Opinion
H043496
04-27-2020
THE PEOPLE, Plaintiff and Respondent, v. MARK DONNELL MANGUM, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1482304)
Defendant Mark Donnell Mangum challenges his conviction by jury trial of multiple counts of sexually assaulting his minor daughter and of giving her marijuana. On appeal from the judgment, Mangum argues that the trial court erred by (1) admitting evidence of uncharged sexual offenses to show propensity to commit the acts against his daughter, and (2) improperly instructing the jury by failing to specify that each of the marijuana furnishing counts required unanimous agreement as to which act supported which count. Mangum also claims that the admission of generic testimony of undifferentiated acts of sexual abuse to support multiple counts violated his constitutional rights to due process and a unanimous jury verdict, urging reconsideration of the California Supreme Court's decision in People v. Jones (1990) 51 Cal.3d 294.
We find no reversible error and affirm the judgment.
I. BACKGROUND
A. PROCEDURAL BACKGROUND
The Santa Clara County District Attorney filed a first amended information in December 2015 charging Mangum with 18 counts of crimes committed against the victim between May 1, 2012 and January 26, 2013. The information charged Mangum with five counts of lewd and lascivious acts with a child under 14 years of age (Pen. Code, § 288, subd. (a); counts 1, 2, 4, 6, 9); four counts of oral copulation with a child under 14 years of age and more than 10 years younger than the defendant (former Pen. Code, § 288a, subd. (c)(1); counts 3, 5, 7, 10); two counts of sodomy of a child under 14 years of age and more than 10 years younger than the defendant (id., § 286, subd. (c)(1); counts 8, 11); and seven counts of furnishing marijuana to a child under the age of 14 years of age (Health & Saf. Code, § 11361, subd. (a); counts 12-18).
After a jury trial of approximately two weeks, in which Mangum testified in his own defense, the jury found Mangum guilty as charged on all counts. At sentencing, the trial court imposed the upper term of eight years on count 1, and consecutive terms of two years (one-third the midterm) on counts 2 through 11, and one year eight months (one-third the midterm) on counts 12 through 18, for an aggregate prison sentence of 39 years eight months. Mangum timely appealed.
B. EVIDENCE ADDUCED AT TRIAL
1 . The Prosecution ' s Case
a. Daughter
The victim, Mangum's daughter (daughter), was born in 1999 and was 16 at the time of trial. She lived in Salinas with her mother (mother), and sometimes with her maternal grandparents who lived closer to the schools she attended. Mangum was not involved during daughter's childhood. When she was about 11, around the end of fifth grade, mother found Mangum on social media. Daughter and Mangum began having text and phone contact and eventually met in person. They had infrequent visits. After some time, the visits became more regular. When she was about 12, daughter started going to Mangum's house for a few hours; she later began to stay overnight about every other weekend, and sometimes would stay for four or five nights.
We refer to the victim and certain witnesses in this case in a manner intended to protect their personal privacy interests (Cal. Rules of Court, rule 8.90(b)), sometimes using first name or first initial only.
Mangum lived in Milpitas with his wife (wife). He would usually pick daughter up in Salinas, bring her to Milpitas, and take her back home. Sometimes wife was with him, but not often. Their house consisted of a main house, a front unit, and a back unit. Wife and Mangum had roommates who rented rooms, usually in the main house. When daughter visited, she stayed in the front or the back unit, or sometimes in the main house; it was not consistent. Daughter sometimes had her own room but usually would share with her dad. She shared a room with both Mangum and wife "probably once or twice." Wife would be in some other room or "just be altogether gone."
Daughter and Mangum would watch movies and TV, play video games, and mostly stay home. Daughter at some point told Mangum that she was using marijuana. He told her that if she was going to smoke, he would prefer she did it with him so he could keep an eye on her. At first she did not feel comfortable. Eventually, she started smoking marijuana with him. It "became a regular thing pretty much every visit." That was the summer going into eighth grade. They would use rolling papers. He had a medical marijuana card and always supplied the marijuana. They usually smoked toward the end of the day, sometimes only once if the visit lasted for a few nights. Daughter separately kept smoking with her friends as well.
Daughter liked being at Mangum's house. There were not many rules or chores. It was more relaxed than at mother's house. Eventually, mother learned that daughter and Mangum were smoking marijuana. Mother ended the informal visits for daughter and served custody papers on Mangum at daughter's 14th birthday party. Daughter does not remember spending the night at Mangum's house again after that point. Daughter could still call or text Mangum, and they had two supervised visits at a family services center in Salinas.
Daughter testified that mother had learned about the marijuana smoking by listening in on a phone call with Mangum. Mother heard Mangum say he was going to go to jail if "they" were to find out, which prompted mother to withhold daughter's phone and other privileges until daughter told her what was going on. Daughter told mother that she and Mangum were smoking marijuana "to kind of get my mom off my back and my friends' backs . . . ." Mother was angry and tried to get the police involved.
The first time that daughter remembered something sexually inappropriate with Mangum was in the summer between her seventh and eighth grade year; she was 13 years old. She and Mangum were in the back unit. She woke up early, around 7:00 to 9:00 a.m., to Mangum touching her and rubbing her arm, inner thigh, stomach and breasts. The touching was over her clothes and lasted a couple of minutes. Then Mangum stopped and started crying and apologizing, saying he was sorry and had been dreaming or was half asleep. He told daughter to hold off on telling anyone until "things were figured out" but it never came up again. He did not say anything while he was touching her.
The next time it happened, daughter and Mangum were in the front unit on the bottom floor and had been smoking marijuana "a lot" that night. In the middle of the night, around 2:00 or 3:00 in the morning, she woke up to him touching her over her clothes again. Eventually the touching went under her clothes on her arm, breast, stomach, thighs, inner things, and led to clothes being taken off. He eventually inserted his fingers inside her vagina "for a while . . . ." He then performed oral sex on her. Then she performed oral sex on him.
The same scenario happened a couple of times. They smoked, and later daughter woke up to touching over the clothes, then under the clothes, then oral sex. The next time, after "the usual" progression of touching to oral sex, there was "anal penetration with his penis." Daughter did not remember any talk during or about the sex acts. After the first or second time, he told her, " 'Oh, love you.' " He had not said that before the sex acts began.
Daughter testified that after "a couple weeks of the oral sex and anal intercourse, it eventually went to vaginal intercourse . . . ." The "same thing" continued for "a while . . . ." One time, Mangum introduced a vibrator. They were smoking in the back room, and he gave her the vibrator and told her to masturbate. He put on pornography and began masturbating also. He used the vibrator on her. Then they had oral sex and then vaginal intercourse.
There was one other incident with the vibrator. It happened in the front unit. Mangum told daughter to start using the vibrator, then he joined her and used it on her, which then led to oral sex, then vaginal and anal sex. He never used the vibrator to penetrate her anally. She recalled that he used lubrication for anal penetration "a couple of times" but was not sure if he did the first time. When she performed oral sex on him, he would ejaculate in her mouth or on her chest. When they had vaginal intercourse, he would ejaculate outside of her. She did not think he used a condom.
Daughter did not try to shout or make a commotion during the sexual activity. She did "[p]retty much nothing." At first it was "kind of scary and confusing," then she felt "basically . . . numb to it and it was just a normal, whatever, thing to me at that point," then "after some time of being numb" she began to "enjoy[]" it. Mangum told her that he could get into a lot of trouble if anyone found out, that "his life would be over," that she would never see him again, and that "he would be killed if he went to prison." She did not want anyone to find out. If she had a choice, she would have preferred to maintain contact with Mangum.
Daughter testified that the frequency of sexual activity varied; sometimes it would be one night or sometimes both nights during a visit; sometimes there was no sexual activity. But "[i]t was a lot more likely for it to happen than for it not to happen . . . ." Marijuana use was involved most of the time that there was sexual activity. One time Mangum sent daughter a nude picture of himself, which she deleted from her phone; she also sent a nude picture of herself to him.
The only person daughter told at the time was her friend T. She told T. "the first time it happened, and . . . a couple times about other incidents." But she and T. did not speak regularly. The sex acts with Mangum stopped after her mom served the custody papers in January of her eighth grade year.
Daughter later told her boyfriend (boyfriend), whom she began dating after the visits with Mangum had already ended. They dated for about a year and six months starting in about April of her eighth grade year. She was 14 years old, and he was just under 18 years old. When mother found out about the relationship, she tried to forbid it but later came to like and accept boyfriend. Daughter had vaginal, anal, and oral sex with boyfriend throughout their relationship. Mangum also eventually knew about boyfriend and "seemed kind of uncomfortable or unhappy."
Boyfriend found out about the sex abuse by Mangum. Boyfriend was angry and upset, not at daughter, but at what had happened. He told daughter that mother needed to know. Daughter did not want mother to know because it would "just be more stress . . . hanging over my head . . . I just didn't see anything good out of her knowing." Daughter testified that she convinced boyfriend not to tell mother, "but eventually my mom was able to get it out of him."
Daughter identified Mangum in court as the person she had been testifying about. She also identified a CD that contained the recording, played later for the jury, of a pretext call that she made to Mangum during the police investigation. During the call, daughter told Mangum that boyfriend had found out and wanted to tell mother. She testified that Mangum started crying and told her to say that she was doing it for attention, or had lied, and said again that he would be killed if he were to go to prison and that his life was in her hands. He also mentioned that he wanted to be there for her but after this he would have no one.
On cross-examination, daughter acknowledged that a few months of her stays at Mangum's house overlapped with visits from two other daughters of Mangum, her half-sisters ("half-sister E." and "half-sister L."). Daughter spent some time hanging out with them, more so with half-sister E. Daughter also acknowledged that she and boyfriend were dating in April 2014 when the allegations of sexual abuse were reported to the police. She was concerned about maintaining her relationship with boyfriend, which was probably the most important relationship in her life at the time. Daughter did not remember experiencing any bleeding or injury from the anal or vaginal sex with Mangum. She did not recall Mangum ever physically threatening her, disciplining her in a harsh manner, or raising his voice at her.
Daughter testified on redirect that she did not fabricate allegations against Mangum to protect boyfriend from getting in trouble because of his age and their sexual relationship. Daughter said "[t]here would be no reason" for boyfriend to get into trouble, because mother knew about boyfriend and had accepted him. When she and Mangum were together, it was generally in the front unit or back unit, not the common living space of the main house. He did not act like he was worried about anybody interrupting them when he was engaging her in sexual activity. If he was worried that wife would interrupt, he just did not do anything at all. When Mangum offered at one point for her to live with him, she liked the idea because she was not getting along with mother. Mother already knew that daughter was smoking marijuana with friends at the time that she overheard daughter's conversation with Mangum, leading daughter to tell her that she was smoking marijuana with him.
Daughter wished that the court process had not happened. She did not want to be there testifying. She still loved Mangum.
b. M.
M. met Mangum at a club in 2006. They texted and spoke on the phone for a couple of months. She was interested in seeing him, and they agreed to meet in Sunnyvale. They went to a motel where they hung out, began kissing, and had consensual oral and vaginal sex. Mangum was "really endowed" and the sex "really hurt" so she wanted to get it over with. They were having sex with him behind her when he asked about anal sex. She told him no. He kept asking, then held her waist and shoved his penis into her anus. She was crying and telling him to stop, that it hurt. He did not say anything and continued until he ejaculated in her. He got off of her and laid down; she laid down "in shock and in pain," then went to shower.
Mangum fell asleep on the bed, and M. went outside to call her roommate and her sister to tell them what happened. When she returned to get her things and leave, he was sitting on the bed. She told him, " 'When a woman says no, she means no.' " She drove to a hospital in Antioch where she was living and reported that she had been raped. The exam was invasive and lasted for "hours and hours." She spoke with police officers from Sunnyvale who came to the hospital. No charges were brought against Mangum.
Katherine Stidwell is a sexual assault nurse examiner. She testified as an expert in the field of sexual assault examination and as the nurse who examined M. M. reported that she was experiencing pain and bleeding in her anus. Stidwell documented a laceration on the anal verge, consistent with anal penetration.
c. S.
S. and Mangum dated for a couple of weeks in 1996. One day they met and went to a motel where they drank and used marijuana. S. also smoked methamphetamine in the room of another motel guest.
S. and Mangum had been physically affectionate before that point but had not had sexual intercourse. At the motel, there was some consensual kissing and holding. Then it went further, beyond her consent. They had sex; she remembered telling him no a couple of times. He "used a foreign object." She orally copulated him, and he orally copulated her; she did not consent to those acts and was crying but he did not stop. There was no anal intercourse. He took pictures while they were having sex; she took a few herself. She remembered trying to leave at one point. She also demanded the pictures because she "didn't want any photos in the world. I just wanted them to go away."
We review this statement in our discussion post of the trial court's admission of propensity evidence pursuant to Evidence Code section 1108.
