P. v. Silva










Filed 3/30/17 P. v. Silva CA6
Received for posting 4/3/17






NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT


THE PEOPLE,

Plaintiff and Respondent,

v.

JOSE ANTONIO SILVA,

Defendant and Appellant.

H041474
(Santa Clara County
Super. Ct. No. C1223755)

Defendant Jose Antonio Silva appeals his conviction of five counts of lewd or lascivious conduct on a child under the age of 14 (Pen. Code, § 288, subd. (a)). On appeal, defendant contends that the trial court incorrectly instructed the jury on principles of unanimity. As set forth below, we affirm.
STATEMENT OF THE CASE
An information charged defendant with five counts of lewd or lascivious conduct on a child under the age of 14 (Pen. Code, § 288, subd. (a)). A jury convicted defendant of all five counts. The trial court sentenced defendant to 16 years in prison.
Defendant filed a timely notice of appeal. This appeal followed.



STATEMENT OF THE FACTS
The Prosecution’s Evidence
In the fall of 2011, 13-year-old Victoria Doe lived in an apartment with her mother and defendant. Defendant and Victoria’s mother were dating.
On October 31, 2011, Victoria fell asleep in her Halloween costume. Victoria woke up and “somebody” was “touching” her. She testified that she had no clothes on, and the person had their fingers in her vagina. Victoria moved, and the person walked out of her bedroom. Victoria went to the bathroom and cried. When she left the bathroom, she saw defendant sleeping on the couch with the television on. Victoria thought this was unusual because defendant did not sleep with the television on.
Victoria testified that defendant subsequently touched her “multiple times.” She explained that the incidents of touching “all blurred together because they are mostly the same.”During the incidents, Victoria would wake up, and defendant would be there putting his fingers inside her vagina. On some occasions, defendant would also rub and grab Victoria’s breasts. During one incident, defendant grabbed Victoria’s hand and placed it on his penis. During another incident, defendant tried to put his penis inside Victoria’s vagina. Victoria testified that she was “scared” and “just froze” on the occasions when defendant touched her. The last time defendant touched Victoria’s vagina was on January 8, 2012.
Victoria testified that defendant put his fingers inside her vagina “at least 15 to 20” times. On cross-examination, when asked if there could have been less than 15 or 20 incidents of touching, Victoria testified: “It may have been less; it may have been more.” On redirect examination, Victoria testified that the “absolute minimum” number of times defendant put his fingers in her vagina was “ten times.”
Victoria told three friends that defendant was touching her. One of those friends encouraged Victoria to report the touching. On January 10, 2012, Victoria reported the touching to an official at her school. Police came to Victoria’s school to interview her.
Victoria made two pretext phone calls to defendant on January 10, 2012. During the first call, Victoria said to defendant, “[Y]ou’ve been coming into my room and stuff, you know, and I think I might be pregnant.” Defendant responded, “I’ve never done anything further than what I’ve done.” Defendant also said, “I’ve never, you now, put anything inside of you.” Victoria said that she was “not completely sure how you get pregnant,” and defendant responded, “I’ve never, ever done anything other than touch you.” Victoria asked defendant what he had touched, and defendant replied, “Like your breasts. Well I’ve never done anything else.” When Victoria asked defendant why he was touching her breasts, defendant stated: “Because I get fuckin’ drunk, I’m sorry. I’ll, I promise I’ll never fuckin’ do it again. I fuckin’ get so stupid. And you’re actin’ like you fuckin’ never fuckin’, you know, messed around with me, when I didn’t fuckin’ wanna fuck around.” Victoria asked, “Does my mom know?” Defendant responded, “No.”
Victoria’s behavior changed after she reported the touching. She stopped going to school, and she started drinking alcohol and taking pills. Between June 2012 and February 2014, Victoria committed several felonies, including an auto theft, a residential burglary, and two second degree burglaries.
The Defense Evidence
Defendant testified on his own behalf. He denied molesting Victoria. He testified that he never touched Victoria’s vagina, never touched her breasts inappropriately, and never forced her to touch his penis.
Defendant testified that Victoria called him names and hit him. When Victoria hit him, he would hit her back. He testified that he hit various parts of Victoria’s body, including “her boob.” When defendant used the word “touch” in the pretext call, he was referring to hitting Victoria. He explained that he believed Victoria’s aunt was listening in on the call, he did not want to make the aunt angry, and he thought the word “touch” was a “less aggressive word” than the word “hit.”
Defendant denied touching Victoria on Halloween night. He explained that on Halloween night he was preparing for his young daughter’s birthday party while Victoria was in her room. Defendant denied touching Victoria on January 8. He explained that on that date he was visiting his sister and did not return home until 10:30 or 11:00 p.m. Defendant’s sister testified that defendant visited her on January 8, 2012.
DISCUSSION
Defendant contends that we must reverse the judgment of conviction because the trial court improperly instructed the jury regarding principles of unanimity. Specifically, defendant contends that the trial court “incorrectly instructed the jurors that they could convict on all charges if they unanimously agreed that the prosecution had proved only a single unlawful act.”(Capitalization omitted.) Defendant also contends that the trial court erred in failing to instruct the jury on the “the principle of generic-testimony unanimity announced in People v. Jones (1990) 51 Cal.3d 294 [(Jones)].” As explained below, we find no reversible error
Background
Pursuant to CALJIC No. 17.02, the trial court provided the following instruction to the jury:
“17.02 SEVERAL COUNTS—JURY MUST FIND ON EACH
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.”

