know she had done so until he saw the transcript. He told D.W. to give her mother a chance and that her mother meant well. They arranged to meet at the library on March 17, 2004. He told his wife he was meeting D.W. at the library because he was concerned that she was considering suicide. He was arrested when he arrived at the library.
Appellants daughter testified that her family and D.W.s family went for a day trip to Campfire West during the 2000 Fourth of July weekend. According to sales and tax records, the North Beach Coffee Shop closed in March 2000. Therefore, all visits by appellant and D.W. to the shop occurred before her 14th birthday in June 2000.
Charges
Appellant was charged with four counts of criminal sexual conduct against D.W. He was found not guilty of count I, continuous sexual abuse of a child under age 14. The jury deadlocked on count III, oral copulation of a person under 16, and count IV, oral copulation of a person under 18, and the court declared a mistrial as to those counts. He was found guilty on count II, a lewd act on a child 14 years of age, and was sentenced to state prison for the upper term of three years.
DISCUSSION
Requirement of Unanimity Instruction
Appellant contends the court erred in failing to instruct sua sponte with CALJIC Nos. 4.71.5 or 17.01, CALCRIM 3500 or 3501,[3]or a comparable unanimity instruction.
Not only must a jury verdict be unanimous, the jury must also agree unanimously that the defendant is guilty of a specific crime. (People v. Russo (2001) 25 Cal.4th 1124, 1132.) When the evidence suggests that more than one discrete crime has been committed, the prosecution must elect among the crimes, or the court must require the jury to agree on the same criminal act. (Ibid.) The unanimity requirement as to the criminal act is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all jurors agree he committed. (Ibid.) The court has a sua sponte obligation to give a unanimity instruction when the evidence warrants. (People v. Madden (1981) 116 Cal.App.3d 212, 218.)
Count II as charged and read to the jury stated:
On or about June 04, 2000 to June 03, 2002, [appellant] did commit a felony namely LEWD ACT UPON A CHILD, a violation of [section 288, subd. (c)(1)[4]] of the Penal Code of the State of California, County of Solano, in that [appellant] did willfully and unlawfully and lewdly commit a lewd and lascivious act upon and with the body of D.W., who was 14 years old, with the intent of arousing, appealing to, and gratifying the lust, passions, and sexual desires of [appellant], who was at least 10 years older than D.W. On appeal the People tacitly acknowledge that, although the statute charged, section 288, subdivision (c)(1), pertains to a child of 14 or 15 years of age, the charge itself refers only to an act that occurred when D.W. was 14 years old.
Here, according to D.W.s testimony, appellant committed repeated acts of lewd and lascivious acts on her from age 14 to past age 17, to wit, fondling her breasts and/or vagina. Other than alleging appellant committed a lewd and lascivious act on D.W. when she was age 14, the charge did not otherwise describe the act that constituted the charge.
Nor did the prosecutors closing argument segregate the acts to which D.W. testified. In closing, the prosecutor simply argued: Now, in Count Two [appellant] is charged with a violation of [ 288, subd. (c)(1)], and in order to prove the defendant guilty of that crime what the People have to show is that the defendant touched the body of the child, that the child was fourteen or fifteen, and that he was at least ten years older than the child, and at the time of the touching that he had the intent to gratify or arouse. And in this case there is really no question about specific intent because there is no point in touching somebodys vagina or breast unless its for sexual purpose. Okay. So, thats actually . . . clear cut. . . . [] So, in this case you know that [D.W.] testified that during the time she was fourteen and fifteen the defendant was both touching her vagina and that he was orally copulating her. And you know that this was happening on a regular basis.
In fact, the prosecutors argument is not accurate. First, as noted, count II as charged was limited to an act when D.W. was 14 years of age only. Second, when asked on direct examination when appellant first kiss[ed] her vagina, D.W. replied Fourteen, maybe. [] Fourteen or fifteen.
Because the People did not select any specific act of touching on which they were relying to prove appellant guilty of the crime of lewd and lascivious conduct, from among the many such acts he allegedly committed, any one of which constituted an offense, the court erred in failing to give a unanimity instruction.[5]
The People assert than no unanimity instruction was required because the crime was continuous in nature. The unanimity instruction is not required if the case falls within the continuous course of conduct exception, which arises in two contexts. The first context is when the acts are so closely connected so that they form part of one and the same transaction. (People v. Rae (2002) 102 Cal.App.4th 116, 122.)
The second context is when the statute charged contemplates a continuous course of conduct or a series of acts over a period of time. This exception has been applied to a limited number of crimes, including pimping, pandering, failure to provide for a minor
child, contributing to the delinquency of a minor, child abuse, and elder abuse. (Rae, supra, 102 Cal.App.4th at p. 122; People v. Funes (1994) 23 Cal.App.4th 1506, 1526.) In these offenses the continuous course of conduct consists of successive, compounding, and interrelated acts; by the language of their statutes, the Legislature intended to punish an entire wrongful course of conduct. (Rae, supra, 102 Cal.App.4th at p. 123.) By contrast, under its specific statutory language, a violation of section 288, subdivision (c)(1) occurs by the commission of any lewd or lascivious act on a child of 14 or 15, and that single act is punished. The continuous course of conduct exception is not applicable to this crime.
Prejudice
Opinions are divided on whether the error in failing to give a unanimity instruction is measured by the People v. Watson (1956) 46 Cal.2d 818, 836 standard (reasonable probability of more favorable outcome) or the more stringent Chapman v. California (1967) 386 U.S. 18 (Chapman) standard (harmless beyond a reasonable doubt). (See People v. Smith (2005) 132 Cal.App.4th 1537, 1545.) The more recent decisions have concluded the Chapman standard applies because the failure to give a unanimity instruction has the effect of lowering the prosecutions burden of proof, and an instruction lowering the prosecutions burden of proof violates federal due process. For the reasons articulated more fully in Smith and People v. Wolfe (2003) 114 Cal.App.4th 177, 185-188, we agree with this conclusion.
