Opinion
D069745
01-11-2017
THE PEOPLE, Plaintiff and Respondent, v. JAMES GARRETT, Defendant and Appellant.
Jill Kent, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Annie Featherman Fraser and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCN348188) APPEAL from a judgment of the Superior Court of San Diego County, Michael Kirkman, Judge. Affirmed. Jill Kent, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Annie Featherman Fraser and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant James Garrett guilty of oral copulation by one over 21 years of age on one under the age of 16 (Pen. Code, § 288a, subd. (b)(2); count 1); a lewd and lascivious act on a child aged 14 or 15 (§ 288, subd. (c)(1); count 2); harmful matter sent with the intent to seduce a minor (§ 288.2, subd. (a); count 3); and contact of a minor with intent to commit a sexual offense (§ 288.3; count 4). The court sentenced defendant to three years in state prison on count 1, stayed sentence on count 2 pursuant to section 654, subdivision (a) and imposed concurrent three-year terms on counts 3 and 4.
All further statutory references are to the Penal Code.
On appeal, defendant contends the court erred in failing to give sua sponte a unanimity instruction on counts 3 and 4. As we explain, we disagree. Affirmed.
OVERVIEW
Victim Jane Doe testified that she was 15 years old in July 2015. At that time, Doe lived with her parents, her sister and defendant, who was 53 years old. Defendant had lived with Doe's family for about three years. Doe considered defendant a "family friend," as he often accompanied Doe's family on social outings. Sometimes Doe and defendant went on such outings alone.
About a year before the July 2015 incident, defendant started text messaging Doe about having sex and "fingering" her. Doe stated these "conversations" were strictly through electronic means, as defendant had bought Doe a cell phone. Defendant also bought Doe "shoes, clothes [and] underwear." With respect to the underwear, Doe stated defendant bought her five pairs of "thong" underwear from Victoria's Secret. Doe thought it was inappropriate for defendant to buy her underwear, but she did not think "anything bad" would result.
With regard to the text messages, Doe stated defendant was "straight up" about his intentions. He typically sent Doe messages that said, " 'What are you doing tonight?' " or " 'I want to have sex with you. I want to touch you.' " Although Doe said such messages made her feel "nervous and shook[] up," she did nothing about it other than texting defendant back and asking him to stop sending such messages. According to Doe, defendant in response said, " 'Okay. But I'm not going to do anything for you anymore.' " Doe testified she felt "stupid" and "stuck" because she did not want defendant to stop buying her things, but she also did not want him sending such messages. Doe told her God sister about defendant's sexually explicit text messages, but she did not tell her parents because she was afraid her parents would think "bad[ly]" of her.
Before the July 2015 incident, Doe and defendant exchanged text messages about defendant coming into Doe's bedroom at night. Doe testified she also sent defendant nude photographs of herself in return for defendant giving her "money or something expensive." On two occasions, defendant gave Doe $150, or $300 total, in return for nude photographs of Doe. Doe estimated she sent defendant nude photographs of herself about five times during the year leading up to the July incident. When she sent the photographs, Doe told defendant not to show them to anyone else and to delete them. Defendant also instructed Doe to delete the text messages he sent her.
According to Doe, defendant also sent her photographs of himself. Doe testified defendant sent her pictures of his penis more than once. Defendant on another occasion asked Doe to take a photograph of him. When Doe refused, defendant persisted until Doe agreed. While in the family home, Doe then took a photograph of defendant, who was completely nude.
At defendant's request, Doe also took video of her touching herself. Doe testified she initially said no when defendant asked for such video. Defendant in response told Doe he would stop buying her things unless she did as he requested.
In the evening of July 18, 2015, Doe went to sleep in her bedroom. Before doing so, she received a text message from defendant stating when he got home, he was going to come into her bedroom and touch her. In the early morning hours the following day, Doe awakened to find defendant "over her," touching the "inner thigh" of her legs. Although Doe had gone to bed wearing shorts and a shirt, her shorts were off when she awakened. Doe next felt defendant orally copulate her. Scared, Doe repeatedly asked defendant to "stop." Doe said she wanted to scream but could not. According to Doe, defendant covered her mouth with his hand to keep her quiet.