Sometime later that morning, Mangum left the room and returned with food. They left the motel in S.'s car. She was driving. A police officer pulled her over because her rearview mirror was obstructed. She did not say anything to the officer, even when the officer talked to them separately. After the officer let them go, she drove Mangum toward his cousin's house. She stopped the car and tried to grab his bag to get the pictures. He punched her in the face and her glasses cut her; then he left the car and she chased after him.
S. acknowledged on cross-examination that around the same time, she was accused by the store she worked at of trying to steal. She also was accused of striking a woman in a movie theater during an altercation, but she only tapped the woman's hat with her hand. S. met Mangum years later, in 2007, after unknowingly connecting with him on a dating website. He was apologetic and she was able to get closure.
d. T.
T. testified that she and daughter were friends for a long time. They were in the same grade. They were still friends at the time of trial. Daughter trusted T.
Daughter told T. about a time that she had been sleeping at Mangum's house and they were sleeping in the same bed together, and he reached over and fondled her on her chest and her private parts as well. Then "[a]s time had gone on, as she had started to see her dad more and build more of a relationship with him," more inappropriate things happened. T. thought the next sexual act that daughter described was that she performed oral sex. Then it was anal sex because her dad had said that he did not want to take daughter's virginity. Later, daughter told her that they had vaginal intercourse at a later point.
T. believed the events were recent when daughter disclosed them to her. It was in eighth grade, or it could have been seventh grade. The first time daughter told her about the sexual contact with Mangum, they were at daughter's grandparent's house. Daughter also told T. about using marijuana and alcohol with Mangum. T. understood that daughter did not want Mangum to get into trouble.
e. Expert Testimony on Child Sexual Abuse Accommodation Syndrome
Dr. Anthony Urquiza is a psychologist, professor of pediatrics, and director of a child abuse treatment program at a university medical center. The trial court recognized him as an expert in child sexual abuse.
Dr. Urquiza testified that there are five aspects of child abuse accommodation syndrome. These are secrecy, helplessness, entrapment and accommodation, delayed and unconvincing disclosure, and retraction or recantation.
Most often, a child is sexually abused by somebody who is familiar and with whom they have an ongoing relationship. That person is usually in a position of authority or control, in contrast with the victim who is smaller, younger, less knowledgeable, and in a position of being submissive to the adult. Kids may not report sexual abuse because they are threatened or intimidated by the perpetrator, or because they do not want to lose the relationship. The child's relationship with the perpetrator may be coercive in that the child gets affection and "things that are really good that kids want" despite the abuse.
Because the victim is being abused by somebody they know, who has control and ongoing access to them, the child usually has no recourse other than to be victimized and re-victimized. A victim who has positive feelings for the abuser is placed "into this awkward situation, because they can't disclose, they don't want to disclose." Kids in this position might cope with the sexual abuse and sustain the situation of being abused, sometimes for years.
Entrapment describes the cycle of being abused, being unable to tell anybody because it is a secret, and being helpless to stop it from happening again. Accommodation refers to the coping mechanism that develops when a child is powerless to stop the abuse; the child may dissociate or emotionally disconnect from the feelings or the experience of abuse. It may be possible for a child to experience a physiologically pleasurable response from certain physical touching or stimulation. Because of accommodation, a child's disclosure of the abuse may be delayed and unconvincing. Though most victims are able to describe the basic form of abuse and what happened to them, the details of what was happening peripherally and the timeline of the abuse, especially when it is repeated, can be incredibly difficult to track.
The last aspect of the accommodation syndrome is retraction, where in some cases a child who discloses the abuse later takes back the allegation.
Dr. Urquiza's testimony was limited to the child abuse accommodation syndrome; he knew nothing about the particular case or the relationship between the victim and perpetrator. He agreed on cross-examination that the accommodation syndrome was not intended to be a predictive or diagnostic tool.
f. Mother
Mother testified that she is daughter's mother and Mangum is daughter's father. Mother saw Mangum in court for child support, then later wrote to him and asked if he wanted to be involved in daughter's life. He would visit for a couple of hours "here and there" and later progressed to overnight visits. There was no legal paperwork in place until daughter turned 14. Although Mangum was allowed supervised visits every other week after that point, he only saw daughter once or twice.
Mother explained that boyfriend was daughter's ex-boyfriend. Mother discovered that boyfriend and daughter were sexually active while they were dating because she found condoms in daughter's room. She confronted boyfriend on the phone. He admitted to being sexually intimate with daughter. He also told her that daughter had been molested by Mangum. She made an appointment to see her therapist with boyfriend and daughter. They discussed boyfriend's disclosure. Mother then contacted the police and spoke to officers, who spoke with daughter. Mother confirmed that she never contacted the police about boyfriend's relationship with daughter. He was 17 when they began dating; then he turned 18 and daughter turned 15, but at that point they had already been dating for a year.
g. Boyfriend
Boyfriend testified that he and daughter were friends and began dating in April 2013. In the fall of 2013, daughter disclosed that Mangum had touched her inappropriately. She had been reluctant to say anything but was "crying all the time" and he kept asking what was upsetting her. Eventually she disclosed what had happened with Mangum. He urged her to tell someone, like her therapist, her mother, or an officer, but believed that if he told an authority figure she would most likely deny it. Though he would try to talk with her when they were alone, she got upset whenever he brought it up.
During that time, boyfriend had multiple conversations with mother in which mother would ask if he knew whether anything had gone on between daughter and Mangum. Eventually during a phone call, mother asked him again. Boyfriend could not keep the secret anymore and told her that daughter had confided in him that Mangum had abused her. This was the same conversation in which mother confronted him about having sex with daughter. Boyfriend reported that he told mother the truth about having sex with daughter. Once he got to know mother, they got along very well and he felt like they had developed a friendship; so he did not feel worried that he was going to get into trouble for his sexual relationship with daughter.
Boyfriend admitted on cross-examination that he had turned 18 years old in July 2013 and would have been almost 19 years old when mother confronted him about having sex with daughter. That was the first time he told her the allegations about Mangum.
2. The Defense's Case
a. Detective Speckenheuer
Jason Speckenheuer testified that he is a detective with the Milpitas Police Department. He interviewed daughter at the police station in Salinas. Daughter had previously spoken with a field officer over the phone. Speckenheuer believed that he spoke with daughter for several hours about the allegations involving Mangum. During that time, daughter never alleged anal sex or mentioned that Mangum had touched or penetrated her anus.
Speckenheuer agreed on cross-examination that he was working off of information provided by Officer Lap La, who had first interviewed daughter over the phone. Speckenheuer asked her about sexual intercourse, which he defined with her as the penis inserted into the vagina, but did not ask if other types of sex acts were committed. He did not ask her if anal intercourse had been committed. Her demeanor during the interview was uncomfortable and embarrassed. Speckenheuer asked daughter to conduct the pretext call with Mangum at the end of their interview.
b. Officer Lap La
Lap La testified that he is a police officer for the City of Milpitas. After first speaking with mother, La took a statement from daughter over the phone about the alleged sexual assault committed by Mangum. Daughter never mentioned anal sex as one of the acts that had taken place.
On cross-examination, La acknowledged that daughter expressed some hesitation or discomfort in speaking to him. She described some touching, then oral copulation, then eventually intercourse or penetration. He interpreted that as vaginal sexual intercourse; he never specifically asked her any questions about anal intercourse.
c. Half-sister E.
Half-sister E. testified that Mangum is her father. She first met him when she was five years old. Their contact was infrequent. The second time they met she was around 11 years old. She also met wife. They met again when she turned 19 and established more consistent contact. She and her boyfriend flew to California to meet the three half-sisters she had never met, including daughter and half-sister L.
After that, half-sister E. and Mangum spoke more often. She moved to Milpitas in 2011 and lived with Mangum and wife at their house for a few months between September 2011 and January 2012. She initially stayed in a bedroom of the main house, but about a month later she moved to the back room. When she was not working, she often spent time in the front unit playing video games and hanging out with Mangum. Sometimes wife or a roommate would join them, but it was usually just the two of them. Mangum never made any sexual advances toward her when they were together. He was "absolutely not" flirtatious or suggestive in a way that indicated some interest other than a father-daughter relationship.
Half-sister E. recalled that daughter visited overnight two or three times during the few months that she lived with Mangum. She hung out "occasionally" with daughter though they did not have a lot in common due to their age difference. She never observed anything inappropriate in daughter's interaction with Mangum or anything that would indicate something other than a normal father-daughter relationship. Half-sister E. moved away in January 2012 and had not had a chance to visit Mangum again since then.
Half-sister E. explained on cross-examination that she still has occasional contact through social media with the other half-sisters. Her visit with Mangum when she was 11 was to Disneyland. She stayed with him and wife in a hotel. Her parents stayed somewhere nearby.
During the period that she lived with Mangum as an adult, she remembered driving with him to Salinas to watch daughter participate in a school show, and she remembered that daughter stayed with them overnight at least twice. It was not often. Half-sister E. and Mangum smoked marijuana together only one time during the period that she lived with him. She never saw Mangum and daughter alone.
d. Wife
Wife testified that she and Mangum are married. They met in 1996 and married in 2002. They moved to the home in Milpitas in 2009. She took over the lease for the house in 2011 and rented the bedrooms to other tenants, though there were gaps where not all of the rooms were occupied. She and Mangum moved into the front unit in April or June 2012. Mangum's daughters, half-sister L. and half-sister E., each stayed in the back unit for a few months. After half-sister E. left in January 2012, Mangum used that space as a "man cave" mostly to play video games, which wife found too noisy. She and Mangum always shared a bedroom. Sometimes he might stay up late playing video games, but he would be asleep in their bed when she would get up for work in the morning.
Wife first learned of daughter through the service of child support papers in 2002. Later in January 2010, after a scheduled appearance in court for child support proceedings, she and Mangum began driving to Salinas every other weekend to see daughter. They would walk around the mall or go to a movie. Sometimes Mangum would visit on his own or to attend a school function or graduation; other times she would accompany him.
Later that year in March or April 2010, they began bringing daughter back to Milpitas for overnights. Wife accompanied Mangum on 90 or 95 percent of the trips. Daughter's overnight visits were fairly consistent every other weekend.
On a typical weekend visit, they would bring daughter back to the house. She would play video games by herself or with Mangum, or take trips to the mall with them. They would usually eat meals together. When daughter was visiting, wife would check in and see what daughter and Mangum were up to; if they were watching a movie she would stay with them to watch, but if they were playing video games she would let them play.
When daughter first began overnight visits in 2010, Mangum and wife were still renting a room in the house, so daughter would usually sleep on the floor in their room. After wife took over the lease in June 2011, daughter would stay in an empty room if one was available. Mangum never slept in a bedroom alone with daughter in the period between 2010 to 2011. When she and Mangum moved into the front unit while they were fixing the upstairs, daughter stayed by herself in the back unit. Mangum did not sleep with daughter in the back unit. After the front unit upstairs was fixed up, Mangum made it into an entertainment room, and daughter would sleep there. According to wife, sometimes Mangum would play video games upstairs with daughter but he never slept there. By 11 or midnight, he would be downstairs with wife. When daughter was with them, they tried to maintain a certain code of going to sleep and waking up at a certain time. Wife recalled two times that she was out of town when daughter visited.
Wife confirmed that she and Mangum have a sexual relationship; his penis is large in a way that can make it uncomfortable or more difficult to have intercourse. Wife saw Mangum interacting with daughter on many occasions and never observed any behavior that suggested sexual activity or raised a red flag. Daughter never indicated to her that Mangum had done anything inappropriate. She knows from being at the house that it is "impossible" the allegations made by daughter actually happened.
Wife testified on cross-examination that she had observed Mangum smoking marijuana but never with his daughters. He paid child support for daughter since about 2002, and she began paying it in 2010. When his visits with daughter started in 2010 and expanded to regular overnight visits, wife found it "a little intrusive" since daughter had only recently entered their life. Wife denied any relationship between the overnight visits and the amount of child support payment. She resented the time spent on trips to Salinas to pick up daughter. After informal visitation stopped, she recalled a couple of times that Mangum visited daughter through supervised visitation.
Wife testified that when daughter was around Mangum, she seemed happy to see him. If mother had grounded daughter and taken her phone, daughter would contact him through the computer or Xbox. Wife did not know that Mangum had a sexual encounter in 2006 with M., or that he had relationships with other women in 2009 and 2013.
e. Mark Mangum
Mangum testified in his own defense.
He believed the encounters with M. and S. had been consensual. He met S. in 1996. They saw each other a few times and had consensual sex on at least two of those occasions. The next time they got together they checked into a motel. They shared a bottle of wine, and S. stepped out for about 45 minutes. She said she had run into friends. He did not recall whether they smoked marijuana that night and did not know anything about methamphetamine. They began kissing and had intercourse. S. never indicated that she was not willing; she was "very much in the mood for it." She had a Polaroid camera with her. He had bought film when they went to the store earlier to pick up the wine. He proposed taking some pictures and she agreed. She took a couple of him performing oral sex on her, and he took a few while they had intercourse. He was tired after and wanted to sleep, which seemed to irritate her as she was "nowhere near tired." She still seemed agitated when he woke later that morning. After he returned from picking up food, she seemed less agitated and they had consensual intercourse again. Then they left.
