Opinion
A133402
11-14-2012
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY LI, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Francisco City & County
Super. Ct. No. 213431)
Defendant Anthony Li was charged with the commission of nine sex crimes against a minor, each alleged to have occurred during the same 11-month period. A jury found him guilty of one count: a felony violation of Penal Code section 288, subdivision (a)—the commission of a lewd and lascivious act on the body of a child 14 years of age or younger. The victim, whom we shall call K.X., was the daughter of Li's sister-in-law, and nine years old at the time of the offense. In this appeal, Li claims the trial court erred in giving a certain instruction on unanimity rather than another. We conclude there was no prejudicial error and affirm the judgment.
Further statutory references are to the Penal Code.
BACKGROUND
An amended information filed in June 2011 charged Li with nine felony counts: one violation and two attempted violations of section 288.7, subdivision (a) (sexual intercourse or sodomy with a child 10 years of age or younger) (counts 1, 4 & 7); one violation and two attempted violations of section 269, subdivision (a)(1) (rape of a child 14 years of age or younger, accomplished by force and threat within the meaning of section 261, subdivision (a)(2), (6)) (counts 2, 5 & 8); and three violations of section 288, subdivision (a) (lewd and lascivious act upon a child) (counts 3, 6 & 9).
During the ensuing jury trial, the prosecutor presented the case, during both her opening statement and closing argument, as one involving three separate incidents that occurred sometime during the alleged period of time: in each of three incidents, Li picked K.X. up from school and took her to his home before taking her to an after school tutoring program. The prosecutor also made it clear during closing argument that counts 1-3 applied to one of these incidents, counts 4-6 applied to another, and counts 7-9 applied to a third.
On July 7, 2011, the jury found Li guilty of count 3, lewd act on a child, but was unable to reach a verdict on the remaining eight counts. The trial court declared a mistrial as to the remaining counts. The court, on July 27, sentenced Li to the middle term of six years for his conviction on count 3.
This appeal followed. (See § 1237, subd. (a).)
DISCUSSION
A. Introduction
In a criminal case, a jury verdict must be unanimous, and the verdict must also be unanimous concerning the defendant's guilt as to each of the specific charges alleged. When the evidence suggests the defendant committed two or more acts, each of which might satisfy one alleged charge, the prosecution must elect among these multiple acts which it relies on to satisfy the alleged charge, or the trial court must require that the jury agree unanimously on which act the defendant committed that satisfies that alleged charge. (People v. Russo (2001) 25 Cal.4th 1124, 1132.) The requirement ofjuror unanimity as to the criminal act is designed to protect the defendant from the danger that he or she will be convicted even though there is no single act that satisfies the alleged charge, as to which all the jurors agree the defendant committed. Thus, when the defendant is charged with a single offense, but the evidence shows two or more acts that might constitute that offense, the absence of a unanimity instruction is reversible error because without it some of the jurors may have believed the defendant guilty of one of the multiple acts, while other jurors believed him guilty of another, resulting in a non-unanimous verdict that he was guilty of any specific act constituting the alleged offense. Similarly, an unanimity instruction is designed to prevent the jury from amalgamating evidence of multiple offenses, no one of which has been proved beyond a reasonable doubt, in order to conclude beyond a reasonable doubt that a defendant must have done something sufficient to convict on one of several alleged offenses. (Ibid.)
Given the charges and prosecutor's evidence, the trial court's concluding jury instructions included the following unanimity instruction: "[Li] is charged with sexual intercourse with a minor in [c]ount 1, aggravated sexual assault in [c]ount 2, lewd act on a child in [c]ounts 3, 6, 9, attempted sexual intercourse with a minor in [c]ounts 4, 7, attempted aggravated sexual assault in [c]ounts 5, 8 sometime during the period of August 1, 2007 to June 30, 2008. [¶] 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: [] 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 for each offense[.]"
Although the instruction was submitted as a modified version of CALCRIM No. 3501, its language is essentially that of CALCRIM No. 3500.
Once the jury began their deliberations, Li's trial counsel on the record objected to the jury instruction. She regarded the evidence—primarily inconsistencies in K.X.'s testimony at trial in comparison with her prior disclosures—to be "very confusing . . . as to the sexual acts that were tied to each of the incidents." She had, therefore, requested that the court give "a pinpoint instruction [requesting the jury] to address each of the charges relative to the incident they were attached to." She argued that the "nature of the charg[es]," which alleged three events during a period of 11 months, without specifying the date of each event during this period, combined with the "nature of [K.X.'s] testimony" might result, without the pinpoint instruction she had requested, in a finding of guilt that "could not be reviewed on appeal [regarding the] sufficiency of evidence . . . because [the reviewing court] would have no way of knowing [the] factual predicates" on which the finding was based. She acknowledged the "seminal case on the issue of unanimity"—People v. Jones (1990) 51 Cal.3d 294 (Jones)—but noted she had cited to the dissent in Jones, urging that its reasoning was more persuasive than the majority opinion as applied to the different facts presented in this case.