Pursuant to CALJIC No. 4.71.5, the trial court provided the following instruction to the jury:
“4.71.5 WHEN PROOF MUST SHOW SPECIFIC ACTS OR ACTS WITHIN TIME ALLEGED
“Defendant is accused in Counts 1 through 5 of having committed the crime of Lewd or Lascivious Acts with a child under 14, a violation of section 288(a) of the Penal Code, on or about and between October 31, 2011 and January 10, 2012.

“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 are 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 that crime are within the period alleged.

“It is not necessary that the particular act or acts committed so agreed upon be stated in the verdict.”

Standard of Review
In reviewing a purportedly erroneous instruction, we inquire whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution. (People v. Richardson (2008) 43 Cal.4th 959, 1028 (Richardson).) In conducting this inquiry, we are mindful that a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge. (Ibid.) “The correctness of jury instructions is determined from the entire charge by the trial court and not from consideration of part or parts of an instruction.” (People v. Milosavljevic (2010)183 Cal.App.4th 640, 649 (Milosavljevic).) “We assume the jurors are intelligent persons capable of understanding and correlating all jury instructions given them.” (Ibid.)
Legal Principles: Jury Unanimity
“The right to a unanimous jury in criminal cases is guaranteed by the California Constitution.” (People v. Sutherland(1993) 17 Cal.App.4th 602, 611.) “In a criminal case, a jury verdict must be unanimous.” (People v. Russo (2001) 25 Cal.4th 1124, 1132.) “[T]he jury must agree unanimously the defendant is guilty of a specific crime.” (Ibid., italics omitted.) “Therefore, cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act.” (Ibid.) “‘[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. Thompson (1995) 36 Cal.App.4th 843, 850 (Thompson), italics omitted.)
In Jones, supra, 51 Cal.3d 294, our Supreme Court discussed the use of “generic” testimony in child molestation in cases. Such generic testimony occurs when the defendant “lives with his victim,” and the victim “testifies to repeated acts of molestation occurring over a substantial period of time but, lacking any meaningful point of reference, is unable to furnish many specific details, dates or distinguishing characteristics as to individual acts or assaults.” (Id. at p. 299.) Jones announced the following rulefor unanimity instructions in cases involving generic testimony: “In a case in which the evidence indicates the jurors might disagree as to the particular act defendant committed, the standard unanimity instruction should be given.[Citation.] But when there is no reasonable likelihood of juror disagreement as to particular acts, and the only question is whether or not the defendant in fact committed all of them, the jury should be given a modified unanimity instruction which, in addition to allowing a conviction if the jurors unanimously agree on specific acts, also allows a conviction if the jury unanimously agrees the defendant committed all the acts described by the victim.” (Id. at pp. 321-322.)
Defendant Has Not Shown Reversible Error
Defendant contends that the version of CALJIC No. 4.71.5 provided to the jury “erroneously suggested that the jury could find [defendant] guilty of all five charges if they reached unanimous agreement that he had committed only a single act constituting a violation of [Penal Code] section 288, subdivision (a).” This argument is not convincing.
