Filed 1/24/18 P. v. Campuzano-Garcia 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

JOSE LORETO CAMPUZANO-GARCIA,

Defendant and Appellant.


G053967

(Super. Ct. No. 15HF0652)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, David A. Hoffer, Judge. Affirmed.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Alan L. Amann, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
INTRODUCTION
Defendant Jose Loreto Campuzano-Garcia appeals from the judgment of conviction entered after a jury found him guilty of committing the offenses of continuous sexual abuse, assault of a minor with the intent to commit a sexual offense, and lewd act upon a child. Defendant contends on appeal the unanimity instruction created ambiguity. We reject defendant’s contention and affirm.

FACTS
In 2013, Y.C. lived with her father (defendant), her mother, and younger sister. One afternoon in 2013, when Y.C. was 12 years old and in the sixth grade, she was heading toward the bathroom of her home when defendant told her to sit on his lap. After Y.C. complied with his request, defendant kissed her on the lips, touched her breast under her clothing, and grabbed her hand and moved it over his pants where she could feel he was having an erection. When she felt defendant move his hand down toward her vagina, she got up quickly and moved away from him.
At a later time during her sixth grade year, Y.C. was sitting in her living room when defendant came home from work. Defendant kissed her on the lips and tried to put his tongue in her mouth.
When Y.C. was in the seventh grade, there was an occasion where Y.C. asked her mother for money and her mother said she could massage defendant’s back and then defendant would give her money. While Y.C. massaged defendant’s back, he turned around and kissed her on the lips, put his tongue in her mouth, and touched her breasts under her clothing. She told him to stop and left the bedroom.
One night in June 2015, when Y.C. was 14 years old, defendant came into the family’s bedroom to give Y.C. a good night kiss even though that was not his routine. Defendant kissed Y.C. on the lips, walked away from her, closed the bedroom door, and locked it. Defendant got on the bed and began to kiss her; he put his tongue inside her mouth and, at some point during this incident, injured her lip. After Y.C. tried to back away, defendant grabbed both of her wrists with one of his hands and held her hands down to her left side. He used the other hand to touch her breasts and to move his hand down toward her vagina. He touched her below her belly button but did not touch her under her pants. He also “dry hump[ed] her left side” and tried to kiss her chest. Y.C. repeatedly told him to stop; after about 10 minutes, defendant stopped and left the room. Later, he came back into the bedroom and asked her if she wanted him to lay in bed next to her. After Y.C. told him no, he asked her if she was sure; she responded that she was sure.

PROCEDURAL HISTORY
Defendant was charged by information with one count each of committing continuous sexual abuse in violation of Penal Code section 288.5, subdivision (a), assault of a minor with intent to commit a sexual offense in violation of section 220, subdivision (a)(2), and a lewd act upon a child in violation of section 288, subdivision (c)(1). The information further alleged that, pursuant to section 1203.066, subdivision (a)(1), defendant committed the continuous sexual abuse offense by use of force, violence, duress, menace, and fear of immediate bodily injury on Y.C. and another person.
During trial, the court granted the prosecution’s motion to strike the section 1203.066, subdivision (a)(1) enhancement allegation as to the continuous sexual abuse count. The jury found defendant guilty on all three counts as charged. The trial court sentenced defendant to a total prison sentence of 17 years. Defendant appealed.