The prosecutor argued in reply that the unanimity instruction given was appropriate. The trial court agreed, noting in its conclusion that the majority decision in Jones, supra, 51 Cal.3d 294, was controlling.
One of several notes sent by the jury early in their deliberations asked whether counts 1-3 applied "to the first time [K.X.] said she visited the defendant's house, or . . . any visit in which rape may have occurred," and additionally, whether all the jurors had to agree "which house visit coordinates with which charges?" The court responded to the note by referring the jury to a written copy of the unanimity instruction it had given. B. The Trial Court's Unanimity Instruction
Li contends the trial court erred in failing to give his trial counsel's requested "pinpoint" instruction, which he now identifies on appeal as CALCRIM No. 3502. He urges the error was prejudicial, because the above-mentioned jury's note indicated its "struggle[] with the unanimity issue," yet the trial court provided no guidance other than to refer to the unanimity instruction it had already given. Given the length of the jury's deliberation—over three days—and its deadlock over all the other charges against him, Li reasons "it is far from clear that the jury would have found [him] guilty of [count 3] if it had been given more guidance on unanimity."
The trial court noted Li's trial counsel had been prepared to submit the requested pinpoint instruction, but determined such a submission was not appropriate, as it was denying her request, in any event.
This instruction states: "You must not find the defendant guilty of [in Count __] unless you all agree that the People have proved specifically that the defendant committed that offense [on] . [Evidence that the defendant may have committed the alleged offense (on another day/ [or] in another manner) is not sufficient for you to find (him/her) guilty of the offense charged.]" (CALCRIM No. 3502.)
We first observe that Li's concern is, essentially, that the jury lacked sufficient guidance to agree unanimously on the particular act—one out of the three separate instances disclosed by the evidence—that Li committed so as to find him guilty of the violation of section 288, subdivision (a), that was alleged in count 3. But "[i]n a case in which the evidence indicates the jurors might disagree as to the particular act [the] defendant committed, the standard unanimity instruction should be given." (Jones, supra, 51 Cal.3d at p. 321, italics added.) Here, in giving what was essentially the language of CALCRIM No. 3500 (see fn. 2, ante), the trial court did give the "standard unanimity instruction." (See Judicial Council of California Criminal Jury Instructions (2012) vol. 2, CALCRIM No. 3500, Related Issues.)
On the other hand, "when there is no reasonable likelihood of juror disagreement as to particular acts, and the only question is whether or not the defendant in fact committed all of them, the jury should be given a modified unanimity instruction which, in addition to allowing a conviction if the jurors unanimously agree on specific acts, also allows a conviction if the jury unanimously agrees the defendant committed all the acts described by the victim." (Jones, supra, 51 Cal.3d at p. 322, italics added.) This modified instruction—not appropriate in this case—is set out as CALCRIM No. 3501. (See Judicial Council of California Criminal Jury Instructions (2012) vol. 2, CALCRIM No. 3500, Related Issues, pp. 1090-1091.)
CALCRIM No. 3502, on the other hand, is appropriate when there is a single charged offense and evidence of multiple acts that might support a conviction for that offense—and when the prosecutor has made an election to rely on the evidence of only one of the multiple acts as proof of the offense. (People v. Melhado (1998) 60 Cal.App.4th 1529, 1534-1536 (Melhado);see Judicial Council of California Criminal Jury Instructions (2012) vol. 2, CALCRIM No. 3502, Bench Notes, p. 1094.)
The situation that calls for CALCRIM No. 3502 was not, however, the situation presented by the circumstances of this case. While there was evidence of three separate incidents, each of which might have supported a guilty verdict on count 3, the prosecutor, as we have noted, made it clear to the jury in both her opening statement and closing argument, that each one of the three incidents related to a particular set of three counts, into which the nine offenses were grouped. During closing argument, the prosecutor made it clear that counts 1-3 applied to the one "occasion that [K.X.] described . . . where the defendant actually penetrated her vagina." Hence, as to count 3, the prosecutor adequately communicated to the jury her election of the specific incident on which the jury had to agree unanimously in order to find Li guilty of count 3. The trial court is not required to give CALCRIM No. 3502 unless the prosecutor has made an election of one of several acts on which it will rely to support a charged offense, but has not adequately communicated that election to the jury. (Melhado, supra, 60 Cal.App.4th at pp. 1534-1536; see Judicial Council of California Criminal Jury Instructions (2012) vol. 2, CALCRIM No. 3502, Bench Notes, p. 1094.)