There is not a reasonable likelihood that the jury applied CALJIC No. 4.71.5 in the manner espoused by defendant. Defendant’s argument focuses on a single phrase in CALJIC No.4.71.5—“act or acts.” Defendant contends that the phrase “places ‘act,’ singular, and ‘acts,’ plural, on an equal footing” and thus “conveys the erroneous impression that it is sufficient for the jury to agree unanimously on only a single act in order to find the defendant guilty on all charges.” Defendant improperly asks this court to view the phrase “act or acts” in isolation. We refuse to do so. (See Richardson, supra, 43 Cal.4th at p. 1028 [we will not view an instruction in artificial isolation].) CALJIC No. 17.02 specifically advised the jury: “Each Count charges a distinct crime. You must decide each Count separately.” CALJIC No. 17.02 informed the jury that it needed to find a distinct, separate crime for each of the five counts. The combination of CALJIC No. 4.71.5 and CALJIC No. 17.02 adequately informed the jury that it needed to reach unanimous agreement on five separate crimes.When CALJIC No. 17.02 is read in conjunction with CALJIC No. 4.71.5, it is not reasonably likely that the jury interpreted CALJIC No. 4.71.5 in the manner propounded by defendant. (See Milosavljevic, supra, 183 Cal.App.4th at p. 649 [a reviewing court assumes that jurors “are intelligent persons capable of understanding and correlating all jury instructions given them”].)
Defendant correctly asserts that the trial court failed to instruct on generic-testimony unanimity, as required by Jones, supra, 51 Cal.3d 294. Jones held: “[W]hen there is no reasonable likelihood of juror disagreement as to particular acts, and the only question is whether or not the defendant in fact committed all of them, the jury should be given a modified unanimity instruction which, in addition to allowing a conviction if the jurors unanimously agree on specific acts, also allows a conviction if the jury unanimously agrees the defendant committed all the acts described by the victim.” (Id. at p. 322.) The instructions here failed to advise the jury that it could convict defendant on all charges if it unanimously agreed that defendant committed all of the acts described by Victoria. The issue is whether the error necessitates reversal.
The erroneous failure to give a unanimity instruction is governed by the prejudice standard articulated inChapman v. California (1967) 386 U.S. 18, 24 (Chapman). (People v. Thompson (1995) 36 Cal.App.4th 843, 853 (Thompson).) Under the Chapman standard, reversal is required unless the reviewing court is satisfied “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” (Chapman, supra, 386 U.S. at p. 24.)
“Where the record provides no rational basis, by way of argument or evidence, for the jury to distinguish between the various acts, and the jury must have believed beyond a reasonable doubt that defendant committed all acts if he committed any, the failure to give a unanimity instruction is harmless. [Citation.]Where the record indicates the jury resolved the basic credibility dispute against the defendant and therefore would have convicted him of any of the various offenses shown by the evidence, the failure to give the unanimity instruction is harmless.” (Thompson, supra, 36 Cal.App.4th at p. 853.)
Here, the failure to give a generic-testimony unanimityinstruction does not necessitate reversal. This case required the jury to resolve a credibility dispute. Victoria and defendant provided completely different testimony. Victoria described a series of molestations that “blurred together” because they were “mostly the same.” Although she did not provide many details of the molestations, Victoria testified that defendant put his fingers inside her vagina on a “minimum” of ten occasions. Defendant categorically denied molesting Victoria. During closing argument, defense counsel advised the jury that “this case is one of credibility” and “really does boil down to whether you can believe the accusations made by Victoria.” The jury here resolved the credibility dispute in favor of Victoria and against defendant. On this record, we are convinced that the jury believed beyond a reasonable doubt that defendant committed all five charged acts of molestation. We must conclude that the failure to give a generic-testimony unanimity instruction was harmless error. (See Thompson, supra, 36 Cal.App.4th at p. 853.)
DISPOSITION
The judgment is affirmed.




______________________________________
RUSHING, P.J.






WE CONCUR:






____________________________________
PREMO, J.






____________________________________
ELIA, J.







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People v. Silva
H041474