Doe testified she tried to squirm away from defendant but could not. She next kicked defendant in the face. However, defendant continued to orally copulate her. Doe estimated defendant did so for about 30 minutes. After he finished, defendant told Doe "[n]ot to tell anyone, and if [she] did, [she] would get it." After he left the room, Doe text messaged a friend about what defendant had just done. Because she was ashamed of herself, Doe then did not tell her parents. When asked why she did not report the sexual contact to police, Doe stated defendant was a "good person" and she did not want defendant to go to jail. Doe also blamed herself for the incident because she was asking for "stuff" from defendant.
A few days after the incident, Doe asked defendant to buy her a pair of shoes. Doe did so even though she was scared of defendant and sought to avoid him. Doe asked for the shoes because she felt defendant "owed" her for what he had done to her.
Shortly thereafter, Doe ran away to her boyfriend's house. Before leaving the family home, Doe left a note for her parents informing them what defendant had done. Doe believed when she returned home, defendant would be gone from the home. A day later, Doe's sister picked up Doe and took her home. Although neither Doe nor her parents wanted the police involved, Doe's sister reported the incident to police.
On July 24, 2015, Doe made a "controlled call" to defendant from the police station. The call was recorded and played for the jury. During this first call, the following colloquy took place:
"[Doe]: That Sunday night -- not on the Sunday night. That Sunday morning I like . . .
"[Defendant]: Mm-hm.
"[Doe]: . . . it took me forever to freakin' go to sleep.
"[Defendant]: Why?
"[Doe]: I don't know, I couldn't like -- it was on my mind.
"[Defendant]: Why?
"[Doe]: I don't know, I just -- it felt weird.
"[Defendant]: Did it?
"[Doe]: Yeah.
"[Defendant]: Why?
"[Doe]: Because it just did. It didn't -- I'm not used to any of that though; it felt weird.
"[Defendant]: Oh, okay. Well don't let it bother you.
"[Doe]: I won't.
"[Defendant]: It's all good.
"[Doe]: You should come again and do it tonight though.
"[Defendant]: Okay.
"[Doe]: Yeah?
"[Defendant]: Yeah.
"[Doe]: The same thing that we did Saturday night though, right?
"[Defendant]: Okay. That'll work."
During this same conversation, the following exchange also took place:
"[Defendant]: I snuck in there.
"[Doe]: Huh?
"[Defendant]: I snuck in your room.
"[Doe]: You what?
"[Defendant]: Didn't I sneak in your room.
"[Doe]: Yes.
"[Defendant]: Yeah, that's what I'm sayin.' So it's on, right?
"[Doe]: Yep. Yep.
"[Defendant]: Alright. Cool, cool.
"[Doe]: Cool, cool. [Laugh]
"[Defendant]: That'll work.
"[Doe]: Well what time then? [¶] . . . [¶]
"[Defendant]: So, just make sure you have your panties off though tonight, okay?
"[Doe]: Make sure I have my panties off tonigh[t]?
"[Defendant]: Mm-hm.
"[Doe]: [Laugh] What're you gonna do me?
"[Defendant]: You'll see.
"[Doe]: Well I wanna be prepared.
"[Defendant]: Well you'll be prepared.
"[Doe]: That's not fair.
"[Defendant]: It's all -- it's fair. So just -- are you, you gonna have 'em off?
"[Doe]: Yeah.
"[Defendant]: M'kay.
"[Doe]: Have you told anyone what we did like, before though?
"[Defendant]: No.
"[Doe]: Okay.
"[Defendant]: You can't either.
"[Doe]: I won't.
"[Defendant]: And never, ever, ever. Ever, ever. That's, that's uh, that's between me and you, you know what I'm sayin'?
"[Doe]: Mm-hm.
"[Defendant]: Yeah. That's just the way it goes.
"[Doe]: Well what can I look forward to tonight?
"[Defendant]: Um, just I'm 'onna stick my dick in you.
"[Doe]: This time you're gonna stick your dick in me?
"[Defendant]: Mm-hm.
"[Doe]: Oh my . . . (unintelligible)
"[Defendant]: Is that cool?
"[Doe]: Yeah.
"[Defendant]: Alright.
"[Doe]: Will you lick my pussy too?