The prosecutor even pointed out that the evidence of that particular incident included more than one act that might constitute the lewd and lascivious act charged in count 3—that is, the actual penetration, and the touching associated with Li's efforts to have K.X. touch his penis—and then reminded the jury it was required to agree on which of these acts it relied upon in order to find Li guilty of count 3.
Li argues the court erred in declining to give CALCRIM No. 3502, because the prosecutor's election during closing argument was not adequate in describing the incident applicable to count 3 as the "occasion" when K.X. testified that "actual[] penetration" occurred. K.X.'s trial testimony in June 2011 described this as occurring only during the first occasion Li took her to his home. The jury, however, also received testimony from K.X. in the form of her responses to a taped interview conducted three years earlier at San Francisco General Hospital by a forensic nurse trained in child abuse. In this interview, K.X. described penetration as occurring during the third and final time Li took her to his home. Li argues the prosecutor's election was "unclear" due to this inconsistency, particularly because the prosecutor was, therefore, unable to "pinpoint" the applicable incident by sequence, as distinguished from a description of the details of that incident.
The jury both viewed a video tape of this interview and received a transcript of it.
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We disagree. During K.X.'s direct examination during trial, which resumed after the jury—and K.X.—had viewed a tape of the interview that occurred in July 2008, the prosecutor addressed these inconsistencies, and in particular elicited K.X.'s agreement that her memory of the events when she was interviewed in July 2008 was "better" than it was three years later at the time of her trial examination. This testimony suggested to the jury that, in weighing K.X.'s inconsistent testimony, they might reasonably give greater weight to the responses she gave in July 2008 than her later testimony at trial.
Also, during closing argument the prosecutor conceded there were "definitely . . . some inconsistencies," but reasoned some inconsistency was to be expected between the version of events by a young girl given when nine years old and the version she gave three years later. At this point, the prosecutor replayed the portion of the 2008 tape in which K.X. described the incidents, and argued that, in her trial testimony, K.X. "may not have [had] the timing down exactly," but in both instances her description of the incidents was consistent in major respects: there were three incidents that occurred during the period alleged, during one incident there was penetration, and during the other two there was not. Thus, the prosecutor made considerable efforts both to explain the inconsistencies and, in doing so, gave reasonable emphasis that her election of the specific incident applicable to each set of charges was by way of description rather than by the "timing," about which K.X. had not been consistent.
Further, a victim's testimony in child abuse cases is not rendered insufficient by the victim's inability to specify the precise date or time. (Jones, supra, 51 Cal.3d at p. 315.) Such testimony is sufficient if the victim has described the kind of acts committed with sufficient specificity, the number of these acts, and the general period of time in which the acts occurred. (Id. at p. 316.) For this reason, we deem the prosecution's election of the incident applicable to count 3 to have been adequate, even though she identified the incident by describing its details rather than its timing in the sequence of all three incidents.
We conclude there was no error in the trial court's failure to give CALCRIM No. 3502 instead of the "standard unanimity instruction" it did give, which is the appropriate instruction whenever "the jurors might disagree as to the particular act defendant committed." (Jones, supra, 51 Cal.3d at p. 321.)
Finally, we do not see, from the record before us, any reasonable possibility that the jury did not unanimously agree on the specific act Li committed before finding him guilty of count 3. The jury sent the above-mentioned note less than two hours after beginning their deliberations. As we have noted, the trial court referred them to the "standard unanimity instruction" it had given, requiring them "all [to] agree on which act he committed for each offense[.]" (See CALCRIM No. 3500.) Although their deliberations continued over the course of three more days, the jury did not send another note on this issue. Importantly, the jury was unable to reach a verdict on the other eight counts, in obvious compliance with the instruction requiring them to agree unanimously that he committed those offenses based on acts as to which they also agreed. The only reasonable inference to be drawn—notwithstanding Li's contrary assertion—is the jury, after careful deliberations, did unanimously agree on which specific act Li committed before finding him guilty of the single offense stated in count 3. The jury considered nine distinct acts on three different occasions. The unanimity instruction properly directed the jury to distinguish between the described acts involved in that incident.
Even if we were to assume it was error not to give CALCRIM No. 3502, we conclude after review of the evidence such error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 16, 24; see Melhado, supra, 60 Cal.App.4th at p. 1536.)
DISPOSITION
The judgment is affirmed.
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Marchiano, P.J.
We concur: ________________________
Dondero, J.
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Banke, J.