P. v. Bueno

Filed 9/27/06 P. v. Bueno CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SIXTH APPELLATE DISTRICT

A jury found appellant guilty of two counts of lewd conduct with a child and one count of attempting to dissuade a victim from reporting a crime. (Pen. Code, §§ 288, subd (c)(1), 136.1, subd. (b)(1).) The jury was unable to reach a verdict as to one count of kidnapping. (Pen. Code, § 207, subd. (a).) Appellant contends that the trial court erred in its answer to a jury question and in failing to give a unanimity instruction as to one count. Appellant and respondent agree that the abstract of judgment should be corrected to reflect that appellant was convicted by a jury. We order the abstract of judgment modified and affirm the judgment.

Appellant has also petitioned this court for a writ of habeas corpus. We have ordered the habeas petition considered with his appeal and we dispose of that petition by separate order filed this day. (See Cal. Rules of Court, rule 24(a).)

Evidence at Trial

In April 2004, the victim, D., was 15 years old. Appellant had been a friend of D.'s parents for 20 years and D. called him "Uncle Joseph." Appellant would often drive D. to the store, her friends' houses, and other places. On April 13, appellant picked D. up from soccer practice. When they stopped at the Dairy Belle to eat, appellant suggested that D. join him on an overnight trip to Modesto with his young son. They drove to D.'s house, where D.'s mother gave her permission for the trip and asked appellant to drop D. off at the family store the next morning.

D. was wearing jeans and a sweatshirt. Appellant was driving his Buick which has "a bench seat that three people can sit in the front." He and D. stopped by another house so appellant could pick up his son. When appellant returned to the car he said that his son would not be coming with them. D. testified that when they got on the freeway, "he told me to sit closer to him, and that's when he started to touch me. . . . He put his arm around me and kind of pulled me closer so I scooted over a little bit." Appellant put his hand on D.'s inner thigh and moved his hand to her vaginal area, rubbing her over her jeans. She asked him to stop. He said, "Oh, you don't like that[?]" She said that she did not like it and he stopped. Then he put his arm under her arm and rubbed the side of her breast. She asked him to stop and moved away. He put his hand back on her inner thigh.

D. asked appellant to get off the freeway. She realized that she was near her friend Veronica's house and wanted to go there. On the way to Veronica's house appellant put D.'s hand on his penis over his pants. To D., it felt like "it was getting hard." D. testified that before they got to Veronica's house appellant said "what happens in the car stays between me and him in the car." When they arrived at Veronica's house appellant told D. he would pick her up in the morning. D. said she would find her own way home, grabbed her backpack, and got out of the car.

Veronica was not expecting D. and had another friend, Angelina, at her house. They asked D. what was wrong because D. was shaking and crying. She told them what had happened. Veronica asked D. if she wanted to call her parents and she said that she "would rather wait until the morning." At trial, she explained, "I was kind of in shock about what had just happened, and I didn't know how to tell my mom and dad. I was scared to call and say where I was at and why I was there."

The next morning, D., Veronica, and Angelina were eating cereal when they saw appellant's car pull into the driveway. D. testified, "it wasn't until Angelina walked outside and told him that my mom was going to come pick me up, and we had already called her that he started to get angry." Appellant yelled at Angelina to tell D. to come outside. Appellant walked through Veronica's garage to the door to the kitchen. D. testified that appellant "said to get my shit, and he was taking me home right now." D. got her backpack and went outside. Appellant got in the driver's side of his car and she opened the passenger side door. She told appellant that she did not need a ride from him. She testified, "He said no, I'm taking you home. I'm tired of this bullshit. He grabbed my hand and pulled me inside the car."

In the car, appellant told D. that her friends should treat him with more respect. D. testified that appellant again put his hand on her inner thigh and started "rubbing [her] vagina area." D. told him to stop and he did. She testified, "I'm not sure if I said I'm going to tell my brother, or if he said something about don't think about telling your brother." She said, "He said not to tell or else," which made D. feel "Like he was threatening me and my family." Appellant may have put his hand around her back and touched her breast.

