Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCN262512 Aaron H. Katz, Judge.
HUFFMAN, Acting P. J.
A jury convicted Kenneth Dunford II of two counts of felony child annoyance (Pen. Code, § 647.6, subd. (a)(1)). In a bifurcated proceeding, the trial court found true allegations that Dunford had suffered a prior felony conviction for a specified sex offense (§ 647.6, subd. (c)(2)) and a prior misdemeanor child annoyance conviction (§ 647.6, subd. (c)(1)). The court sentenced Dunford to prison for a total term of six years.
All further statutory references are to the Penal Code unless otherwise indicated.
Dunford appeals contending the trial court's failure to give a unanimity instruction denied him due process and a fair trial and its imposition of aggravated terms violated his constitutional rights. We affirm.
FACTUAL BACKGROUND
In March of 2009, after Lydia Scinski, the vice principal of San Marcos Middle School (Middle School) in San Marcos, received complaints from three students regarding occurrences on city buses, she reminded the student body viaa school TV broadcast not to talk to strangers, to avoid strangers trying to talk with them, and not to take gifts or candy from strangers. By the time Scinski had returned to her office from making the announcement, 12 to 15 students were waiting for her. Based on information from them, Scinski called both the school resource officer, who was also a deputy with the San Diego County Sheriff's Department, and the North County Transit Security Department (Transit Security) to advise them that a man was handing out candy to Middle School students using city buses to and from the school.
In response to Scinski's call, Sergeant Jesus Bermudez of Transit Security rode the city bus route the Middle School students used on the morning of March 25, 2009. As Bermudez stood in the back of the bus while it made its various stops, slowly filling up with children on the way to school, he noticed that the children immediately reacted with concern to one particular man who boarded the bus. When the man saw the uniformed Bermudez, he hesitated, looking as if he wanted to exit the bus, but then paid the fare and took a seat on the already moving bus. Bermudez approached the man, who was nervous and shaking, asking him if he knew why he was being contacted. The man, who identified himself as Dunford, eventually shook his head in a "yes" motion and admitted he had been passing out candy to the children. Although Dunford had told Bermudez he was exiting at the Escondido station, he hastily exited just before that stop. Bermudez followed him off the bus and when he confronted Dunford about getting off earlier than his stated destination, he said he had gotten off because Bermudez was making him nervous, and he also realized he was making the children nervous. Dunford was subsequently arrested and after an investigation was charged in this case with two felony counts of unlawfully annoying a child under the age of 18 between December 1, 2008 and April 30, 2009.
At trial, in addition to the above evidence being presented, six students from the Middle School testified as to Dunford's continuing actions on the bus they took to and from school. Angelica, who was 12 years old in 2008, testified that she and about 30 other students rode the city bus to school daily. She recognized Dunford from riding the bus and said he started handing out candy in December 2008 and continued to do so until she stopped taking the bus in April 2009 because of his actions. In response to questioning, Angelica said she saw Dunford only sit with the students and not the other adults on the bus, she heard him interrupt conversations with other girls, heard him call them by their first names, she saw him give one girl some money, he gave her some candy and he stared at her and at other young girls' "asses, " making her nervous.
Gabby, who was 10 years old in 2008, testified that in September of that year, Dunford started taking the morning city bus with the Middle School children, sitting near the girls, not the adults, and he often interrupted or joined the girls' conversations without being invited to do so. During this time, Dunford also gave her and another girl candy, which she found "not normal" for an adult man, and she saw him hand out candy to other children on at least four or five separate occasions. Even though Gabby had never talked with Dunford or told him her name, he called her by her name and asked her to sit next to him, which made her uncomfortable and afraid.
Eduardo, who was 12 years old in 2008, and took the city bus home after school, which was then mostly filled with students, testified he became concerned when Dunford started taking that afternoon bus in December because of his actions of sitting near the girls, giving the girls candy and talking to them even though they did not want to talk with him. It also bothered Eduardo that Dunford stared closely at the girls in a certain way.