Under the Chapman standard the error to give a unanimity instruction here was prejudicial. The People were essentially relying on the same continuous course of conduct theory as to count II as they did for count I, which specifically charged continuous sexual abuse of D.W. when she was under age 14.
The evidence regarding count II was essentially the same generic evidence as that for count I--fondling of D.Ws breasts and vagina in commercial establishment parking lots. In fact, there was no evidence to distinguish what happened when D.W. was 14 years old from what happened when she was 15, 16, and 17 years old. According to D.W.s testimony, the acts of oral copulation occurred too many times to count between ages 14 and 17, and during that time appellant continued to fondle her breasts and vagina, kissing her vagina almost every time he fondled her. She further testified that between ages 14 and 17 the acts of molestation occurred in the WalMart parking lot once or twice a week, and sexual acts also occurred in other Vacaville commercial parking lots.
The only known date of an act described by D.W. that could support a section 288, subdivision (c)(1) charge was the Q-Zar parking lot incident on November 7, 2001, when the police officer shone a flashlight into appellants SUV in the Q-Zar parking lot. However, D.W. was 15 1/2 years old on that date, and count II, the section 288, subdivision (c)(1) charge, specifically alleged commission of an act when D.W. was 14 years old. The other lewd act D.W. described for which there is a reasonably certain date is the jet ski incident at Campfire West, given appellants daughters testimony about an outing during the 2000 Fourth of July weekend. D.W.s testimony concerning this act cannot support a conviction because Campfire West is in Placer County, and the charge alleged an act in Solano County. Thus, the only evidence to support the crime as charged is D.W.s generic testimony of molestations in Vacaville parking lots from age 14 to 17 1/2.
Given the discrepancy between the prosecutors argument and the instruction that the impermissible touching had to occur when the child was 14 or 15 years old, and the charge and the verdict form that spoke of a lewd act committed when D.W. was 14 years old only, we cannot be confident that all 12 jurors agreed on an act that occurred when she was 14 years old in Solano County, particularly when the only specific acts to support the charge were outside the parameters of the charge. Some jurors may not have made the arithmetical calculation to realize that the Q-Zar incident was not within the crime as charged and based their verdict on that act. Some jurors may not have appreciated that the geographical location of the jet ski incident precluded it from establishing the crime as charged and may have based their verdict on it. Still other jurors may have recognized that these incidents could not support the crime as charged but were persuaded by their specificity and D.W.s generic testimony to conclude that appellant must have committed a lewd act on her when she was 14 years old. Absent a unanimity instruction, the jurors could all too easily have reached their individual conclusions of guilt based on different acts. We cannot say the error in failing to give a unanimity instruction was harmless beyond a reasonable doubt.
In light of this conclusion, we need not address appellants other claims of error.
DISPOSITION
The judgment is reversed. By separate order filed this date appellants petition for writ of habeas corpus, A118702, is denied as moot.
_________________________
Jones, P.J.
We concur:
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Gemello, J.
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Needham, J.
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[1]D.W. was 19 1/2 years old when she testified at trial. The bulk of the prosecution case background is taken from her testimony.
[2]There was no dispute that the San Francisco Coffee Shop, to which D.W. referred, and and the North Beach Coffee Shop were the same shop.
[3]CALJIC No. 4.71.5 states: Defendant is accused [in Count[s] ___] of having committed the crime of ___, a violation of section ___ of the Penal Code, on or about a period of time between ___ and ___. [] In order to find the defendant guilty, it is necessary for the prosecution to prove beyond a reasonable doubt the commission of [a specific act [or acts] constituting that crime] [all of the acts described by the alleged victim] within the period alleged. [] And, in order to find the defendant guilty, you must unanimously agree upon the commission of [the same specific act [or acts] constituting the crime] [all of the acts described by the alleged victim] within the period alleged. [] It is not necessary that the particular act or acts committed so agreed upon be stated in the verdict.
CALJIC No. 17.01 states: 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.
CALCRIM 3500 states: 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 this 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.
CALCRIM 3501 states: The defendant is charged with ___
[4]Penal Code section 288, subdivision (c)(1) states in pertinent part: Any person who commits an act described in subdivision (a) with the intent described in that subdivision, and the victim is a child of 14 or 15 years, and that person is at least 10 years older than the child, is guilty of a public offense. . . .
Penal Code section 288, subdivision (a) states, in pertinent part: Any person who willfully and lewdly commits any lewd or lascivious act . . . upon or with the body, or any part or member thereof . . . with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony. . . .
[5]The courts instruction on count II states, in pertinent part: In order to prove this crime [ 288, subd. (c )(1)], each of the following elements must be proved:
1. A person touched the body of a child;
2. The child was 14 or 15 years of age;
3. The touching was done with the specific intent to arouse, appeal to, or gratify the lust, passions, or sexual desires of that person or the child; and
4. The person committing the act was at least 10 years older than the child.
Again, the instruction does not accurately reflect the charge, which is limited to an act when D.W. was 14. However, the verdict form given to the jury was limited to age 14: Concerning the charge set forth in Count II of the Information accusing [appellant] of the crime of felony violation of [ 288, subd. (c)(1)], to wit Lewd Act Upon a Child, willfully and unlawfully committing a lewd and lascivious act upon and with the body of D.W., who was 14 years old, we, the Jury, upon trial, find the Defendant [] GUILTY.