Appellant took D. home. Appellant talked to D.'s mother and D. went to her room. After a few minutes D. asked her mother if she could go to Veronica's house. D.'s mother asked appellant if he could drop D. off at Veronica's and take D.'s cousin to the bus stop. Although D. did not want to get back in the car, she did not want to tell her mother what had happened while appellant was still in the house, and she felt safer knowing that her cousin would be in the car with them. Appellant dropped D. off at Veronica's house and D. went inside. D. testified that she waited about five minutes and then, "I had my friend dial the number where my brother was at and she talked to him first and said that I needed to tell him something and not to get really angry but just to listen to what I had to say." Crying, D. told her brother what had happened with appellant. D.'s brother told her to tell their parents.[1] That evening, when D. went home, she told her mother. D.'s mother told her father the next morning and he called the police.

D. testified that she told responding San Jose Police Officer Howard Johnson what had happened to her. When she saw his report, she felt that he had left out some of the details that she had told him. Later, she talked to San Jose Police Officer Todd Trayer. She testified that she told Officer Trayer about the incidents with appellant and that appellant had placed her hand on his penis.

Veronica and Angelina testified and essentially confirmed the events that D. described as having occurred at Veronica's house. D.'s mother, Marera, testified that her son told her that she should talk to D. D. was in her bedroom, curled up in the corner. D. told her mother what appellant had done. Marera waited until morning to tell her husband because he was already asleep.

Officer Trayer testified that he interviewed D. twice. As with most molest victims, she gave more detail in the second interview than in the first. He testified that D. told him that during the first incident appellant touched her, but did not mention that appellant had placed her hand on his penis or that appellant had told her not to tell anyone. Officer Trayer also interviewed Marera. Officer Trayer said that Marera told him that D. had said that appellant had tried to put her hand on his penis. Officer Trayer advised the family to act normally around appellant because the officer wanted to arrange a pretext phone call. However, during the call between appellant and D., appellant said nothing incriminating.[2]

District Attorney Inspector Carl Lewis testified as an expert in the Child Sexual Abuse Accommodation Syndrome. Inspector Lewis testified that in his 13 years of working in the child molestation area of law enforcement he had had only one case in which a child was the one who reported the crime to the police. He said that typically an adult to whom the child makes the disclosure calls the police. Lewis testified, "Usually someone says something to somebody[] else who says something to somebody who has to report it."

San Jose Police Officer Howard Johnson testified that he responded to the initial call and took statements from D. and her father. He said that D. told him about two incidents. He said that at some point, D. told him that appellant had told her that "what happens in this car stays in the car or don't tell anybody." Officer Johnson could not recall if D. had said that this was said during the first incident the night of April 13 or the second incident the morning of April 14. Officer Johnson testified that D. did not tell him anything about appellant putting her hand on his penis.

In arguing to the jury, both parties focused for the most part on the two lewd act counts and the kidnapping charge. At one point the prosecutor did refer to count 3, the dissuading a victim charge and said, "And this is based on the words that the defendant said on both April 13th and April 14th to the [e]ffect of, you know, don't say anything to your brother or else, don't tell anybody or else, those kinds of statements to [D.]. And the reason for that is -- the reason why the defendant says those words is to keep her quiet, is that so that she doesn't tell an adult, she doesn't tell a parent because a parent is going to pick up the phone and call the police which is exactly what her dad did as soon as he found out on April 14th or April 15."

"So that's why he was saying that and that is a crime and it's called trying to dissuade a witness, trying to stop a witness from reporting a crime basically. . . . So you might be looking at that and going well he said not to tell her brother and not to tell anybody, it was kind of generic, don't tell your parents. So how do we get from don't tell your brother or don't tell your parent to don't report to the police." The prosecutor referred to the testimony of Carl Lewis that typically it is an adult to whom the child makes the disclosure who calls the police. The prosecutor said, "So when you're dealing with a child, a molester saying don't tell your parents or don't tell anybody, that's the equivalent of saying don't go to the police because that's how they get there, that's who report, that's the first step in that chain of getting it reported to the police so that the person can be held accountable for their conduct." The prosecutor explained "he did it on both days. That's why on your verdict form and in the information it is alleged on April 13th and 14th because he's made the same type of threat both days."