Melissa, who was 11 years old in 2008, testified that Dunford bothered her and made her feel uncomfortable when he regularly stared at her and the other girls, when he called out to her by name and talked to her, even though she had not told him her name and had not otherwise initiated any interaction with him. Melissa confirmed that Dunford had also given her and other children on the bus candy and had given one of her girlfriend's money. Melissa was afraid of Dunford and generally avoided sitting near him on the bus.
Desiree, who was 13 years old in 2008, testified that between September 2008 and April 2009, Dunford bothered her by staring at her on more than one occasion and by giving her gum. Desiree also remembered at least six occasions when Dunford handed out candy to other children on the bus. She further confirmed that he regularly talked with the girls on the bus as well as staring at them. When she and the other children tried to avoid Dunford by clustering in the front of the bus near the driver, he started riding in the front near where they had moved to avoid him. Eventually, Desiree, who was also wary of Dunford because his eyes were usually bloodshot, which she knew was a side of effect of being high, complained about Dunford's actions to the school assistant principal.
Beatriz, who was 13 years old in 2008, testified that Dunford had been riding the bus for a year and a half and that although he had regularly talked to her girlfriend during that time, she became bothered when he started talking to her, asking her the whereabouts of her girlfriend, who had graduated on to high school and a different bus. Beatriz was also bothered by Dunford handing out candy to the children and by his sitting with the children in the back rather than with the adults in the front of the bus. On one occasion, Beatriz saw Dunford make a girl uncomfortable when he asked her to sit with him and on another occasion, she saw him grab a different girl by the arm while asking her to sit with him. Beatriz additionally remembered Dunford ask either Desiree and her cousin or another set of girls where they lived. She further recalled a situation where one girl was telling her friend that she did not have lunch money when Dunford interrupted their conversation and gave the girl some money. Beatriz said she would never sit next to Dunford because he stared at her and she was afraid of him, which eventually caused her to stop riding the bus.
At the conclusion of the trial testimony, the parties stipulated that "Dunford had no employment or other obligations which required him to ride the bus at the times described by the witnesses." The parties further stipulated that Dunford had six prior convictions involving acts wherein he talked with and then gave photographs of his nude penis to young girls, exposed his genitalia to a group of girls, took photographs of young swimmers at a public pool, took photographs of young girls at an elementary school and tried to talk with them, took photographs up the skirts of various young girls shopping in a store, and touched his penis inside his pants as he talked with a young girl in a craft store.
DISCUSSION
I
UNANIMITY INSTRUCTION
During jury instruction discussions, the trial court expressed concern that the two counts of felony child annoyance charged against Dunford were generic and undistinguishable in nature because no specific victims were named for those counts. Thinking they might pose a section 654 problem at sentencing because each conviction could be based on the same ongoing conduct by Dunford, the court suggested that the verdict forms describe the distinct conduct supporting each respective count.
When the prosecutor, after some discussion, questioned the need for a unanimity instruction because Dunford's actions constituted "a continuing course of conduct, " the court disagreed, noting that without naming a specific victim, the jury would still need to be instructed to unanimously agree on which victim was subject to Dunford's ongoing conduct because six children had testified as to his annoying behavior over the course of several months. To remedy the matter, the court suggested that the prosecutor select her two strongest victims, insert their names on the verdict forms and then argue the issue of continuing course of conduct as to those victims. Defense counsel agreed with the court that such would be permissible.
Later, when the court was reviewing whether it was necessary to give a unanimity instruction under either CALCRIM No. 3501 or CALCRIM No. 3500, it noted that one would not be necessary to require the jurors agree upon a particular person or a particular event if the prosecutor were selecting two named victims and arguing child annoyance based on a separate continuing course of conduct as to each victim. When the prosecutor said that that was her "game plan, " defense counsel agreed with the suggested procedure and the court withdrew the unanimity instructions from those that would be given.
Subsequently, during closing argument, the prosecutor informed the jury that Beatriz and Desiree had been selected as the named victims of Dunford's continuing conduct in annoying the school children riding the bus to or from the Middle School and pointed out the verdict forms showing Beatriz as the victim in count 1 and Desiree as the victim in count 2. The prosecutor directed the jurors to view Dunford's behavior in a "continuum" as to each girl and detailed his specific ongoing annoying behavior as to each. In the defense closing, counsel argued there was no evidence in the record to suggest Dunford's actions toward Beatriz or Desiree were motivated by an "abnormal or [unnatural s]exual interest in children" and that they were only "creeped out by him."