"[Defendant]: Oh yeah, you know that.
"[Doe]: [Laugh] Okay.
"[Defendant]: Yeah. You like that, huh?
"[Doe]: Yep.
"[Defendant]: Yeah. It's all good.
"[Doe]: Like last time.
"[Defendant]: Yeah. Yep, yep.
"[Doe]: [Laugh]
"[Defendant]: It -- but like I said, just make sure you got your panties off when I walk in there so I could get -- do what I do.
"[Doe]: Mm-hm.
"[Defendant]: Get started. Y -- you know?
"[Doe]: Yeah.
"[Defendant]: (Unintelligible) between your stomach . . . (unintelligible).
"[Doe]: Mh.
"[Defendant]: Okay?
"[Doe]: Mm-hm.
"[Defendant]: Mh-hm. [¶] . . . [¶]
"[Doe]: When we get off the phone you should send me more pictures.
"[Defendant]: Okay.
"[Doe]: Just by the way.
"[Defendant]: (Unintelligible).
"[Doe]: I can be entertained.
"[Defendant]: (Unintelligible). Have you ever seen it when it was hard?
"[Doe]: When it was hard?
"[Defendant]: Yeah.
"[Doe]: No.
"[Defendant]: Okay.
"[Doe]: That what I'm 'onna get.
"[Defendant]: (Unintelligible), huh?
"[Doe]: That's what I'm 'onna get?
"[Defendant]: Yeah.
"[Doe]: M'kay.
"[Defendant]: Alright, I'll send you one.
"[Doe]: M'kay. But . . .
"[Defendant]: Alright, I'll send . . .
"[Doe]: ... but when?
"[Defendant]: . . . right now.
"[Doe]: Right now?
"[Defendant]: Yeah.
"[Doe]: Alright."
The record shows "right after" this call ended, defendant sent Doe sexually explicit text messages as follows:
"[Defendant]: Have you ever done in the ass[?]
"[Doe]: No [¶] I'm only 15[.]
"[Defendant]: I know but you handle [sic] it pretty good the other night my finger[.]
"[Doe]: What are you talking about ha[?]
"[Defendant]: You took my finger with no problem[.]
"[Doe]: Oh wth hahah [I] don't remember that wtf haha where did you put your finger?
"[Defendant]: In your ass you didn't fill [sic] it[?]
"[Doe]: No I didn't feel anything I only felt you licking my vagina[.]
"[Defendant]: Did you like that [sic] me licking[?]
"[Doe]: I wasn't snapped into it.
"[Defendant]: Huh[?]
"[Doe]: When you came in I was still sleep[.]"
The record shows shortly after these text messages were received, defendant called Doe back on her phone. This second conversation was again recorded by police and played for the jury.
In this second conversation, defendant asked Doe whether she had received the photograph of his erect penis he had just promised to send. When Doe responded no and asked defendant what he sent, defendant replied, "Of my friend." When Doe asked defendant the name of his friend, defendant replied, "James junior." After expressing concern Doe had not received the photograph of his erect penis, defendant reiterated his "friend's" name was "Junior." During this second conversation, the following colloquy took place:
"[Defendant]: Okay. Alright. So when I come in your room tonight you're gonna be asleep, right?
"[Doe]: Yep.
"[Defendant]: Okay. Cool. Don't open your eyes.
"[Doe]: Okay. Have you ever like had sex or put like your dick in another like, teenager like me?
"[Defendant]: Can I what?
"[Doe]: Have you ever like done like, put your dick in like someone my age too?
"[Defendant]: No.
"[Doe]: No? So I'm your first?
"[Defendant]: Uh-uh. Yeah, you're first; a first.
"[Doe]: [Laugh] Oh.
"[Defendant]: Your pussy tastes good though.
"[Doe]: Oh.
"[Defendant]: For reals.
"[Doe]: That's cool.
"[Defendant]: Does that, does that turn you on though having your pussy licked?
"[Doe]: I wasn't like really into it.
"[Defendant]: You -- why? 'Cause you felt uncomfortable?
"[Doe]: Yeah.
"[Defendant]: Mh, well let yourself go."
Defendant testified at trial that Doe was a "troubled child." Defendant admitted text messaging and speaking with Doe on July 24 but denied having any sexual contact with her in the early morning hours of September 19, 2015 or at any other time.