Defense counsel argued that all of the counts were "based solely on the testimony of one witness." He argued, "[D.] gives at least four different versions of what happened to her on April 13 and April 14." He argued that "these stories are inconsistent" and that they "show exaggeration, they show a pattern of the touching getting progressively more serious each time it is retold. . . . What happened in that car, [D.'s] story, [D.'s] credibility, these are the real issues in this case." Counsel suggested that D. may have "misinterpreted a hug" but that once she mentioned this to her girlfriends "the wheels are set in motion." Counsel also argued as to the kidnapping charge that D.'s account of being pulled into the car was incredible.

The jury found appellant guilty of one count of lewd conduct on April 13, one count of lewd conduct on April 14, and one count of attempting to dissuade a victim. The jury was unable to reach a verdict as to the kidnapping charge and the court declared a mistrial as to that count.[3] Appellant was sentenced to a state prison term of two years eight months.

The Jury Question

Appellant contends, "The court committed reversible error by giving the jury an ineffective and confusing answer to its question regarding count three, violating appellant's rights guaranteed under the Fifth and Fourteenth Amendments."

Background

A violation of Penal Code section 136.1, subdivision (b)(1), is committed by "every person who attempts to prevent or dissuade another person who has been the victim of a crime or who is witness to a crime from . . . [m]aking any report of that victimization to any peace officer or state or local law enforcement officer or probation or parole or correctional officer or prosecuting agency or to any judge." As described above, closing arguments focused far more on counts 1, 2, and 4, the lewd conduct and kidnapping counts, than count 3, although the prosecutor did say, "he did it on both days. That's why on your verdict form and in the information it is alleged on April 13th and 14th because he's made the same type of threat both days." About an hour after the jury began its deliberations, the court received a note from the foreperson stating that the jury requested "Clarification of the law regarding charge #3 -- in the case of a minor do the parents or any adult equate absolutely with an officer of the law? Are they considered one and the same in this case? Is saying 'don't tell your parents' or 'don't say anything' equal to saying 'don't tell the police'?" The trial court met with counsel to "discuss options" for addressing this note. All agreed "to have CALJIC 2.00 and 2.01 reread to the jurors." The court then read to the jury the instructions concerning the definitions of direct and circumstantial evidence and the necessity of adopting an interpretation of circumstantial evidence that points to innocence if there are two reasonable interpretations of that evidence.

After rereading these instructions, the court said "That is our response to your question. If you have further questions, don't hesitate." When a juror said, "Can I ask a question about this?" the court responded, "No, you may not. Any dialog between the Court and the jury has to come through a question from the foreperson whoever that foreperson [may be] and I have to share it." The juror responded, "Okay. I'm not sure. We have to rewrite it if that's the process."

The next afternoon, the foreperson sent another note asking how to proceed after having reached a verdict on three of the counts and being deadlocked on a fourth. In responding to that note, the court made reference to the jury's first note. The court explained that it had consulted with counsel before responding. The court said, "And I know that there was an attempt to ask the Court a question . . . and I suggested to you that if you had another question that the [process] was that you were to write it out and then I would again share it with counsel and we would respond. So you're saying to me at this point in time that no further attempt at explaining to you or clarifying or read back of any of the testimony . . . [on] that one count that you're not able to write [sic] a verdict could assist you." The juror responded, "Right." The court received the guilty verdicts on the lewd act and dissuading a victim charges and declared a mistrial as to the kidnapping count.

Discussion

Appellant argues, "The court's response to the jury's inquiry was ineffective in that it did not correct the jury's misconception about the testimony." Respondent asserts, "The issue is not preserved for appeal because appellant's attorney agreed to the court's response. In any event, the response was adequate."