On appeal, Dunford contends the trial court's failure to sua sponte instruct the jury with a unanimity instruction denied him due process and a fair trial. Although he acknowledges that two specific victims, respectively Desiree and Beatriz, were eventually named for counts 1 and 2, and that a unanimity instruction was not required as to the several acts constituting the "continuing course of conduct" charged in each of those counts, Dunford argues that a unanimity instruction was required to direct the jury to agree on the specific course of conduct constituting the necessary criminal acts with respect to each girl, rather than an inferential reliance on the general testimony of all six child victims. We disagree.
Dunford neither challenges the sufficiency of the evidence to support his convictions nor the admission of any of the evidence at trial.
Because jury verdicts in criminal cases must be unanimous, the general rule is that where the accusatory pleading charges a single criminal act and the evidence shows more than one such act or discrete crime, the prosecution must elect the specific act or discrete crime relied upon to prove the charge or the jury must be instructed that it must unanimously agree beyond a reasonable doubt that the defendant committed the same criminal act or discrete crime. (People v. Russo (2001) 25 Cal.4th 1124, 1132 (Russo).) The requirement of jury unanimity generally applies to acts that could have been charged as separate offenses. (People v. Beardslee (1991) 53 Cal.3d 68, 92.) The purpose of the unanimity instruction is to prevent a verdict that results from some jurors believing the defendant committed one act and others believing the defendant committed a different act, without agreement on what conduct constituted the offense. (People v. Washington (1990) 220 Cal.App.3d 912, 915-916.)
As our Supreme Court has explained: "[T]he unanimity instruction is appropriate 'when conviction on a single count could be based on two or more discrete criminal events, ' but not 'where multiple theories or acts may form the basis of a guilty verdict on one discrete criminal event.' [Citation.] In deciding whether to give the instruction, the trial court must ask whether (1) there is a risk the jury may divide on two discrete crimes and not agree on any particular crime, or (2) the evidence merely presents the possibility the jury may divide, or be uncertain, as to the exact way the defendant is guilty of a single discrete crime. In the first situation, but not the second, it should give the unanimity instruction." (Russo, supra, 25 Cal.4th at p. 1135.) Whenever such instruction is required, the court has a sua sponte obligation to give CALCRIM No. 3500. (See People v. Melhado (1998) 60 Cal.App.4th 1529, 1534.)
No unanimity instruction is required, however, when the crime is a continuing one and falls within the continuous-course-of-conduct exception, i.e., while the crime may involve the doing of individual acts, the conduct is essentially indivisible in a real or evidentiary sense. (People v. Sanchez (2001) 94 Cal.App.4th 622, 631 (Sanchez).) Such exception arises where the criminal acts are so closely connected as to form a single transaction or where the statute defining the offense itself contemplates a continuous course of conduct or a series of acts over a period of time, such as misdemeanor child annoyance or molestation. (See e.g., People v. Gear (1993) 19 Cal.App.4th 86, 91-92; People v. Moore (1986) 185 Cal.App.3d 1005, 1015 (Moore).) "The primary significance of defining a crime as a continuous course of conduct is that the jury need not agree unanimously that the defendant committed any particular act or acts; it need only agree unanimously that he or she engaged in the prohibited conduct." (People v. Culuko (2000) 78 Cal.App.4th 307, 325.)
As pertinent to this case, the crime of child annoyance or molestation (§ 647.6, subd. (a)(1)) has been found to fall under this latter situation of the exception as a continuous-course-of-conduct crime because its language generally describes " 'conduct designed "to disturb or irritate, [especially] by continued or repeated acts" or "to offend" [citation]; and as used in this statute, they ordinarily relate to "offenses against children, [with] a connotation of abnormal sexual motivation on the part of the offender." ' [Citation.]" (Moore, supra, 185 Cal.App.3d at p. 1015; original italics.) Because the offense of child annoyance or molestation may be committed by either a single act or "a repetitive course of conduct, " a unanimity instruction is not required where the latter theory of continuing course of conduct is relied upon and argued for conviction. (Id. at pp. 1015-1016.)