A police car pulled them over as S. was driving Mangum to his cousin's house. She spent several minutes standing outside with the officer while he ran their licenses. Mangum had a traffic warrant but the officer told him to take care of it and let them go. They continued driving, and she asked Mangum to give her the pictures. He said that she needed to share the cost of the $20 film. She was yelling and accelerating though they were in a residential area. He began yelling at her to stop the car. When she did not stop, he grabbed her hand on the gearshift and pulled the car out of gear, and as the car slowed he pulled up the brake, opened the door, and grabbed his bag from behind the passenger seat. She put the car in reverse, and the still-open door caught him. He reached in to try to grab the gearshift and accidentally hit her on the temple. She stopped the car and got out, then ran at him swinging and throwing punches. His cousin, who was watching from down the street, came to help.
Mangum was later arrested and charged in connection with the incident. He pleaded to a false imprisonment charge to avoid the risk of going to trial.
Mangum met M. at a dance club function that happened about once a month. They kept in touch for about three weeks. One night she called him and wanted him to drive to see her. He declined but said he would not mind hanging out. She drove from Antioch, and they met at a motel. They did not drink that night. They settled in and began to kiss. He performed oral sex on her. They also had vaginal and anal intercourse. He had repositioned behind her during the vaginal intercourse and asked her if she was "into anal intercourse." She said something to the effect of "it's been awhile," and he told her that he would let her be in control and go at her own pace. He placed the tip of his penis at her anus and withdrew his hands and told her to go ahead and take control of things. They engaged in anal intercourse for less than five minutes. He did not recall her ever telling him to stop.
M. was not in the room when he woke up the next morning. She returned about 10 minutes later. He was seated at the edge of the bed. She said she was taking off and said something else kind of under her breath and walked out. He could not read her tone. Mangum later talked to the police about that night but he never faced any charges.
Mangum testified about his relationship with daughter. He married wife in 2000. He has four daughters from other relationships. Daughter is the youngest. Mother told him about daughter in the early years after her birth, and eventually he "just accepted it." He became active in daughter's life when she was nine or 10. He told daughter that he was sorry for not being in her life sooner. They developed a father-daughter relationship. He enjoyed spending time with her because he was able to participate in her life in a way that he had not had with his older daughters.
When daughter was about 11, he and wife would drive to Salinas and take her to lunch or on an outing. Mother kept pushing the idea of daughter coming to his house. He did not think it was the appropriate or ideal time because he and wife were renting a single room inside the house in Milpitas. But eventually they started bringing daughter to their house. At first they were in the main house, and daughter would sleep on an air mattress in their room. Later they switched to the front unit. Once the upstairs was finished, she slept upstairs in the front unit. The other rooms in the house were usually rented out. In all of daughter's visits to Milpitas, he never slept alone in the same room as her overnight, though he might have fallen asleep while watching a movie. On the two occasions he could recall that wife was away, he did not share a bedroom alone with daughter.
Mangum tried to assume a parental role with daughter concerning bedtime and homework. He may have fallen short when she told him that she was smoking marijuana. He should have told mother at that time. He had picked daughter up and had her wait in the car while he went inside to see mother and her boyfriend. The three of them smoked. He returned to the car, and daughter took a blunt that was sitting in the ashtray and lit it. He asked what she was doing, and she told him "you know I smoke." He just looked at her but did not take the blunt away. There was another time that he let daughter stay in the man cave overnight. He had left a blunt in the ashtray. When he went to the back unit in the morning, it smelled like marijuana but he never questioned her about it. Daughter knew that he smoked marijuana. He smoked in front of her one time in the man cave while they watched a movie.
Mangum did not get nervous about daughter disclosing the marijuana smoking until the period when she approached him about moving in. She told him that she was having issues at home and asked if she could live with them. He hired an attorney for the custody process, then got a letter in the mail before the child custody hearing saying there were allegations that he gave her marijuana. He called daughter on the phone and asked what was going on. She told him that mother had been pressuring her to tell her something—that she took away her iPhone, her Xbox, everything. He started "shouting frantic" telling her that he was trying to do a favor filing for custody, but now he was not going to be able to have custody and could end up going to jail. He later learned from daughter that mother had called the police, and an officer had talked to her and asked about marijuana and about inappropriate touching. That was around the time of the custody hearing, which was after the overnight visits had stopped.
Mangum also testified about the pretext call that was played for the jury. He was at the movies and was under the influence of marijuana when the call came. When daughter began saying that she had told boyfriend some stuff that happened and that boyfriend wanted to talk to mother, Mangum thought she "was talking about that she was getting high with me." As she continued talking, he started to feel anxious and was not thinking clearly. He was trying to tell her "whatever it took" for her to tell mother that she was doing it herself, not that he was allowing her to get high. His comments about his life being over still referred to marijuana, because in the eye of the public or of the law, giving drugs to a child is wrong and he was afraid of the legal consequences. Mangum did not remember daughter saying that boyfriend had asked if she was a virgin and that she did not want to lie to him. When he told daughter that "Oh, God, I feel like it's happening all over again," he was thinking back to 1996 when he had been falsely accused (in the incident with S.). He was scared about the marijuana accusation and that a sexual allegation was being made against him. By telling daughter that he would lose his life, that he had been abused himself, and that people in prison kill people who have done stuff to kids, he was trying to convey to her the gravity of making that kind of accusation. If he had been sober and had been thinking straight, he would have just asked her directly what it was that she was trying to say.
Regarding his relationship with wife, Mangum acknowledged that he had not always been faithful. During the period when he dated M. in 2006, while married to wife, he was partying and getting into trouble, including a DUI and marijuana possession charge. He briefly dated another woman after that. Wife forgave him for his affairs, and they moved past it. When daughter became part of his life, "all that came to a halt." He never touched daughter in a sexual manner, including not by accident or when half-asleep; he never shared a bedroom alone with her; he never had sexual intercourse with her; and he never had those kinds of feelings for her.
Mangum testified on cross-examination that he went to see daughter only a few times after supervised visitation began because he was struggling financially. He confirmed that three different women had falsely accused him at different times of sexual misconduct. He explained that during the time that daughter had overnight visits, he probably smoked marijuana every couple of days to help his chronic back pain. He never gave daughter marijuana but she "came upon it." He felt badly that she might have smoked marijuana that he left out, because even though he did not give it to her, he did not take it away. The accusation that he gave her marijuana was false.
Mangum's comments during the pretext call that it was "going to go nuclear" if mother found out were about the marijuana. He referred to protective custody for people in prison because "[t]hey might kill people if they find out that somebody gave drugs to a child" and he has heard of people getting protective custody for less. He was not entirely sure by that point whether they were still talking about marijuana. He admitted that he did not ask daughter to clarify when she brought up the subject of her virginity, even though he had thought they were talking about marijuana. He was being "dramatic" and was under the influence when he told her that he would rather kill himself than go to prison. He had started to assume that an accusation was being made against him.
Mangum acknowledged that he was able to go to clubs and meet women while he was married to wife. He texted and talked to M. for a few weeks before meeting her at the motel. The encounter with M. was consensual. He did not feel that he did anything wrong.
Mangum agreed on cross-examination that S. wound up with a black eye and bleeding slightly, because a piece of plastic from her glasses had cut her skin. He was trying to reach for the gearshift as the car was dragging him backward, and he accidentally hit her in the temple. He could not sidestep away from the car because he was reaching in to grab his bag when she reversed. The argument had been over the pictures, not the camera which belonged to S. Even though she had falsely accused him of rape, he went to her house years later after she contacted him online.
3. The Prosecution's Rebuttal
Bryan Hinkley testified that he is a sergeant with the Milpitas Police Department. In March 2013, he investigated a possible marijuana case involving Mangum and daughter. Hinkley spoke with mother, daughter, and Mangum. Mangum told Hinkley that when mother found out that daughter had used marijuana, daughter approached him and asked if she could say that he had given it to her so that she would not get into trouble. Mangum denied giving daughter marijuana or alcohol. He said that mother was making false claims against him to support her pending custody case.
C. CLOSING ARGUMENTS, JURY INSTRUCTIONS, AND VERDICT
We review closing arguments in more detail post, as pertinent to the issues raised on appeal. In brief, the prosecutor focused on daughter's desire for a connection with Mangum and her fear of losing that relationship, even at the cost of submitting to sex acts with him. The prosecutor also questioned Mangum's credibility in responding to the allegations of S. and M. and emphasized the lack of motive of daughter, S., or M., to fabricate such lies. Defense counsel in contrast highlighted daughter's and boyfriend's arguable motive to direct attention away from their sexual relationship and from boyfriend's potential criminal liability. The defense argued the improbability of the scenarios described by daughter, given the proximity of Mangum's wife and of renters in the Milpitas house, daughter's failure to mention anal penetration in her police interviews, and her claim that she did not experience pain or bleeding from the anal or vaginal intercourse with Mangum, despite testimony by two adult women that his penis size made intercourse difficult or uncomfortable. The defense also highlighted credibility issues with S.'s version of the encounter with Mangum in 1996.
The trial court instructed the jury on the applicable law, and the jury returned a guilty verdict early the next day on all counts. Mangum timely appealed.
II. DISCUSSION
Mangum advances three independent grounds for reversal. We first address the admission of propensity evidence under Evidence Code sections 1108 and 1101. We next consider the adequacy of the jury instructions related to unanimous identification of the act supporting each of the marijuana furnishing convictions. Last, we turn to the claim that the California Supreme Court's decision in Jones should be revisited.
Unspecified statutory references are to the Evidence Code.
Mangum also challenges the imposition of a 10-year no contact order at sentencing and contends that he is entitled to one additional custody credit. The People concede both points and agree that the abstract of judgment must be corrected.
A. ADMISSIBILITY OF EVIDENCE OF MANGUM'S UNCHARGED SEXUAL MISCONDUCT UNDER EVIDENCE CODE SECTION 1108
Mangum contends that in admitting the uncharged prior offenses against M. and S., the trial court abused its discretion under section 352 by misconstruing the probative value of the incidents while discounting the danger of unfair prejudice and consumption of time—factors which strongly militated against admission of the evidence. He claims the erroneous admission of evidence violated his federal due process rights. We find no reversible error on either state law or federal constitutional grounds.
1 . Governing Legal Principles and Standard of Review
California law generally prohibits the introduction of character evidence to prove a defendant's propensity to commit conduct on a specific occasion. (§ 1101, subd. (a); People v. Falsetta (1999) 21 Cal.4th 903, 911 (Falsetta); People v. Jandres (2014) 226 Cal.App.4th 340, 352-353 (Jandres).) Section 1108 is an exception to the general rule. It provides, "[i]n a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352." (§ 1108, subd. (a).) Section 1108 thus permits the admission of evidence that the defendant in a sexual offense prosecution "committed other sexual offenses to prove his propensity to commit the charged sexual offenses" (People v. Cottone (2013) 57 Cal.4th 269, 281), so long as the evidence is admissible under section 352. (Jandres, supra, at p. 353; see § 1108, subd. (a).)
The evidence is admissible under section 352 if its probative value is not "substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (§ 352.) Put differently, "[t]he evidence is presumed admissible and is to be excluded only if its prejudicial effect substantially outweighs its probative value in showing the defendant's disposition to commit the charged sex offense or other relevant matters." (People v. Cordova (2015) 62 Cal.4th 104, 132.) The weighing process under section 352 safeguards the constitutional validity of section 1108. (People v. Villatoro (2012) 54 Cal.4th 1152, 1166; Falsetta, supra, 21 Cal.4th at p. 917 ["trial court's discretion to exclude propensity evidence under section 352 saves section 1108 from defendant's due process challenge"].)
We review the trial court's ruling to admit evidence under section 1108 for abuse of discretion. (People v. Cordova, supra, 62 Cal.4th at p. 132.)
2. In Limine Motions Regarding the Uncharged Sexual Offenses
The parties filed competing in limine motions regarding evidence of the prior uncharged incidents involving M. and S. The prosecution sought to admit the evidence pursuant to section 1108, to show propensity to commit the charged sexual offenses. Mangum sought to exclude the uncharged incidents as insufficiently probative to survive the weighing process under section 352.
Over the defense's objection, the trial court also admitted the evidence of the uncharged prior offenses pursuant to section 1101, subdivision (b). Because we conclude the evidence was admissible under section 1108, we need not consider its admissibility under section 1101. (See People v. Branch (2001) 91 Cal.App.4th 274, 280-281.)
The defense argued that dissimilarities in the fact patterns of the charged and uncharged offenses diminished their probative value since "the uncharged sex offense evidence 'must have some tendency in reason to show that the defendant is predisposed to engage in conduct of the type charged.' (People v. Earle (2009) 172 Cal.App.4th 372, 397 (Earle).)" (Jandres, supra, 226 Cal.App.4th at p. 355.) Mangum's counsel emphasized the factual dissimilarities between the charged offenses involving daughter—who did not allege the use of force or violence and with whom he had an ongoing familial relationship—and the uncharged incidents involving M. and S., both adult women who alleged the use of force over their continuing objections. He argued that the substantial prejudice attached to the allegations of forcible rape in the uncharged incidents would be aggravated by the jury's likelihood to view Mangum as a serial offender who was never convicted for the prior offenses.
