Filed 6/29/17 P. v. Rattanapan CA4/3






NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,

Plaintiff and Respondent,

v.

KEEREWAN RATTANAPAN,

Defendant and Appellant.


G054176

(Super. Ct. No. 14WF2257)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Kimberly Menninger, Judge. Affirmed.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.

* * *

A jury convicted defendant Keerewan Rattanpan of nine counts of committing lewd acts upon a child under the age of 14 (Pen. Code, § 288, subd (a); counts 1 through 9), two counts of oral copulation of a minor under the age of 16 (§ 288a, subd. (b)(2); counts 10 & 12), and two counts of sexual penetration by a foreign object (§ 289, subd. (i); counts 11 & 13). As to counts 5 through 9, the jury found true the allegations of substantial sexual conduct with a child. (§ 1203.066, subd. (a)(8).) The court sentenced defendant to an aggregate state prison term of 17 years 8 months as follows: on count 2 (§ 288, subd. (a), the principal term), the low term of three years; on counts 4 through 9 (§ 288, subd. (a)), consecutive terms of two years (one-third the midterm); on counts 10 and 12 (§ 288a, subd. (b)(2)), consecutive terms of eight months (one-third the midterm); and on counts 11 and 13 (§ 289, subd. (i)), consecutive terms of eight months (one-third the midterm). The court imposed state prison terms of three years each on counts 1 and 3, to be served concurrently with count 2.
Defendant timely filed a notice of appeal and we appointed counsel to represent him. Counsel did not argue against defendant, but advised the court she was unable to find an issue to argue on defendant’s behalf. Defendant was given the opportunity to file written argument on his own behalf, but he has not done so.
We have examined the entire record but have not found an arguable issue. (People v. Wende (1979) 23 Cal.3d 436.) Accordingly, we affirm the judgment.

FACTS

In accordance with our usual standard of review on appeal, we recite the facts “in the light most favorable to the judgment.” (People v. Johnson (1980) 26 Cal.3d 557, 578.)
The victim’s mother owned a restaurant, which she purchased in 2010. Defendant worked at the restaurant performing varied duties, as a chef, making deliveries of food, and shopping for groceries. After running the restaurant for about six months, the victim’s mother returned to her former job in Riverside County, working three days a week in Riverside County and four days a week at the restaurant. But in 2012, the victim’s mother agreed to have defendant and his wife take over the restaurant operations. The victim and her sister continued to reside in Orange County.
The victim was born in August 1998. Her sister is five years older. The victim would come to the restaurant almost daily after school, as did her older sister.

Counts 1 and 2 (Jan. 1, 2012 — Jan. 31, 2012)
Starting in January 2012, when the victim was about 13 and one-half years old, and defendant was 45 years old, she began to go with defendant when he made food deliveries in the restaurant’s van. The victim usually sat in the front passenger seat, but one day defendant asked the victim to sit in the back seat to hold the food. When the delivery was completed, instead of driving the victim home, defendant parked the van “somewhere farther than the home.” Defendant came back to the rear seat and asked the victim whether she had been kissed before. She said, “No.” Defendant leaned over and pulled the victim’s head close to his lips and kissed her with an open mouth (count 1). The kiss lasted 30 seconds, and the victim kissed him back. Defendant then began rubbing the victim’s breasts, thighs and vagina outside of her clothes (count 2).

Counts 3, 4, 5, and 6 (March 1, 2012 — March 31, 2013)
The sexual conduct in the restaurant’s van after making food deliveries continued after January. Defendant would rub the victim’s breast, her thighs, and her vagina under her clothes. He would put his finger in the vagina until she reached a climax (count 4). In March 2012, defendant and the victim went to her apartment when no one else was home. There they talked, and kissed (count 3), and defendant touched her “breasts to get [her] aroused.” Defendant then laid the victim on the floor, took off her pants, and orally copulated her under her clothes (count 5). A week or so later, defendant asked the victim to orally copulate him, and she complied until he ejaculated (count 6).