DISCUSSION
As noted, defendant's sole contention on appeal is that the court erred in failing to give sua sponte a unanimity instruction in connection with counts 3 and 4, sending "harmful matter" as defined in section 313 to a minor and contacting a minor with the intent to commit a sexual offense, respectively. Defendant contends there were three separate and distinct acts relating to counts 3 and 4: (i) the two controlled phone calls between Doe and defendant; (ii) the text messages between them; and (iii) the offer by defendant to send Doe a photograph of his erect penis. As such, he contends the court was required to instruct the jury that it had to come to a unanimous agreement on the act or acts that gave rise to counts 3 and/or 4.
At trial, defendant denied trying to send Doe a photograph of his erect penis on July 24. However, the officer who interviewed defendant postarrest testified defendant admitted sending Doe the photograph, which Doe never received. In addition, defendant referenced the photograph in both of the controlled telephone calls that were recorded by the police.
A. Governing Principles
A criminal defendant has a constitutional right to a unanimous jury verdict. (Cal. Const., art. I, § 16.) "As a general rule, when violation of a criminal statute is charged and the evidence establishes several acts, any one of which could constitute the crime charged, either the state must select the particular act upon which it relied for the allegation of the information, or the jury must be instructed that it must agree unanimously upon which act to base a verdict of guilty. [Citation.] There are, however, several exceptions to this rule. For example, no unanimity instruction is required if the case falls within the continuous-course-of-conduct exception, which arises 'when the acts are so closely connected in time as to form part of one transaction' [citation], or 'when . . . the statute contemplates a continuous course of conduct of a series of acts over a period of time' [citation]. There also is no need for a unanimity instruction if the defendant offers the same defense or defenses to the various acts constituting the charged crime." (People v. Jennings (2010) 50 Cal.4th 616, 679.)
"[A]ssertions of instructional error are reviewed de novo." (People v. Shaw (2002) 97 Cal.App.4th 833, 838.) Whether or not the trial court should have given a "particular instruction in any particular case entails the resolution of a mixed question of law and fact," which is "predominantly legal." (People v. Waidla (2000) 22 Cal.4th 690, 733.) As such, it should be examined without deference. (Ibid.)
B. Analysis
Here, we independently conclude the two phone calls between, and the text messages exchanged by, defendant and Doe were so close in time and were so intertwined that they comprised one overarching transaction. Indeed, the record shows that all such acts took place over about a 30-minute period on July 24, 2015, while Doe was at the same location—the police station; that Doe initiated the contact with defendant during a controlled call; that during this first call, defendant promised he would send Doe a photograph of his erect penis as soon as the call ended; that immediately thereafter, defendant sent Doe sexually explicit text messages that included asking Doe whether she had ever "done" it "in the ass" because she "took [his] finger no problem" and whether she "like[d]" his "licking"; and that right after sending such sexually explicit messages, defendant called Doe back to inquire whether Doe had in fact received the photograph defendant claimed to have just sent and to confirm their arrangement for that night.
As such, we independently conclude the offenses in counts 3 and 4 had a close temporal relationship and, thus, constituted one continuous transaction. The court therefore did not err when it failed to give sua sponte a unanimity instruction. (See People v. Robbins (1989) 209 Cal.App.3d 261, 266 [noting no unanimity instruction required where attack on victim was "one prolonged assault, of which the individual blows and other indignities were inseparable components"]; People v. Mota (1981) 115 Cal.App.3d 227, 232-233 [noting that "many continuous acts of forced sexual intercourse which were committed by each assailant were part of the same event since they were all committed within an hour's time in the back of the van" and further noting that cases where prosecution must select one criminal act over another "feature circumstances wherein the criminal acts were separated by days, weeks or months, and sometimes the acts occurred in different places, thus forcing the prosecution to choose which act they were relying upon so that the defendant could be put on notice and properly defend against the charges"]; People v. McIntyre (1981) 115 Cal.App.3d 899, 910 [noting two acts of forcible oral copulation, one immediately before and one immediately after a rape, did not necessitate unanimity instruction], disagreed with on another point as stated in People v. Adams (1986) 186 Cal.App.3d 75, 80; compare People v. Diedrich (1982) 31 Cal.3d 263, 271-273 [noting unanimity instruction was required when the defendant was charged in count 1 with bribery stemming from two separate incidents that involved acts—including meetings and telephone calls between multiple individuals—over a four-month period]; and People v. Ruiz (1920) 48 Cal.App. 693 [noting although information charged one count of attempted rape, the evidence at trial showed three distinct and separate attempts in three different locations with a witness present on one of those occasions but not the others].)