The trial court ruled that evidence of Mangum's prior acts against S. and M. were admissible under section 1108, because even considering the consumption of time, "under a full 352 analysis" the evidence was more probative than prejudicial. The court reasoned, citing People v. Escudero (2010) 183 Cal.App.4th 302, 312-313 (Escudero), that evidence of a person's sex offenses against adult women may be admitted to show propensity to molest a young girl. The court excepted from its ruling one part of S.'s testimony in which she said that Mangum penetrated her with an empty wine bottle. The court excluded testimony about that act as inflammatory and not sufficiently probative to show propensity.
The court excluded S.'s testimony that Mangum penetrated her vagina with an empty wine bottle, noting the act involved pain, injury, and degradation that did not appear to be present in the offenses charged. During trial, however, S. responded to a general question from the prosecutor by stating, "He used a foreign object." Defense counsel objected but did not ask that the answer be stricken. The trial court directed the prosecutor to move on to another subject.
3. The Trial Court Did Not Err in Finding the Probative Value of the Evidence of Mangum's Uncharged Sexual Misconduct Was Not Substantially Outweighed by Its Prejudicial Effect
Mangum maintains that in admitting the prior offenses against M. and S., the trial court erroneously assigned those incidents a high probative value despite their lack of similarity to the charges. He contends that S.'s allegations of forcible rape, oral copulation, and physical violence, and M.'s allegations of forcible sodomy, had little tendency to show propensity to commit what he describes as "non-violent breach-of-trust sexual offenses" of the type charged here. He contends that given the dissimilarities between the charged and uncharged offenses, the admission of the prior acts against M. and S. could only support an inference that Mangum is a violent rapist. He argues the prosecutor reinforced that inference in closing argument by showing the jury a Power Point slide that highlighted the use of force in the prior incidents and detailed S.'s and M.'s alleged injuries. Because he denied the allegations, he contends that their admission consumed a significant portion of the prosecution's case and created a trial within a trial.
The Power Point slide shown to the jury, which has been added to the record on appeal as part of a settled statement, contains the following description of the uncharged sexual offenses against S. and M.
"M[]: Forced sodomy in 2006 [¶] (Torn anus) [¶]
"S[]: Rape by Force & Forced Oral Copulation in 1996 [¶] (Black eye-cuts)"
Because the uncharged acts involving M. and S. constituted sexual offenses within the meaning of section 1108, our inquiry begins and ends with the admissibility of the evidence under section 352. (See People v. Cordova, supra, 62 Cal.4th at p. 132 [evidence subject to § 1108 is "presumed admissible and is to be excluded only if its prejudicial effect substantially outweighs its probative value" under § 352].)
The factors to be considered in deciding whether to exclude evidence of an uncharged sexual offense under section 352 include the prior offense's " 'nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant's other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense.' (People v. Falsetta, supra, [21 Cal.4th] at p. 917].)" (People v. Story (2009) 45 Cal.4th 1282, 1295.)
As Mangum recognizes, parallels between the uncharged and charged offense or offenses can dictate "whether the propensity evidence has probative value, e.g., whether the uncharged conduct is similar enough to the charged behavior to tend to show the defendant did in fact commit the charged offense . . . ." (People v. Nguyen (2010) 184 Cal.App.4th 1096, 1117.) The probative value of the propensity evidence must then be weighed against the other key considerations: " '[1] whether the propensity evidence is stronger and more inflammatory than evidence of the defendant's charged acts; [2] whether the uncharged conduct is remote or stale; [3] whether the propensity evidence is likely to confuse or distract the jurors from their main inquiry, e.g., whether the jury might be tempted to punish the defendant for his uncharged, unpunished conduct; and [4] whether admission of the propensity evidence will require an undue consumption of time.' " (Jandres, supra, 226 Cal.App.4th at p. 355; see Nguyen, supra, at p. 1117; People v. Harris (1998) 60 Cal.App.4th 727, 738-740 (Harris); People v. Branch, supra, 91 Cal.App.4th at p. 282.)
This court has previously explained that "[a]s to probative value, ' "[t]he court should not permit the admission of other crimes until it has ascertained that the evidence tends logically and by reasonable inference to prove the issue upon which it is offered . . . ." ' [Citation.] Put differently, the uncharged sex offense evidence 'must have some tendency in reason to show that the defendant is predisposed to engage in conduct of the type charged.' " (Jandres, supra, 226 Cal.App.4th at p. 355.)
Mangum contends that the trial court in this case failed to properly assess probative value in accordance with Jandres and instead treated as dispositive the fact that the uncharged acts were sexual offenses. He argues that Harris further supports his point and that Escudero is distinguishable. We disagree.
In Jandres, the defendant was convicted of forcible rape and kidnapping to commit rape. (Jandres, supra, 226 Cal.App.4th at p. 343.) He challenged the judgment on several grounds, including the trial court's admission of uncharged sexual offense propensity evidence. (Ibid.) That evidence showed that the defendant had lifted a girl off of a couch during an attempted burglary and carried her about eight feet before dropping her; she testified that before picking her up, he shoved his finger into her mouth for 15 or 20 seconds. (Id. at p. 349.) On appeal, this court narrowly upheld the trial court's determination that the uncharged act could be construed as a sexual offense under section 1108. (Jandres, supra, at pp. 354-355.) We nonetheless found that the court had erred in admitting the evidence under section 352, because the finger incident was dissimilar from the charged offenses and showed little propensity to commit rape, and its prejudicial effect (magnified in part by misinformation about the uncharged offense evidence) exceeded its comparatively low probative value. (Jandres, supra, at p. 357.)
In Harris, the defendant was a mental health nurse who took sexual advantage of two female patients at the center where he worked. (Harris, supra, 60 Cal.App.4th at pp. 730-732.) He "licked and fondled an incapacitated woman and a former sexual partner, both of whom were thereafter on speaking terms with him." (Id. at p. 738.) The appellate court described the charged offenses as "breach of trust by a caregiver . . . ." (Ibid.) The section 1108 propensity evidence in contrast described a vicious sexual assault years earlier on a woman who was attacked in her apartment and the defendant's subsequent conviction for burglary with the infliction of great bodily injury. (Harris, supra, at pp. 733-735.) The appellate court decided not only that the uncharged act was remote, but that extreme differences between the prior and charged offenses negated any probative value. (Id. at pp. 741-742.) It found the "23-year-old act of inexplicable sexual violence" (id. at p. 740) was not probative of the defendant's predisposition to commit the charged " 'breach of trust' sex crimes" (id. at p. 741), in part because the charged offenses were "of a significantly different nature and quality than the violent and perverse attack on a stranger that was described to the jury." (Id. at p. 738.) The court concluded the propensity evidence should have been excluded under section 352, reasoning that in part that "[t]he evidence that [the] defendant committed a violent rape of a stranger, as the jury was led to believe, did not bolster [the mental health victims'] credibility nor detract from the evidence impeaching their stories." (Harris, supra, at p. 740.)
In Escudero, the defendant was convicted of committing a lewd and lascivious act on a seven-year-old. (Escudero, supra, 183 Cal.App.4th at p. 305.) The young victim was sleeping with her mom and the defendant, who lived with them, and woke to find her pajama bottoms and underwear removed. The defendant moved her hand to his penis and held her down while touching her " 'private area.' " (Id. at p. 307.) The jury also heard, pursuant to section 1108, the testimony of two women who each described incidents in which they had fallen asleep after a social event with the defendant and awoke to him touching or digitally penetrating their vaginas. (Escudero, supra, at pp. 308-309.) The appellate court rejected the argument that the assaults against the adult women did not have a tendency to prove propensity to commit the lewd and lascivious acts against the girl. (Id. at p. 311.) The court noted that the uncharged acts shared "significant similarities" with the molestation (ibid.), based largely on the defendant taking advantage of each victim's vulnerability while sleeping and on his risk of being caught in each scenario. (Ibid.) The court reasoned that the age differences did not make the uncharged offenses wholly irrelevant (ibid.) and concluded that the evidence was not so inflammatory, nor the consumption of time so excessive, as to require its exclusion. (Id. at p. 312.)
Harris and Jandres illustrate how dissimilarities between a charged and uncharged offense can undercut probative value for purposes of section 352. Escudero is not inconsistent with Harris and Jandres but shows that significant dissimilarities between the charged offense and uncharged propensity evidence may not require exclusion under section 352. It would be incorrect to construe the statement in Jandres regarding predisposition "to engage in conduct of the type charged" (Jandres, supra, 226 Cal.App.4th at p. 355) as imposing a more rigorous relevancy requirement upon the admission of sexual offense evidence under section 1108. The evidence of similarity or dissimilarity is relevant to the trial court's exercise of discretion under section 352 but is not dispositive of admissibility under section 1108. (See People v. Loy (2011) 52 Cal.4th 46, 63; accord People v. Cordova, supra, 62 Cal.4th at p. 133 [noting that any claimed dissimilarity is "a relevant factor for the court to consider in exercising its discretion" but "dissimilarity alone does not compel exclusion of the evidence"].)
Indeed, section 1108 was designed to overcome certain limitations in the admission of prior criminal conduct under section 1101, including the " ' "more exacting requirements of similarity between the charged offense and the defendant's other offenses . . . ." ' " (People v. Soto (1998) 64 Cal.App.4th 966, 984.) The statute reflects the Legislature's determination that " 'evidence of uncharged sexual offenses is so uniquely probative in sex crimes prosecutions it is presumed admissible without regard to the limitations of Evidence Code section 1101.' [Citation.] . . . . 'It is enough the charged and uncharged offenses are sex offenses as defined in section 1108.' " (People v. Loy, supra, 52 Cal.4th at p. 63.) Even so, " 'multiple sex offenses . . . may be dissimilar enough . . . that the trial court could apply the criteria of section 352 and determine that it is not proper for the jury to consider' " evidence of an uncharged offense " 'as evidence that the defendant likely committed . . . the other charged offense[].' " (People v. Villatoro, supra, 54 Cal.4th at p. 1163.)
Viewed against this backdrop, we are not convinced by Mangum's claim that the trial court mistakenly believed that every prior sexual offense is admissible under section 1108. The question is not whether a prior sexual offense is per se admissible under section 1108 (it is not), but whether factors specific to the case render the probative value of the prior offense so low and the prejudicial effect so high that the trial court abuses its discretion by not finding it inadmissible under section 352. That was the case in Jandres and Harris; but we do not find it to be the case here.
The main factor driving the determination in Jandres, as briefly described above, was that the prior offense was limited to the defendant shoving his finger into the victim's mouth—a violation that both presented a "close" question as to whether it qualified as a sexual offense under section 1108 and bore minimal resemblance to the forcible rape charges at issue. (Jandres, supra, 226 Cal.App.4th at pp. 354, 356.) We explained that "[g]iven the many differences between the two offenses—including the circumstances (daytime attempted burglary in one case, possible stalking and attack at night in the other); the ages of the victims (11 and 18); and the nature of the conduct (inappropriate touching of the mouth in one case, rape in the other)," evidence that the defendant exhibited sexual interest in an 11-year-old girl by fingering her mouth did not support an inference that he was predisposed to rape an 18-year-old woman. (Id. at p. 356.) At the same time, the potential prejudicial effect of the propensity evidence was substantial, in that the evidence of the uncharged act "was portrayed to the jury as extremely strong" based on erroneous information given to the jury (ibid.) while the rape case was "comparatively 'less strong . . . .' " (Ibid.)
Here, there is no question that the differences in the ages of the victims (13 as to daughter, 18 and older as to S. and M.) and in their relationships to Mangum (familial as to daughter, casual as to S. and M.) were significant. But we do not find they were so dissimilar as to compel exclusion. (See People v. Cordova, supra, 62 Cal.4th at p. 133 ["dissimilarity alone does not compel exclusion"]; People v. Villatoro, supra, 54 Cal.4th at p. 1163 [" 'multiple sex offenses . . . may be dissimilar enough . . . that the trial court could apply the criteria of section 352 and determine that it is not proper for the jury to consider' " evidence of an uncharged offense as propensity evidence] italics added.) In contrast with Jandres and Harris, the dissimilarities did not extend to the specific acts engaged in by the defendant. S. claimed that after consensual kissing and touching in a motel room, Mangum forcibly orally copulated her and raped her; M. claimed that during consensual vaginal intercourse in a motel room, Mangum forcibly sodomized her. These acts directly paralleled the acts that daughter alleged Mangum repeated on her when he had private access to her in his home: a progression of touching to oral copulation and eventually anal or vaginal intercourse.