Counts 7, 8 and 9 (April 1, 2012 — the day before the victim’s 15th birthday in August 2012)
After March 2012, the mutual acts of oral copulation continued once or twice a week, and defendant continued to insert his finger in the victim’s vagina (counts 7, 8, and 9). Defendant also told the victim “his finger wasn’t satisfying [her] enough so he brought a sex toy . . . to use on [her].”
Counts 10-11, 12-13 (after the victim’s birthday in August 2012 until May 17, 2014)
After the victim turned 14 years old in August 2012, defendant and the victim continued to orally copulate each other and defendant continued to use the dildo to penetrate her (counts 10, 11, 12, 13). The same acts occurred after the victim turned 15. The last act occurred on May 17, 2014.

DISCUSSION

To assist the court in its independent review, counsel suggested several issues she considered but ultimately determined were not reasonably arguable. (Anders v. State of California (1967) 386 U.S. 738.)

Discrepancies in Dates
Counsel noted that counts 10 and 12 of the amended information charged defendant with oral copulation (§ 288a, subd. (b)(2)) and counts 11 and 13 charged defendant with penetration with a foreign object (§ 289, subd. (i)). As to count 10, the acts were alleged to have occurred between August 2012 and August 2013. As to counts 11, 12, and 13, the acts were alleged to have occurred between August 2012 and May 17, 2014. But the jury was instructed that the crimes charged in count 10 occurred between April 2, 2012 and the day before the victim’s birthday in August 2013, and that the crimes charged in count 11 occurred between April 2, 2013 and the day before the victim’s birthday in August 2013. In giving unanimity instructions, the court also stated that counts 10 and 11 charged oral copulation and counts 12 and 13 charged sexual penetration, although the dates corresponded with the charges in the amended information.
These discrepancies are immaterial and clearly harmless. Section 289, subdivision (i), and section 288a, subdivision (b)(2), all require that the victim be less than 16 years of age. All of the dates for each of these charges fall within that range. Based upon the evidence, the verdict forms, and the argument of counsel, the jury was plainly advised that defendant was charged with two counts of oral copulation and two counts of sexual penetration while the victim was less than 16 years old. The pleading need not state the precise time of the offense “except where the time is a material ingredient in the offense.” (§ 955.) The material dates in this case were the dates when the victim turned 14 years old and 16 years old. The charges, the evidence, and the verdicts corresponded to the correct periods of time.

Misidentification of Penal Code Section in the Verdict Forms
Counsel also notes that the verdict forms for counts 11 and 13, by which the jury found defendant guilty of sexual penetration, identified the Penal Code section violated by this conduct as section 288a, subdivison (b)(2), instead of section 289, subdivision (i). Again, the mistake on the verdict form was harmless. The jury was properly instructed on the essential elements of each crime. (People v. Escarcega (1969) 273 Cal.App.2d 853, 857-858 [verdict stated wrong Penal Code reference but jury was instructed on correct offense].)

Unanimity Instructions
The court gave standard unanimity instructions, but grouped the instructions by the periods of time the offenses were alleged to have occurred. For example, the court instructed the jury that “[t]he defendant is charged with lewd act on a child in counts 3, 4, 5 and 6 sometime during the period of March 1, 2012 thru March 31, 2012. 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 committed.”
Counsel suggests we consider whether the jury would have understood the instruction to support a verdict on multiple counts based on one act rather than unifying on a single act per count. But we note the jury was also instructed that “Each of the counts charged in this case is a separate crime. You must consider each count separately and return a separate verdict for each one.” It is not reasonable to suppose the jury would understand the unanimity instruction as allowing convictions on multiple counts of the same crime based on a single act. Moreover, the verdict forms given to the jury indicated the specific type of act the People relied upon in charging each lewd act separately. For example, in count 3, the lewd act was a kiss, in count 4, the lewd act was touching the vagina, count 5 was the oral copulation of the victim, and count 6 was the victim’s oral copulation of defendant. “If a jury instruction is ambiguous, we inquire whether there is a reasonable likelihood that the jury misunderstood and misapplied the instruction.” (People v. Smithey (1999) 20 Cal.4th 936, 963.) With the specificity given the jury in the verdict forms, the jury could not have been confused by the unanimity instructions.

The Evidence Was Sufficient
Finally, counsel suggests we consider whether the evidence was sufficient on all counts. A review of the brief synopsis of the evidence recited above demonstrates the evidence was manifestly sufficient to support the judgment.

No Other Errors
We have not found an arguable issue upon our independent review of the entire record.

DISPOSITION

The judgment is affirmed.



IKOLA, J.

WE CONCUR:



O’LEARY, P. J.



BEDSWORTH, J.