The jury was instructed with CALCRIM No. 1140 in part as follows: "The defendant is charged in Count Three with exhibiting, sending, distributing, or offering to exhibit or distribute harmful material to a minor in violation of Penal Code section 288.2. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant exhibited, sent, caused to be sent, distributed, or offered to exhibit or distribute harmful material to another person by any means; [¶] 2. When the defendant acted, he knew the character of the material; [¶] 3. When the defendant acted, he knew, should have known, or believed that the other person was a minor; [¶] 4. When the defendant acted, he intended to arouse, appeal to, or gratify the lust, passions, or sexual desires of himself or of the other person; [¶] AND [¶] 5. When the defendant acted, he intended to engage in sexual intercourse, sodomy, or oral copulation with the other person or to have either person touch an intimate body part of the other person. [¶] You must decide whether the material at issue in this case meets the definition of harmful material. Material is harmful if, when considered as a whole: [¶] 1. It shows or describes sexual conduct in an obviously offensive way; [¶] 2. A reasonable person would conclude that it lacks serious literary, artistic, political, or scientific value for minors; [¶] AND [¶] 3. An average adult person, applying contemporary statewide standards, would conclude it appeals to prurient interest. [¶] For the purpose of this instruction, an intimate body part includes the sexual organ, anus, groin, or buttocks of any person, or the breasts of a female."
The jury also was instructed with CALCRIM No. 1124 in part as follows: "The defendant is charged in Count Four with contacting a minor with the intent to commit lewd or lascivious acts with a child, in violation of Penal Code section 288.3(a). [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant contacted or communicated with or attempted to contact or communicate with a minor; [¶] 2. When the defendant did so, he intended to commit lewd or lascivious acts with a child, involving that minor; [¶] AND [¶] 3. The defendant knew or reasonably should have known that the person was a minor. [¶] A minor is a person under the age of 18. [¶] . . . [¶] Contacting or communicating with a minor includes direct and indirect contact or communication. That contact or communication may take place personally or by using a communication common carrier, any electronic communications system or any telecommunications device or system. [¶] To decide whether the defendant intended to commit lewd or lascivious acts with a child, please refer to the separate instructions that I have given you for that crime."
Even assuming for the sake of argument that the trial court should have given the unanimity instruction, its omission was harmless, even under the beyond a reasonable doubt standard set forth in Chapman v. California (1967) 386 U.S. 18 (Chapman). (See People v. Hernandez (2013) 217 Cal.App.4th 559, 576-579 (Hernandez) [noting there is a split of authority as to whether the Chapman standard or the People v. Watson (1956) 46 Cal.2d 818 standard applies to erroneous omission of unanimity instruction].)
Under Chapman, the failure to give a unanimity instruction is harmless " '[w]here 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 [the] defendant committed all acts if he [or she] committed any, the failure to give a unanimity instruction is harmless.' [Citation.] For example, where the defendant offered the same defense to all criminal acts, and 'the jury's verdict implies that it did not believe the only defense offered,' failure to give a unanimity instruction is harmless error." (Hernandez, supra, 217 Cal.App.4th at p. 577.)
Here, defendant's primary defense to counts 3 and 4 was he lacked the requisite sexual intent, which the jury clearly rejected, as was its right as trier of fact. (See People v. Wolfe (2003) 114 Cal.App.4th 177, 188 [noting failure to give unanimity instruction was harmless where jury rejected the defendant's single defense to all instances of firearm possession].) The failure to give a unanimity instruction in the instant case was therefore harmless.
In his reply brief, defendant admitted he had one main defense to these counts. --------
DISPOSITION
The judgment of conviction is affirmed.
BENKE, J. WE CONCUR: McCONNELL, P. J. IRION, J.