Penal Code section 1138 provides: "After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called."

Recently, our Supreme Court has said, "When a trial court decides to respond to a jury's note, counsel's silence waives any objection under [Penal Code] section 1138. [Citation.]" (People v. Roldan (2005) 35 Cal.4th 646, 729, citing with approval People v. Kageler (1973) 32 Cal.App.3d 738, 746 [trial court answered jury question by stating only that jury had already received all necessary instructions; even though jury's question could and should have been answered, appellant's argument that court's response was inadequate was waived by failure to object in trial court].)

Appellant relies on Penal Code section 1259, which provides that an "appellate court may . . . review any instruction given . . . even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby." "[T]he failure to object to an instruction in the trial court waives any claim of error unless the claimed error affected the substantial rights of the defendant, i.e., resulted in a miscarriage of justice, making it reasonably probable the defendant would have obtained a more favorable result in the absence of error. [Citations.]" (People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.)

We conclude that no miscarriage of justice resulted from the supposed error. The jury's note essentially posed a hypothetical question regarding section 136.1 that tracked the prosecutor's argument about "how do we get from don't tell your brother or don't tell your parent to don't report to the police." The prosecutor had argued, "So when you're dealing with a child, a molester saying don't tell your parents or don't tell anybody, that's the equivalent of saying don't go to the police because that's how they get there, that's who report, that's the first step in that chain of getting it reported to the police so that the person can be held accountable for their conduct." The jury's note sought an answer to a question that could only be answered by the jury through an evaluation of the evidence, particularly the circumstantial evidence of appellant's specific intent, and the trial court's response correctly informed the jury how to go about doing just that.

Appellant is correct that D. did not testify that appellant made specific reference to her parents when he told her not to tell anyone about the lewd acts.[4] Appellant suggests that correcting the jury's "misconception" would have been advisable. The problem with this is that appellant's defense was that the lewd acts did not occur. If the lewd acts did not occur, then the warnings would not have been spoken as there would have been nothing to tell the victim not to report. Focusing the jury on the actual testimony on this point would have inevitably led to a review of those parts of D.'s testimony during which she recited appellant's warnings to her on both days, precisely whom he said not to tell about the lewd acts, and the impact of these warnings on her. This would have done nothing to resolve the jury's hypothetical and only served to reinforce damaging testimony. The better approach, the one agreed to by defense counsel, was to give the instruction concerning reasonable interpretations of circumstantial evidence and the jury's obligation to adopt the one pointing to innocence.

In any event, appellant cannot show prejudice. Once the jury determined that D. was credible as to the lewd acts, there would have been no reason to disbelieve her as to the warnings. Section 136.1, subdivision (b)(1), is not limited in its application to 911 calls. It includes attempts to dissuade a victim from reporting her victimization to the police even if someone other than the victim is the first to report it. Even if defense counsel had proposed the responses to the jury question that appellant urges here, and the trial court had accepted these proposals, it is not reasonably probable that the jury would have concluded that appellant, in warning D. not to tell "anybody" about his commission of these lewd acts would have been referring to her brother but not to the police. Thus, even assuming appellant has not waived any objection to the trial court's response to the jury's question, no miscarriage of justice occurred.

The Unanimity Instruction

Appellant contends, "The court erred in failing to instruct the jury with CALJIC 17.01 with regard to the charge of dissuading a victim from reporting a crime, violating appellant's rights guaranteed under the Fifth and Fourteenth Amendments."

Background

Count 3, the dissuading a victim charge, was alleged to have occurred "On or about and between April 13, 2004 and April 14, 2004." During closing arguments the prosecutor referred to this charge and said, "And this is based on the words that the defendant said on both April 13th and April 14th to the [e]ffect of, you know, don't say anything to your brother or else, don't tell anybody or else, those kinds of statements to [D.]." The prosecutor explained "he did it on both days. That's why on your verdict form and in the information it is alleged on April 13th and 14th because he's made the same type of threat both days."