Given these parallels, it cannot be said that those acts had no " 'tendency in reason to show that the defendant is predisposed to engage in conduct of the type charged.' " (Jandres, supra, 226 Cal.App.4th at p. 355.) As the California Supreme Court explained in relation to the admission of other sexual offense evidence in People v. Loy, supra, 52 Cal.4th at page 63, "[a]though the previous sexual offenses may not have been sufficiently similar to be admissible under Evidence Code section 1101, they were not entirely dissimilar." So too here, we find the evidence was "at least circumstantially relevant to the issue of [a defendant's] disposition or propensity to commit" the charged sex offenses. (Falsetta, supra, 21 Cal.4th at p. 915.)
Nor are we persuaded by Mangum's attempt to contrast the alleged use of force, threat, or violence in the assaults of the two adult women against what he contends were "breach-of-trust" type of offenses against his minor daughter. Daughter's legal inability to consent to the acts is in our view no less meaningful than—and must be treated as equivalent to—M.'s and S.'s vocal protestations to Mangum's forceful conduct, which according to both of their testimony continued despite their explicit withdrawal of any affirmative consent. We conclude that the uncharged sexual offenses involving M. and S., and the charged offenses against daughter, suggest a similar pattern of engaging in specific sex acts despite a lack of consent, whether as expressed by an adult female partner or as imposed by the law. Differences in the use of force and violence, or implicit coercion, to accomplish the sex acts may diminish but do not negate that probative effect.
The prejudice analysis under section 352 further distinguishes this case from both Jandres and Harris. Unlike in Jandres, where erroneous information provided to the jury amplified the prejudicial effect of the propensity evidence over its "comparatively low probative value" (Jandres, supra, 226 Cal.App.4th at p. 357), or in Harris, where the jury heard an "incomplete and distorted description of" the violent sexual attack, likely causing "a great deal of speculation as to the true nature of the crime" (Harris, supra, 60 Cal.App.4th at p. 738) there were no such distortions or misleading inferences apparent here. The trial court directed the prosecution to try the issues as efficiently as possible, minimizing as it could the consumption of time, and excluded the detail from S.'s testimony that it deemed unnecessarily inflammatory. (See Falsetta, supra, 21 Cal.4th at p. 917 [§ 352 safeguard includes consideration of "less prejudicial alternatives" to outright admission of the evidence, such as by "excluding irrelevant though inflammatory details"].) The testimony dedicated to those incidents took a significant but not unreasonable amount of time, considering the length of the trial and number of witnesses, and the fact that the nature of the assaults remained consistent despite dissimilarities in the victims and their relationships to Mangum.
Although S. briefly referenced "a foreign object" when describing the assault, the prosecutor quickly ended that line of questioning and defense counsel did not move to strike the improper reference.
The reporter's transcript of the trial is about 800 pages long. The combined length of testimony of M., S., the sexual assault nurse who examined M., and of Mangum on cross-examination on these issues, is about 135 pages. In total, 12 witnesses testified, including daughter and Mangum.
Mangum claims that the emotional nature of the testimony provided by M. and S.—describing a combination of alleged sexual and violent conduct—risked inflaming the jury and made it impossible for Mangum to have a fair trial on the current charges. We agree that the testimony of M. and S. was emotionally charged. The jury heard that Mangum allegedly continued the sex acts over their pleas to stop, causing pain and injury, and in S.'s case that he allegedly punched and threatened her and refused to turn over the explicit photographs they had taken. The explicit use of threats and physical force as alleged in the uncharged incidents is disturbing; but it is not so extreme or dissimilar to the compulsion implicit in the charged offenses as to distract the jurors from their main inquiry into whether he repeatedly engaged in sex acts with his own daughter.
In sum, we find the evidence of the offenses against M. and S. was sufficiently probative under the circumstances and not more inflammatory than the charged offenses. The testimony about the uncharged incidents did not inflate or distort the strength of that evidence as compared to the evidence proffered in support of the charged offenses. And the trial court properly limited any use of the more inflammatory details and directed the prosecution to move through the material as efficiently as possible.
Courts have " 'broad discretion' " to determine admissibility under section 1108 (People v. Loy, supra, 52 Cal.4th at p. 64), and exclusion is proper only if the danger of undue prejudice substantially outweighs its probative value. (§ 352.) We find that standard has not been met under the facts and circumstances presented here. (See People v. Cordova, supra, 62 Cal.4th at p. 133 [" 'nothing about the evidence . . . required the trial court to find the presumption in favor of admissibility had been overcome' "].) We conclude that the trial court did not err under state law in admitting the uncharged sexual offenses propensity evidence.
4. Admission of the Uncharged Prior Offenses Against M. and S. Did Not Violate Mangum's Federal Due Process Rights
Mangum contends that admission of the prior acts evidence violated his right to due process. He acknowledges that the defense did not complain of any due process violation in objecting to the admission of the prior offenses evidence at trial. He argues, however, relying on People v. Partida (2005) 37 Cal.4th 428, 435 (Partida), that his objection to the admission of the evidence under section 352 preserved a federal due process claim on appeal. He argues that insofar as the jury could draw no permissible inferences from the evidence of the prior uncharged acts, and the evidence was used to unfairly cast Mangum as a violent rapist, the erroneous admission of that evidence made the trial fundamentally unfair in violation of his due process rights.
Mangum's due process argument fails in light of our section 352 analysis. That is, our conclusion that the trial court did not err in overruling Mangum's section 352 objection means that under state law, the evidence was properly admitted pursuant to section 1108, and the jury could draw permissible inferences from the evidence as instructed by the court. The admissibility of the evidence under state law distinguishes this case from those that Mangum cites in support of the due process claim on appeal.
In Partida, the California Supreme Court generally reinforced the longstanding rule that a defendant challenging the admission of evidence over his objection at trial may not argue on appeal "that the court should have excluded the evidence for a reason different from his trial objection." (Partida, supra, 37 Cal.4th at p. 435.) The court explained, for example, that a defendant who objected under section 352 to the admission of certain evidence at trial could "not argue on appeal that due process required exclusion of the evidence for reasons other than those articulated in his . . . section 352 argument." (Partida, supra, at p. 435.) The court recognized, however, that the defendant could raise "a very narrow due process argument on appeal" (ibid.) by asserting that the error in admitting the evidence over his section 352 objection "had the additional legal consequence of violating due process" (Partida, supra, at p. 435).
Mangum contends that his due process claim on appeal is consistent with Partida in that he seeks only to demonstrate that the erroneous admission of the prior offenses evidence had the further consequence of violating his federal due process rights by making the trial fundamentally unfair. But as a panel of this court explained in People v. Rocha (2013) 221 Cal.App.4th 1385, 1400, the holding in Partida applies where the section 352 objection was overruled in error. "What the court actually held there was that after a defendant's . . . section 352 objection had been overruled, he could—despite failing to mention the due process clause in the trial court as a separate ground of objection—'make a very narrow due process argument on appeal,' i.e., 'that the asserted error in admitting the evidence over his Evidence Code section 352 objection had the additional legal consequence of violating due process.' " (Rocha, supra, at p. 1400, quoting Partida, supra, 37 Cal.4th at p. 435.) Because we have concluded that the court did not err by overruling Mangum's objection under section 352, Partida does not furnish a basis to consider an additional legal consequence on due process grounds. (Rocha, supra, at p. 1400.)
Mangum's due process argument fails on the merits for similar reasons. He cites McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378, 1385, in which the Ninth Circuit concluded that erroneously admitted evidence of uncharged misconduct "impermissibly tainted" the trial by creating a reasonable likelihood that the jury failed to follow instructions and convicted the defendant based on his suspicious character. But as again noted in Rocha, supra, 221 Cal.App.4th at pages 1399 through 1400, the predicate for the due process violation in McKinney v. Rees was the Court of Appeals' finding that the evidence of uncharged misconduct "had served no legitimate purpose and thus operated only to invite an 'impermissible propensity inference.' " (Id. at p. 1399, quoting McKinney v. Rees, supra, at p. 1383.)
More generally, Mangum fails to convince us that the asserted evidentiary error rises to the level of a due process violation. It is well established in California that "generally, violations of state evidentiary rules do not rise to the level of federal constitutional error." (People v. Benavides (2005) 35 Cal.4th 69, 91.) Courts ordinarily review the erroneous admission of evidence according to the test for reversal based on state law error, as articulated in People v. Watson (1956) 46 Cal.2d 818, 836-837 (Watson). In Jandres, this court explained that insofar as " 'the application of ordinary rules of evidence like Evidence Code section 352 does not implicate the federal Constitution,' " courts " 'review allegations of error under the "reasonable probability" standard of Watson . . . .' (People v. Marks (2003) 31 Cal.4th 197, 227.)" (Jandres, supra, 226 Cal.App.4th at p. 357.) This includes the erroneous admission of sexual offense propensity evidence under section 1108. (Jandres, supra, at p. 357; see Harris, supra, 60 Cal.App.4th at p. 741 [applying Watson standard to determine prejudicial error]; People v. Mullens (2004) 119 Cal.App.4th 648, 659 [same].)
We therefore agree with the People that to the extent our Supreme Court has upheld the admissibility of propensity evidence in sexual offense cases pursuant to section 1108 (see Falsetta, supra, 21 Cal.4th at p. 913), thereby allowing a jury to draw permissible inferences, Mangum cannot show that erroneously admitting that evidence of the prior sexual assaults violated his constitutional rights.
5. Any Error in the Admission of the Uncharged Prior Offenses Against M. and S. Was Harmless
Our conclusion that the trial court did not err in admitting the section 1108 propensity evidence makes it unnecessary to consider whether the asserted error was prejudicial. But even assuming the testimony of M. and S. should have been excluded under section 352, Mangum is unable to demonstrate reversible error.
"Absent fundamental unfairness, state law error in admitting evidence is subject to the traditional Watson test: The reviewing court must ask whether it is reasonably probable the verdict would have been more favorable to the defendant absent the error." (Partida, supra, 37 Cal.4th at p. 439.)
Mangum contends that the record demonstrates prejudice even under the Watson standard, because the erroneously-admitted evidence of the sexual assaults of M. and S. constituted a major component of the prosecution's case that Mangum sexually assaulted daughter, while the strength of the remaining evidence was not overwhelming.
It is true that the propensity evidence under section 1108 commanded significant attention during the trial, though we find the scope and length of testimony concerning the prior incidents was limited in comparison with the direct evidence related to the charges at issue. (See ante, part II.A.3., fn. 6.) Mangum also argues that the prosecutor bolstered the unfair prejudicial effect of the evidence by using a Power Point slide that highlighted inflammatory details of the prior incidents, like the use of force as to S., and the injury sustained by M. While it is true that the prosecutor referenced the testimony surrounding both incidents and reminded the jury of its ability to use that evidence if it found it true by a preponderance, we find little to suggest that the prosecution focused on the inflammatory details of these encounters. Rather, the prosecutor's argument regarding the propensity evidence fixated almost entirely on Mangum's explanation of the events and questioned his credibility at each point. The effect of this approach was to strengthen the case against Mangum not by inflaming the jury against him but by discrediting his credibility.
The Power Point slide appears to be the only feature of the closing argument that referenced injury or force.
Our review of the record moreover suggests that Mangum has understated the strength of the prosecution's case. Daughter's testimony was consistent and credible. She testified about how she liked visiting her father and about the positive features of their relationship. She described the progression of sexual activity from the first, seemingly accidental or half-asleep touching to the substantial sexual conduct that eventually occurred. This testimony was corroborated by daughter having made fresh complaints to T. about the sexual contact with Mangum, and by boyfriend's testimony reflecting daughter's insistence that he not disclose the abuse.
Mangum questions several aspects of daughter's account, particularly the delayed disclosure of the sexual abuse until mother's discovery of daughter's sexual relationship with boyfriend; daughter's failure to tell Milpitas police officers Speckenheuer and La that Mangum had anal sex with her; and how the sexual activity could have taken place given the regular presence of other individuals in the home, including Mangum's wife. But none of these factors necessarily weakened daughter's credibility. Delayed disclosure is a common feature of child abuse accommodation syndrome, as Dr. Urquiza testified. Moreover, according to the testimony of daughter, T., and boyfriend, daughter did in fact disclose the abuse to her friend and later to boyfriend. Each corroborated daughter's account that she did not want Mangum to get into trouble. That daughter did not tell the police officers who interviewed her about the anal sex is not especially surprising. Both officers testified that daughter was uncomfortable describing the sexual conduct; when she told Officer La about the progression of sexual conduct to include penetration, he interpreted that as vaginal sexual intercourse and never specifically asked about anal intercourse. Neither the configuration of the house nor the presence of others in it contradicted daughter's testimony about when and how the sexual conduct occurred. For example, though Mangum's wife denied any possibility that the sexual abuse had taken place, the sleeping habits she described (Mangum often stayed up late and was in bed when she awoke for work) did not preclude that possibility.
