Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD215330 John M. Thompson, Judge.
McDONALD, J.
A jury convicted appellant James E. Kaiser (Kaiser) of one count of committing a lewd act on a child 14 to 15 years of age with Kaiser being at least 10 years older than the child (Pen. Code, § 288, subd. (c)(1)), and one count of misdemeanor sexual battery (§ 243.4, subd. (e)(1)) in connection with his fondling of Katelyn Z. On appeal, Kaiser asserts the court prejudicially erred by denying his request for a unanimity instruction.
All further statutory references are to the Penal Code unless otherwise specified.
FACTS
On July 10, 2008, Katelyn (then age 14) and her sister (Hannah) were on vacation in San Diego, California, with their parents. After dining with their parents, the sisters decided to separate from the parents and walk along the boardwalk. As they were walking, the sisters saw Kaiser (then almost 41 years old) handling a snake on the boardwalk. Kaiser was allowing passersby to touch the snake, and the sisters approached Kaiser, asked questions about his snake (a ball python), and asked to hold it. Kaiser removed the snake from around his neck and placed it on Hannah, and she handled it for about five minutes.
Katelyn ultimately decided she wanted to hold the snake, so Kaiser placed it around her shoulders so that it draped around her neck. Katelyn wanted to take a picture, but her cell phone battery had no power, so Hannah decided to retrieve a camera from her mother's purse. Hannah returned to the hotel in which they were staying, between 150 to 200 feet from where Kaiser was standing with Katelyn.
After Hannah left, Katelyn remained with the snake and Kaiser, who was facing her and standing less than a foot away. He started to lift the snake from her shoulders, and it slithered head first off her shoulders and onto Kaiser's neck. As the snake was moving away from her, Kaiser swiped his hand across Katelyn's left breast, and then grabbed and cupped her right breast for three to five seconds, and then moved his hand down to her right hip for another couple of seconds. The snake was not near her breasts, and was moving away from her shoulders, when Kaiser touched her.
Katelyn backed away from Kaiser but could not scream because she was in shock. She turned away from Kaiser, heard her mother and sister returning, and walked as fast as she could toward them. Katelyn's mother, Barbara, saw her rapidly approaching them with a scared look on her face. Katelyn walked up to her and said "Let's go, mom." When Barbara asked her what was the matter, Katelyn responded that the man with the snake had touched her.
Barbara then approached Kaiser and eventually said, "You put your hand on my daughter." Kaiser replied that, if he had touched her, it had been unintentional. When Barbara pointed to her husband and told Kaiser that her husband would "love to put his hands on you," Kaiser turned and walked away with the snake. Katelyn identified Kaiser as the man who touched her after viewing a photograph of Kaiser holding the snake.
The defense, after introducing testimony from an exotic animal veterinarian concerning the behaviors of ball pythons when draped around a person's neck and shoulders, argued that Katelyn may have mistaken the writhing of the snake as a touching by Kaiser or, alternatively, that Kaiser may have touched her unintentionally.
ANALYSIS
Kaiser requested the court give a unanimity instruction requiring the jury to agree on which act (the swiping of the left breast or the cupping of the right breast) constituted the factual basis for any guilty verdict. The prosecutor opposed the request, asserting that the swiping of the left breast was followed immediately by the cupping of the right breast, and therefore constituted a single act. The court denied the defense request.
"In a criminal case, a jury verdict must be unanimous. [Citations.] The court here so instructed the jury. [Citation.] Additionally, the jury must agree unanimously the defendant is guilty of a specific crime. [Citation.] Therefore, cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act." (People v. Russo (2001) 25 Cal.4th 1124, 1132.)
However, as the court explained in People v. Flores (2007) 157 Cal.App.4th 216, 222-223, a unanimity instruction " 'is not required if the evidence shows... multiple acts in a continuous course of conduct.' [Quoting People v. Jantz (2006) 137 Cal.App.4th 1283, 1292.] 'This is because... the multiple acts constitute one discrete criminal event.' [Quoting People v. Sanchez (2001) 94 Cal.App.4th 622, 631.] '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.' [Quoting People v. Stankewitz (1990) 51 Cal.3d 72, 100.]"
On facts analogous to this case, the court in People v. Champion (1995) 9 Cal.4th 879 (disapproved on other grounds by People v. Combs (2004) 34 Cal.4th 821, 860) rejected the argument that a unanimity instruction was mandated. In Champion, the victim testified a defendant raped her twice: he forced her into the bathroom where he raped her, left the bathroom, and then returned a few minutes later to rape her again. (Id. at p. 900.) Rejecting the defendant's claim that these "two separate rapes" required a unanimity instruction, the Champion court observed:
"In this case, the rape victim testified that defendant Ross raped her twice, but the two rapes were virtually identical. After raping [the victim] in the bathroom, Ross left, returning shortly thereafter to rape her again. Ross offered no evidence tending to show that he committed one of the rapes but not the other; rather, his counsel argued that he did not participate in any of the crimes occurring in the Taylor home. Thus, once a juror determined that defendant Ross committed one of the two rapes, it is inconceivable that the juror would not also conclude that Ross also committed the second rape of the same victim. [¶] In People v. Beardslee [1991] 53 Cal.3d 68, we held that under circumstances such as those described above, a trial court need not give a unanimity instruction. We explained: ' "A unanimity instruction is required only if the jurors could otherwise disagree which act a defendant committed and yet convict him of the crime charged." [Citations.] "[W]here the acts were substantially identical in nature, so that any juror believing one act took place would inexorably believe all acts took place, the instruction is not necessary to the jury's understanding of the case." ' [Citations.] [Quoting People v. Beardslee, supra, at p. 93.] Because in this case any juror believing that defendant Ross committed one of the two rapes... would inexorably believe that he also committed the other, the trial court did not err in failing to give a unanimity instruction." (People v. Champion, supra, at p. 932.)
Here, as in Champion, the defense was complete innocence, i.e. that Katelyn mistook the snake's writhing for a touching, or that any contact between Kaiser and Katelyn was an unintentional touching incidental to Kaiser removing the snake from her shoulders. Here, as in Champion, the conduct by Kaiser touching her left breast and then her right breast was indistinguishable. More so than in Champion, the two touchings (as well as the subsequent touching of Katelyn's hip) were part of an uninterrupted sequence of movements. (Accord, People v. McIntyre (1981) 115 Cal.App.3d 899, 907-911 [unanimity instruction unnecessary where two acts of oral copulation occur within minutes of each other and are part of single continuous transaction].) Kaiser posits no rational view of the evidence on which some jurors could have believed Kaiser cupped her right breast for several seconds with the requisite intent but his swiping of her left breast was accidental, while other jurors believed he intentionally swiped her left breast with the requisite intent but that his snake was responsible for cupping her right breast. Any juror who believed Katelyn's testimony that Kaiser committed the touchings with the requisite intent would inexorably believe her testimony that he committed each of the touchings, and therefore no unanimity instruction was required regarding count 1.
Similarly, because Kaiser's touchings were part of an uninterrupted course of conduct, no unanimity instruction was required on count 2, because a "unanimity instruction is not required when the acts alleged are so closely connected as to form part of one transaction. [Citations.] 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." (People v. Stankewitz, supra, 51 Cal.3d at p. 100.) The touchings were closely connected and formed parts of one transaction, Kaiser offered essentially the same defense to each of the acts, and there was no reasonable basis for the jury to distinguish between them. Accordingly, the failure to give a unanimity instruction was not error.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, Acting P. J., AARON, J.