Discussion

Appellant argues that the court's failure to give CALJIC No. 17.01, the unanimity instruction, as to the charge of attempting to dissuade a victim requires a new trial on that charge.[5] He argues that because the prosecution offered evidence of two separate warnings by appellant to D. and argued both to the jury as the basis for count 3, there was a danger that some jurors could have convicted only on the basis of the warning to D. the night of April 13 while others convicted only on the basis of the warning made the next morning. Respondent argues, "Since appellant's statements reflected a continuous course of conduct, no unanimity instruction was required."

"A long line of cases has held that where the jury is presented with evidence of more than one factual basis for conviction of the crime charged it must be instructed along the lines of CALJIC No. 17.01 that it must unanimously agree upon the act or acts constituting the crime. [Citations.] The instruction must be given sua sponte if not requested. [Citations.]" (People v. Moore (1986) 185 Cal.App.3d 1005, 1014, fn. omitted.) The purpose of the unanimity instruction is to prevent a verdict that results from some jurors believing that the defendant committed one act and others believing that defendant committed a different act, without agreement on what conduct constituted the offense. (People v. Washington (1990) 220 Cal.App.3d 912, 915-916; People v. Sutherland (1993) 17 Cal.App.4th 602, 612.) Accordingly, when a defendant is charged with a single criminal act but the evidence reveals more than one instance of the charged crime, either the prosecution must select the particular act upon which it relies to prove the charge or the jury must be instructed that it must unanimously agree beyond a reasonable doubt that defendant committed the same specific criminal act. (People v. Moore, supra, 185 Cal.App.3d at p. 1014, People v. Brown (1996) 42 Cal.App.4th 1493, 1499-1500.)

Neither an election by the prosecutor nor a unanimity instruction is required where the offenses are so closely connected in time that they form part of one transaction or where the statute itself contemplates a continuous course of conduct. (People v. Diedrich (1982) 31 Cal.3d 263, 282.) "The 'continuous conduct' rule applies when the defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for the jury to distinguish between them. [Citation.]" (People v. Stankewitz (1990) 51 Cal.3d 72, 100.)

Citing People v. Salvato (1991) 234 Cal.App.3d 872, 883, respondent argues, "Dissuading a witness from testifying pursuant to section 136.1, subdivision (a), contemplates a continuous course of conduct, and accordingly, a unanimity instruction is not required." In Salvato, the defendant was charged with violating Penal Code section 136.1, subdivision (c)(1), and with violating Penal Code section 422, making criminal threats. These charges arose from the defendant's conduct, including making threats and gestures and leaving messages and letters, during a two month period when he and his wife were going through a divorce. Although the court did give a unanimity instruction, the defendant asserted that he was entitled to prosecutorial election. On appeal, the court held that a violation of the criminal threats statute was not a continuous course of conduct crime, in that the statute focused on an individual act. As for section 136.1, however, the court said, "The language of section 136.1 focuses on an unlawful goal or effect, the prevention of testimony, rather than on any particular action taken to produce that end. 'Prevent' and 'dissuade' denote conduct which can occur over a period of time as well as instantaneously. The gravamen of the offense is the cumulative outcome of any number of acts, any one of which alone might not be criminal. Thus it falls within the continuous conduct exception, and no election or unanimity instruction [is] required." (People v. Salvato, supra, 234 Cal.App.3d at p. 883.) Accordingly, the Salvato court held that prosecutorial election was required as to the criminal threats counts but not as to the violation of section 136.1.

Appellant argues that Salvato was wrongly decided on this point and is not controlling in that a unanimity instruction was given in that case. Appellant argues that D.'s "various statements to the police and her testimony differed as to what happened on each day and were inconsistent as to what happened during each incident." Appellant asserts, "It is conceivable that some of the jurors believed parts of her story but discredited other portions. It was therefore crucial that the jury decide whether the section 136.1, subdivision (b)(1) count applied to April 13 or to April 14."