DISCUSSION
Defendant contends the trial court’s unanimity instruction created prejudicial ambiguity regarding the continuous sexual abuse offense’s element requiring that defendant have committed three lewd acts on a minor (and not only one) during the requisite time period. We disagree.
“When considering a claim of instructional error, we review the challenged instruction in the context of the instructions as a whole and the trial record to determine whether there is a reasonable likelihood the jury applied the instruction in an impermissible manner.” (People v. Houston (2012) 54 Cal.4th 1186, 1229.) “‘[A]ny theoretical possibility of confusion [may be] diminished by the parties’ closing arguments.’” (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1220, overruled on a different ground in People v. Rangel (2016) 62 Cal.4th 1192.)
The jury was instructed on the crime of committing continuous sexual abuse with a modified version of CALCRIM No. 1120 as follows: “The defendant is charged in count one with continuous sexual abuse of a child under the age of 14 years. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant lived in the same home with a minor child; [¶] 2. The defendant engaged in three or more acts of lewd or lascivious conduct with the child; [¶] 3. Three or more months passed between the first and last acts; [¶] AND [¶] 4. The child was under the age of 14 years at the time of the acts.” The jury was further instructed: “You cannot convict the defendant unless all of you agree that he committed three or more acts over a period of at least three months, but you do not all need to agree on which three acts were committed.” (Italics added.)
Defendant does not argue that the version of CALCRIM No. 1120 was given in error or challenge the sufficiency of the evidence supporting the jury’s verdict finding defendant guilty of that offense. Instead, defendant argues the trial court erred by instructing the jury on unanimity by giving the following modified version of CALCRIM No. 3501 (the unanimity instruction): “In count one, the defendant is charged with continuous sexual abuse on or about and between March 28, 2013 and March 27, 2015. [¶] In count two, the defendant is charged with assault of a minor with intent to commit a sexual offense on or about June 16, 2015. [¶] In count three, the defendant is charged with lewd act upon a child on or about June 16, 2015. [¶] During the time period for each offense, the People have presented evidence of more than one act to prove that the defendant committed these offenses. You must not find the defendant guilty unless: [¶] 1. 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; [¶] OR [¶] 2. You all agree that the People have proved that the defendant committed all the acts alleged to have occurred during the time period for each offense.” (Italics added.)
Defendant argues the unanimity instruction was misleading and given in error because that instruction suggested defendant could be convicted of continuous sexual abuse where only one lewd act (instead of three lewd acts) had been proven.
The jury was expressly instructed that it could not find defendant guilty on the continuous sexual abuse count unless it found he committed three or more lewd acts over a period of three or more months. CALCRIM No. 1120 instructed the jury that it need not unanimously agree on which three acts constituted lewd acts that occurred within the requisite time period, but only that three such acts occurred.
The unanimity instruction, on the other hand, stated as to each of the charged counts, the jury had to not only find defendant committed the “act” underlying each of the three charged offenses, but also unanimously agree on which acts actually occurred underlying the requisite “act” for each charged offense. Thus, in the context of the continuous sexual abuse count, reading the instructions as whole, the jury reasonably understood the requisite “act” to consist of three separate lewd acts on a minor between March 28, 2013 and March 27, 2015.
To the extent the unanimity instruction suggested the jury had to unanimously agree that the same three acts occurred within the requisite time period, it did not create any confusion in this case. The prosecutor had only produced evidence of three acts of lewd conduct on a minor that had occurred between March 28, 2013 and March 27, 2015. Therefore, the jury necessarily would have had to unanimously find that defendant committed the same three lewd acts on a minor before convicting defendant of continuous child abuse in this case.
Even if the unanimity instruction created ambiguity, which we conclude it did not in this case, any such ambiguity was clarified during closing arguments in which the prosecutor stated: “Count 1 [continuous sexual abuse], I have to prove four things, that during the time period alleged from March 2013 through March 2015, the defendant lived in the same home with the minor child, that he committed three or more acts of lewd or lascivious conduct upon that child, that three or more months passed between the first act and the last act, and that the child was under the age of 14 years at the time of the acts.” (Italics added.) Therefore, it was not reasonably likely the jury applied the unanimity instruction in an impermissible manner.
Because we do not find instructional error, we do not need to address
whether defendant forfeited this argument by failing to object to the unanimity instruction at trial.
 
DISPOSITION
The judgment is affirmed.



FYBEL, J.

WE CONCUR:



O’LEARY, P. J.



MOORE, J.