The defense's theory that daughter, S., and T., had conspired to frame Mangum was rather incredible. The only identifiable motive for the lie would have been to distract mother from daughter's sexual relationship with boyfriend. Yet both daughter and boyfriend testified that mother had accepted their relationship and was fond of boyfriend. Although boyfriend was already 18 when mother confronted him about his relationship with daughter, he was honest and did not feel worried that he was going to get into trouble due to his age. What is more, daughter testified unequivocally that she loved Mangum and wished that he had never been prosecuted.
Most notably, the pretext call demonstrated Mangum's consciousness of guilt about his conduct with daughter. The fact that Mangum never explicitly admitted the truth of the allegations on the call, and his testimony at trial that he thought the call was about daughter telling boyfriend "that she was getting high with me," do little to salvage the damaging inferences that could reasonably have been drawn by the jury. His statements to daughter about what would happen if boyfriend were to tell mother included: that his life "is gonna be over with"; that his "freedom will be gone" and his family will never talk to him again; that "the repercussions of this . . . will be endless," and that he "will go to prison and they will fuckin' kill me" because "there's certain fuckin' crimes and stuff like that, and that's one thing in prison that they cannot stand" and "people who've done that to kids and stuff like that, they kill them." Mangum also asked daughter to tell boyfriend that he had "been abused" and had "gone through the same abuse" though he was "not sayin' that's an excuse."
Mangum's apparent panic and numerous references to losing his freedom and being killed in prison are difficult to reconcile with his claim that he thought the call was, at least initially, about furnishing marijuana. Mangum's prison references are even more surprising considering daughter opened the conversation without saying what she had told boyfriend (just that she had told him "some stuff . . . that happened" and he was "kind of like freaking out" and wanted to talk to mother) and given that at the time of the pretext call, marijuana allegations had already surfaced, resulting not in any criminal consequences but in the termination of daughter's visits in Mangum's home.
Taking into account the entire record (People v. Ledesma (2006) 39 Cal.4th 641, 716), we conclude that daughter's account withstood the defense's attempts to discredit her as a liar, while Mangum's account was far less believable. The jury's verdict as to both the sexual offense and marijuana furnishing charges hinged on the jury's credibility decision. Therefore, assuming the admission of the section 1108 sexual offenses propensity evidence was error, Mangum has not demonstrated a reasonable probability that he would have obtained a more favorable verdict absent the erroneous admission. (See Partida, supra, 37 Cal.4th at p. 439.)
B. JURY INSTRUCTION ON UNANIMITY IN RELATION TO THE MARIJUANA FURNISHING COUNTS
Mangum challenges the trial court's jury instruction on unanimity. He contends that because the prosecution introduced evidence of multiple acts to support each marijuana furnishing count, the trial court had a sua sponte duty to give the standard unanimity instruction (CALCRIM No. 3500) directing the jury that it could not find the defendant guilty unless all 12 jurors agreed, beyond a reasonable doubt, which act supported any one specific count. Mangum avers that by instead instructing the jury based on the "generic testimony alternative" instruction applicable in child molestation cases (CALCRIM No. 3501), the court permitted the jury to convict on the marijuana counts without necessarily agreeing on which act supported which count, violating his Sixth and Fourteenth Amendment rights to a jury trial and due process.
The People respond that Mangum forfeited this claim by failing to object to the instruction. The People also argue that the instruction was legally correct and that under the circumstances of the case, the alternative unanimity instruction (CALCRIM No. 3501) could properly be applied to the marijuana furnishing charges. Although the alternative unanimity instruction developed to address the problems of proof common to child molestation cases, the People argue that nothing in the law limits its applicability to sexual offenses, especially where, as here, the furnishing and molestation offenses share the same pattern of repeated occurrence over a period of time. The People further argue that the jury in this case could not use the alternative instruction without finding that all of daughter's allegations regarding marijuana furnishing were true, eliminating the possibility that the jury failed to unanimously agree on all of the charges.
We find on the specific facts of this case that the giving of the generic testimony alternative instruction was not error.
1. Procedural Background on Unanimity Instruction
Mangum was charged with 11 counts of sexual offenses against daughter and six felony counts under Health and Safety Code section 11361, subdivision (a), for giving her marijuana on or about dates between May 1, 2012 and January 26, 2013 (counts 12-15) and January 27, 2012 and January 26, 2013 (counts 16-18).
Daughter testified at trial, as detailed ante (part I.B.1.a.), that after using marijuana on her own and talking to Mangum about it, she gradually began smoking marijuana with him. He always supplied the marijuana. Based on the time frame and frequency she described, which entailed smoking marijuana with Mangum regularly on almost every visit by the summer going into her eighth grade year, daughter generally described more than 20 acts violating Health and Safety Code section 11361, subdivision (a). She testified that the marijuana usually put her in a better mood and made her feel "[g]iggly, relaxed, light-headed, loopy, all your typical high stuff." Most of the time, except for maybe two or three instances, marijuana use preceded the sexual activity.
Mangum denied giving marijuana to daughter but admitted that he once smoked marijuana in front of her. He also saw her smoke his unfinished blunt one time in the car, and another time he suspected that she had smoked an unfinished blunt that he had left in the back room where she was staying.
Outside the presence of the jury, the trial court memorialized the jury instructions that would be given and allowed the parties to record any objections. The court noted that CALCRIM No. 3500 was discussed but withdrawn by the district attorney and that CALCRIM No. 3501 would be given. Mangum's counsel did not object. The court expounded briefly on the instruction, stating that "[t]he opening paragraph of [CALCRIM No.] 3501 . . . suggests perhaps it wants description of each alleged offense listed out. We discussed that and everyone was in agreement simply saying sexual offenses during the one time period . . . . Furnishing, giving away marijuana for the other time period . . . we were all fine with that. Rather than specifying which and describing all the sexual offenses." Mangum's counsel confirmed, "That's correct, Your Honor."
The trial court orally instructed the jury pursuant to CALCRIM No. 3501: "The defendant is charged with sexual offenses against [daughter] through Counts 1 through 11 sometime during the period of May 1, 2012 to January 26, 2013. The defendant is charged with furnishing or giving away marijuana in Counts 12 through 18, sometime during the period of January 27, 2012 to January 26, 2013. [¶] 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, one, 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. [¶] Or, two, you all agree that the People have proved that the defendant committed all the acts alleged to have occurred during the time period and have proved that the defendant committed at least the number of offense[s] charged." This instruction came immediately after the instruction on the marijuana furnishing counts.
The prosecutor's closing argument directed the jury to CALCRIM No. 3501 after having summarized the charges ("there's five acts of lewd or lascivious acts . . . [f]our counts of oral copulation . . . [t]wo counts of sodomy and seven counts of providing marijuana to a minor"). The prosecutor explained that the instruction allows generic testimony to prove sexual acts that occurred over a repeated pattern. "It's not like [daughter] or any sex assault victim is going to be able to come in and say the first time was this day and the second time was that day, and I remember exactly when and exactly how many. That doesn't work in these cases, and that's why there's a law that says: As long as you believe that all of the acts I've charged have occurred and that at least the number that I've charged have occurred, then that's sufficient. You don't have to pin down dates and times or things like that."
Defense counsel's closing argument did not directly cite the generic testimony alternative unanimity instruction but emphasized repeatedly that the central issue was the believability of daughter's accusations. Defense counsel cautioned the jury against "allowing the enormity of the lies told by [daughter] to obscure how utterly implausible her allegations are" and framed the "central question" as, "Can you believe beyond a reasonable doubt that [daughter] is telling the truth?"
The jury returned a conviction on all counts.
2. Standard of Review
Appellate review of a trial court's decision "to give any particular instruction in any particular case entails the resolution of a mixed question of law and fact" but is "predominantly legal." (People v. Waidla (2000) 22 Cal.4th 690, 733.) The claim of instructional error should be examined without deference. (Ibid.) Accordingly, we accord no deference to the trial court's reasoning and consider de novo whether the trial court's giving of the generic testimony alternative unanimity instruction (CALCRIM No. 3501) for all charges, including the marijuana furnishing charges, was reversible error. (See People v. Hernandez (2013) 217 Cal.App.4th 559, 568 (Hernandez).)
3. Principles Governing the Unanimity Instruction and the Generic Testimony Alternative in Child Sexual Abuse Cases
In California, the jury verdict in a criminal case must be unanimous. (Cal. Const., art. I, § 16; People v. Russo (2001) 25 Cal.4th 1124, 1132 (Russo).) The constitutional requirement dictates that "each individual juror be convinced, beyond a reasonable doubt, that the defendant committed the specific offense he is charged with." (Hernandez, supra, 217 Cal.App.4th at p. 569.) That is, "the defendant is entitled to a verdict in which all 12 jurors concur, beyond a reasonable doubt, as to each count charged." (People v. Jones, supra, 51 Cal.3d at p. 305.)
This constitutional principle has specific implications in cases where there is evidence of more than one criminal act to prove the count(s) charged. "[W]hen the evidence suggests more than one discrete crime, either (1) the prosecution must elect among the crimes or (2) the trial court must instruct the jury that it must unanimously agree that the defendant committed the same criminal act." (Hernandez, supra, 217 Cal.App.4th at p. 569; see Russo, supra, 25 Cal.4th at p. 1132.) A unanimity instruction, as expressed in CALCRIM No. 3500 (or a similar instruction) is thus given " 'to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed.' " (Russo, supra, at p. 1132.) It is " 'designed in part to prevent the jury from amalgamating evidence of multiple offenses, not 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 count.' " (Ibid.) The instruction should "ensure that all 12 jurors unanimously agree, and are unanimously convinced beyond a reasonable doubt, which instance of conduct constitutes the charged offense." (Hernandez, supra, at p. 569.)
CALCRIM No. 3500 states: "The defendant is charged with ___ [in Count ___ ] [sometime during the period of ___ to ___ ]. [¶] The People have presented evidence of more than one act to prove that the defendant committed this offense. 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/she) committed."
The failure to give the unanimity instruction may constitute reversible error due to the possibility that some of the jurors rendered their decision based on different instances of conduct, resulting in no unanimous verdict that the defendant was guilty of any specific act. (Russo, supra, 25 Cal.4th at p. 1132.) This implicates a defendant's due process rights insofar as it "runs the risk of a conviction when there is not proof beyond a reasonable doubt." (Hernandez, supra, 217 Cal.App.4th at p. 570.) The trial court therefore has a duty to give the instruction sua sponte when the circumstances of the case so dictate. (Id. at p. 569; cf. People v. Riel (2000) 22 Cal.4th 1153, 1199 [finding circumstances did not dictate giving the unanimity instruction where the jury could not have divided on which act of robbery supported the count].)
An alternative unanimity instruction may be proper, however, as articulated by in People v. Jones, supra, 51 Cal.3d 294, 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 . . . ." (Id. at p. 322.)
The California Supreme Court's decision in Jones addressed the "difficult, even paradoxical, proof problems" presented in child molestation cases where a victim often is unable to identify or distinguish between acts of molestation by a resident molester over a period of time. (People v. Jones, supra, 51 Cal.3d at p. 305.) The court examined in pertinent part the impact of such allegations on a defendant's right to a unanimous jury verdict "as to each count charged. . . ." (Ibid.) It rejected the notion that the constitutional principle of unanimity precludes a conviction based on a victim's inability to differentiate sufficiently between acts of molestation: "The standard unanimity instruction codifies that principle. . . . But we reject the contention that jury unanimity is necessarily unattainable where testimony regarding repeated identical offenses is presented in child molestation cases. In such cases, although the jury may not be able to readily distinguish between the various acts, it is certainly capable of unanimously agreeing that they took place in the number and manner described. [¶] . . . [E]ven generic testimony describes a repeated series of specific, though indistinguishable, acts of molestation." (Id. at p. 321.) The court thus concluded that so long as the victim specifies the type of conduct involved, its frequency, and the time frame during which the conduct occurred, there is "no constitutional impediment to allowing a jury, so instructed, to find a defendant guilty of more than one indistinguishable act . . . ." (Ibid.)
The effect of the Jones decision is that "[i]n a case in which the evidence indicates the jurors might disagree as to the particular act defendant committed, the standard unanimity instruction should be given. . . . . But 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 . . . allows a conviction if the jury unanimously agrees the defendant committed all the acts described by the victim." (People v. Jones, supra, 51 Cal.3d at pp. 321-322, citation omitted.)
The modified instruction pronounced in Jones is expressed in the generic testimony alternative unanimity instruction at issue here (CALCRIM No. 3501). It supplies two paths to unanimity. The first tracks the language of the standard unanimity instruction (CALCRIM No. 3500), telling the jury that it must not find the defendant guilty unless "1. You all agree . . . on which act [the defendant] committed" for each offense. Alternatively, the jury may find the defendant guilty if "2. You all agree that the People have proved that the defendant committed all the acts alleged to have occurred during this time period [and have proved that the defendant committed at least the number of offenses charged]." (CALCRIM No. 3501.) Whether the modified unanimity instruction may be applied to counts of nonsexual offenses appears to be an open question.