Here, the prosecutor relied upon and argued that Dunford had violated section 647.6, subdivision (a)(1) by repeatedly committing annoying acts against Beatriz and Desiree or in their presence, respectively for counts 1 and 2, between the dates of December 1, 2008 and April 30, 2009, on the theory he committed the series of acts on the bus the girls rode to and from school during that time frame, which constituted the respective discrete offense against each girl. Because the crime of child annoyance has been found to fall squarely within the statutory continuous-course-of-conduct exception when alleged and argued as such (Moore, supra, 185 Cal.App.3d at pp. 1015-1016), as in this case, the trial court properly determined not to instruct the jury on unanimity under CALCRIM Nos. 3500 or 3501. No error in this regard is shown.
Contrary to Dunford's assertion that an unanimity instruction was required because it was probable the jury based their verdicts on "different behaviors" as not all his actions on the bus were criminal in nature, there is no statutory requirement that each act committed as part of the continuing course of conduct must itself be criminal in nature and the offense of child annoyance or molestation when based on a continuing course of conduct, as in this case, by definition includes "different behaviors" or acts. (See § 647.6, subd. (a)(1); Moore, supra, 185 Cal.App.3d at p. 1015.) Dunford's dissection of his individual acts and behaviors to show each was "a general behavior" not indicative of the criminal act required to improperly "annoy" a child is unavailing. Quite simply, a "continuing course of conduct" basis for a child annoyance charge requires a defendant's actions be viewed in a contextual whole, not in conveniently deniable and disposable bits and pieces. (See People v. Lopez (1998)19 Cal.4th 282, 289-290 (Lopez); People v. Kongs (1994)30 Cal.App.4th 1741, 1750 (Kongs).)
Moreover, to the extent Dunford argues that those portions of Beatriz's or Desiree's testimony regarding acts constituting annoying behavior involving or directed at other children must be excluded from the jury's consideration, he has cited no authority for such proposition and we have found no statutory or case authority that requires the exclusion of evidence regarding offending acts that occur within a victim's immediate presence. Because Dunford's actions took place within the confines of a group of children clustered together on a moving city bus, all the actions Beatriz or Desiree witnessed that occurred to other friends and classmates within their immediate visual and physical presence were essentially part and parcel of Dunford's continuing course of conduct which disturbed or irritated, vexed, troubled, irked or offended the two respective named victims. (See Kongs, supra, 30 Cal.App.4th at p. 1749; Moore, supra, 185 Cal.App.3d at p. 1015.)
Nor did the prosecutor, as Dunford argues, improperly rely on the general testimony of all six children to make the case against him on the two charged counts. Rather, as already noted, the record shows the prosecutor cited to Beatriz's and Desiree's respective testimony about Dunford's specific behaviors and separate acts regarding each girl as well as to his acts against other children committed in each girl's respective view or presence. The additional testimony of the other children was consistent with and corroborated Beatriz's and Desiree's testimony regarding Dunford's annoying actions toward the children that they had observed or heard on the bus during the relevant time period. Dunford has simply not shown how such testimony could have confused the issue before the jury of objectively determining his continuing annoying behavior with regard to the two named victims. (See Lopez, supra, 19 Cal.4th at pp. 289-290; Kongs, supra, 30 Cal.App.4th at p. 1750.)
In sum, on this record, the trial court had no sua sponte duty to fashion a unanimity instruction as Dunford suggests to tell the jurors that they had to unanimously agree on which "course of conduct" among various courses of conduct supported his count 1 conviction and which "course of conduct" warranted his conviction in count 2. (See Lopez, supra, 19 Cal.4th at pp. 289-290; People v. Sanchez (2001) 94 Cal.App.4th 622, 631-632; Kongs, supra, 30 Cal.App.4th at p. 1750.)