Even if we were to assume that not including count 3 in the unanimity instruction given here was error, we do not agree with appellant that it was prejudicial. The failure to give a unanimity instruction to the jury is governed by the harmless beyond a reasonable doubt standard of Chapman v. California (1967) 386 U.S. 18. (People v. Deletto (1983) 147 Cal.App.3d 458, 471.) Failure to give a unanimity instruction is harmless if the record provides no rational basis for the jury to distinguish between the various acts, and the jury must have believed beyond a reasonable doubt that the defendant committed all acts if he or she committed any. (Id. at p. 473.) "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." (People v. Thompson (1995) 36 Cal.App.4th 843, 853.)

Here, "the evidence supporting each act was the same--the victim's testimony--so that there was no basis for the jury to conclude that some but not all of the acts took place." (People v. Ramirez (1987) 189 Cal.App.3d 603, 613.) Although the two warnings occurred several hours apart, one at night and the other the next morning, they arose from the same circumstances and were subject to the same defense. As defense counsel argued, "What happened in that car, [D.]'s story, [D.]'s credibility, these are the real issues in this case." In convicting appellant of the two separate lewd acts committed on April 13 and on April 14, the jury credited D.'s testimony about what had happened in the car on both of those days.[6] There would be no basis for the jury to accept D.'s testimony that appellant committed the lewd acts on both days, as it clearly did by convicting him of both counts, yet discredit that testimony as to appellant's warnings to her on both days. We conclude any error in failing to include count 3 in the unanimity instruction here was harmless beyond a reasonable doubt.

Abstract of Judgment

Appellant points out that the abstract of judgment indicates that appellant pleaded guilty to all charges. The abstract of judgment should be corrected to show that appellant was convicted by a jury.

Disposition

The trial court is directed to prepare an amended abstract of judgment reflecting that appellant was convicted by a jury and to transmit a certified copy of the abstract of judgment to the Department of Corrections. As modified, the judgment is affirmed.

_____________________________

ELIA, J.

WE CONCUR:

_____________________________

RUSHING, P. J.

_____________________________

PREMO, J.

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[1] D.'s brother testified about her call to him and that she sounded scared and told him "That she was violated, she got touched, and that it was . . . Joe and then she told me she started crying even more." When asked, "she told you this just happened the one time, right?" he answered, "Yeah."

[2] D. called appellant on the pretext of asking him if he had obtained concert tickets they had discussed earlier. When she told him that she wanted to talk about "something else" appellant said that "he was very busy and he had to go."

[3] Apparently the jury deadlocked with only two votes for guilty on that count.

[4] At one point, when D. testified that appellant had said, "what happens in the car stays between me and him in the car," she was asked what that meant to her. Her answer was, "That he was telling me not to tell my mom and dad what he had done." This response was objected to as speculative and stricken. On cross-examination about what appellant had said to her the second day, D. testified as follows:

"Q. . . . Now at a certain point Joe said to you something . . . that amounted to what happens in the car stays in the car. Again, we're talking about that second day.

A. No, he said that the first day.

Q. Okay. And that's the only day he said anything like that?

A. And then the next day he said something about don't think about telling your brother or Alex.

Q. . . . As far as you recall the words he used were don't tell your brother?

A. Yeah, don't tell your brother.

Q. Did he say don't tell the police?

A. No.

Q. He said don't mention it to your brother?

A. He said don't tell anybody.

Q. Did he say anybody or did he say your broth[er]?

A. I know something about my brother came up but I'm not sure if it was when he said don't tell or when I said I was going to say something.

Q. Okay. And he said or else?

A. Yes."

[5] The trial court did give a unanimity instruction but only as to other counts and certain lesser included offenses.

[6] Nor does the fact that the jury was unable to reach a verdict on the kidnapping count affect our determination here. It is not surprising that jurors would decline to convict appellant of kidnapping D. when he told her he was taking her home and then did so.