4. The Trial Court Did Not Err Under the Circumstances of This Case in Giving the Alternative Unanimity Instruction for the Marijuana Furnishing Charges
Mangum's central contention is that where there is evidence of multiple acts to support fewer counts, and the prosecutor has not made an election of which act corresponds to which count, then the trial court must give an unanimity instruction (e.g., CALCRIM No. 3500). But here, the jury was told pursuant to CALCRIM No. 3501 that it could convict on the marijuana furnishing counts either by unanimously agreeing as to the specific acts the defendant committed and their corresponding count, or by simply agreeing that the defendant had committed at least the number charged. Mangum contends that the instruction was legally incorrect because the generic testimony alternative (the second alternative presented in CALCRIM No. 3501) applies only to sexual offenses and should not have applied to the marijuana furnishing counts.
We find as an initial matter that Mangum's failure to object to the trial court's use of the alternative unanimity instruction for all charges did not forfeit the issue on appeal. Because the instruction purportedly risked the jury failing to reach unanimity as to each of the seven marijuana furnishing counts, the asserted error affects Mangum's substantial rights and may be raised for the first time on appeal. (Pen. Code, § 1259; People v. Flood (1998) 18 Cal.4th 470, 482, fn. 7 [noting that the defendant's failure to object to the pertinent instruction does not preclude appellate review for constitutional error]; see also People v. Riel, supra, 22 Cal.4th at p. 1199 [failure to give unanimity instruction issue is not forfeited because "[e]ven absent a request, the court should give the instruction 'where the circumstances of the case so dictate' "].) This requires us to examine the merits of the claim to ascertain "whether the asserted error would result in prejudice if error it was." (People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.)
The issue on the merits presents a closer question. Mangum correctly asserts that People v. Jones established the alternative unanimity instruction because of the particular problems of proof that exist in child sexual abuse cases involving repeated abuse by a resident child molester. (People v. Jones, supra, 51 Cal.3d at pp. 305, 321.) Mangum argues that to the extent the exception is valid, its validity is limited to the class of cases for which it was created. He points out that while Jones involved a Penal Code section 288 prosecution for lewd and lascivious acts on a child under the age of 14 (People v. Jones, supra, at p. 300) and its logic has been extended to other sexual crimes committed by a resident child molester against a minor, there has not been a published case allowing the use of generic testimony in nonsexual assault cases. He also asserts that the proof problems the Jones court sought to address exist due to the psychological trauma that occurs in sexual abuse cases—trauma that is not generally present in the offense of furnishing marijuana.
Mangum also challenges the validity of the generic testimony alternative unanimity instruction as his final contention on appeal. We reject this argument as explained post (part II.C.).
We disagree that the basis for application of the generic testimony exception is, as Mangum suggests, a function of the psychological trauma present in sexual abuse cases. It is instead a function of the narrowly tailored analysis in Jones, which focused not on psychological trauma but on reconciling, in a constitutionally sound way, a defendant's due process and fair trial guarantees with the evidentiary challenge presented by generic testimony in child molestation cases. (People v. Jones, supra, 51 Cal.3d at p. 299.) Where a perpetrator has continuous access to the victim and commits repeated identical offenses over a period of time, "the victim typically testifies to repeated acts of molestation . . . but, lacking any meaningful point of reference, is unable to furnish many specific details, dates or distinguishing characteristics as to individual acts or assaults." (Ibid.) The most pertinent factor in applying the alternative unanimity instruction is therefore not whether the alleged offenses caused psychological trauma but whether the circumstances involved a pattern of repeated, mostly undifferentiated conduct against a victim over a substantial period of time such that the prosecution evidence may be limited to the kind of act or acts perpetrated, the number of acts or frequency of occurrence, and the general time period. (See id. at p. 316.)
We recognize, as the People point out, that any victim who is repeatedly subjected to the same crime for a substantial period may lose the ability to meaningfully distinguish the individual occurrences. But we decline to embrace any generic extension of the alternative unanimity requirement based on that reality alone. The Jones decision is fundamentally a child molestation case that sought to address problems of proof that the court recognized were specific to "cases involv[ing] the so-called 'resident child molester' . . . ." (People v. Jones, supra, 51 Cal.3d at p. 299.) It cited the "evident societal significance" of its decision by reference to state statistics on the number of reported child sexual abuse cases that year (id. at p. 300) and reiterated that the principles established by the case "should attempt to assure that the resident child molester is not immunized from substantial criminal liability merely because he has repeatedly molested his victim over an extended period of time" (id. at p. 305). Such specificity of purpose in Jones, coupled with the constitutional implications of any perceived expansion of its holding, cautions against extending application of the generic testimony alternative beyond the recognized scope of Jones.
That is not to say that application of the alternative instruction to the marijuana furnishing charges at issue here was necessarily erroneous.
This case was for all intents and purposes a prosecution for child sexual abuse. (See People v. Jones, supra, 51 Cal.3d at p. 321 [holding that "jury unanimity is [not] necessarily unattainable where testimony regarding repeated identical offenses is presented in child molestation cases"] italics added.) Here, daughter testified about smoking marijuana with Mangum in connection with the sexual conduct that followed. The prosecution's primary evidence in support of both types of counts charged (sexual offenses and marijuana furnishing offenses) hinged on the credibility of daughter's testimony. The case in this regard differs little from other child sexual offense cases in which courts have applied the Jones decision. (See, e.g., People v. Matute (2002) 103 Cal.App.4th 1437, 1447 [finding reasoning of Jones "fully applicable" to prosecution for defendant's repeated, forcible rapes against his teenage daughter while she was 15 and 16-years-old]; People v. Fernandez (2013) 216 Cal.App.4th 540, 556 [affirming application of CALCRIM No. 3501 in the defendant's prosecution for sexual abuse of his granddaughters].)
Mangum's assertion that use of the alternative unanimity instruction is limited in published cases to sexual molestation offenses also does not fully resolve the question of its applicability where, as here, a series of nonsexual offenses was perpetrated on the victim concurrent with the sexual offenses. We note at least one case reflecting that scenario. In People v. Milosavljevic (2010) 183 Cal.App.4th 640, 644 (Milosavljevic), the defendant was convicted of 38 counts for forcible rape and related offenses, including administering an intoxicating agent to assist in the commission of a felony (Pen. Code, § 222), against multiple victims. The trial court instructed the jury pursuant to CALCRIM No. 3501 as to the unanimity requirement regarding certain offenses committed against nine victims, but omitted count 52 which concerned the Penal Code section 222 allegation. (Milosavljevic, supra, at p. 646.) The appellate court determined the omission was prejudicial error as to the conviction on count 52, which should have been subject to the modified unanimity instruction based on evidence of multiple acts that could have supported a guilty verdict on that count. (Id. at pp. 647-648.) The court otherwise upheld the trial court's use of a "single comprehensive unanimity instruction that applied to all of the listed offenses" included in the CALCRIM No. 3501 instruction. (Id. at p. 650.)
While we do not pretend that Milosavljevic resolves the legal question presented here (People v. Knoller (2007) 41 Cal.4th 139, 155 [" ' "[a]n opinion is not authority for propositions not considered" ' "]), Milosavljevic illustrates that use of the alternative unanimity instruction may not always be restricted to child molestation circumstances, nor even strictly to sexual offenses, particularly when the offenses are intertwined.
Daughter testified regarding the sexual activity that "[t]here may have been two or three times that there was no marijuana use, but most of the time there was." Given the direct association according to daughter's testimony between the acts which served as the basis for the marijuana furnishing charges and the acts comprising the child molestation offenses, we find that the marijuana furnishing counts as presented in this case fall narrowly within the scope of Jones. The question thus becomes whether the evidence supporting the marijuana furnishing counts warranted the alternative unanimity instruction. According to Jones, the modified unanimity instruction is appropriate where testimony depicts "repeated, identical offenses" (People v. Jones, supra, 51 Cal.3d at p. 321) which "the jury may not be able to readily distinguish . . . [but] is certainly capable of unanimously agreeing that they took place in the number and manner described" (ibid.).
Mangum concedes that daughter gave generic testimony about him giving her marijuana but argues this is a manifestation of lack of proof by the prosecution, not a factor favoring use of the instruction. He points out that the prosecutor never asked daughter to identify specific incidents even though her visitation schedule could have provided a frame of reference between incidents. This argument fails to acknowledge that despite being generic, daughter's testimony fulfilled the three prerequisites listed in Jones as necessary predicates to allowing the jury to reach unanimity based on the number and manner of act described. (People v. Jones, supra, 51 Cal.3d at p. 321.) The victim must describe the kind of act committed, the number of acts committed with sufficient certainty to support each of the counts alleged, and the general time period in which these acts occurred. (Id. at p. 316.) Daughter testified unequivocally that Mangum obtained the marijuana using his medical marijuana card, that they used rolling papers to smoke it, that it usually occurred toward the end of the day during a visit, and gave the time frame and estimated frequency by linking it to the sexual activity that usually followed.
From this evidence, it is not reasonably likely the jurors would disagree as to the particular act that Mangum committed; the only question necessary for them to determine was whether Mangum in fact committed all of the acts described. (People v. Jones, supra, 51 Cal.3d at p. 322.) Mangum's defense, which was to claim the accusations that he gave her marijuana was false, as were the accusations of sexual misconduct, merely reinforced this dichotomous depiction of what had occurred. Though he admitted two occasions in which she "came upon" a blunt that he had left out, he denied ever giving her marijuana and offered no evidence that might have raised doubt as to any specific act that daughter testified about, as distinguished from any other act. (Cf. People v. Riel, supra, 22 Cal.4th at p. 1199 [distinguishing circumstances in which evidence requires specific unanimity instruction because of possibility that some jurors would find the defendant committed one act but not the other].) Simply put, either he was lying or she was lying. Credibility remained "the 'true issue' " for the jury in deciding whether the repeated pattern of acts in fact occurred. (People v. Jones, supra, at p. 322; see also People v. Fernandez, supra, 216 Cal.App.4th at p. 558.)
We conclude, based on the particular facts of this case and on the correlation between the sexual and nonsexual offenses charged, that the trial court did not err in including the marijuana furnishing counts in the generic testimony alternative unanimity jury instruction.
5. Any Error in Giving the Alternative Unanimity Instruction Was Harmless Because There Was No Risk of a Non-unanimous Jury Decision
We also conclude that even assuming the generic testimony alternative unanimity instruction was erroneous as to the marijuana furnishing counts, there are no grounds for reversal.
"No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, . . . unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." (Cal. Const., art. VI, § 13.) The state law miscarriage of justice test "is not met unless it appears 'reasonably probable' the defendant would have achieved a more favorable result had the error not occurred." (People v. Breverman (1998) 19 Cal.4th 142, 149, quoting Watson, supra, 46 Cal.2d at p. 836.)
Appellate districts differ, however, as to the proper legal standard for reviewing prejudice for erroneous failure to give a specific acts unanimity instruction. We acknowledged this split of authority in People v. Vargas (2001) 91 Cal.App.4th 506 (Vargas). "Some cases hold that the prejudice must be deemed harmless beyond a reasonable doubt under Chapman v. California (1967) 386 U.S. 18, 24 (Chapman). Other cases hold that the test is as enunciated in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson), which is whether 'it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.' " (Id. at pp. 561-562; see also Milosavljevic, supra, 183 Cal.App.4th at p. 647 [noting split of authority]; People v. Matute, supra, 103 Cal.App.4th at p. 1448 [same].)
For purposes of assessing prejudice, we treat issuance of an erroneous alternative unanimity instruction as we would the failure to issue a standard unanimity instruction where required, because either scenario could enable a guilty verdict without the jury unanimously agreeing as to the specific act proving the element of the offense.
In Vargas, we analyzed the instructional error under Watson, because the requirement for jury unanimity in a criminal prosecution is a state constitutional requirement and is not required as a matter of federal due process. (Vargas, supra, 91 Cal.App.4th at p. 562, citing Johnson v. Louisiana (1972) 406 U.S. 356, 359.) Courts disagreeing with this analysis have found that it rests on a flawed interpretation of the federal cases. (People v. Smith (2005) 132 Cal.App.4th 1537, 1545-1546 (Smith).) These decisions have applied the more demanding Chapman standard to determine whether the error was harmless beyond a reasonable doubt. (See, e.g., ibid.; Milosavljevic, supra, 183 Cal.App.4th at p. 647; People v. Wolfe (2003) 114 Cal.App.4th 177, 186-187.)
Because the split in authority remains unresolved, we analyze the error under both the Chapman and Watson standards.
Mangum contends that just as the failure to give a required unanimity instruction effectively lowers the prosecution's burden of proof (Smith, supra, 132 Cal.App.4th at p. 1545; Milosavljevic, supra, 183 Cal.App.4th at p. 647; People v. Wolfe, supra, 114 Cal.App.4th at pp. 185-188), so did the erroneous generic testimony alternative here. He argues that given the prosecutor's reinforcement of the generic testimony alternative instruction in closing argument and the jury's option to find guilt under that prong of CALCRIM No. 3501, it is unlikely that the jury even considered whether it unanimously agreed on any particular act as the basis for one of the multiple marijuana furnishing counts.