II
IMPOSITION OF AGGRAVATED TERMS
At sentencing, after hearing arguments of counsel and considering the probation report and statements from Dunford, the trial judge denied probation and imposed aggravated terms for Dunford's convictions, stating:
"So with regard to your request for probation, that request is denied. I believe that based on your history, you've previously been placed on probation, you are unable to comply with the terms and conditions of probation. [¶] With regard to the term in state prison, it is my view that the aggravated term is the appropriate term; that term being six years in the Department of Corrections. The reason I'm selecting that term is because of your lengthy criminal history, primarily a criminal history that deals with a pattern of preying on and molesting children. You were on parole at the time of the commission of [these offenses] and clearly understood that you were... not to have any contact with children. And I believe that your offenses can be clearly characterized as predatory in nature. [¶] I do not believe that it would be appropriate given the circumstances [or] the facts of this case to run the two counts consecutive. I do believe that running the counts concurrent is the appropriate choice. Therefore, the upper term of both counts of six years will be imposed to run concurrent to each other."
On appeal, Dunford complains that the trial court's selection and imposition of the six-year upper term for his convictions, based primarily on the fact his actions were "predatory" in nature, in addition to concededly proper judicially-found aggravating factors, i.e., his criminal record and parole status at the time the crimes were committed, violated his constitutional rights to a jury trial and to proof beyond a reasonable doubt on that sentencing factor under Cunningham v.California (2007) 549 U.S. 270, 288-293 (Cunningham). Although Dunford is aware that arguments challenging judicially imposed upper term sentences such as his have been rejected by this court and other California courts "based on the current legal principles enunciated by the California legislature and [our] Supreme Court in response to [the] Blakely[ ]-Cunningham [line of cases], " he relies on In re Gomez (2009) 45 Ca1.4th 650, 659-660 (Gomez) to "raise[] this claim in light of continuing legal constructs and his potential right to federal review." Dunford's sentencing claim has no merit.
Blakely v. Washington (2004) 542 U.S. 296 (Blakely).
As a threshold matter, we note that Dunford's reliance upon Gomez to preserve a possible future federal challenge to his upper term sentences on Cunningham grounds in a collateral habeas proceeding is misplaced. Gomez concerned cases that were brought and pending finality at the time Blakely was decided in 2004 and then became final before Cunningham was decided in 2007. (Gomez, supra, 45 Cal.4th at pp. 653, 660 [for purposes of collateral proceedings, Cunningham, supra, 549 U.S. 270, applies retroactively to any case in which the judgment was not final at the time the decision in Blakely, supra, 542 U.S. 296was issued].) Because Dunford was not convicted and sentenced until 2009 for crimes that occurred between December 2007 and April 2008, after the decision in Blakely, Cunningham and the amendment of section 1170, subdivision (b) in light of those cases, he was sentenced under the amended version of section 1170, subdivision (b), which provides that "the choice of the appropriate term shall rest within the sound discretion of the court." The amended statute permits the trial court to impose an upper term sentence for an offense without the constitutional constraints Cunningham found applicable to the former statute. Dunford has not challenged the constitutionality or application of the amended statute. Nor has he claimed the trial court abused its discretion in imposing the upper term under the amended statute.
Rather, it appears, Dunford only challenges the court's reliance on the predatory nature of his past crimes as a factor in sentencing him to the upper term, claiming it is an invalid factor under Cunningham, supra, 549 U.S. 270 to somehow preserve the issue for "potential" federal court review. However, as noted above, because Dunford was sentenced under the amended statute, there are no Cunningham implications regarding his upper term sentences.
Moreover, even assuming the holding of Gomez, supra, 45 Cal.4th 650, were somehow to apply to Dunford's aggravated terms, we would find no Blakely or Cunningham violation in this case. Because Dunford concedes that the trial court properly relied upon two "legally sufficient aggravating circumstances, " his lengthy criminal history (falling within the Almendarez-Torres v. United States (1998) 523 U.S. 224, 243 exception to Cunningham/Blakely) and his unsatisfactory performance on parole (People v.Towne (2008) 44 Ca1.4th 63, 79-83), in addition to one purported invalid factor, the "imposition of the upper term does not infringe upon [his] constitutional right to jury trial... as one legally sufficient aggravating circumstance has been... admitted by [him], or is justified based upon [his] record of prior convictions." (People v. Black (2007) 41 Cal.4th 799, 816.) No further discussion of this issue is warranted.
DISPOSITION
The judgment is affirmed.
WE CONCUR: NARES, J., IRION, J.