But as we explained ante (part II.B.4.) in regard to applicability of the generic testimony alternative, the nature of the evidence presented on both sides came down to credibility. Contrary to Mangum's contention that the evidence permitted reasonable disagreement about which acts supported which counts, the record reveals no such distinction and no attempt by the defense to discredit or raise doubts about specific acts among the multiple acts alleged. The jury's guilty verdict on all counts charged instead reflects its uniform rejection of Mangum's defense. For the jury to have relied exclusively on the erroneous alternative unanimity instruction in reaching its verdict—as Mangum contends it likely did—means that all members agreed that the People proved that Mangum "committed all the acts alleged to have occurred during this time period . . . ." Since the evidence supporting the marijuana furnishing counts described a pattern of indistinguishable acts, and the jury found that the prosecutor proved beyond a reasonable doubt that all of the acts alleged in fact took place, there can be no disagreement among the jurors concerning the different specific acts proved.
The cases that Mangum cites in support of reversal do not convince us otherwise. People v. Melhado (1998) 60 Cal.App.4th 1529, 1539, is distinguishable, because in that case either of two, distinct acts could have supported the jury's single-count conviction, but the jury was never instructed on unanimity, creating a possibility that the guilty verdict lacked the required unanimity as to the act that constituted the offense. Milosavljevic is similar to Melhado in that the count omitted from the unanimity instruction was supported by multiple acts, any of which could have supported the guilty verdict on that count. (Milosavljevic, supra, 183 Cal.App.4th at pp. 647-648.) The court held the omission was not harmless error based on the record, which left a reasonable possibility that some jurors may have found the defendant guilty of the count in question based on different instances of the defendant drugging the victim before committing a felony offense. (Id. at p. 648.) The court also reasoned that "sufficient uncertainty" (ibid.) in the victim's testimony about the various instances where the defendant gave her pills defeated the argument that the jury had unanimously agreed that the defendant had committed all of the acts that supported the verdict on that count. (Ibid.)
Here, in contrast to Melhado and Milosavljevic, daughter's testimony did not differentiate incidents of Mangum providing marijuana and smoking it with her (other than one incident connected to the second time he molested her). The verdict negates the possibility that the jurors would have failed to unanimously agree on seven specific occurrences proven by the prosecution, if instructed only under the standard unanimity instruction, since under the instruction given they either followed the specific acts unanimity requirement or they agreed that every act had been proven.
The court's reasoning in People v. Napoles (2002) 104 Cal.App.4th 108 (Napoles), a felony child abuse case involving somewhat analogous instructional issues, reinforces this point. The defendants in Napoles challenged their conviction on grounds of instructional error, contending the court failed to give a jury unanimity instruction and compounded the error by instructing that unanimity was not necessary. (Id. at p. 110.) On appeal, the court found that although many separate acts and omissions constituting abuse were proved, and only one count of child abuse was charged, no unanimity instruction as to a specific act was required because the charge consisted of a continuous course of conduct. (Id. at pp. 115, 117-118.) The court further concluded that the trial court had erred in giving the "non-unanimity instruction," which incorrectly informed the jurors that they could convict for a single act or omission but did not need to unanimously agree on the specific act or omission. (Id. at p. 118.) The court held, however, that the error was harmless. (Id. at pp. 119-120.) It likened the mis-instruction of the jury as to non-unanimity to the erroneous failure to give a unanimity instruction when required, reasoning that the error in both circumstances is harmless if disagreement among the jurors concerning the different specific acts proved is not reasonably possible. (Ibid.) The court explained that "when, as here, such disagreement is unlikely because the true issue in the case was a single credibility dispute, the error is harmless." (Id. at p. 120.)
We are not persuaded by Mangum's contention that the evidence permits reasonable disagreement about which acts support which counts. Mangum's defense was premised entirely on the notion that daughter was lying. His counsel in closing argument told the jury not to "allow[] the enormity of the lies told by [daughter] to obscure how utterly implausible her allegations are . . ." and framed the "central question" as, "Can you believe beyond a reasonable doubt that [daughter] is telling the truth?" Like in Napoles, the "central dispute involved a credibility contest" (Napoles, supra, 104 Cal.App.4th at p. 121) and though the jury was entitled to believe either side, there was "no reasonable possibility that the jurors partially believed each and disagreed on the" (ibid.) commission of specific acts constituting the charged offenses.
In sum, absent any likelihood of disagreement as to the prosecution having met its burden of proof as to specific acts, the jury would have identified at least seven discrete instances in which it found that Mangum furnished daughter with marijuana. The purported error allowing unanimity on alternative grounds was, under these circumstances, harmless beyond a reasonable doubt. For the same reasons, we conclude it is not reasonably probable that Mangum would have achieved a more favorable result if the court had given only the standard unanimity instruction.
C. GENERIC TESTIMONY OF UNDIFFERENTIATED ACTS OF MOLESTATION
Mangum also urges reconsideration of the California Supreme Court's decision in People v. Jones, supra, 51 Cal.3d 294. He acknowledges that Jones is binding on this court but contends that decades of implementing Jones' holding to allow generic testimony to prove specific offenses in sexual molestation cases have demonstrated the need to revisit it, based on the same concerns originally expressed in the dissent. (See id. at pp. 323-335 (dis. opn. of Mosk, J.).)
Mangum contends that the proceedings on the sexual offenses in this case--out of which he claims six of the 11 charged offenses rested on daughter's generic descriptions of identical events—exemplified many of the issues identified in the dissent, including that reliance on generic testimony to convict for individual sexual offenses precluded the jury from assessing guilt on a count-by-count basis as needed to obtain unanimity and impeded his right to present a defense in response to each count. (See People v. Jones, supra, 51 Cal.3d at pp. 326-328, 330-331 (dis. opn. of Mosk, J.).) He further argues, consistent with the dissent in Jones, that offenses resting on generic testimony should be prosecuted under the section for continuous sexual abuse of a child (Pen. Code, § 288.5) and not as individual offenses under Penal Code section 288, which under present circumstances enable arbitrary charging decisions that carry enormous sentencing consequences for each count imposed.
Regardless of the potential merits of these arguments, we are constrained by the doctrine of stare decisis and must follow the precedent established by our Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) "Courts exercising inferior jurisdiction must accept the law declared by courts of superior jurisdiction. It is not their function to attempt to overrule decisions of a higher court." (Ibid.)
There is no dispute as to whether Jones applies to the sexual offenses at issue here. Since we are bound to follow Jones, and sanctioned the use of generic testimony in child molestation cases like this one, we conclude that the trial court did not err in permitting generic testimony on the sexual offenses and instructing the jury accordingly.
D. UNAUTHORIZED NO-CONTACT ORDER AND INCORRECT CUSTODY CREDITS
Mangum challenges his sentence with respect to the imposition of a 10-year no-contact order and the trial court's calculation of custody credits. The People concede error in both instances and agree that the abstract of judgment should be amended accordingly. Both sides also agree that this court may address Mangum's claims even though he did not object at sentencing. (See People v. Scott (2012) 203 Cal.App.4th 1303 (Scott) [finding a legally unauthorized no-contact order may be challenged on appeal despite failure to object at trial]; People v. Acosta (1996) 48 Cal.App.4th 411, 428, fn. 8 [noting that the failure to award an adequate amount of credits is a jurisdictional error which may be raised at any time].)
1 . The No Contact Order Must Be Stricken
The trial court at sentencing followed the recommendation of the probation report and ordered no visitation between Mangum and daughter, pursuant to Penal Code section 1202.05, and no contact between them for 10 years, pursuant to Penal Code section 136.2. Relying on Scott, Mangum submits that the order prohibiting visitation was proper at the time because daughter was still a minor and could be subject to such order until she turned 18. But he contends that imposition of the no-contact order exceeded the court's statutory authority. We agree that the trial court lacked statutory authority to impose the no-contact order under the circumstances.
In Scott, the defendant was convicted of sexually abusing two minors. (Scott, supra, 203 Cal.App.4th at p. 1307.) The sentencing court prohibited visitation or contact with either victim pursuant to Penal Code section 1202.05, though one of the victims was over the age of 18 at the time of sentencing. (Scott, supra, at p. 1307.) A panel of this court held on appeal that the statutory authority to prohibit visitation extended only to the minor victim (id. at p. 1323) and that any no-contact order was unauthorized beyond the pendency of the criminal proceeding (id. at p. 1325). The court treated those orders as an unauthorized sentence not subject to the forfeiture rule in that the "challenged sentence . . . 'could not lawfully be imposed under any circumstance in the particular case,' such that it is ' "clear and correctable" independent of any factual issues presented by the record at sentencing.' " (Id. at p. 1309.) The same is true here.
"Penal Code section 1202.05 . . . provides that whenever a defendant is sentenced to prison for a qualifying crime against a minor, the sentencing court must prohibit prison visitation between the defendant and his 'child victim.'. . . The danger addressed by section 1202.05 is that children's caregivers, operating in a state of ignorance or denial, sometimes subject their charges to injurious encounters with their imprisoned abusers. This danger disappears when the victim is no longer subject to the control of his or her parents or guardians." (Scott, supra, 203 Cal.App.4th at p. 1307.) The statutory analysis in Scott confirmed that Penal Code section 1202.05 "was not intended to affect visitation between state prisoners and victims who are adults at the time of the contemplated visitation." (Scott, supra, at p. 1313.) Mangum is therefore correct in asserting that the order prohibiting visitation pursuant to Penal Code section 1202.05 ceased to have an effect after daughter turned 18. "Once a victim has reached [majority] age the act has no effect on her or his ability to visit the defendant in prison." (Scott, supra, at p. 1323.)
Scott also concluded that the no-contact order, which purportedly prohibited contact between the defendant and his then-adult victim, was unauthorized. (Scott, supra, 203 Cal.App.4th at pp. 1323-1325.) "Penal Code section 136.2, subdivision (a), empowers the trial court to make various orders to protect witnesses and victims 'upon a good cause belief that harm to, or intimidation or dissuasion of, a victim or witness has occurred or is reasonably likely to occur.' Orders made under that statute, however, are 'operative only during the pendency of criminal proceedings and as prejudgment orders.' " (Id. at pp. 1324-1325.) Nor did the court in Scott identify any other statutory basis to sustain the order. (Id. at p. 1325.)
Here, the trial court issued the no-contact order at the sentencing hearing. The People acknowledge that it is "debatable" whether there were grounds for a good faith belief that Mangum would harass daughter. While Mangum's statements to daughter on the pretext call about killing himself or being killed in prison might reasonably be understood as an effort to dissuade or intimidate her from reporting, there is no evidence of intimidation or dissuasion at the time of trial, or of any reasonable likelihood that intimidation or dissuasion or any other type of harm to daughter would occur in the future. The absence of any evidence of harassment is further reinforced by the fact that daughter (who was nearly 18 at the time of sentencing) apparently was opposed to imposition of a protective order. We thus conclude that the record does not reflect evidence of a good cause belief that harm, intimidation, or dissuasion has occurred or is reasonably likely to occur in the criminal proceeding as would warrant a protective restraining order. (Pen. Code, § 136.2; see Babalola v. Superior Court (2011) 192 Cal.App.4th 948, 964.)
In any event, since the order was intended to operate after the judgment, its issuance at the conclusion of the criminal proceeding exceeded the trial court's authority under Penal Code section 136.2. (See People v. Selga (2008) 162 Cal.App.4th 113, 118 [noting the "only purpose" of orders issued under that section " 'is to protect victims and witnesses in connection with the criminal proceeding . . . in order to allow participation without fear of reprisal' "].) We find that in these circumstances, for the reasons stated in Scott, supra, 203 Cal.App.4th at pages 1324 through 1327, the court exceeded its authority under Penal Code section 136.2 to impose the 10-year no contact order. The People concede that the no-contact order should be stricken.
2. Mangum Is Entitled to One Additional Custody Credit
Mangum contends, and the People agree, that he is entitled to one additional custody credit. He argues that his presentence custody period from April 29, 2014 through March 4, 2016 yields 676 actual custody days and 101 conduct credits. But the trial court instead awarded 675 custody days and 101 conduct credits pursuant to Penal Code section 2933.1. This appears to have been a simple miscalculation. As of February 5, 2016, Mangum had served 648 days of presentence custody. The sentencing hearing on March 4, 2016, was 28 days later. This, indeed, yields 676 actual custody days and 101 conduct credit. (See Pen. Code, §§ 2900.5, 2933.1.) We will direct a modification of the abstract of judgment to reflect 676 custody days. (See Rocha, supra, 221 Cal.App.4th at pp. 1401-1402; People v. Saibu (2011) 191 Cal.App.4th 1005, 1013-1014.)
III. DISPOSITION
The trial court is directed to strike the 10-year no-contact order and to modify the abstract of judgment to reflect an additional one (1) day credit for actual time in presentence confinement. In all other respects the judgment is affirmed.
/s/_________
Premo, J. WE CONCUR: /s/_________
Greenwood, P.J. /s/_________
Elia, J.